In Re: Hargrove

• Court: Supreme Court of Virginia
• Decided: December 18, 2025
• Docket: 240316
• Status: Published

Opinion

PRESENT: All the Justices

IN RE: COREY HARGROVE, A/K/A COREY JERMAINE HARGROVE, PETITIONER OPINION BY Record No. 240316 JUSTICE THOMAS P. MANN DECEMBER 18, 2025

UPON A PETITION FOR A WRIT OF ACTUAL INNOCENCE

In 1991, a jury found Corey Hargrove guilty of the rape, sexual abuse, and abduction of

Saphonia Woolridge. The circuit court sentenced Hargrove to 50 years’ imprisonment. Over

three decades later, Hargrove petitions this Court for a writ of actual innocence under Code

§ 19.2-327.2 et seq. He contends that his innocence is established by the absence of his DNA

from the victim’s underwear, as well as non-biological evidence that purportedly undercuts the

victim’s credibility. We find that Hargrove fails to show, by a preponderance of the evidence,

that no rational factfinder would have found him guilty beyond a reasonable doubt. For the

reasons below, we conclude that Hargrove is not entitled to the relief sought and the

Commonwealth’s motion to dismiss is granted.

I. BACKGROUND

A. June 17, 1990 Rape

At Hargrove’s jury trial, Woolridge testified to the following facts.

Woolridge recalled that she heard footsteps behind her as she walked home on the

afternoon of June 17, 1990. Woolridge, who was 22 at the time, turned around to find a teenage

boy. He asked if she had seen two other boys who passed her earlier. She said she saw them go

under a nearby bridge. The teen—who Woolridge believed to be about 15 or 16 years old—kept following her.

She asked him “what the problem was.” “Nothing,” he replied. He walked close enough behind

her that she could feel his breath. Woolridge turned around. He denied that he was following

her.

She continued on, but the teen then hit her in the head with a stick and grabbed her

around the neck. Woolridge fell to the ground on a football field outside a middle school. Her

assailant dragged her across the field and a track, then over a grassy area and into the woods.

As Woolridge lay on the ground, the attacker attempted to pull her pants down. She

recounted the following:

[H]e was playing – trying to pull my pants down, my shorts down and my underwear. After he got those down about half way to my knees he kept playing, with me with my vagina with his fingers and he stuck his fingers. … In my vagina.

He then turned Woolridge over onto her stomach, laid on top of her, and penetrated her vagina

with his penis. Woolridge was unsure if her attacker ejaculated.

The assailant got up and told Woolridge she could leave. Woolridge testified that he

“looked kind of crazy when he said it, like he was scared nervous or something.” She estimated

that her encounter with the attacker, starting from the time he approached her, lasted about 45

minutes.

Woolridge immediately sought medical care at Stuart Circle Hospital.

B. PERK Collection

Dr. Dale Slagel, assisted by registered nurse Denise Kern, collected evidence from

Woolridge for a physical evidence recovery kit (“PERK”). This kit included thigh/vulva and

vaginal smears, corresponding swabs, pubic combings, and Woolridge’s underwear.

2 Nurse Kern testified at trial that Woolridge was quiet, appeared scared, and wanted her

mother nearby. She added that Woolridge had a small abrasion on one of her arms and a fracture

to her right ankle.

Law enforcement also responded to the hospital. Woolridge, who did not know her

assailant, provided a physical description. John Larson, a detective with the Richmond Bureau

of Police, testified that he collected the PERK, stored it in a refrigerator at the police department

property section, and then submitted it to the state laboratory.

On January 22, 1991, the Division of Forensic Science’s Northern Laboratory issued a

Certificate of Analysis. The examiner detected no spermatozoa on the thigh/vulva and vagina

smears, nor any seminal fluid on the swabs and underwear. The examiner, however, identified

“[h]airs and/or fibers” in Woolridge’s pubic combings and underwear. Accordingly, the

certificate noted that “[h]air comparisons can be done if head and pubic hair samples from the

suspect are submitted to the laboratory along with this item.” The examiner also identified blood

on the swabs and underpants. (Although another DFS record indicates that Woolridge was

menstruating at the time of the rape.)

C. Identification of Hargrove

Woolridge initially thought that the assailant may have been the brother of an

acquaintance, although she did not share her hunch with police. Woolridge did not personally

know the brother and had seen him only once. She confided in a friend about her suspicions.

When the friend showed Woolridge a photograph of the possible suspect, Woolridge realized she

was mistaken.

Woolridge testified that she saw her assailant twice after the attack.

3 Five or six months after the rape, she saw him sitting on the steps of her apartment

building. She entered her home and called the police, but they could not find him.

Woolridge saw him again about a year after the attack. She was with her fiancé, sitting

on the steps of his apartment building, when she saw the attacker walking towards her. He was

going to a different unit at the building. After Woolridge recognized his face, she told her fiancé

that the individual was the one who assaulted her, and they called the police. This time, officers

located and arrested the individual, who was identified as 16-year-old Corey Jermaine Hargrove.

Hargrove denied raping Woolridge.

The Juvenile and Domestic Relations Court for the City of Richmond issued a detention

order the same day. The court appointed an attorney for Hargrove and transferred the case to the

Circuit Court.

On June 3, 1991, a grand jury indicted Hargrove on a charge of rape. About a month

later, on July 1, 1991, a grand jury also indicted Hargrove on abduction and sexual abuse

charges. After Hargrove’s arrest, Detective Larson collected hairs and a blood sample from him.

Detective Larson then submitted Hargrove’s physical evidence and Woolridge’s PERK to DFS

for further analysis. The DFS Western Laboratory analyzed the material and issued a Certificate

of Analysis shortly before trial. The analyst concluded that “[n]o apparent foreign hairs were

found in the ‘hairs and/or fibers’ from the pubic combings or underpants” collected from

Woolridge. The parties later agreed at trial that this meant the laboratory did not identify hairs

from anyone other than Woolridge herself. Thus, DFS did not identify any links between

Hargrove and Woolridge’s PERK.

4 D. Trial and Conviction

At Hargrove’s jury trial, the Commonwealth called three witnesses: Woolridge, Nurse

Kern, and Detective Larson. The defense did not call any witnesses.

Woolridge testified that she was certain Hargrove was her attacker. She recalled seeing

his face throughout her entire encounter with him and what she described as unforgettable “big

poppy eyes.” Woolridge described how her assailant’s face was, in essence, seared into her

memory: “I see his face every night, every night; every time I close my eyes I see his face.”

When the prosecutor asked Woolridge about her level of certainty in her identification given that

a year had passed since the rape, Woolridge reiterated, “[e]very time I close my eyes I see him.

It’s really stuck in my mind those eyes.”

Although Woolridge was certain about her identification, the two DFS certificates—

which were introduced into evidence at trial—did not establish a biological link between

Hargrove and the physical evidence collected from Woolridge. At trial, the prosecutor stated the

following to the jury:

The two lab reports that were submitted into evidence have certain information on them, which you will be reading when you’re in the back. The defense and the Commonwealth have agreed to stipulate that the word [‘]foreign[’] in the lab report dealing with the hairs means that the hairs do not belong -- that the hairs belong not to Saphonia Woolridge. So, foreign hairs would be someone else’s hair than her’s [sic]; and there were no foreign hairs found. And also the absence of spermatozoa, seminal fluid and foreign hair prevented the lab from performing any other tests to determine the identity of the offender.

Before closing arguments, Hargrove’s attorney moved to strike and dismiss on the basis

that a jury could only convict her client out of sympathy for Woolridge. Defense counsel argued

that Woolridge’s credibility was questionable “because she originally thought that it was

someone else who had hurt her” and that her testimony emphasized the attacker’s “big poppy

5 eyes,” which was not part of her initial description to police following the attack. The circuit

court denied the motion.

Despite the lack of physical evidence, the jury ultimately found Hargrove guilty of

abduction, aggravated sexual battery, and rape. 1

At sentencing, the circuit court imposed 50 years’ incarceration for the rape conviction

and suspended sentencing for the sexual abuse and abduction convictions. The sentence was to

run consecutively to another 50-year sentence imposed in a separate case in which Hargrove

pleaded guilty to charges of rape and burglary involving a different victim.2

Hargrove’s direct appeals to the Court of Appeals and this Court were unsuccessful. 3

Woolridge died in 1997.

1 When the jury first rendered its verdict, defense counsel asked the circuit court to poll the twelve jurors. The first eleven stated “yes” when asked if it was their verdict, but the twelfth stated, “with reservation.” When the circuit court asked for clarification on whether it was, in fact, her verdict, the juror replied, “I guess so.” The circuit court then directed the jury to continue its deliberations until it could reach a unanimous decision. Fourteen minutes later, the jury returned to the courtroom and the twelfth juror affirmed that she believed Hargrove was guilty on the three charges. The juror briefly explained why she was initially hesitant: “I have seen people who have been a victim because of identification, and then years later they have proven innocent, that bothers me.” Nevertheless, she was convinced of Hargrove’s guilt.

2 Sentencing for both cases occurred at the same hearing on August 7, 1991. 3 Hargrove later moved to set aside his conviction on the ground that the juvenile court had failed to notify his biological father of its transfer proceedings. Finding “no merit” to the claim, the circuit court denied the motion on May 29, 2001. Hargrove filed a notice of appeal but then moved to withdraw it. The Court of Appeals granted the motion. Hargrove also filed, pro se, a petition for a writ of actual innocence in January 2004. This Court found that Hargrove failed to state a claim and dismissed the petition.

6 E. Post-Conviction DNA Testing4

In 2023, Hargrove filed an unopposed motion in the Circuit Court for the City of

Richmond for scientific analysis of previously untested evidence under Code § 19.2-327.1(A).

Hargrove asked the circuit court to order DFS to conduct post-conviction DNA testing. His

motion explained how advancements in DNA testing, particularly with respect to Touch DNA,

Short Tandem Repeat (“STR”) 5, and Y-Short Tandem Repeat (“Y-STR”)6 testing, were not used

by DFS at the time of Hargrove’s conviction, had not been applied to the biological evidence in

his case, and could provide new insights into genetic material that may have been left on the

PERK collected from Woolridge. Hargrove alleged that the Richmond Police Department

retained the PERK after the trial through August 2022, when it sent the kit to DNA Labs

International (“DLI”), a private laboratory in Deerfield Beach, Florida, as part of Virginia’s

Sexual Assault Kit Initiative. When Hargrove filed his motion, DLI had not yet tested the kit.

The circuit court granted the motion.

4 Hargrove unsuccessfully sought DNA testing at various points between 2003 and 2008. But more recently, he obtained DNA testing and now relies on those results in his petition. 5 “STR … refers to segments of the genomic strand where known (short) sequences repeat themselves a number of times. As a result, even small or degraded samples of DNA may still retain intact STR sites where a longer VNTR [“variable number tandem repeat”] might have broken down. When combined with [polymerase chain reaction], which allows an analyst to confidently amplify even a small amount of genetic material … it is thus possible to retrieve results in a broader number of cases.” David L. Faigman et al., Modern Scientific Evidence: The Law and Science of Expert Testimony § 30:2 (2024-2025 ed.) 6 “Y-STR testing amplifies ‘male DNA components over female DNA, which may be in excess in biological samples recovered in sexual assault cases.’” In re Brown, 295 Va. 202, 218 n.16 (2018) (citing John M. Butler, Advanced Topics in Forensic DNA Typing: Interpretation 134 (2015)). 7 At some point after filing his testing motion, Hargrove learned that DLI had, in fact,

tested the biological material. In a Certificate of Analysis dated May 8, 2023, DLI reported that

no male DNA was detected on vaginal, saliva, thigh, and vulva swabs, nor was any detected on

the underwear. DLI reported that “[n]o male DNA was detected on the staining on the interior

crotch region of the underwear; therefore, no further analysis was performed.” The laboratory

performed no analysis on other evidence collected from Woolridge, such as pubic hair, thigh and

vulva slides, and a comb. DLI used a “real-time Polymerase Chain Reaction (PCR) quantitation

kit” called “PowerQuant,” which “targets total human and total male [DNA] as well as assesses

DNA degradation.”

Hargrove then returned to the circuit court with an unopposed motion for state funding of

scientific testing at a different facility. His motion summarized DLI’s results and noted that

DLI’s method is the same that DFS “currently employs to detect/collect male DNA, so it is not

likely that testing by DFS will yield any substantive results.” He further asserted that “newer

methods of DNA collection, namely the M-Vac system” offered a more advanced means of

sampling DNA than more traditional approaches. 7 Hargrove reported that DFS does not yet use

M-Vac technology but that the Richmond, California-based Serological Research Institute

(“SERI”) does. Hargrove and the Commonwealth agreed upon SERI under Code § 19.2-

327.1(E)(1). The circuit court granted the unopposed funding request on August 28, 2023.

SERI issued its “Evidence Examination Report” on February 14, 2024. SERI, like DLI,

recovered no male DNA from swabs taken of Woolridge’s thigh, vulva, and vagina. But unlike

earlier testing, SERI identified a “weak and incomplete DNA mixture” from portions of the

underwear.

7 M-Vac is a “wet vacuum DNA collection tool.” In re Phillips, 296 Va. 433, 441 (2018). 8 The laboratory made three findings about the mixture. First, it “was interpreted as

originating from three contributors with at least one male and one female, but without a

discernible major contributor.” Second, Woolridge was most likely one of those contributors.8

And third, Hargrove was excluded as a contributor to the mixture.

Gary Harmor, SERI’s chief forensic DNA analyst, wrote in a subsequent email to

Hargrove’s counsel that his laboratory used the M-Vac method “to sample the outside and inside

surfaces of the panties,” except for the crotch, and that he had “no way of telling the nature of the

cells collected.” 9 Harmor clarified that the crotch was not tested because it “was very blooding

[sic] and with added vaginal secretions would have overwhelmed the [polymerase chain

reaction] with [the] victim’s DNA and we would have had to use YSTRs, not autosomal STRs.”

In other words, Woolridge’s DNA would have made it difficult to identify genetic material from

other contributors and the laboratory would have needed to use a method that specifically targets

male DNA.

F. Petition for Writ of Actual Innocence

On April 12, 2024, Hargrove filed the instant petition for a writ of actual innocence based

on biological evidence. He contends that the absence of his DNA from Woolridge’s underwear

(and the presence of foreign male DNA) exonerates him of the rape. He also argues that

Woolridge’s trial testimony had several “flaws and inconsistencies” that rendered it unreliable.

8 The SERI report explained that “[t]he DNA results are at least 29 million times more likely if they originated from Saphonia Woolridge … and two unknown, unrelated contributors than if they originated from three unknown, unrelated contributors. This likelihood ratio provides very strong support for the inclusion of Saphonia Woolridge to this mixture.” 9 Hargrove attached this email correspondence to his petition but otherwise provided no formal affidavit to explain the results.

9 To this end, Hargrove presents non-biological evidence in the form of a signed declaration from

Woolridge’s ex-husband, who alleges that Woolridge suffered from mental and physical health

issues, including uncontrolled diabetes. Hargrove also relies on purported scientific studies

about the effects of diabetes on brain functioning and research about flaws in eyewitness

identifications. He contends that the declaration10 and scientific research show that Woolridge

potentially suffered from cognitive impairments caused by uncontrolled diabetes or that her

ability to accurately recall the rape was impaired by the passage of time and the highly stressful

nature of the event.

The Commonwealth moved to dismiss the petition. It contends that Hargrove’s petition

failed to satisfy certain statutory requirements under Code § 19.2-327.3 and that the “weak and

incomplete” DNA sample does not discredit Woolridge’s testimony. The Commonwealth also

argues that this Court cannot properly consider Hargrove’s non-biological evidence in

conjunction with an actual innocence petition based on biological evidence brought pursuant to

Code §§ 19.2- 327.2 and 19.2-327.3. And even if this Court were to consider the non-biological

evidence, the Commonwealth contends that it fails to establish that no rational trier of fact would

convict Hargrove.

II. ACTUAL INNOCENCE STATUTE

This Court has original jurisdiction to issue a writ of actual innocence based on biological

evidence under Article VI, Section 1 of the Constitution of Virginia and Code § 19.2-327.2. At

the outset, a petitioner must allege the following in his petition:

(i) the crime for which the petitioner was convicted or the offense for which the petitioner was adjudicated delinquent; (ii) that the petitioner is actually innocent of the crime for which he

10 The declaration is more fully explored below in the discussion of non-biological evidence. 10 was convicted or adjudicated delinquent; (iii) an exact description of the human biological evidence and the scientific testing supporting the allegation of innocence; (iv) that the evidence was not previously known or available to the petitioner or his trial attorney of record at the time the conviction or adjudication of delinquency became final in the circuit court, or if known, the reason that the evidence was not subject to the scientific testing set forth in the petition; (v) the date the test results under § 19.2-327.1 became known to the petitioner or any attorney of record; (vi) that the petitioner or his attorney of record has filed the petition within 60 days of obtaining the test results under § 19.2- 327.1; (vii) the reason or reasons the evidence will prove that no rational trier of fact would have found proof of guilt or delinquency beyond a reasonable doubt; and (viii) for any conviction or adjudication of delinquency that became final in the circuit court after June 30, 1996, that the evidence was not available for testing under § 9.1-1104.

Code § 19.2-327.3(A). The petition must include “all relevant allegations of facts that are known

to the petitioner at the time of filing,” as well as “all previous records, applications, petitions, and

appeals and their dispositions,” and the results of any biological testing. Code § 19.2-327.3(B).

This Court may only grant relief “upon a finding by a preponderance of the evidence that

the petitioner has proven all of the allegations” for elements iv through viii listed above11 and

“that no rational trier of fact would have found proof of guilt or delinquency beyond a reasonable

doubt.” Code § 19.2-327.5. The petitioner bears the burden of proof. Id.

The General Assembly recently amended the biological evidence actual innocence statute

by lowering a petitioner’s burden of proof from “clear and convincing evidence” to a

“preponderance of the evidence.”12 2020 Va. Acts chs. 993, 994. Still, this Court must assess the

11 Element viii is inapplicable to these circumstances, but we address the other elements in the analysis below. 12 A preponderance of the evidence is “the greater weight of all the evidence before the jury.” Smyth Bros.-McCleary-McClellan Co. v. Beresford, 128 Va. 137, 156 (1920); see also Rose v. Jacques, 268 Va. 137, 149 (2004). “After the evidence has been weighed, [a] proposition 11 evidence in relation to whether a rational factfinder would convict the petitioner. Code § 19.2-

327.5(A). Thus, we continue to “examine the ‘probative force of the newly presented evidence

in connection with the evidence of guilt adduced at trial’” and “the likelihood of a reasonable

juror finding the petitioner guilty beyond a reasonable doubt once all of the evidence has been

fairly considered.” In re Watford, 295 Va. 114, 124 (2018) (quoting Schlup v. Delo, 513 U.S.

298, 332 (1995)).

Even under a preponderance standard, the petitioner still faces a significant burden. “It is

not enough for a petitioner to merely establish the existence of some conflicting evidence that

introduces the possibility of reasonable doubt,” nor is it sufficient to merely show “the theoretical

possibility that a rational fact finder would choose to acquit.” Id. The statute requires the petitioner

to show, by a preponderance of the evidence, that “no rational trier of fact would have found proof

of guilt … beyond a reasonable doubt.” Code § 19.2-327.3(A)(vii) (emphasis added). In other

words, the petitioner must prove that “every rational factfinder”—when presented with the totality

of the evidence—would have acquitted the petitioner. Tyler v. Commonwealth, 73 Va. App. 445,

469 (2021) (discussing identical language in the statute governing actual innocence petitions based

on non-biological evidence, Code §19.2-327.11(A)(vii)) (italics in original).

is proved by a preponderance of the evidence if it is made to appear more likely or probable in the sense that actual belief in its truth, derived from the evidence, exists in the mind or minds of the tribunal, notwithstanding any doubts that may still linger there." Northern Va. Power Co. v. Bailey, 194 Va. 464, 471 (1952) (quoting Sargent v. Massachusetts Acci. Co., 29 N.E.2d 825, 827 (Mass. 1940)). A preponderance of the evidence “does not necessarily mean a greater number of witnesses.” Smyth Bros., 128 Va. at 156. Indeed, “it is the quality, not the quantity, of the evidence which determines whether a particular standard of proof is met.” Gulfstream Bldg. Assoc., Inc. v. Britt, 239 Va. 178, 184 (1990). By contrast, “clear and convincing evidence” is “that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established.” Brown, 295 Va. at 227 (citation omitted). We noted in Brown that the clear and convincing standard is “considerably higher” than a preponderance standard. Id. 12 In assessing an actual innocence claim, Code § 19.2-327.5 requires this Court to consider

“the petition, the response by the Commonwealth, previous records of the case, the record of any

hearing held under this chapter and the record of any hearings held pursuant to § 19.2-327.1, and

if applicable, any findings certified from the circuit court pursuant to § 19.2-327.4.” We have

described our inquiry as determining the probable outcome of “a hypothetical new trial in which

a rational factfinder hears all of the evidence in the aggregate.” Watford, 295 Va. at 125. And

when “[s]itting as a court of original jurisdiction, this Court ‘has the same authority to weigh and

evaluate documentary and physical evidence as a trial court would have.’” In re Scott, 297 Va.

166, 186 (2019) (quoting Haas v. Commonwealth, 283 Va. 284, 292 (2012)).

III. ANALYSIS

A. Biological Evidence

DNA testing is a powerful tool for establishing actual innocence long after a conviction.

Genetic material can clarify the connections—or the lack thereof—between a defendant, a

victim, and a crime scene. See, e.g., id. at 189-90 (granting writ of actual innocence when DNA

evidence showed petitioner was not the source of sperm found on rape victim’s jeans or of male

DNA found on vaginal swab from victim); Grimm v. Commonwealth, 81 Va. App. 74, 101–02

(2024) (granting actual innocence petition where new DNA evidence showed that hairs

previously believed to link petitioner to victim did not come from the victim and that DNA on

victim’s autopsy swabs did not come from petitioner).

But this is not a case where the DNA evidence undercuts Hargrove’s conviction. The

results presented in Hargrove’s petition are of scant value for several reasons.

First, we note that Hargrove meets his burden as to the first six elements provided in

Code § 19.2-327.3(A). His petition identifies the crimes for which he was convicted, and he

13 contends that he is innocent of the offenses. He also describes the biological evidence at issue—

DNA testing of evidence collected from Woolridge in 1990—and the method that SERI used to

reach its results. Hargrove’s counsel received the results on February 14, 2024, and timely filed

the petition within 60 days.

The Commonwealth contends that Hargrove fails to satisfy Code § 19.2-327.3(a)(iv)

because Hargrove did not explain in his petition why he failed to seek any DNA testing before

trial. But Code § 19.2-327.3(a)(iv) is satisfied when a petitioner sufficiently sets out “the reason

that the evidence was not subject to the scientific testing set forth in the petition.” Here,

Hargrove’s petition and the record below establish that the specific methods SERI utilized—

including M-Vac—were unavailable at the time of Hargrove’s trial. 13 Additionally, the evidence

was not tested in 1991 because both the defense and prosecution believed, as reflected by their

stipulation at trial, that the limited evidence collected (i.e., evidence that did not show any semen

or foreign hairs) would not yield new information if subject to further testing. Thus, in the

context of available testing methods, it is understandable why the parties did not believe further

testing would be fruitful.14

We now turn to examining the biological evidence.

13 Indeed, the Commonwealth’s motion to dismiss acknowledges the “developments in Y- STR and touch DNA collection and analysis” that occurred after Hargrove’s 1991 trial. 14 The Commonwealth cites Spencer v. Commonwealth, 238 Va. 275 (1989) to suggest that Hargrove should have sought an unspecified form of DNA testing of Woolridge’s biological samples. In Spencer, this Court recognized that DNA testing is a “reliable scientific technique” and affirmed a trial court’s admission of DNA evidence. 238 Va. at 290. But Spencer was a rape and capital murder case in which the defendant left semen stains at the crime scene, which, in turn, were matched to his blood sample through a “DNA printing technique.” Id. at 280. Here, there was no comparable biological specimen, like semen residue or foreign hair, from which the parties believed DNA could have been collected. 14 1. Chain of Custody

We must first satisfy ourselves that the chain of custody of the evidence is sound. Our

case law underscores that the chain of custody is a critical consideration when reviewing

scientific analysis of biological material long after initial collection. In re Brown, 295 Va. 202,

233 (2018).

In Brown, we noted that “[t]he burden is on the proponent of the evidence, when

scientific analysis of a sample is offered, ‘to establish each vital link in the chain of custody by

showing the possession and handling of the evidence from when it is obtained to its

presentation.’” Id. (quoting Herndon v. Commonwealth, 280 Va. 138, 143 (2010)). At the same

time, “[w]here the possibility of contamination is mere speculation, the court should admit

the evidence, and let any remaining doubt go to the weight of the evidence.” Id. (quoting

Charles E. Friend & Kent Sinclair, The Law of Evidence in Virginia § 16-7[b] at 1133 (7th ed.

2012 & Supp. 2017)).

The chain of custody rule ensures “that the exhibits at trial are the same and in the same

condition as they were when first obtained.” Vinson v. Commonwealth, 258 Va. 459, 469 (1999).

This rationale is particularly critical in cases like this, where the biological evidence is decades

old and has traveled to several different locations. Here, the relevant samples were, at various

points, held at the Richmond Police Department, state laboratories in Fairfax County and

Roanoke, and private laboratories in Florida and California. This Court needs to be assured that

the biological evidence consists of the same material, in the same condition, as what was

collected from Woolridge on June 17, 1990.

15 The parties’ briefs did not specifically address the chain of custody. 15 At oral argument,

Hargrove’s counsel suggested that any concern about the chain of custody was resolved by the

circuit court when it granted Hargrove’s motion for scientific analysis of the materials.

Hargrove’s counsel also argued that because the law creates a presumption that evidence is

properly handled by public officials, any inference of contamination would place too heavy a

burden on individuals bringing actual innocence petitions since they are not in the best position

to “vouch for what happened” while the evidence was in the government’s custody.

Hargrove is correct that presumptions of regularity apply in certain circumstances.

We have recognized that “[t]here is a presumption of regularity in the handling of

exhibits by public officials.” Smith v. Commonwealth, 219 Va. 554, 559 (1978) (quoting United

States v. Coades, 549 F.2d 1303, 1306 (9th Cir. 1977)); see also Gilmore v. Landsidle, 252 Va.

388, 396 (1996) (“In the absence of clear evidence to the contrary, this Court must presume that

a public officer has properly discharged his official duties.”); Branham v. Commonwealth, 283

Va. 273, 282 (2012) (applying presumption of regularity to postal workers and unidentified DFS

laboratory employees who retrieved a package from the mail and delivered it to an analyst for

examination).

Furthermore, Code § 19.2-187.01 contains a “presumption” that DFS maintains a proper

chain of custody when material is in its possession for laboratory testing. Anderson v.

15 The Commonwealth suggests that the DNA mixture in Woolridge’s underwear could have been the result of contamination due to the unknown number of individuals who have interacted with the samples at various sites. Hargrove replies that the Commonwealth “offers no evidence, however, that the strict protocols in place regarding the handling of evidence were not followed here” and asserts that “[e]ach of the actors responsible for transporting the evidence in Mr. Hargrove’s case were trained in handling evidence in criminal cases.” Thus, Hargrove contends that the Commonwealth’s “unfounded suggestion would serve to undermine the value of physical evidence collected in all criminal cases.” Besides this exchange, the parties did not specifically grapple with chain of custody-related considerations. 16 Commonwealth, 274 Va. 469, 478-79 (2007). The statute specifically provides that “[a] report of

analysis duly attested by the person performing such analysis or examination in any laboratory

operated by … the Division of Consolidated Laboratory Services, the Department of Forensic

Science or any of its regional laboratories, or by any laboratory authorized by such Division or

Department to conduct such analysis or examination,” or by various federal entities, is “prima

facie evidence as to the custody of the material described therein from the time such material is

received by an authorized agent of such laboratory until such material is released subsequent to

such analysis or examination.” Code § 19.2-187.01.

We also agree with Hargrove that certain information related to the chain of custody was

presented in earlier proceedings. This is because when a convicted felon brings a motion in

circuit court for scientific analysis of previously untested evidence, he must assert facts showing

that “the evidence is subject to a chain of custody sufficient to establish that the evidence has not

been altered, tampered with, or substituted in any way.” Code § 19.2-327.1(A)-(B).

In his unopposed motion for scientific testing in the circuit court, Hargrove alleged facts

about where the evidence had been stored since its initial collection. He noted that at trial, the

Commonwealth “established an unbroken chain of custody of the victim’s PERK kit and Mr.

Hargrove’s suspect kit” through Detective Larson’s testimony, in which he stated that he received

the PERK kit from a nurse at the hospital and then took the kit to Virginia’s Division of Forensic

Science for testing. Those results were provided in DFS certificates of analysis. Hargrove then

reported “[u]pon information and belief” that the PERK kit was in the Richmond Police

Department’s possession between the trial and August 2022, when RPD sent the kit to DLI as

part of Virginia’s Sexual Assault Kit Initiative.

17 Hargrove did not allege facts in his motion regarding the conditions under which the

evidence was stored or handled since its initial collection. 16 Still, he asserted that a

“presumption of regularity” attaches to material in the possession of the Commonwealth’s

authorized agents. 17

Even with the above background in mind, we observe that the existing record contains

scarce information about the chain of custody beyond identifying where the evidence has been

held. We know little about the conditions under which the evidence was stored and the

precautions taken to protect its integrity. Hargrove leans on presumptions of regularity to fill

these informational gaps. Assuming without deciding that these presumptions apply to the

various entities that have handled the relevant biological evidence, 18 the record still raises red

flags about potential contamination.

16 Nor did Hargrove make any such allegations in his petition to this Court. 17 Hargrove’s testing motion stated that a presumption of regularity “attaches at the moment the material is received by an authorized agent of [the Commonwealth] until it is released after analysis.” He cited Dunn v. Commonwealth, 20 Va. App. 217, 222 (1995) for this proposition. Dunn, however, did not address “authorized agents” in general. The decision refers to an “authorized agent” as the term is used in Code § 19.2-187.01, which creates a statutory presumption that enumerated entities, such as the Department of Forensic Science and federal agencies, maintain a proper chain of custody when materials are in their possession. The statute provides that “[a] report of analysis duly attested by the person performing such analysis or examination in any laboratory operated by” one of the listed entities “shall be prima facie evidence in a criminal or civil proceeding as to the custody of the material described therein from the time such material is received by an authorized agent of such laboratory until such material is released subsequent to such analysis or examination.” Code § 19.2-187.01 (emphasis added). 18 Although the parties have not addressed with any specificity which entities are covered by either statutory or common law presumptions of regularity, there are open questions about the applicability of these presumptions to the private laboratories. In his motion for testing, Hargrove stated that DLI was an “authorized agent” of the Commonwealth and thus entitled to a presumption of regularity for chain of custody purposes. But as noted above in footnote 17, the case Hargrove relied on, Dunn, discusses a presumption of regularity in reference to laboratories operated by the entities listed in Code § 19.2-187.01. Nothing in the record clearly establishes that DLI is covered by Code § 19.2-187.01, which 18 First, the DLI results identified what appears to be a previously unknown hair on the

thigh and vulva swabs. When DFS issued its first Certificate of Analysis of the PERK evidence

and underwear in January 1991, the results stated that “[h]airs and/or fibers were noted in the

victim’s pubic combings and on the underpants.” DFS made no mention of hairs or fibers on any

other collected evidence. Then, after Detective Larson collected physical evidence from

Hargrove, DFS compared it to Woolridge’s PERK. The certificate of analysis issued in July

applies to laboratories operated by various federal agencies and “the [Virginia] Division of Consolidated Laboratory Services, the Department of Forensic Science or any of its regional laboratories, or by any laboratory authorized by such Division or Department to conduct such analysis or examination.” And while “any laboratory that has entered into a contract with the Department of Forensic Science for the provision of forensic laboratory services shall be deemed authorized by the Department to conduct such analyses or examinations,” Code § 19.2-187.01, nothing in the record establishes that DLI was in such a contractual relationship with DFS. Rather, Hargrove stated in his testing motion that “[a]ccording to DFS, the Virginia Attorney General’s Office contracts with DLI for [Sexual Assault Kit Initiative] analysis as part of the program, and DLI then conducts analysis and forwards results for DFS to review.” (emphasis added). Moreover, because DLI is a private laboratory, it is not obvious that the presumption of regularity accorded to public officials also applies to DLI personnel. There is a similar question about whether a presumption of regularity applies to SERI, the second private laboratory that tested the biological evidence. Hargrove and the Commonwealth agreed upon SERI because it uses the M-Vac collection technique, yet nothing in the record shows that SERI was authorized by DFS to provide forensic laboratory services, nor are there allegations to support applying a presumption of regularity ordinarily reserved for public officials. Although we acknowledge these questions about the applicability of presumptions of regularity to DLI and SERI, we decline to resolve them considering the limited record and lack of comprehensive briefing. We also observe that, typically, a criminal defendant is in the position of challenging the chain of custody and the Commonwealth benefits from a presumption of regularity as applied to public officials. See, e.g., Branham v. Commonwealth, 283 Va. 273, 281-82 (2012); Smith v. Commonwealth, 219 Va. 554, 557-59 (1978); Robertson v. Commonwealth, 12 Va. App. 854, 856-57 (1991). Here, the roles are reversed because the Commonwealth challenges biological evidence that may be subject to presumptions of regularity. We noted in Brown that a proponent of scientific testing of evidence bears the burden of establishing “each vital link in the chain of custody by showing the possession and handling of the evidence from when it is obtained to its presentation.” 295 Va. at 233. But Brown did not address how that burden intersects with any applicable presumption of regularity and what burden the Commonwealth may face in challenging evidence that was within its own custody or at a lab with which it contracted for testing services. While these are important questions, we do not answer them today. 19 1991 concluded that “[n]o apparent foreign hairs were found in the ‘hairs and/or fibers’ from the

pubic combings or underpants.” And again, this certificate did not reference hairs on any other

materials, like the swabs.

The more recent DLI Certificate of Analysis reported that “[n]o male DNA was detected”

on the thigh and vulva swabs and thus “no further analysis was performed.” Yet the laboratory

also stated that “[n]o analysis was performed on an apparent hair observed on this item.”

(emphasis added). Because there is no record of a hair on these swabs in the earlier DFS

analyses, the observation of a new “apparent hair” raises the specter of contamination of the

biological evidence at some point between January 1991 and May 2023.

Second, the SERI testing of Woolridge’s underwear found a “weak and incomplete DNA

mixture” from three contributors, one of whom was likely Woolridge. Because Woolridge only

testified as to one attacker, it is unclear who would have been the third contributor to the DNA

mixture. This raises the possibility that at least one third party mishandled Woolridge’s

underwear around the time of the attack or that the garment was otherwise contaminated after its

collection.

We recognize that these concerns about contamination are somewhat speculative. Still,

these questions leap out from the pages of the record. Thus, even if the biological test results

would be admissible at a hypothetical trial, these concerns go to the weight a factfinder would

place on the evidence. See Brown, 295 Va. at 233. And, as discussed below, there are other

reasons to question the significance of these test results.

2. Hargrove Fails To Meet “No Rational Trier of Fact” Standard

Hargrove needs to show by a preponderance of the evidence that “no rational trier of fact

would have found proof of guilt or delinquency beyond a reasonable doubt.” Code § 19.2-

20 327.3(A)(vii). Even assuming that the DNA testing results would be admissible at a hypothetical

trial, they do not help Hargrove meet this standard.

First, it is not entirely clear that DNA recovered from the underwear originated from the

attack, nor can we assume that the assailant would have necessarily deposited his DNA on the

garment. Woolridge recounted at trial that while she was pushed to the ground and on her back,

[H]e was playing – trying to pull my pants down, my shorts down and my underwear. After he got those down about half way to my knees he kept playing, with me with my vagina with his fingers and he stuck his fingers. … In my vagina.

Based on this testimony, Hargrove contends that “it is very likely that the attacker left his DNA

on her underwear, even if not seminal fluid or sperm.” But Woolridge did not expressly allege

that her attacker directly touched her underwear. Indeed, the Commonwealth reads Woolridge’s

testimony to mean that the assailant “succeeded in pulling her pants, shorts, and underwear

down, apparently all at once, halfway to her knees.” In other words, to the extent that

Woolridge’s attacker touched the underwear, he may have done so only indirectly by grabbing

Woolridge’s pants and pulling the underwear down through the pants. With no other testimony

or evidence on this point, we hesitate to place significant weight on the test results because it is

unclear from Woolridge’s account whether her attacker physically touched her underwear.

Additionally, even if the testimony established that Hargrove touched the underwear, it is

not necessarily true that he would have left behind DNA. See David L. Faigman et al., Modern

Scientific Evidence: The Law and Science of Expert Testimony § 30:15 (2024-2025 ed.)

(explaining that an individual can handle an item without transferring detectable DNA and that

factors like age, skin conditions, sex, and “shedder” status may affect transfer rates); see also

State v. Dawson, 263 A.3d 779, 789 (Conn. 2021) (acknowledging that DNA is not always

detectable after someone touches an object).

21 It is also entirely plausible that the DNA was transferred to the underwear before or after

the rape. As noted earlier, SERI identified three contributors to the underwear DNA sample.

Assuming that Woolridge is one of the three, the other two are unknown. The Commonwealth

correctly notes that Woolridge lived with her father at the time of the assault and had a fiancé.

This leaves open the possibility that her father could have deposited his DNA while doing

laundry, for example, or that her fiancé came into contact with the underwear at some point. The

record also reflects that a male physician conducted the PERK kit (although it is unclear if he

personally handled the underwear). All of these males were presumably in proximity to

Woolridge around the time of the attack, yet none have been ruled out as possible DNA

contributors.

Our discussion of the limited insights provided by these DNA test results should not be

construed as barring “Touch DNA” from all actual innocence proceedings. But here, the link

between the DNA sample and the rape is tenuous. There are a plethora of possibilities about who

contributed the DNA and when and how they did so. This stands in contrast to other cases where

the connection between the biological evidence and the criminal offense was concrete. In Scott,

for example, we granted a writ of actual innocence where one individual assaulted a rape victim

and DNA testing revealed that the petitioner was not a match to sperm samples recovered from

the victim’s jeans. 297 Va. at 187-90. And in Watford, we explained that DNA profiles taken

from a mattress in a rape case could not be conclusively associated with the offense because

other consensual sexual encounters may have occurred on the mattress, which was in a vacant

house; thus, “any conclusions derived from these DNA profiles would be entirely speculative

and, as such, deserve no weight.” 295 Va. at 127 n.18.

Next, we note that the SERI testing results do not entirely exonerate Hargrove.

22 An entire portion of the underwear–the crotch area–was not tested due to concerns about

the overwhelming presence of Woolridge’s DNA. Nothing in the record shows that further

testing of the crotch area was ordered after this information was provided to Hargrove’s defense

counsel. 19

Hargrove also offers little information to sufficiently contextualize the results and explain

how a “weak and incomplete” DNA mixture from the underwear impacts the probative value of

the test results. In response to the Commonwealth’s objections to exoneration based on a “weak

and incomplete” DNA sample, Hargrove asserts that a “weak and incomplete” DNA profile can,

in fact, yield exculpating results and that “[a] partial (or ‘incomplete’) profile can definitively

exclude an individual as a contributor, given that it only requires a non-match at one locus.” And

at oral argument, Hargrove’s counsel explained that the “weak and incomplete” label just means

that the sample is old and “there is not a lot of it,” which is often true of the evidence in “actual

innocence” cases.

The quality and quantity of the underlying evidence is critical for properly assessing the

significance of new DNA testing. DNA degrades over time. Brown, 295 Va. at 220, n.19. And

the amount of DNA tested correlates to the probative weight of the evidence such that test results

based on “a low amount” of DNA may have little probative value. Id. at 231. Indeed, low

amounts of DNA and sensitive testing methods are associated with an increased risk of

contamination and “potential secondary or tertiary transfer.” Id. at 232-33; see also District

19 To be sure, Hargrove notes in his petition that DLI tested the underwear and did not find male DNA on the “staining on the interior crotch region.” But after SERI utilized advanced M-Vac technology to collect DNA from the underwear and Gary Harmor identified the difficulties of testing the crotch area, the record does not show whether Hargrove’s counsel inquired into the feasibility of Y-STR testing of the crotch area even if STR testing was not feasible. Moreover, it is not apparent why SERI and DLI had diverging approaches to testing the crotch area (DLI tested it, while SERI—with a more advanced methodology—did not). 23 Attorney’s Office for the Third Jud. Dist. v. Osborne, 557 U.S. 52, 82 (2009) (Alito, J.,

concurring) (explaining that “modern DNA testing technology is so powerful that it actually

increases the risks associated with mishandling evidence”); Wakeman v. Commonwealth, 69 Va.

App. 528, 534 (2018) (noting that “touch DNA” may be “transferred by contact that can include

two people in the same household using the same bathroom or by two people sequentially

placing their hands in the same place.”). In a case like this—where the biological evidence is

decades-old and degraded 20—a “weak and incomplete” DNA sample is not exculpatory on its

own. Certainly, Hargrove provides no expert affidavit or other evidence to explain how the

sample’s “weak and incomplete” nature, along with the quality of the underwear, the amounts of

DNA collected, and the age of the evidence, may affect the results’ probative weight. 21

Lastly, the lack of physical evidence connecting Hargrove to the attack is unremarkable

because the jury could not have convicted Hargrove based on physical evidence. At trial, the

parties stipulated that no foreign hairs were found and that the absence of spermatozoa, seminal

fluid, and foreign hair prevented further laboratory tests to determine the offender’s identity.

Woolridge’s testimony and identification of Hargrove was the core of the prosecution’s case. As

this Court has noted, “the victim’s testimony alone, if not inherently incredible, is sufficient to

support a conviction for rape.” Nobrega v. Commonwealth, 271 Va. 508, 519 (2006); see also

Fisher v. Commonwealth, 228 Va. 296, 299 (1984).

20 After the circuit court authorized the testing, Hargrove filed a supplemental motion for additional funding after Harmor “indicated that the age/degradation of the victim’s underwear sample may make it difficult to extract sufficient male DNA to obtain meaningful results.” SERI ultimately collected a DNA mixture from parts of the underwear. Even so, the motion underscores that the condition of the underwear had degraded over time. 21 By contrast, the petitioner in Scott supported his petition with affidavits and other exhibits that provided relevant perspectives from analysts who either performed testing in his case or reviewed the test results. 297 Va. at 179-82. 24 Even if a rational fact finder were presented with the entirety of the evidence, including

the new DNA testing results with all the caveats noted above, that fact finder would not

necessarily have concluded that Woolridge misidentified Hargrove as her attacker. A rational

fact finder would still be able to find that Woolridge correctly identified Hargrove after seeing

him in broad daylight over the course of 45 minutes and never wavering in her identification.

This holds true even under Hargrove’s “preponderance of the evidence” burden because the new

DNA evidence has limited probative value.

B. Non-biological Evidence

Hargrove also presents various non-biological evidence to undercut Woolridge’s

credibility. But, as discussed below, none of this evidence establishes whether Woolridge was

affected by any condition that impaired her memory. And studies about eyewitness testimony

and the effects of diabetes do not establish that Woolridge herself misremembered her rape or

misidentified Hargrove. This evidence is, at best, speculative, and entitled to no weight.

1. Authority to Consider Non-biological Evidence

The statutes and relevant case law are not entirely clear on whether this information may

be presented to this Court in a petition for a writ of actual innocence based on biological

evidence. Code § 19.2-327.2.

The Commonwealth contends that this Court cannot consider non-biological evidence

under Virginia’s actual innocence statutes. Sections 19.2-327.2 and 237.3 refer to a writ of actual

innocence based on “biological evidence,” and the statute governing a writ of actual innocence

based on “nonbiological evidence”—which is issued by the Court of Appeals—provides that

“[h]uman biological evidence may not be used as the sole basis for seeking relief under this writ

but may be used in conjunction with other evidence.” Code § 19.2-327.11. Citing to these

25 statutory provisions, the Commonwealth argues that this Court’s review of a petition for actual

innocence based on biological evidence is limited to the biological evidence presented therein.

An implication of this position is that a petition presenting a mixed basis for relief—that is, both

biological and non-biological evidence—should be brought in the Court of Appeals.

Hargrove argues that this Court can consider non-biological evidence in the instant

proceedings. He cites In re Watford, where we found that the petitioner’s new DNA evidence, by

itself, would not have supported granting a writ of actual innocence for a rape conviction but still

granted a writ based on evidence adduced at an evidentiary hearing where, among other things,

the victim testified she never saw the petitioner on the day of the attack. 295 Va. at 127-29. But

Watford is not directly applicable to the instant circumstances.

In Watford, we noted that Code § 19.2-327.5 requires this Court to consider what

amounts to a “totality of the evidence” when considering the factors enumerated in Code

§ 19.2-327.5. Id. at 125. We quoted from this section of the code, which requires this Court to

consider:

[T]he petition, the response by the Commonwealth, previous records of the case, the record of any hearing held under this chapter and the record of any hearings held pursuant to § 19.2-327.1 [statute governing motions for scientific analysis of newly discovered or previously untested evidence], and if applicable, any findings certified from the circuit court pursuant to § 19.2-327.4[.]

Code § 19.2-327.5. We then paraphrased these requirements to explain that

In other words, the statute effectively requires us to draw our conclusion from a hypothetical new trial in which a rational factfinder hears all of the evidence in the aggregate, including: any records from the original case, the evidence presented at the original trial, the newly discovered biological evidence, any additional factual proffers made by the petitioner or the

26 Commonwealth, and the evidence adduced at the evidentiary hearing held pursuant to Code § 19.2-327.4.

295 Va. at 125 (emphasis in original omitted, italics added). We later quoted this passage in

Scott, 297 Va. at 185-86. Hargrove relies on our case law’s references to a petitioner’s proffers to

contend that this Court can, in fact, consider non-biological evidence.

It is an overstatement to suggest that our precedents hold that each and every piece of

information proffered by a petitioner may be properly considered so long as it is presented in a

petition centered upon DNA evidence. Code § 19.2-327.5 frames our inquiry. It directs that the

“petition” must be considered, but it does not definitively state whether non-biological evidence

may be presented in a petition styled as one based on biological evidence. And Watford relied on

evidence that is expressly listed in Code § 19.2-327.5: “findings certified from the circuit court

pursuant to § 19.2-327.4.” 295 Va. at 128-29. Thus, while the testimony provided at the Watford

evidentiary hearing was non-biological in nature, it squarely fell within the kind of evidence this

Court may properly consider under Code § 19.2-327.5. By contrast, no such circuit court

findings have been issued with respect to Hargrove’s petition.

For the purposes of today’s decision, we need not determine the precise contours of

actual innocence petitions based on biological evidence. Assuming without deciding that this

Court may consider Hargrove’s non-biological evidence, he does not meet his burden.

2. Ex-husband’s Declaration and Scientific Studies

In support of his petition, Hargrove has produced a declaration from Jesse Frank

Humphrey, Jr., Woolridge’s ex-husband. 22 Humphrey alleges, among other things, that his wife

suffered from poorly managed diabetes and that she was “frequently hospitalized.” He also

22 Humphrey and Woolridge married the month after Hargrove’s criminal trial and the couple divorced about three years later. 27 claims that various cognitive and mental health issues affected Woolridge. He alleges that she

“often had trouble remembering things” and was “extremely quick to anger,” “erratic,” and

“emotionally unstable.” Humphrey contends that he “was never sure when [Woolridge] was

being honest” such that “eventually all the trust was gone.”

According to Hargrove, Humphrey’s declaration undermines Woolridge’s credibility

because it shows that her “physical and mental condition were unstable during the relevant time

period.” Hargrove links Humphrey’s allegations about Woolridge to studies showing that

“[u]ncontrolled blood sugar can affect brain functioning, including memory and attention span”

and that diabetic individuals have higher risk of “cognitive complications.” Thus, Hargrove

asserts that “[c]omplications from [Woolridge’s] medical condition may have impaired her

reliability and credibility.”

Additionally, Hargrove cites various studies and other literature about the fallibility of

eyewitness testimony, particularly from witnesses who experience high levels of stress. He

suggests that if an expert had testified at his trial about “the pitfalls in eyewitness testimony” it

would have “significantly undermined” Woolridge’s testimony.

Even if Code § 19.2-327.11’s requirements for petitions based on non-biological evidence

would apply to Hargrove’s proffered non-biological evidence, we note that a petitioner must

show, by a preponderance of the evidence, 23 “that the previously unknown, unavailable, or

untested evidence is not merely cumulative, corroborative, or collateral.”

Here, Humphrey’s declaration and the cited scientific studies are collateral because they

do not make it more or less likely that Woolridge accurately identified Hargrove as her attacker.

23 Code § 19.2-327.13 supplies the “preponderance of the evidence” burden that applies to petitions based on non-biological evidence.

28 See Seilheimer v. Melville, 224 Va. 323, 327 (1982) (explaining that a collateral fact is one

“from which no fair inferences can be drawn tending to throw light upon the particular fact under

investigation” and “is properly excluded for the reason that such evidence tends to draw the

minds of the jury away from the point in issue, to excite prejudice and mislead them.” (quoting

Spurlin, Administratrix v. Richardson, 203 Va. 984, 990 (1962))).

Humphrey’s allegations about Woolridge’s physical and mental wellbeing lack any

temporal connection to her health at the time of the assault in June 1990, Hargrove’s arrest in

May 1991, or the trial in July 1991. Humphrey does not specify precisely when most of

Woolridge’s allegedly erratic behavior even occurred. 24 Some of the conduct appears to have

happened during the couple’s marriage, which began after the trial. And even if Woolridge

suffered from certain issues during or after their marriage, that does not mean such conditions

necessarily affected her during the events relevant to this case. Humphrey’s declaration does not

make Woolridge’s account more or less likely.25

24 Although not expressly about Woolridge’s health, Humphrey alleges that Woolridge did not tell him about the rape until shortly before the day that she spotted Hargrove outside Humphrey’s apartment building. Humphrey apparently thought the rape occurred on the date that Woolridge disclosed it to him, which would have been close to a year after the attack. But the details Humphrey recalls Woolridge sharing with him are consistent with her trial testimony. (“She said that it happened while she was crossing the field behind Mosby Middle School. She told me that a man had come up behind her, dragged her across the field and into the woods and then raped her.”) Woolridge’s purported omissions, like a failure to “mention anything [to Humphrey] about her attacker or what he looked like” or “whether he had a weapon,” and her delay in sharing her account with him, has no bearing on whether the assault occurred and whether her identification of Hargrove was accurate. Neither Humphrey’s declaration nor Hargrove’s briefs acknowledge that Woolridge may have felt uncomfortable discussing her rape immediately after it occurred or recounting specific details about it when she eventually chose to talk about it. 25 Even though we evaluate Humphrey’s declaration in the context of this petition, it should not be assumed that we countenance it. Impugning the integrity of a rape victim posthumously through the declaration of her divorced ex-husband in the manner presented 29 The scientific studies about the cognitive effects of diabetes and the accuracy of

eyewitness testimony are likewise collateral. Hargrove provides no medical evidence or expert

opinions that specifically relate to Woolridge’s health conditions. Hargrove’s argument is, in

essence, that scientific literature about the cognitive health of diabetic individuals and the

accuracy of eyewitness testimony necessarily casts doubt on Woolridge’s testimony because she

was diabetic and the sole witness to her rape. But generalized concerns raised by these studies

do not make the facts in this case more or less likely. Without any demonstrably accurate

information about Woolridge’s medical condition at the time of her attack, her identification of

Hargrove, or her trial testimony, Hargrove’s assertion that Woolridge’s “physical and mental

condition were unstable during the relevant time period” is pure speculation.

In sum, the non-biological evidence presented in Hargrove’s petition largely appears

aimed at relitigating Woolridge’s credibility. But none of it shows that Woolridge, in fact,

suffered from memory lapses or was otherwise impaired at critical moments in this case. Thus,

Hargrove has failed to prove, by a preponderance of the evidence, that this evidence is not

collateral. See Code §§ 19.2-327.11(A)(vii), 19.2-327.13. As such, it receives no weight in our

analysis.

C. Purported Flaws and Inconsistencies in Woolridge’s Testimony

Hargrove also calls attention to purported “indicia of unreliability” in Woolridge’s trial

testimony. But he does not show that these issues were unknown at the time of trial. And nor

could he. Indeed, Hargrove’s trial counsel questioned Woolridge about several aspects of her

account that Hargrove tries to revisit in his petition. For instance, Hargrove makes much of

strikes us, from an evidentiary perspective, as paltry and actually illustrative of the legal limitations in this petition. 30 Woolridge’s testimony that she initially thought her assailant could have been the brother of an

acquaintance but did not mention her suspicion to police and later abandoned the theory after

talking about it with a friend. But Hargrove fails to consider that a jury could have believed that

detail bolstered Woolridge’s credibility, showing her attempt to corroborate her suspicions before

making a formal accusation.

We decline to reweigh various aspects of Woolridge’s trial testimony just because, from

Hargrove’s perspective, his trial counsel could have possibly subjected Woolridge to a stronger

cross-examination. Virginia’s actual innocence statutes plainly contemplate that a petition will

be based on previously unknown, unavailable, or untested evidence that, when viewed in the

context of the entire record, shows by a preponderance of the evidence that no rational factfinder

would have found proof of guilt beyond a reasonable doubt. See Code §§ 19.2-327.5, 19.2-

327.13. Given the statutes’ emphasis on the timing of when evidence became available relative

to trial proceedings, an actual innocence petition is not a vehicle to merely relitigate credibility

issues through evidence and arguments originally available at trial.

Of course, the trial evidence must be considered alongside with the newly adduced

evidence. And “[t]his admixture of old and new evidence necessarily means that the petitioner

and the Commonwealth are free to assert their respective theories of innocence or guilt that

correspond to their competing versions of the aggregate fact pattern.” Brown, 295 Va. at 229.

But Hargrove’s theory of innocence carries little persuasive force when, as here, the new

evidence has low or no probative value. When Hargrove’s petition—including the DNA testing,

the collateral non-biological evidence, and the purported inconsistencies in Woolridge’s

testimony—is considered alongside the entire record, he presents, at most, a “theoretical

31 possibility that a rational fact finder would choose to acquit.” Watford, 295 Va. at 124. That is

not enough. Id.

IV. CONCLUSION

For the foregoing reasons, Hargrove fails to show, by a preponderance of the evidence,

that no rational factfinder would have found him guilty of the offenses against Woolridge.

Accordingly, the Commonwealth’s motion to dismiss is granted and Hargrove’s petition is

dismissed.

Petition dismissed.