Donald Glenn Bernard v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Bray and Bumgardner
Argued at Salem, Virginia
DONALD GLENN BERNARD
MEMORANDUM OPINION* BY
v. 	Record No. 1608-98-3 	JUDGE JAMES W. BENTON, JR.
NOVEMBER 2, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
Charles J. Strauss, Judge
Charles C. Cosby, Jr. (Henry G. Crider, on
brief), for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
The trial judge convicted Donald Glenn Bernard of aggravated
sexual battery. 	Bernard contends that, following the conviction,
he met his burden of proving after-discovered evidence and that
the trial judge erred in denying his motion to set aside the
verdict. 	We affirm the judgment.
I.
Wendy Earles testified that in 1996 she had a romantic
relationship with Donald Glenn Bernard. 	On June 1 of that year,
Bernard and his son, who was eleven years of age, spent the night
in Earles' residence, a two bedroom trailer. 	Also present were

Earles, her eleven-year-old daughter, her ten-year-old son, and
another eight-year-old child. 	Earles testified that her daughter
reported to her the following morning that Bernard touched her
during the night.
Earles' daughter testified that she, her brother, and
Bernard's son fell asleep in the living room. 	She slept on the
floor; her brother slept on a sofa; and Bernard's son slept on a
chair. 	She testified that during the night she was awakened by
her mother's bedroom door, which squeaked when opened. 	She then
heard the sound of footsteps in the kitchen, in the living room
passing by her, and then in the bathroom. 	After she heard the
toilet flush, she saw Bernard, illuminated by a nightlight, coming
from the bathroom. 	Seeing that he was naked, she put her head
under the cover.
Earles' daughter testified that after she put her head under
the cover, she felt large, rough, cold hands under her clothing
and touching her vagina. 	She testified that she "moved and acted
like [she] was having a dream or . . . felt something and then
they stopped." 	She then heard footsteps going toward her mother's
bedroom and heard the door close. 	She noticed that her brother
was still asleep on the sofa and that Bernard's son was still on
the chair. 	She then went to sleep. 	In the morning, she reported
to her mother that Bernard had touched her vagina during the
night.
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On cross-examination, she could not recall testifying at the
preliminary hearing that she did not hear anything before being
touched. 	She did recall earlier testifying that she only saw the
back of the person who entered the room. 	She also recalled her
earlier testimony that she was touched five or six seconds after
she heard footsteps.
Earles' son testified that on the night of June 1, he slept
on the sofa in the living room and Bernard's son slept on a chair
in the same room. 	He thought his sister slept in another bedroom.
Earles slept in her bedroom with Bernard. 	He also recalled being
awakened by the squeaking noise of his mother's bedroom door
opening. 	After he saw the person walk from the bedroom to the
kitchen, he went back to sleep.
A police investigator testified that when he questioned
Bernard fifteen months after that night, Bernard said he and
Earles got up during the night because he heard Earles' daughter
"fussing." 	Bernard said he and Earles "went into the living room
and [Earles' daughter] made an accusation that someone was messing
with her." 	Bernard told the officer that Earles later said
"someone was messing with [Earles' daughter's] vagina." 	Bernard
denied that he touched Earles' daughter and told the officer that
after Earles' daughter spoke with Earles, Earles' daughter told
Bernard that Bernard's son touched her. 	According to Bernard, his
son denied touching Earles' daughter and said Earles' son touched
her.
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After the trial judge denied Bernard's motion to strike the
Commonwealth's evidence, Bernard's son testified that he was
awakened the night of June 1 by Bernard, who told him that Earles'
daughter had accused Bernard's son of "messing with her." 	He also
testified that Earles made the accusation to him the next day. 	He
testified that he heard no one accuse his father of touching
Earles' daughter. 	Bernard presented no other witnesses.
At the conclusion of the evidence, the trial judge found that
Earles' daughter was credible. 	He ruled that she had been
molested and that the evidence proved Bernard was the perpetrator.
Thus, the trial judge convicted Bernard of aggravated sexual
battery in violation of Code § 18.2-67.3.
A month after the trial judge sentenced Bernard, Bernard
filed a motion for a new trial. 	The motion alleged
after-discovered evidence, including Bernard's son's admission,
after Bernard's sentencing, that he had touched Earles' daughter.
At a hearing on the motion, Bernard's son testified that he had
always denied touching Earles' daughter prior to Bernard's
conviction. 	He said that Bernard's lawyer asked him prior to the
verdict whether he had touched Earles' daughter and that he denied
having done so. 	He said, after Bernard's conviction and after
Bernard had been released from jail on an appeal bond, he told
Bernard that he had touched Earles' daughter. 	He further
testified that while Earles' daughter was asleep he "touched the
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corner of her vagina . . . [b]ecause her brother was doing it."
Bernard's son then testified as follows on redirect examination:
Q: 	When was . . . the first time you
actually told your dad . . . that you had
done this?
A: 	At the dumpster.
Q: 	When was that in time? 	Was that before
or after he had been in jail?
A: 	Before.
* 	* 	* 	* 	* 	* 	*
[JUDGE]: 	You just testified . . . that you
told him the first time before he went to
jail at the dumpster.
A: 	That was back when it first happened.
[JUDGE]: 	Okay, so you told him back when it
first happened that you had done it?
A: 	Uh, huh.
Bernard testified that the son's testimony was inaccurate
in one detail. 	Bernard testified he talked with his son at the
dumpster the morning after Earles' daughter made the accusation.
His son asked him not to tell other people "that he was accused,
. . . not that he had done it. 	He always said that he did not
do it until recently." 	Bernard testified that after he was
released from jail, his son first admitted that he touched
Earles' daughter. 	He said before that occasion his son had
denied touching her four or five times.
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II.
The following well established principles govern motions
for new trials:
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. 	The
applicant 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, corroborate or collateral; and
(4) is material, and such as should produce
opposite results on the merits at another
trial.
Odum v. Commonwealth, 225 Va. 123, 130, 301 S.E.2d 145, 149
(1983) (citation omitted).
The trial judge ruled that the evidence did not prove the
fourth factor and denied the motion. 	In so ruling the trial
judge "[found] the evidence . . . not very credible." 	The trial
judge was not satisfied that the evidence was not "collusive"
and that it would produce the opposite result on retrial. 	In
Odum, the Supreme Court noted that "while the evidence, if
believed, was material, the trial [judge], assessing the
credibility of defendant's witnesses both at trial and at the
motion hearing, properly could find that it was not such as
should produce opposite results on the merits at another trial."
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225 Va. at 131, 301 S.E.2d at 149. 	We believe that principle is
determinative in this case.
The evidence at trial proved that Bernard told the police
he and Earles went to the living room during the night because
Earles' daughter was "fussing." 	Neither Earles nor her daughter
testified to that fact, however. 	Bernard also told the police
that Earles' daughter accused his son of touching her. 	Earles'
daughter and Earles specifically denied that Earles' daughter
had accused Bernard's son of touching her. 	Bernard further told
the police that he confronted his son about touching Earles'
daughter, that his son denied touching Earles' daughter, and
that his son said Earles' son had touched her. 	All this
evidence had been placed in the record when Bernard's son
testified at trial.
Bernard's son was not asked at trial whether he touched
Earles' daughter, and he did not testify that he did. 	He also
did not testify at trial that Earles' son touched her.
Bernard's son testified at trial that Bernard woke him in the
middle of the night and accused him of molesting Earles'
daughter. 	That testimony was inconsistent with the testimony of
Earles and Earles' daughter.
When Bernard's son testified at the hearing on the motion
for a new trial, the trial judge had the opportunity to assess
his credibility and to assess it within the context of his
earlier trial testimony. 	Thus, the trial judge could consider
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his demeanor and manner of testifying. 	He could consider his
failure to testify at trial that Earles' son touched the girl.
In addition, he could consider how the testimony was
inconsistent with the testimony of Earles and Earles' daughter.
"More importantly, the trial [judge] was justified in concluding
that [the same result would occur on retrial] because of the
positive, credible, largely unimpeached identification of
defendant" as the person in the room when Earles' daughter was
touched. 	Odum, 225 Va. at 131, 301 S.E.2d at 149. 	Earles'
daughter testified that she was awake when she was touched, that
Bernard was in the room when she was touched, that the hands
were large and rough, and that her brother and Bernard's son
were asleep on the sofa and chair after she was touched and as
Bernard walked away.
For these reasons, we hold that the trial judge did not
abuse his discretion in refusing the motion for a new trial.
Accordingly, we affirm the judgment.
Affirmed.
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