Markese J. Pryor v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges O’Brien, Causey and Friedman
UNPUBLISHED
Argued at Norfolk, Virginia
MARKESE J. PRYOR
MEMORANDUM OPINION* BY
v. Record No. 1334-21-1 JUDGE FRANK K. FRIEDMAN
JANUARY 31, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
William S. Moore, Jr., Judge
Nathan A. Chapman (Chapman Law Firm, PC, on brief), for
appellant.
Rebecca M. Garcia, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
The trial court convicted Markese J. Pryor of abduction and rape. Pryor challenges the
sufficiency of the evidence to sustain his convictions, contending that the complaining witness’s
testimony was not credible. He also argues that the trial court abused its discretion by sentencing
him to twenty-five years of incarceration with twelve years suspended. Finding no error, we affirm
the trial court’s judgment.
BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party at trial.” Poole v. Commonwealth,
73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)). In
doing so, we discard any of appellant’s conflicting evidence, and regard as true all credible evidence
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
favorable to the Commonwealth and all inferences that may reasonably be drawn from that
evidence. Gerald, 295 Va. at 473.
In January 2018, T.T. ended her long-term relationship with Pryor and moved out of their
shared residence because “it was a very toxic and abusive relationship.” T.T. moved into a house
that her grandmother owned and forbade Pryor from visiting. Pryor routinely called T.T., often in
the middle of the night, and arrived at the house uninvited numerous times. On the morning of June
3, 2018, T.T. awoke to find Pryor standing above her in her bedroom with “his fist balled up.”
“[F]rightened and scared,” and worried about her sleeping children, T.T. persuaded Pryor to speak
with her on the front porch. T.T. returned inside as her children were waking up. Pryor followed.
Once inside, Pryor grabbed T.T., pulled her off the couch where she had been sitting, and carried
her to her bedroom. As he carried her, she protested and told him to put her down; he did not
respond.
Once inside the bedroom, Pryor locked the door. T.T. tried to leave the bedroom, but Pryor
blocked the door. He then “wrestled” T.T. to the bed, at various times holding her wrists, ankles,
and neck as she attempted to “fight him off.” Pryor then forced himself upon T.T., ultimately
tearing off her clothing and penetrating her vagina with his penis despite her repeated protests and
attempts to stop him. His aggression caused T.T. to feel “like [her] life was in jeopardy.” Pryor
expressed “rage” during the intercourse and threatened T.T. each time she tried to stop him. Later
that morning, Pryor left T.T.’s residence with their two children and T.T. immediately called her
grandmother and reported the incident to the police. T.T. testified that she was in pain after the
incident, and the trial court viewed pictures showing bruising, redness, and scratches on T.T.’s neck.
Portsmouth Police Detective Manning spoke with T.T. on June 3, 2018, and saw blood on
T.T.’s mattress. Sexual Assault Nurse Examiner Zenobia Brewington, testifying as an expert in
forensics and sexual assault, stated that she examined T.T. and noted that her neck was red and
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bruised. Brewington also saw tears on T.T.’s vagina, indicating that “some kind of force” had been
used to penetrate T.T.’s vagina.
Pryor claimed that the intercourse was consensual and argued that T.T.’s testimony was not
credible. In denying Pryor’s motion to strike, the trial court found that, while the expert testimony
was “inconclusive,” T.T. was credible and the evidence was “consistent with signs of a struggle.”
The trial court convicted Pryor of rape and abduction. Pryor appeals.
Sufficiency
Pryor argues that the evidence is insufficient “to support a conviction of rape or abduction
because every reasonable hypothesis of innocence was not overcome.” Specifically, he asserts that
“he actually believed from [T.T.’s] conduct and surrounding circumstances that she consented and
that his belief was reasonable.”
“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.’” Smith v. Commonwealth, 296 Va. 450, 460 (2018) (alteration in original) (quoting
Commonwealth v. Perkins, 295 Va. 323, 327 (2018)). “In such cases, ‘[t]he Court does not ask
itself whether it believes that the evidence at the trial established guilt beyond a reasonable
doubt.’” Secret v. Commonwealth, 296 Va. 204, 228 (2018) (alteration in original) (quoting
Pijor v. Commonwealth, 294 Va. 502, 512 (2017)). “Rather, the relevant question is, upon
review of the evidence in the light most favorable to the prosecution, whether any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id.(quoting Pijor, 294 Va. at 512). “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.’” Chavez v. Commonwealth, 69
Va. App. 149, 161 (2018) (quoting Banks v. Commonwealth, 67 Va. App. 273, 288 (2017)).
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Furthermore, “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). “As we have noted, ‘[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 (alteration in
original) (quoting Garland v. Commonwealth, 8 Va. App. 189, 192 (1989)).
The “conclusions of the fact finder on issues of witness credibility ‘may only be disturbed
on appeal if this Court finds that [the witness’] testimony was inherently incredible, or so
contrary to human experience as to render it unworthy of belief.’” Johnson v. Commonwealth,
58 Va. App. 303, 315 (2011) (alteration in original) (quoting Robertson v. Commonwealth, 12
Va. App. 854, 858 (1991)). “To be ‘incredible,’ testimony ‘must be either so manifestly false
that reasonable men ought not to believe it, or it must be shown to be false by objects or things as
to the existence and meaning of which reasonable men should not differ.’” Lambert v.
Commonwealth, 70 Va. App. 740, 759 (2019) (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). “The mere fact that
a witness may have . . . given inconsistent statements during the investigation of a crime does not
necessarily render the testimony unworthy of belief.” Juniper, 271 Va. at 415. Rather, that
“circumstance is appropriately weighed as part of the entire issue of witness credibility,” id., and
is a matter to be ‘“resolved by the fact finder,’ not the appellate court,” Kelley, 69 Va. App. at
626 (quoting Towler v. Commonwealth, 59 Va. App. 284, 292 (2011)). “Where credibility issues
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are resolved by the [fact finder] in favor of the Commonwealth, those findings will not be
disturbed on appeal unless plainly wrong.” Smith v. Commonwealth, 56 Va. App. 711, 718
(2010).
Here, the trial court accepted T.T.’s testimony despite the minor inconsistencies it
contained. Although the trial court noted the “unusual” nature of the case based upon the long
relationship between Pryor and T.T., the court found that their relationship “did not appear to be
that positive.” The trial court specifically held that T.T. was “a credible witness” and that the
evidence was “consistent with signs of a struggle.” The trial court also noted that T.T. reported
the assault both to her grandmother and the police. Finally, the trial court rejected Pryor’s
version of the events. “In its role of judging witness credibility, the fact finder is entitled to
disbelieve the self-serving testimony of the accused and to conclude that the accused is lying to
conceal his guilt.” Speller v. Commonwealth, 69 Va. App. 378, 388 (2018).
T.T. gave a detailed and largely consistent account of the events and explained that her
behavior was based on her fear for the safety of herself and her children. Although the trial court
found the expert testimony presented at trial to be “inconclusive,” T.T.’s testimony was
corroborated by the blood on her mattress, her ripped clothing, and the photographs of her
injuries. The record supports the trial court’s credibility determination. T.T.’s testimony along
with the other evidence established that Pryor committed the offenses. “[T]here can be no relief”
in this Court if a witness testifies to facts “which, if true, are sufficient” to support the conviction
“[i]f the trier of the facts” bases its decision “upon that testimony.” Smith, 56 Va. App. at 718-19
(quoting Swanson v. Commonwealth, 8 Va. App. 376, 379 (1989)).
Pryor also asserts that it is his “basic position that the abduction charge was not supported
by the evidence because any detention was incidental to the rape charge, and therefore, was
subsumed within that charge.” Pryor did not raise this argument in the trial court.
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“No ruling of the trial court . . . will be considered as a basis for reversal unless an
objection was stated with reasonable certainty at the time of the ruling, except for good cause
shown or to enable this Court to attain the ends of justice.” Rule 5A:18. “The purpose of th[e]
contemporaneous objection requirement [in Rule 5A:18] is to allow the trial court a fair
opportunity to resolve the issue at trial, thereby preventing unnecessary appeals and retrials.”
Creamer v. Commonwealth, 64 Va. App. 185, 195 (2015). “Specificity and timeliness undergird
the contemporaneous-objection rule, animate its highly practical purpose, and allow the rule to
resonate with simplicity.” Bethea v. Commonwealth, 297 Va. 730, 743 (2019). “Not just any
objection will do. It must be both specific and timely—so that the trial judge would know the
particular point being made in time to do something about it.” Id. (quoting Dickerson v.
Commonwealth, 58 Va. App. 351, 356 (2011)). If a party fails to timely and specifically object,
he waives his argument on appeal. Arrington v. Commonwealth, 53 Va. App. 635, 641 (2009).
“Procedural-default principles require that the argument asserted on appeal be the same
as the contemporaneous argument at trial.” Bethea, 297 Va. at 743. “Consequently, neither an
appellant nor an appellate court should ‘put a different twist on a question that is at odds with the
question presented to the trial court.’” Id. at 744 (quoting Commonwealth v. Shifflett, 257 Va.
34, 44 (1999)). “[M]aking one specific argument on an issue does not preserve a separate legal
point on the same issue for [appellate] review.” Hicks v. Commonwealth, 71 Va. App. 255, 266
(2019) (second alteration in original) (quoting Johnson v. Commonwealth, 58 Va. App. 625, 637
(2011)).
Pryor did not argue to the trial court that any detention was merely incidental to the rape.
Further, he does not invoke the good cause or ends of justice exceptions to Rule 5A:18 and the
Court will not apply the exceptions sua sponte. Edwards v. Commonwealth, 41 Va. App. 752,
761 (2003) (en banc). For these reasons, Pryor failed to preserve this argument for appellate
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review and, therefore, we do not address it.1 The Commonwealth’s evidence was competent,
was not inherently incredible, and was sufficient to prove beyond a reasonable doubt that Pryor
was guilty of rape and abduction.
Sentence
Pryor contends that the trial court abused its discretion by sentencing him to thirteen
years of active incarceration. “We review the trial court’s sentence for abuse of discretion.”
Scott v. Commonwealth, 58 Va. App. 35, 46 (2011). “[W]hen a statute prescribes a maximum
imprisonment penalty and the sentence does not exceed that maximum, the sentence will not be
overturned as being an abuse of discretion.” Minh Duy Du v. Commonwealth, 292 Va. 555, 564
(2016) (quoting Alston v. Commonwealth, 274 Va. 759, 771-72 (2007)). “[O]nce it is
determined that a sentence is within the limitations set forth in the statute under which it is
imposed, appellate review is at an end.” Thomason v. Commonwealth, 69 Va. App. 89, 99
(2018) (quoting Minh Duy Du, 292 Va. at 565).
The discretionary sentencing guidelines “are not binding on the trial judge; rather, the
guidelines are merely a ‘tool’ to assist the judge in fixing an appropriate punishment.” Belcher v.
Commonwealth, 17 Va. App. 44, 45 (1993). Further, it was within the trial court’s purview to
weigh Pryor’s mitigating evidence. Keselica v. Commonwealth, 34 Va. App. 31, 36 (2000).
“Criminal sentencing decisions are among the most difficult judgment calls trial judges face.”
Minh Duy Du, 292 Va. at 563. “Because this task is so difficult, it must rest heavily on judges
closest to the facts of the case—those hearing and seeing the witnesses, taking into account their
1
We note, however, that T.T.’s testimony indicated that appellant carried her from the
couch into the bedroom despite her demands to be released; he then locked the bedroom door
and blocked her from leaving the room before assaulting her on the bed. While “some degree of
detention” has been found to be “inherent” in rape, Lawlor v. Commonwealth, 285 Va. 187, 225
n.13 (2013), “[t]he only issue when abduction is charged alongside an offense for which
detention is an intrinsic element is whether any detention exceeded the minimum necessary to
complete the required elements of the other offense,” id. at 225.
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verbal and nonverbal communication, and placing all of it in the context of the entire case.” Id.
Pryor’s sentences were within the ranges set by the legislature. See Code §§ 18.2-10, 18.2-47,
and 18.2-61.
Finally, to the extent that Pryor argues that his sentence was disproportionate, we note
that this Court declines to engage in a proportionality review in cases that do not involve life
sentences without the possibility of parole. Cole v. Commonwealth, 58 Va. App. 642, 653-54
(2011). We noted in Cole that the Supreme Court of the United States “has never found a
non-life ‘sentence for a term of years within the limits authorized by statute to be, by itself, a
cruel and unusual punishment’ in violation of the Eighth Amendment.” Id. (quoting Hutto v.
Davis, 454 U.S. 370, 372 (1982) (per curiam)). Cf. Vasquez v. Commonwealth, 291 Va. 232, 243
(2016) (rejecting Eighth Amendment challenge to 133-year active sentence because the sentence
was imposed for “eighteen separate crimes”). Accordingly, we find no abuse of discretion with
the trial court’s sentencing decision and do not disturb Pryor’s convictions or sentences.
CONCLUSION
For the foregoing reasons, we find that the evidence was sufficient to prove Pryor’s guilt
of rape beyond a reasonable doubt, that Pryor waived his challenge to the abduction conviction,
and that the trial court did not abuse its sentencing discretion with the imposed sentence.
Therefore, we affirm the trial court.
Affirmed.
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