John Blount, Jr. v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: December 20, 2022
• Docket: 0943211
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Huff, O’Brien and White UNPUBLISHED

Argued at Norfolk, Virginia

JOHN BLOUNT, JR. MEMORANDUM OPINION* BY v. Record No. 0943-21-1 JUDGE KIMBERLEY S. WHITE DECEMBER 20, 2022 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK L. Wayne Farmer, Judge

Kevin E. Calhoun (Charles C. Cosby, Jr., on brief), for appellant.

Mason D. Williams, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

John Blount, Jr., appeals the trial court’s September 3, 2021 orders convicting him of rape,

carnal knowledge of a child between the age of thirteen and fifteen, and taking indecent liberties

with a child less than fifteen years of age and sentencing him to forty years’ incarceration. Blount

argues that the evidence was insufficient to sustain his convictions because the victim’s testimony

was “inherently incredible.” He also contends that the trial court erred by denying his motion for a

new trial based on evidence discovered after trial. For the following reasons, we affirm the trial

court’s judgment.

BACKGROUND

On appeal, we recite the facts “in the ‘light most favorable’ to the Commonwealth, the

prevailing party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022)

(quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Doing so requires that we “discard the

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. evidence of the accused in conflict with that of the Commonwealth, and regard as true all the

credible evidence favorable to the Commonwealth and all fair inferences to be drawn

therefrom.” Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 323-24

(2018)).

In the fall of 2016, fourteen-year old V.B. lived with her grandfather, Herbert Brown, and

great-aunt, Mary Brown. At 9:30 p.m. on September 5, 2016, Mary told V.B. to go to bed. V.B.

walked into the bedroom she shared with Mary, turned off the light, and fell asleep on the bed.

Sometime before 10:00 p.m., Herbert and Mary were in the living room when V.B.’s uncle, Blount,

arrived and asked for V.B. When Mary told Blount that V.B. had gone to bed, he left Mary and

Herbert in the living room. Mary assumed Blount had gone to the bathroom, and Herbert thought

he was going to a closet where Blount stored some of his clothing.

At trial, V.B. testified that after she fell asleep Blount walked into her bedroom, woke her

up, and told her to remove her pants. She pulled her shorts and underwear “halfway down” because

Blount said he would hurt her if she refused. V.B. saw Blount’s penis, which she described as

“down” but did not know whether it was hard or soft, and knew he put it inside her vagina because

she “felt it.” After “less than five minutes” Blount “finished” and told V.B. he had “bust[ed] a nut.”

When V.B. and Blount realized that Mary was “about to” enter the bedroom, Blount

withdrew his penis and jumped to a laundry basket in the corner. Mary opened the door and stood

in the doorway, but a “dresser TV stand” blocked her view of Blount. Blount told Mary that he was

looking for his phone’s battery and SIM card because V.B. threw them into the laundry basket.

Mary asked V.B. why her pants were down, and V.B. said that she took them off because she was

hot.

At trial, V.B. testified that Blount previously had “raped” her at a different house about a

month before September 5, 2016. During that incident, Blount instructed her to remove her pants,

-2- and she complied because she was scared. As she lay on her back on a “high bed,” Blount stood

behind her and put his penis inside her vagina. On cross-examination, V.B. could not remember

whether she told medical personnel that the first incident happened two days before the second one.

She also did not remember whether she told Suffolk Police Detective Tiffany Whitten that she was

standing during the first incident.

Mary testified that about five minutes after Blount arrived and left the living room, she

walked to the bathroom and saw that V.B.’s bedroom light was on. She opened the door and saw

V.B. sitting beside the bed with her shorts “down around her ankles,” looking “real[ly] sad.” Mary

asked why V.B. was not in bed, and she replied that Blount had come into the bedroom. Mary

noticed dirty clothes on the floor beside a laundry basket and asked why they were on the floor.

Blount replied that he was looking for his “battery and his SIM card,” which V.B. “threw” into the

basket. While keeping his back toward Mary, Blount picked up the clothes, and left the bedroom by

backing up so that Mary could not see his front.

Herbert testified that Blount returned to the living room “a couple minutes” after Mary left

and stood against a wall for “maybe a minute” before leaving without speaking. Herbert could not

see Blount’s front. After Blount left, V.B. came into the room and “fell to her knees,” “crying,” and

told Mary and Herbert that Blount had “raped” her.

During interviews with police on the night of September 5, 2016, V.B. was “sad,” “quiet,”

and “stoic,” “hollow almost.” She told police that Blount had “raped” her that evening and during

the “weekend prior.” Mary told police that Blount had returned her clothes to the laundry basket

before leaving her room. V.B. also spoke to police three days later and said that she had been

standing during the first incident and had pulled her pants “down all the way.”

The trial court qualified Dr. Michelle Clayton as an expert in child abuse and neglect.

Dr. Clayton performed a pediatric forensic evaluation on V.B. the day after the second incident.

-3- She testified that although there was no sign of any trauma to V.B.’s vaginal area, it is “very

commonplace” for examinations to show no signs of “acute injury, even when a child or a teenager

presents pretty soon after a sexual assault.”

Reyna Nikolaus, a forensic nurse examiner, examined and spoke with V.B. the morning of

September 6, 2016. V.B. told Nikolaus about two incidents with Blount that occurred on September

3 and 5, 2016. Nikolaus used a physical evidence recovery kit to collect physical evidence from

V.B. Before coming to the hospital, however, V.B. had “urinated” and “washed or wiped her

genitals.” Nikolaus explained that “washing and wiping of the genital area” could “wash away or

wipe away any evidence that may have been” present.

Brenden Graney, a forensic scientist with the Commonwealth’s Department of Forensic

Science, analyzed the evidence collected by Nikolaus but did not find any blood, seminal fluid, or

spermatozoa. Graney explained that various factors affect whether DNA evidence would be found,

including urinating and “wiping down there.”

Blount testified that he had visited V.B.’s house the evening of the second incident to

retrieve some “tax forms” he stored there. He entered V.B.’s bedroom to seek her help with his cell

phone. Although V.B. was already in bed, she responded when he turned on the light and called her

name. He claimed that he was in the house for “about five to six minutes” and denied that he had

exposed his penis to V.B. or raped her. V.B. was “covered up” in a blanket when he went into her

room, and he told police that she “never unwrapped herself.” He did not explain why V.B.’s

pants were down when Mary entered the room.

Latasha White, Blount’s niece, testified that she drove Blount to V.B.’s house on the

night of the second incident. Blount went inside but returned to the car “four or five minutes”

later. Finally, Blount’s nephew, sister, and girlfriend all testified that V.B. had a reputation for

not “telling the truth.”

-4- Blount moved to strike the evidence at the conclusion of the Commonwealth’s case-in-chief

and at the close of all the evidence; the trial court denied both motions. After argument by counsel,

the jury convicted Blount of rape, carnal knowledge of a child between the age of thirteen and

fifteen, and taking indecent liberties with a child less than fifteen years of age, all as to the second

incident.1

On December 30, 2020, Blount moved to set aside the verdicts, arguing that V.B.’s

testimony was inherently incredible. After a hearing on the motion, the trial court found that

although “there were some minor inconsistencies in [V.B.’s] testimony,” she was a credible witness

and “testified with real emotion.” Emphasizing Mary’s testimony that V.B. looked “sad” and her

pants were “around her ankles,” the trial court found that Blount had no explanation when he was

questioned about V.B.’s pants being down. The court credited Mary’s testimony that Blount

“intentionally kept his back to her the whole time,” and found that V.B. was “tearful” and “made

her allegations immediately after the event.” The court found that “the jury had an opportunity to

hear” the witnesses, many of whom testified “solely” to attack “the veracity of the victim.”

Accordingly, the court denied the motion to set aside the verdict.

On January 6, 2021, Blount moved for a new trial based on after-discovered evidence. At a

hearing on the motion, Willetta Holmes, Blount’s sister and V.B.’s aunt, testified that she “arrived

late after the court case was over” and her “family was in the hallway” outside the courtroom. She

overheard V.B., who was talking to three other family members, give a “sigh of relief” and state that

“she can stop lying” and “rest because she [did not] have to lie anymore.” Holmes asked V.B. what

she meant, but Mary intervened and threatened to call the police and told V.B. to “sit down and shut

1 The court granted the Commonwealth’s motion to nolle prosequi charges of taking indecent liberties with a minor and aggravated sexual battery, both arising from the first incident, and aggravated sexual battery arising from the second incident. The jury acquitted Blount of rape and carnal knowledge of a child between the age of thirteen and fifteen, both charges arising from the first incident. -5- her mouth.” Holmes understood V.B. to mean that V.B. was glad that she did not “have to lie

anymore about what she was saying about” Blount. Holmes could not remember when this

happened but was certain she arrived too late to hear any of the trial. Holmes did not report V.B.’s

statement to a deputy, a Commonwealth’s attorney, or Blount’s attorney. Instead, she told her

sister, mother, and aunt over the next few days. Holmes was the sole witness to testify at the

hearing, despite her allegation that other family members were present at the time the statements

were made.

V.B. testified that she left court after her trial testimony and did not return during the trial.

She had not seen Holmes or talked with family members about the case in the hall. In addition, she

asserted that she had not returned to the courthouse except for a prior sentencing hearing and the

current hearing on Blount’s motion for a new trial. She denied admitting that she had lied and

insisted that she had testified truthfully at Blount’s trial.

Blount argued that Holmes’s testimony addressed V.B.’s credibility and the trial court

should award a new trial based on the after-discovered evidence. The Commonwealth responded

that V.B.’s denial of Holmes’s testimony was corroborated by her decision not to return to court

after her testimony. Further, V.B.’s “body language” and demeanor during her hearing testimony

bolstered her credibility. During her testimony, V.B. “stiffened up,” “would not look at her uncle”

but “looked the Commonwealth directly in the eye,” and “looked straight ahead when she was

cross-examined during this hearing,” which revealed “how hard it is for her even today to talk about

what happened.”

The trial court found that the evidence showed an “allegation by a single witness” of “an

out-of-context statement” by V.B. that she could “stop lying” and could “rest.” Further, the court

found that the statement was not a recantation, as V.B. had not “stated with certainty that she had

not told the truth” while testifying. The court recounted defendant’s attempts at trial to attack

-6- V.B.’s credibility, including “a litany of witnesses” who testified “they didn’t believe her.” In

addition, the court found that because the jury, after having “opportunity to judge [the] credibility of

the witnesses,” including Blount, found him guilty beyond a reasonable doubt, the alleged

statements by V.B. would not have been “likely to produce a different verdict.” Accordingly, the

court denied the motion for a new trial and sentenced Blount in accordance with the jury’s

recommendation. This appeal follows.

ANALYSIS

A. Sufficiency of the Evidence

Blount argues that “inconsistencies” between V.B.’s testimony, her prior statements, and the

testimony of other witnesses rendered the Commonwealth’s “evidence inherently incredible and not

worthy of belief.” Blount contends that he did not have enough time to perpetuate the offenses as

V.B. described, that it was “physiologically impossible” for him to commit the offenses given

V.B.’s testimony that his penis was “down,” and that alleged inconsistencies exist between V.B. and

Mary’s testimony regarding where he and V.B. were when Mary entered the room, the location of

V.B.’s underwear during the incident, and how he exited the room. He further asserts that V.B.’s

testimony that she pulled her pants and underwear “halfway down” is “implausible” because that

would have “hinder[ed] [his] access” and “ma[d]e it much more difficult” “to insert his penis into

her vagina.” Finally, Blount also emphasizes the inconsistencies in V.B.’s statements about (1) how

much time separated the two incidents in which Blount “raped” her, and (2) her relative body

position during the first alleged incident. Given the above circumstances, Blount concludes that the

Commonwealth’s evidence was “inherently incredible.”

“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is

presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support

it.’” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (alteration in original) (quoting

-7- Smith v. Commonwealth, 296 Va. 450, 460 (2018)). “If there is evidentiary support for the

conviction, ‘the reviewing court is not permitted to substitute its own judgment, even if its opinion

might differ from the conclusions reached by the finder of fact at the trial.’” Id. (quoting Chavez v.

Commonwealth, 69 Va. App. 149, 161 (2018)).

It is well-established that “[d]etermining the credibility of witnesses . . . is within the

exclusive province of the [fact finder], which has the unique opportunity to observe the

demeanor of the witnesses as they testify.” Dalton v. Commonwealth, 64 Va. App. 512, 525

(2015) (second alteration in original) (quoting Lea v. Commonwealth, 16 Va. App. 300, 304

(1993)). Moreover, “the conclusions of the fact finder on issues of witness credibility may be

disturbed on appeal only when we find that the witness’ testimony was ‘inherently incredible, or

so contrary to human experience as to render it unworthy of belief.’” Ragsdale v.

Commonwealth, 38 Va. App. 421, 429 (2002) (quoting Ashby v. Commonwealth, 33 Va. App.

540, 548 (2000)). “Evidence is not ‘incredible’ unless it is ‘so manifestly false that reasonable

men ought not to believe it’ or ‘shown to be false by objects or things as to the existence and

meaning of which reasonable men should not differ.’” Gerald v. Commonwealth, 295 Va. 469,

487 (2018) (quoting Juniper v. Commonwealth, 271 Va. 362, 415 (2006)).

“A legal determination that a witness is inherently incredible is very different from the

mere identification of inconsistencies in a witness’ testimony or statements. Testimony may be

contradictory or contain inconsistencies without rising to the level of being inherently incredible

as a matter of law.” Kelley v. Commonwealth, 69 Va. App. 617, 626 (2019) (citing Juniper, 271

Va. at 415); see Manson v. Brathwaite, 432 U.S. 98, 116 (1977) (“[E]vidence with some element

of untrustworthiness is customary grist for the jury mill.”). Instead, such inconsistencies are

appropriately weighed and “‘resolved by the fact finder,’ not the appellate court.” Kelley, 69

Va. App. at 626 (quoting Towler v. Commonwealth, 59 Va. App. 284, 291 (2011)).

-8- Moreover, it is well-established that “a conviction for rape and other sexual offenses may

be sustained solely upon the uncorroborated testimony of the victim.” Wilson v. Commonwealth,

46 Va. App. 73, 87 (2005) (citing Garland v. Commonwealth, 8 Va. App. 189, 191-93 (1989)).

“[B]ecause sexual offenses are typically clandestine in nature, seldom involving witnesses to the

offense except the perpetrator and the victim, a requirement of corroboration would result in

most sex offenses going unpunished.” Id. at 88 (citing Garland, 8 Va. App. at 192).

Blount points to nothing that renders the Commonwealth’s evidence inherently incredible as

a matter of law. V.B. unequivocally testified that Blount entered her bedroom and demanded that

she remove her underwear. She saw his exposed penis, which she described as being “down,”

before he penetrated her vagina with it, and she was sure it was inside her vagina because she “felt

it.” Although Blount points to alleged inconsistencies in V.B.’s testimony and statements, none of

those inconsistences rendered the Commonwealth’s evidence unworthy of belief as a matter of law.

Instead, they were appropriately submitted to the jury, which, after considering the

inconsistencies in the context of the evidence, credited V.B.’s account.

Despite there being no requirement of corroboration, V.B.’s testimony, in fact, was

corroborated by Mary, who testified that V.B.’s shorts were around her ankles when Mary entered

the bedroom. Moreover, as the trial court found, Blount had no satisfactory explanation for why

V.B.’s shorts were around her ankles when Mary entered the room. Further, V.B.’s testimony was

corroborated by Mary and Herbert who described Blount’s reluctance to show his front after he had

been alone with V.B.

“When the law says that it is for triers of the facts to judge the credibility of a witness, the

issue is not a matter of degree. So long as a witness deposes as to facts [that], if true, are sufficient

to maintain their verdict,” and “[i]f the trier of the facts sees fit to base the verdict upon that

testimony[,] there can be no relief in the appellate court.” Smith v. Commonwealth, 56 Va. App.

-9- 711, 718-19 (2010) (quoting Swanson v. Commonwealth, 8 Va. App. 376, 379 (1989)). See Crump

v. Commonwealth, 20 Va. App. 609, 618 (1995) (“[T]he child’s testimony alone, if believed by the

[trier of fact], was sufficient to support [Crump’s] conviction, even in the absence of corroborating

physical or testimonial evidence.” (alterations in original) (quoting Love v. Commonwealth, 18

Va. App. 84, 90 (1994))). Thus, the Commonwealth’s evidence was competent, not inherently

incredible, and sufficient to sustain appellant’s convictions.

B. Motion for New Trial

Blount argues that in denying his motion for a new trial based on after-discovered

evidence, the trial court erroneously found that he had not proved “(1) that the evidence was

discovered subsequent to trial, and (2) that the evidence was material and should produce a

different result at a different trial.” He contends that the evidence demonstrated that Holmes did

not tell his counsel about the statement “while the trial was still ongoing” and that because his

counsel “was not made aware of these statements during the trial, they must have been

discovered after the trial concluded.” Next, he argues that the evidence in Holmes’s testimony

was material because it attacked V.B.’s credibility, which “was the main issue at trial.”

We have repeatedly and consistently stated that motions for new trials based on after-discovered evidence are addressed to the sound discretion of the trial judge, are not looked upon with favor, are considered with special care and caution, and are awarded with great reluctance. A party who seeks a new trial based upon after- discovered evidence bears the burden to establish that the evidence (1) appears to have been discovered subsequent to the trial; (2) could not have been secured for use at the trial in the exercise of reasonable diligence by the movant; (3) is not merely cumulative, corroborative or collateral; and (4) is material, and such as should produce opposite results on the merits at another trial. The moving party must establish each of these mandatory criteria.

Garnett v. Commonwealth, 275 Va. 397, 416-17 (2008).

- 10 - Here, Holmes’s testimony provided no context for the statements she attributed to V.B. As

the trial court found, nothing in Holmes’s testimony demonstrates that V.B. was recanting her trial

testimony or admitting that she had testified falsely. Moreover, although Holmes testified that V.B.

made these statements to three people, Holmes was the “single witness” to the statements. Indeed,

V.B. adamantly contradicted Holmes’s testimony and insisted that she testified truthfully at trial.

Thus, Holmes’s testimony provided what amounted to a speculative attack on V.B.’s credibility. As

the trial court noted, this speculative attack came after “a litany of witnesses” who testified “they

didn’t believe her” at trial. Accordingly, the trial court, which had the “opportunity of seeing and

hearing the witness whose testimony is brought under attack,” did not abuse its discretion in

denying Blount’s motion for a new trial after concluding that the statements Holmes claimed to

have heard were not material.2 In re Johnson, 47 Va. App. 503, 511 (2006) (quoting Lewis v.

Commonwealth, 193 Va. 612, 625 (1952)).

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed.

Affirmed.

2 “[T]he doctrine of judicial restraint dictates” that appellate courts “decide cases ‘on the best and narrowest grounds available.’” Commonwealth v. White, 293 Va. 411, 419 (2017) (quoting Commonwealth v. Swann, 290 Va. 194, 196 (2015)). In this case, the best and narrowest ground is our conclusion that the statements were not material. Accordingly, we do not address Blount’s argument that the statements were discovered after trial. - 11 -