Beamon v. Commonwealth

• Decision Date: 12 November 2019
• Docket Number: Record No. 1695-18-1
• Citation: Beamon v. Commonwealth, Record No. 1695-18-1 (Va. App. Nov 12, 2019)
• Court: Virginia Court of Appeals
• Parties: MARTRELL DAE-SHAWN BEAMON, S/K/A MARTRELL DAE SHAWN BEAMON v. COMMONWEALTH OF VIRGINIA

MARTRELL DAE-SHAWN BEAMON,S/K/A MARTRELL DAE SHAWN BEAMON v. COMMONWEALTH OF VIRGINIA

Record No. 1695-18-1

COURT OF APPEALS OF VIRGINIA

NOVEMBER 12, 2019

UNPUBLISHED

Present: Judges Beales, Huff and Athey

Argued at Norfolk, Virginia

MEMORANDUM OPINION^* BY JUDGE GLEN A. HUFF

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK

Robert H. Sandwich, Jr., Judge

Gregory K. Matthews (Gregory K. Matthews, PC, on brief), for appellant.

Eugene Murphy, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief) for appellee.

Martrell Dae-Shawn Beamon ("appellant") appeals his convictions for rape, forcible sodomy, abduction with intent to defile, and three counts of use of a firearm in the commission of a felony. After a jury trial, the Circuit Court for the City of Suffolk sentenced appellant to a total of one hundred twenty-three years' imprisonment with seventy years suspended.¹

Appellant raises two assignments of errors. First, appellant contends the evidence was insufficient to support his convictions because the testimony of the victim, F.J., was inherently incredible. Second, appellant contends the trial court erred by denying his motion—because the court found it lacked jurisdiction—to set aside the verdict.

This Court affirms appellant's convictions. First, although there may have been some inconsistencies in the victim's testimony, the trial judge credited her testimony and it was not inherently incredible. Second, the trial court did not err in denying appellant's motion to set aside the verdict. Therefore, we affirm appellant's convictions.

I. BACKGROUND

"This Court considers 'the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party below.'" Hawkins v. Commonwealth, 64 Va. App. 650, 652 (2015) (quoting Bolden v. Commonwealth, 275 Va. 144, 148 (2008)). So viewed the evidence is as follows:

Around midnight, F.J. was walking home from work, after stopping briefly at her mother's home. Appellant, a stranger to F.J., stopped her and asked to borrow her phone. She let him, he returned it, and then he asked to use it again. As he was using her phone the second time, she noticed he had a gun tucked into the front of his pants. He instructed her to come with him into an alley. She went with him because she believed he was going to give her phone back and because she was scared not to comply.

After they entered the alley, appellant tried to remove F.J.'s pants. They struggled for a few moments before appellant succeeded. He then held her down and engaged in intercourse with her. Appellant was wearing a condom. F.J. continued to struggle and told appellant "no." Appellant asked F.J. "do you want a bullet?" He then "flipped" her over and "forced [her] to suck his penis." She bit him, and he struck her in the face with the gun. She hit him in return, and he fled. F.J. called the police from another phone she carried. She noticed after appellant fled that she had some blood on her clothing.

She was taken to the hospital. Although the Sexual Assault Nurse Examiner ("SANE nurse") did not find any genital injuries, F.J. did have a red mark on the side of her faceconsistent with being struck. Five hours after the rape, she was still in pain from her being struck. The SANE nurse testified that a lack of genital injury is not uncommon with rape victims and that based on F.J.'s description of the attack, the nurse did not expect to find any injuries.

While F.J. was at the hospital, she spoke to Detective Heather Linville about the assault. She was upset, crying, and was difficult to understand throughout much of the conversation. Although the story F.J. told was largely consistent with her trial testimony, there were a few things that were different. For example, she told Detective Linville that appellant had asked if she "wanted to make some money." At one point, she told Detective Linville she had responded "yes" because he had a gun, and at another point she told the detective she responded "no." She also told Detective Linville that appellant had used two condoms.

Police searched the area where the attack occurred. They discovered a BB gun in a nearby church parking lot. They also found a used condom. The condom had both sperm and blood on the inside. Appellant could not be eliminated as a major contributor of the DNA mixture found. F.J.'s boyfriend could not be eliminated as a minor contributor to the DNA mixture, and F.J. acknowledged that she had had consensual sex with her boyfriend on the day before the attack. The chances of an unrelated individual randomly matching the DNA profile developed was less than 1 in 7.2 billion.

About two weeks after the attack, F.J. was at her mother's home when she observed appellant on the street. F.J. ran into the house crying. She pointed out appellant on the street and told her mother he was the individual who had raped her. F.J. then called the police. Based on the description F.J. provided about what appellant was doing and wearing, the police were able to locate and arrest him. They showed F.J. a photo lineup of six pictures. She became visibly upset, but confidently identified appellant as her attacker, stating she was still having nightmares about the attack.

After his arrest, appellant denied having any interaction with any woman about a phone. He stated he had not had sex for several months. At trial, however, he testified that F.J. had asked to perform oral sex on him. She asked repeatedly, and he finally agreed. He claimed she was the one who directed him to the alley. He testified that she instructed him to expose his penis and, after he had put on a condom, willingly performed fellatio on him. He took her phone and left after they struggled when she reached into his pocket to take his cash.

Appellant gave police permission to photograph his penis. There was no evidence that it was injured at the time, but the SANE nurse that examined F.J. also testified that she expected a bite wound would have completely healed in the two weeks between the bite and when appellant was identified and arrested.

Appellant was tried by a jury in June of 2017. At the conclusion of the Commonwealth's evidence, he moved to strike. The trial court denied the motion. Appellant renewed the motion after he presented his evidence, and the trial court again denied the motion. The jury convicted appellant. The trial court scheduled sentencing for the following February.

In the interim, appellant obtained a new attorney. A few days in advance of the scheduled sentencing, appellant moved to reconsider the oral motion that had been made at the close of trial to set aside the verdict. The motion to reconsider was based on "newly discovered evidence" in the form of a recantation from F.J., signed in the presence of appellant's attorney that stated appellant "never raped me."

The trial court held a hearing on the motion. F.J. testified. She admitted she had visited appellant in jail twice but she only did so because appellant's family kept calling her. She felt threatened and went to the jail with them, hoping they would leave her alone. They called more than twenty times, and appellant's mother showed up at F.J.'s work at least once. She admitted signing, in front of appellant's attorney, the note saying appellant did not rape her, but stated shewas crying the whole time because she knew her initial testimony was true. She stated her initial trial testimony was true and that appellant had, in fact raped her. She denied that she called appellant her "baby" and denied that she had said she was excited for him to get out of jail as appellant's family claimed she had.

The trial court denied the motion. First, the trial court found it did not have jurisdiction to consider the motion because more than twenty-one days had elapsed since it entered the conviction orders.² Second, the trial court concluded that the appropriate procedure would have been filing a writ of actual innocence. It assumed, in the alternative, that if it had jurisdiction then the trial court would need to analyze F.J.'s recantation in light of the standards for a writ of actual innocence. It found, among other things, that her recantation was the result of pressure by appellant's family. It also found the evidence was insufficient for it to conclude that F.J.'s recantation was true. Ultimately, in its final sentencing orders, the trial court denied the motion to set aside the verdict because it found "that the victim's recantation of her trial testimony was made under duress and/or coercion."

II. SUFFICIENCY OF THE EVIDENCE

A. Standard of review

"When the sufficiency of the evidence is challenged on appeal, '"we presume the judgment of the trial court to be correct" and reverse only if the trial court's decision is "plainly wrong or without evidence to support it."'" Stevens v. Commonwealth, 46 Va. App. 234, 248 (2005) (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257 (2003) (en banc)), aff'd, 272 Va. 481 (2006). This Court "determine[s] whether the evidence, viewed in the light most favorable to the prevailing party, and the reasonable inferences fairly deducible from that evidence supporteach and every element of the charged offense." Cottee v. Commonwealth, 31 Va. App. 546, 554-55 (2000). This Court "must discard the 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 that may be drawn therefrom." Id. at 555 (quoting Watkins v. Commonwealth, 26 Va. App. 335, 349 (1998)). Thus, "when 'faced with a record of historical facts that supports conflicting inferences,' a court reviewing the sufficiency of the evidence 'must presume—even if it does not affirmatively appear in the record—that the trier of fact resolved any . . . conflicts [in the evidence] in favor of the prosecution, and must defer to that resolution.'" Harper v. Commonwealth, 49 Va. App. 517, 523 (2007) (quoting ...