David Andrew Rosson v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA Record No. 1268-25-2 DAVID ANDREW ROSSON v. COMMONWEALTH OF VIRGINIA Present: Judges Athey, White and Senior Judge Petty Opinion Issued November 4, 2026* FROM THE CIRCUIT COURT OF SURRY COUNTY Wallace W. Brittle, Jr., Judge (Ashby Leigh Pope; Riddick and Pope, PC, on brief), for appellant. (Jason S. Miyares,1 Attorney General; Angelique Rogers, Assistant Attorney General, on brief), for appellee. MEMORANDUM OPINION BY JUDGE KIMBERLEY SLAYTON WHITE David Andrew Rosson was convicted of two counts of aggravated sexual battery under Code § 18.2-67.3 involving a victim aged 13 to 17 and a victim under 13. Rosson timely appeals to this Court, making two assignments of error—that the trial court erred in denying his motions to strike and to dismiss while there were “inconsistencies” in the testimonies of the victims and in allowing the Commonwealth, contrary to Rule 3A:11, to call a rebuttal witness that was not on the witness list and was not subpoenaed. Seeing no error, we affirm the trial court’s judgment.2 * This opinion is not designated for publication. See Code § 17.1-413(A). 1 Jay C. Jones succeeded Jason S. Miyares as Attorney General on January 17, 2026. 2 Having examined the briefs and record in this case, the panel unanimously agrees that oral argument is unnecessary because “the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.” See Code § 17.1-403(ii)(c); Rule 5A:27(c).  BACKGROUND “On appeal, ‘we review the evidence in the “light most favorable” to the Commonwealth,’ the prevailing party below.” Diaz v. Commonwealth, 80 Va. App. 286, 295 (2024) (quoting Clanton v. Commonwealth, 53 Va. App. 561, 564 (2009) (en banc)). “That principle requires us to ‘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. (quoting Kelly v. Commonwealth, 41 Va. App. 250, 254 (2003) (en banc)). At the time of trial in 2024, David Rosson had been married to Heather Rosson for five years. When they were first married, Heather had three children from a previous marriage —D.E. (13 years old), D.S. (11 years old), and D.Y. (11 years old).3 Rosson was charged with aggravated sexual battery of D.S. and D.E. during 2021, while the children were under 13 years old and between 13 and 17 years old respectively. D.E., D.S., and D.Y. all testified for the Commonwealth, while Heather and Rosson testified in Rosson’s defense. In 2021, when the incidents forming the basis of the charges took place, D.E., D.S., and D.Y. were living with Rosson and Heather every other week. According to testimony from both D.E. and D.S., D.E. and D.Y. slept in the same room in separate beds, while D.S. slept in a different room. D.S. saw Rosson enter her room almost every night and take pictures and videos. When D.S. reported his behaviors to Heather, she responded that D.S. was “either having a nightmare or that [she] was seeing things.” At some point while D.S. was asleep with her hand hanging off the bed, Rosson entered the room and put his penis in her hand. When D.S. woke up, Rosson ran out of the room. Rosson put his penis in D.S.’s hand one other time while she was sleeping. D.E., according to her testimony, felt uncomfortable when Rosson would take pictures of her while she and her sisters were residing at his house. D.E. experienced three incidents with 3 The names of minor children have been abbreviated to preserve anonymity. -2- Rosson. First, at night after she awoke from her sleep, she saw Rosson standing in the bedroom. When she moved, he ran out of the room. In another incident, D.E. was again asleep wearing pajama pants and a tank top under a blanket when Rosson entered the room, removed the blanket, and put his hand on her buttocks. Finally, a third incident occurred again when D.E. was initially asleep. She awoke to find Rosson kneeling beside her bed with his penis in her hand while his phone was on the floor with the brightness on. Neither D.S. nor D.E. reported the incidents initially—D.S. because she thought no one would believe her and D.E. because she did not want to destroy her mother’s relationship with Rosson. D.S. finally told her cousin, Hannah, and friend, Aaron, about the incidents. After D.E. later overheard D.S. and Hannah discussing the incidents involving Rosson and D.S., D.E. told D.S. about what Rosson had done to her. In January 2023, Aaron texted Heather about what D.S. had told him, but did not mention any incidents involving D.E. Through text messages between D.S. and D.E., D.E. explained that she had not reported the incidents to Heather because she thought Aaron had already told her. Days later when Heather asked D.E. about the incidents, D.E. reported to her what happened and Heather “pretty much cried” but did not report the incidents to police. That same night, when Heather dropped D.E., D.S., and D.Y. at their father’s house, D.S. reported the incidents to their father, who contacted the police. When Heather informed Rosson about the allegations, “[h]e said that if [she] tried to take his kids away from him, he would just kill himself.” He later took enough heroin to overdose and claimed that he accidentally overdosed on heroin to manage the accusations against him. Police “dumped” Rosson’s phone after the overdose, but found no incriminating evidence on it. Trial occurred on June 14, 2024 in the Surry County Circuit Court. At trial D.E. denied that she would have “cover[ed]” for her sister, D.S., if D.S. was making false accusations. D.E. -3- explained that she and her sisters visited Heather every other weekend, though D.S. and Heather both testified that they visited every other week. D.E. also explained consistently that the incidents occurred between March and June of 2021. D.S. explained that she did not remember a lot from the time “when it was happening.” However, she remembered that the incidents occurred around her birthday. After noting that Rosson put his penis in her hand twice, she explained that she was not focused on his attire and could not remember what he was wearing. She also claimed that she told her therapist at her last appointment what happened. The Commonwealth called Melissa Collins as an expert in “delayed disclosure and memory formation.” Collins testified that she had conducted over one thousand forensic interviews, which she described as a “developmentally sensitive and legally sound method of the collection of information regarding allegations of abuse.” Collins explained that delayed disclosure is a “common phenomenon” where survivors of child sexual abuse can delay disclosure of the abuse for “years or even decades.” Collins acknowledged that sometimes people lie and that she did not know D.E. or D.S. However, she explained that a child’s disclosure of abuse is not “linear” and depends on their age, the impact of the trauma, and the number of occurrences of abuse. After the Commonwealth rested, Rosson made a motion to strike the evidence based on his claims that the witness testimony was “shallow in the sense of specificity,” contained discrepancies, and was insufficient to establish when the offenses occurred. The trial court denied the motion, saying “the testimony of the witnesses is not so incredible . . . when taken in the light most favorable to the Commonwealth to not take the case forward.” Rosson then called LaDonna Perry, an outpatient therapist, to testify. Perry explained that “deal[ing] with abused children” was a “large part” of her practice. Perry counseled D.Y. and D.S. three times beginning January 2023 to address self-cutting before their father “cut off” their -4- sessions. Based on those sessions there were no “red flags,” including reports or signs of abuse. However, Perry also mentioned that self-cutting can be a response to trauma and Perry “felt like they wanted to disclose something” at one point. Rosson and Heather testified in Rosson’s defense. They confirmed that D.E., D.S., and D.Y. stayed with them periodically from February to June 2021. Heather stated that D.E. had her own room, while D.S. and D.Y. stayed in the same room on twin beds. However, they put up a triple bunkbed on February 25, 2021, where D.S. slept on the bottom mattress six inches from the ground with D.Y. above her. They explained that Rosson left for work on Sundays or Mondays and returned Fridays or sometimes Saturdays. They claimed that Rosson had a “good” and “normal” relationship with D.E. and D.S. Rosson denied touching D.E. and D.S., claiming they were making the allegations because he “r[a]n a tight ship,” as opposed to their father’s house and because of jealousy when Rosson and Heather “pampered” Rosson’s child from another marriage after she moved in with them in May 2021. Rosson and Heather also claimed he could not run during the time of the alleged incidents because he was on worker’s compensation during that time with a shattered joint in his toe that forced him to use a scooter, boot, and crutches. Though Heather initially said Rosson was unable to bear weight on his foot until April 22, 2021, she later said that he could walk before that date. Heather admitted she was not employed when D.S. disclosed the incidents in 2023, and wrote a note after the disclosure saying, “I have to figure this out. WTF do I do? I got to think about the babies. I have no money, nowhere to go.” She began investigating and making a calendar of when Rosson was home while D.E., D.S., and D.Y. were there, which spanned from April to May 2021. Rosson noted that it was possible D.E. visited the home when D.S. and D.Y. were not -5- there. According to Heather’s calendar, D.E. was in the home for 43 days and D.S. was present for 19 days during the relevant period. Heather further testified that if Rosson had gone to D.E.’s or D.S.’s room at night she would have heard him because she was a light sleeper and was nursing their baby, though she later testified that it is possible he could have gotten out of bed without her waking up. She also said that she had not asked Rosson to leave the house after the allegations because “with all the discrepancies that I was seeing, I didn’t think it was fair to [the other children] to uproot their stability and change their lives if, you know, he could prove it’s not true.” After Rosson rested, the Commonwealth called D.Y. as a rebuttal witness. Rosson objected because she was not put on the Commonwealth’s witness list and she would be bolstering their case about the children’s relationships with Rosson. He further requested to present his own rebuttal evidence if D.Y. testified. The Commonwealth responded that it did not know it would call D.Y. as a witness because her testimony was inadmissible until Rosson presented evidence of the children’s relationships with Rosson. The Commonwealth proffered that it would use D.Y. to introduce a note she wrote about her relationship with Rosson. This would be presented to rebut the testimony that Rosson had a “great” relationship with the girls at the time of the offenses. The Commonwealth also argued that it was “no surprise,” since its discovery file, presented to Rosson, included D.Y.’s note. The trial court allowed D.Y.’s testimony and advised that Rosson could object if the evidence went beyond the scope of his case in chief. D.Y.’s note, written May 7, 2022, conveyed her feelings in Rosson’s presence. It said, in part, “I kind of just want to cry and disappear. I'm at my mom’s house and David is home. He makes me feel so uncomfortable. It’s awkward talking to him or even seeing him. I get anxious. I hate being around him. I can feel his stares.” -6-  After the Commonwealth concluded, Rosson renewed his motion to strike, incorporating the challenges into his closing argument. He also argued that the testimonies contained discrepancies based on his work schedule, the presence of the bunk beds, and his inability to run. In contrast, the trial court noted that D.E. and D.S. “were believable on the stand.” Though finding some discrepancies, the trial court noted that Collins’s testimony about memory formation helped him understand that victims’ “testimonies aren’t always perfect, they’re not always chronological for sure.” The court found it “understandable” that the girls could not narrow down a date, but did narrow it down to a season. The court also commented upon the consistency of their testimony regarding the sleeping arrangements and the nature of the events that occurred. The trial court found that the discrepancies came from the drawing of sleeping arrangements Heather had provided. In the end, the trial court found D.E. and D.S. credible witnesses. The trial court noted that Heather was, by her own admission, “nonconfrontational” and that she “just wanted to bury her head in the sand.” The trial court explained that Heather’s “entire purpose of the investigation was to disprove the girls.” Finding the motive for the children to fabricate the story to be “weak,” the trial court also found Rosson’s behavior to be not like an “innocent man” in seeking out heroin and taking enough to overdose right after hearing the allegations. Denying the motion to strike, the trial court then found Rosson guilty of aggravated sexual battery of a child between 13 and 17 years old and aggravated sexual battery of a victim under the age of 13 years old. ANALYSIS I. Sufficiency of Evidence “When an appellate court reviews the sufficiency of the evidence underlying a criminal conviction, its role is a limited one.” Commonwealth v. Garrick, 303 Va. 176, 182 (2024). “The judgment of the trial court is presumed correct and will not be disturbed unless it is ‘plainly wrong or without evidence to support it.’” Pijor v. Commonwealth, 294 Va. 502, 512 (2017) (quoting -7- Code § 8.01-680). “Thus, ‘it is not for this [C]ourt to say that the evidence does or does not establish [the defendant’s] guilt beyond a reasonable doubt because as an original proposition it might have reached a different conclusion.’” Commonwealth v. Barney, 302 Va. 84, 97 (2023) (alterations in original) (quoting Cobb v. Commonwealth, 152 Va. 941, 953 (1929)). The only relevant question for this Court on review “is, after reviewing 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 Sullivan v. Commonwealth, 280 Va. 672, 676 (2010)). “The credibility of all witnesses and the weight accorded their testimony are matters solely for the fact finder, who has the opportunity of seeing and hearing the witnesses.” Robertson v. Commonwealth, 12 Va. App. 854, 857 (1991) (quoting Schneider v. Commonwealth, 230 Va. 379, 382 (1985)). “Under settled principles of law, the child’s testimony alone, if believed by the [fact finder], [is] sufficient to support appellant’s conviction, even in the absence of corroborating physical or testimonial evidence.” Love v. Commonwealth, 18 Va. App. 84, 90 (1994). “[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, ‘because 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 (quoting Garland v. Commonwealth, 8 Va. App. 189, 192 (1989)). Here, D.E. and D.S. reported the incidents involving Rosson. The trial court determined that “as to the eyewitnesses’ credibility, I would say that they were believable on the stand . . . they certainly weren’t eager to testify to the facts and they, I thought, performed admirably under . . . cross-examinations.” Though the trial court acknowledged discrepancies regarding the timing and -8- small details, the Commonwealth’s expert witness explained why victim testimony is “not always chronological.” The trial court noted that the incidents occurred three years prior to the trial, accounting for some discrepancies. The trial court found the clear statements of the victims about the incidents, the consistency in their testimony regarding sleeping arrangements, the similarities in their accounts of Rosson’s behavior, the fact that the victims narrowed the timing down to a season, and the lack of motive for fabricating a story to be sufficient for conviction. The trial court also found the appearance of bias in Heather’s investigation of the incidents that set out to “disprove them,” noting that she “confronts” her daughter upon disclosure of the incidents and was interested in maintaining stability in the home by keeping Rosson with his children. According to the trial court, Rosson’s behavior was not characteristic of an innocent man. Rosson has failed to show on appeal that no “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Barney, 302 Va. at 97. Accordingly, we find his argument against the sufficiency of the evidence to be without merit. II. Allowance of Rebuttal Witness “On appeal, this Court reviews a claim that the trial court erred in the manner in which it oversaw the parties’ discovery pursuant to the Rules of the Supreme Court of Virginia under an abuse of discretion standard.” Harvey v. Commonwealth, 76 Va. App. 436, 472 (2023). Additionally, “[a]ppellate courts ‘review a trial court’s decision to admit or exclude testimony using an abuse of discretion standard.’” Thomas v. Commonwealth, 82 Va. App. 80, 118 (2024) (quoting Jefferson v. Commonwealth, 298 Va. 1, 10 (2019)). “Applying this standard, ‘we do not substitute our judgment for that of the trial court. Rather, we consider only whether the record fairly supports the trial court’s action.’” Warren v. Commonwealth, 76 Va. App. 788, 802 (2023) (quoting Satterwhite v. Commonwealth, 56 Va. App. 557, 563 (2010)). “Only when reasonable jurists could -9- not differ can we say an abuse of discretion has occurred.” Thomas, 82 Va. App. at 118 (quoting Barney, 302 Va. at 94). “Upon written motion of an accused a court must order the Commonwealth’s attorney to . . . [p]rovide to the accused a list of names and, if known, the addresses of all persons who are expected to testify on behalf of the Commonwealth at trial or sentencing.” Rule 3A:11(b)(5) (emphasis added). When a party offers a witness in rebuttal, it is “not required to have disclosed her as a witness.” Breeden v. Roberts, 258 Va. 411, 416 (1999). Upon calling D.Y. as a rebuttal witness, the Commonwealth stated that it “didn’t know anything was going to be admissible until the evidence came in at trial today.” “[O]nce the defense put on evidence of how the children . . . were all comfortable and happy and everything was wonderful throughout this time period, then it became admissible.” The trial court noted that, “a plaintiff never knows what rebuttal witnesses they need until the evidence comes in.” Rosson’s objections were related to the failure to list D.Y. as a potential witness and the surprise that it brought to the defense. He was also concerned that D.Y. would testify concerning things outside the scope of the previous testimony. The trial court took a recess, did some research on the permissibility of rebuttal witnesses not listed, and noted that Rosson could object to any material outside the scope of previous testimony. In response, the Commonwealth explained that D.Y. would testify concerning a note she had written, which it provided to Rosson in discovery, pertaining to how she felt around Rosson. Further, the Commonwealth argued that “[i]t didn’t become relevant until defense counsel put on two witnesses . . . and both testified that throughout this whole time period . . . the relationship with the girls was great.” Further, “if the [c]ourt or defense believes that there are parts of this note that are outside of the scope of what would be for rebuttal, then we could redact the pieces of that and the pieces of that testimony.” - 10 -  Finally, the trial court decided that “it’s always been my understanding that unless the Commonwealth is deemed to be omniscient, he’s not going to know what rebuttal evidence he needs when the time comes for it.” Thus, the trial court allowed the rebuttal witness to testify. D.Y. testified verifying the note she had written expressing her discomfort around Rosson. The Commonwealth refrained from asking any other questions of D.Y., and Rosson cross-examined her. No other information was produced by the witness. Given that the trial court has discretion to allow unlisted witnesses for rebuttal and that no testimony by D.Y. pertained to material beyond the scope of previous testimony, we find no abuse of discretion. Rosson’s argument is without merit. CONCLUSION For the foregoing reasons, we affirm the trial court’s judgment. Affirmed. - 11 -