Phillips v. Commonwealth (P)

The court dismissed a petition of actual innocence as to the petitioner’s convictions for the malicious wounding, abduction with intent to defile, forcible sodomy, and rape of a 10-year-old in 1990.

The victim’s 2017 declaration, stating that she could have identified the wrong man as her rapist, is not a recantation and must be considered in light of the fact that it comes more than a quarter-century after the attack. Further, DNA testing results do not exonerate the petitioner. There remains a confession by petitioner which a factfinder could certainly believe, despite the petitioner’s subsequent challenges. The victim still adamantly maintains that her attacker was an African-American male who was wearing a Chicago Bulls cap, which the petitioner was seen carrying in his hand within two hours of the attack and approximately half a mile from the park where the rape occurred. The petitioner admitted that he was in the park around the time of the attack. Finally, the petitioner had a gold tooth on the left side of his mouth, matching the victim’s description of her assailant shortly after the attack. The court cannot conclude that no rational factfinder would have found proof of guilt beyond a reasonable doubt.

Phillips v. Commonwealth (P), No. 0788-18-1, Dec. 4, 2018. CAV (panel).



Categories: Court of Appeals of Virginia, Opinions, Published

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