Upon a Rehearing En Banc

Upon a Petition for a Writ of Actual Innocence

Dustin Allen Turner petitioned this Court for a writ of actual innocence based upon newly-discovered, non-biological evidence, pursuant to Chapter 19.3 of Title 19.2 of the Code of Virginia, alleging that his 1996 convictions for the abduction with intent to defile and murder of Jennifer L. Evans should be vacated because in 2002 Billy Joe Brown, who was convicted of these same crimes,1 confessed that he acted alone in killing Evans. This Court remanded the matter to the circuit court to certify findings regarding factual issues in dispute. *397The circuit court conducted a hearing in this matter and supplied this Court with its certified findings of fact, including its finding that Brown was “credible in his assertion that he acted independently in murdering the victim and ... Turner played no role in the murder or in the restraining of the victim.”

A divided panel of this Court held that Turner met his burden of proving, by clear and convincing evidence, that the recantation was truthful and that, had the statement been produced at trial, “no rational trier of fact could have found proof of guilt [of felony murder and abduction with intent to defile] beyond a reasonable doubt[,]” granted his petition for a writ of actual innocence, vacated Turner’s convictions for first-degree murder and abduction with intent to defile, and remanded the matter to the circuit court with instructions to modify the order of conviction to reflect Turner’s conviction for being an accessory after the fact. See Turner v. Commonwealth, 54 Va.App. 458, 680 S.E.2d 312 (2009). We granted the Commonwealth’s petition for rehearing en banc and stayed that order.

On rehearing en banc, we hold that Brown’s credible recantation does not provide this Court with clear and convincing evidence that no rational fact finder could have found that Turner used deception to abduct Evans with the intent to have sexual intercourse with her against her will. Therefore, we dismiss Turner’s petition for a writ of actual innocence and vacate the August 4, 2009 order issued by a panel of this Court.

I. Background

On June 18, 1995, Brown, a Navy SEAL trainee, spent much of the day drinking. Over the course of the day, Brown consumed six beers and eight to ten shots of Jim Beam in his room at the barracks. That night, Brown decided to go to a Virginia Beach nightclub called The Bayou with Turner, a fellow trainee. While Turner drove to the nightclub, Brown drank six more beers.

*398That same night, Jennifer Evans, who was vacationing in Virginia Beach with her Mends, Michelle McCammon and Andria Burdette, decided around 11:00 p.m. to go to The Bayou. While at the nightclub, Evans noticed Turner, whom she had not previously met, and began talking with him. Throughout the remainder of the night, she alternated between socializing with her Mends and speaking with Turner. Though Evans met Brown briefly, she did not spend time talking with him.

Around midnight, Burdette wanted to leave, but Evans stalled to continue talking with Turner. Turner and Evans appeared to be getting along very well, so well that at one point Turner sat in a chair while Evans perched on the armrest. About an hour later, Evans finally agreed to leave but not before writing the phone number at the home where she was staying on a napkin for Turner.

Burdette and McCammon then left the nightclub with Turner and Evans trailing behind. As the women entered their vehicle, Turner leaned against the back door and continued talking to Evans through the open window. Turner offered to drive Evans home, but Burdette refused. Burdette and McCammon eventually agreed to leave Evans at the nightclub and return at 2:00 a.m. to take her home. After this agreement was reached, Turner opened Evans’ door with “surprising force.” Evans appeared happy with this arrangement and returned to the nightclub with Turner.

Around 1:15 a.m., Turner approached Karen Bishop, Brown’s ex-girlMend, and asked her to give Brown a ride home if Turner did not return to the bar before it closed. Bishop reluctantly agreed. Between 1:15 and 1:30 a.m., the lights came on signaling that it was almost closing time. After the lights came on, Julio Fitzgibbons, a Navy SEAL who had met Brown and Turner that night, approached Turner to see whether Turner had any plans for that night.2 Turner said *399that he and Brown were going to have a threesome with Evans. Evans was approximately fifteen yards away at this time. Within a few seconds of this, Evans approached and Turner introduced her to Fitzgibbons as she stood next to Brown. Fitzgibbons then gave them the thumbs up sign, which Turner returned with a smile on his face.

At approximately 1:35 a.m., Bishop saw Turner and Evans, who were holding hands, leave the nightclub. Brown was with Bishop and one of her friends at this time. At approximately 1:45 a.m., Brown indicated that he wanted to leave, but Bishop told him that she needed to wait a few minutes for her friend.

Brown had consumed an additional eight to ten beers, eight to ten shots, and twelve mixed drinks while at the nightclub. He was noticeably intoxicated and on the verge of losing consciousness.

Brown, indicating an unwillingness to wait for Bishop’s friend, left the nightclub. Bishop followed him out of the bar at approximately 1:50 a.m. and told him that she would wait for a few minutes to give him a ride home in case he was unable to find Turner. Around 2:10 or 2:15 a.m., Bishop went back inside the bar, found her friend, and went to her car. Bishop and her friend drove around the parking lot looking for Brown but left after not seeing him.

When Burdette and McCammon returned to the nightclub at approximately 1:50 a.m., Evans was not in the parking lot where she had promised to meet them. They searched for several hours but could not find Evans. The women filed a missing persons report with the police the next day. After reading about Evans’ disappearance, Bishop contacted the police to tell them that she had seen Turner and Brown with Evans on the night Evans disappeared.

At approximately 9:00 p.m. on June 21,1995, Special Agents Thomas L. Carter and Robert Elliott of the Federal Bureau of Investigation interviewed Turner to try to determine what Turner did the weekend Evans disappeared. Notably, Turner told the agents that on Sunday night, he and Brown went to The Bayou where they stayed until closing time before re*400turning to the barracks by themselves. When asked for more details, Turner said he had a conversation with some other SEAL trainees that he met there. He also told the agents that he met two women that evening: one was a tall woman whose name he could not recall and the other was a woman, who the agents later learned was Evans, who was at the nightclub with two female friends. The agents specifically asked Turner about the second woman, and he said he could not recall her name but that they talked for a while. He said that her two companions decided to leave and return around closing time to pick her up. Turner said he continued to talk with her for a while before he left to speak with other people that he knew. He told the agents that he spoke to her again around last call. The woman told him that she would be there for the week and wanted him to call her. She wrote her name and phone number on a cocktail napkin for him. Turner said that he and Brown left while she was waiting for her friends.

After the agents suggested several possible names for the woman, Turner said he might be able to provide her name because he thought that he still had the cocktail napkin in his barracks. Then, Turner and Special Agent Elliott went to Turner’s barracks so that Turner could retrieve the napkin. The napkin had the name Jennifer and a phone number written on it.

Once the agents verified that Turner had spent time with Evans, they continued to question him about her, and he repeated that he had met her and her friends at the bar. He told the agents that at some point in the evening, he believed that Evans might agree to leave the bar with him. Based on this belief, he asked Brown to ride home with Bishop so that he was free to leave with Evans. Turner said that Brown told him that he did not want to ride home with Bishop. Turner told investigators that when he realized that he would not be able to be alone with Evans that night, he told her that he would try to contact her later in the week. He stated that he left Evans standing at the bar and returned to the barracks with Brown. Turner told the investigators that neither man had been drinking. He stated that they woke up around 9:00 *401a.m. on Monday and jointly signed a lease on an apartment before driving back to the base. During the entire interview, the agents thought that Turner was very calm and collected and that his answers seemed very forthright.

Sergeant Thomas Baum, a member of the Virginia Beach Police Department’s homicide unit, participated in a subsequent interview of Turner at FBI headquarters in Richmond, Virginia. During that interview, Turner said he and Brown went to The Bayou, where he saw some other SEALS and spent most of the night talking with one of them, a Mexican or Puerto Rican man whose name Turner did not know. Turner also said that Bishop and one of her friends were there. He said he didn’t start talking to Evans until around midnight or 12:80 a.m. Turner told the sergeant that he introduced himself to Evans while she was standing with her friends. Turner said they spoke for only a few minutes before he returned to Brown and the other SEALS.

Turner told Sergeant Baum that he resumed talking with Evans around 1:00 a.m. while her friends were still there. Soon, her friends wanted to leave, so he walked the women to their car. Evans sat in the back seat, but the door was not closed. He said that he told Evans and her friends that they should stay because the nightclub closed in one hour. Evans agreed to stay, and her friends agreed to pick her up in front of The Bayou at closing. He said that he and Evans returned inside to talk as her Mends drove away. When the lights came on in the nightclub, he asked Evans for her number. Turner told Sergeant Baum that he spoke with Evans for a few more minutes before returning to Brown. He said that he saw Evans talking with two unknown men. Turner told Sergeant Baum that he and Brown left around 1:45 or 2:00 a.m. without Evans.

Shortly after Sergeant Baum finished interviewing Turner, Detectives John T. Orr and Al Byrum, also of the Virginia Beach Police Department, interviewed Turner. The detectives noticed that as they did so, Turner’s original story began to change and “his denials became weaker and weaker.” *402Eventually, Turner said that he would speak to the detectives after he talked with his chief warrant officer. After allowing him to do so, the detectives asked Turner where they could find Evans’ body, and Turner agreed to take them to it. In response to direct questioning, Turner stated that he was not the person who killed Evans but that he was present when Brown killed her in Turner’s car. He explained that Brown choked Evans until she was dead while they were in the parking lot of The Bayou. Turner agreed to provide police with his car and clothing from that night.

When Brown was interviewed, he told investigators that Turner spent the entire night talking with Evans but that Brown was not interested. Brown stated that Turner indicated that he was “hooking up” with Evans, and he confirmed that Turner had arranged for Bishop to give Brown a ride home. Brown did not want a ride home from Bishop because he was concerned that he would have sexual intercourse with her and that would ruin his current relationship. Brown said that when he left the nightclub and headed out into the parking lot, he saw Turner jump out of his car and order Brown to get into the car. Brown saw Evans laying in the backseat with blood coming out of her nose and her clothes torn open. According to Brown, Turner told him, “I think I fucking killed her.” Turner then implemented a plan to dispose of Evans’ body and cover up the murder.

Turner’s trial for murder and abduction with intent to defile began in August of 1996. Charlotte Lowe, the forensic supervisor who analyzed the crime scene, testified that Evans’ body was in an advanced state of decomposition and skeletalization, such that many of her bones were exposed. The vest Evans had been wearing on the night she disappeared was pulled back and her bra was pushed up, exposing her breasts. Her shorts and underwear had been pulled down so that they were around only one leg. Lowe examined Turner’s vehicle for semen, urine, fingerprints, and other physical evidence but found nothing of forensic value in the vehicle.

*403Dr. Leah Bush, Assistant Chief Medical Examiner for the Commonwealth of Virginia in the Tidewater district, performed the autopsy on Evans’ body and opined that it was impossible to determine Evans’ exact cause of death due to the severe skeletalization but concluded that manual strangulation was a possibility. Dr. Bush described the various chokeholds that could have led to Evans’ death and how long each method would likely take to have killed her. Dr. Bush conclusively ruled out a broken neck as a cause of death because Evans’ spinal cord did not show signs of fracture.

Todd Ehrlich, a Navy SEAL who completed some training with Brown and Turner, also testified against Turner. He told the jury about Turner and Brown’s reputations for engaging in group sexual encounters.3 Specifically, he testified that he recalled seeing the two men socializing with two women on June 16, 1995. According to Ehrlich, Turner alternated between talking to one of the young women and then talking to Brown to give him a “progress report.” He could not recall the specifics of the conversation between Turner and Brown but said it involved the two of them attempting to get the young women to go home with them. Ehrlich testified that the two women left together without Turner and Brown. Ehrlich further testified about an incident where he witnessed Brown and Turner engage in group sexual intercourse with a woman while the three were stationed in California. Ehrlich told the jury that he later had a conversation with Turner and Brown in which they bragged about repeating the group sexual intercourse with that woman.

Turner took the stand in his own defense and declared that he never intended to have sex with Evans. According to Turner, his original plan was to take Evans to the beach to continue talking. He testified that he abandoned that idea because it would have been impossible to do so and still return by 2:00 a.m. to meet Evans’ friends. Turner testified that, instead, he and Evans went to his vehicle to wait for Evans’ *404friends. While waiting, Turner saw Brown approach and told Evans to “pay no attention to this guy. He’s drunk. Don’t believe a word he says.” Brown then entered the vehicle and sat in the back seat directly behind Evans.

Brown began cursing and making belligerent remarks about Turner and Bishop. Although Turner stated that he could not remember many details of the night, he recalled that Brown shifted his attention towards Evans and began making crude remarks to her. Specifically, Brown asked her whether she was a virgin and whether she had ever had sex with a “frogman.” Out of the corner of his eye, Turner saw Brown touch Evans, and she slapped his hand away. At that moment, Turner saw Brown reach around and make a jerking motion with both arms. According to Turner, Brown had both arms locked around Evans’ neck and was making a squeezing motion. Turner testified that he tried to pry Brown’s arms from her neck but could not. After a minute, Brown let go, and Turner checked Evans’ vital signs but could not find a pulse. Brown yelled at Turner to drive, and Turner complied.

As Turner drove away, Brown reached beneath Evans’ shorts until Turner yelled at him to stop. Brown then passed out. Turner drove to a secluded area near some woods where he and Brown removed Evans’ body from the vehicle. Turner went back to the vehicle to look for a shovel, and when he returned, he found Brown lying on top of Evans’ body. Turner pulled Brown off, and Brown said, “It doesn’t matter because I couldn’t get it—a hard on anyway.” They left after covering Evans’ body with leaves. Before returning to the military base, they went to a diner. The next day, Turner and Brown signed a lease to be roommates for the coming year.

In response to Ehrlich’s testimony about group sexual intercourse in California, Turner stated that “it all centered] around one incident and bragging about that one incident.” He confirmed talking to Fitzgibbons on the night of June 18, 1995, but he denied talking about engaging in a threesome with Brown and Evans. Turner reiterated that he “did not *405actively try to sleep with [Evans]” because “she wasn’t that type of girl at all.”

On September 5, 1996, the jury, after having been instructed on the legal theories of concert of action as well as principal in the first and second degrees, found Turner guilty of abduction with intent to defile, in violation of Code § 18.2-48, and murder, in violation of Code § 18.2-32. The trial court imposed a prison sentence of 82 years. Both this Court and the Supreme Court of Virginia denied Turner’s petitions for appeal.

On July 2, 2002, Brown, who did not testify at Turner’s trial, provided a tape-recorded interview in which he avowed that he had lied to investigators about Turner’s involvement in Evans’ death and testified falsely about those events at his own trial. Brown stated that he spontaneously choked Evans and then blamed Turner because Turner had betrayed him by telling investigators what happened and where Evans’ body was hidden. On February 28, 2003, Brown signed an affidavit that memorialized this interview.

Based on Brown’s affidavit, Turner filed a petition for a writ of actual innocence based upon newly-discovered, non-biological evidence. In his petition, Turner relied upon Brown’s 2002 admission and 2003 affidavit in which Brown stated that he alone killed Evans and that Turner played no part in it. Turner asserted that other evidence in the record supported Brown’s statement absolving Turner. The Commonwealth filed a motion to dismiss Turner’s petition, alleging that the petition was without merit because Brown’s confession was not credible and even if it was credible, the other evidence against Turner was sufficient to find him guilty either as a principal in the second degree or under the felony-murder doctrine.

Upon consideration of Turner’s petition, the Attorney General’s motion to dismiss, Turner’s reply thereto, and the record, this Court denied the motion to dismiss and remanded the matter to the circuit court to certify findings of fact *406regarding factual issues in dispute.4 Specifically, this Court instructed the circuit court to answer four questions:

1) whether Brown’s recanted testimony is credible in his assertion that he testified falsely at his own trial,

2) if the answer to Question # 1 is “yes,” did Brown testify falsely as to any material fact,

3) if the answer to Question # 1 is “yes,” was Brown’s recantation testimony unknown or unavailable to the petitioner or his counsel at the time the conviction became final, or could such recantation testimony, through the exercise of diligence, have been discovered or obtained before the expiration of 21 days following entry of the final order of conviction, [and]

4) is Brown credible in his assertion that he acted independently in murdering the victim and that Turner had no role in the murder or any restraint of the victim?5

*407On May 28, 2008, the circuit court conducted an evidentiary hearing in which Brown testified that on the night of June 18, 1995, he did not want to engage in sexual intercourse and purposefully consumed excessive amounts of alcohol. He stated that he recalled briefly talking to Evans and claimed he did not know Turner’s intentions concerning Evans aside from Turner’s wanting to spend more time with her. Brown confirmed Turner’s prior testimony that Bishop was to give Brown a ride home but that Brown did not want to wait for Bishop’s friend to arrive. Brown admitted that, by this point, he was extremely intoxicated and on the verge of passing out. He testified that he found Turner’s vehicle and climbed into the back seat behind Evans. Brown recalled saying something vulgar but could not remember specifically what he said. Brown testified that “one minute [he] was normal and the next minute [he] snapped and [he] started choking [Evans,]” by putting his left arm against her neck and holding it with his right arm.6

*408Brown testified that when he realized that Evans was dead, he instructed Turner to drive. He further told the circuit court that he removed Evans’ vest and pulled her pants down before passing out. Brown also testified that he attempted to have sex with Evans’ body after he and Turner placed it in the woods.

Brown acknowledged having given conflicting accounts of how the murder occurred. He admitted that he lied to the police and that he repeated the lies at his own trial. He testified that he fabricated Turner’s involvement in the murder because he was angry with Turner for telling the police where Evans’ body was located. He stated that at the time, he perceived no difference between telling one lie and telhng several lies. In explaining his recent recantation, Brown stated that his conversion to Christianity was his primary reason for his coming forward. Brown said that as long as he truthfully confessed to what had happened that night, he did not care whether his testimony would help exonerate Turner.

Upon considering the testimony from the evidentiary hearing and the transcripts from the original trials of Turner and Brown, the circuit court found that Brown “is credible in his assertion that he testified falsely at his own trial,” that Brown “testified falsely as to a material fact in the case,” that “Brown’s recantation of his earlier testimony was unknown and unavailable to the petitioner in this proceeding ... at the time of his conviction and at the time his conviction became *409final,” and that Brown “is credible in his assertion that he acted independently in murdering the victim and that ... Turner played no role in the murder or in the restraining of the victim.”

II. Analysis

A. Standard of Review

Code § 19.2-327.10 confers original jurisdiction upon the Court of Appeals of Virginia to consider a petition for a writ of actual innocence based on newly-discovered, non-biological evidence filed by any individual “convicted of a felony upon a plea of not guilty.” See also Carpitcher v. Commonwealth, 273 Va. 335, 342, 641 S.E.2d 486, 490 (2007). “The writ shall lie to the court that entered the conviction____” Code § 19.2-327.10.

To obtain a writ of actual innocence, a petitioner must allege, inter alia, that the newly-discovered evidence

(1) “was previously unknown or unavailable to the petitioner or his trial attorney of record at the time the conviction became final in the circuit court;” Code § 19.2-327.11(A)(iv),

(2) “is such as could not, by the exercise of diligence, have been discovered or obtained before the expiration of 21 days following entry of the final order of conviction by the court;” Code § 19.2-327.11(A)(vi),

(3) “is material and when considered with all of the other evidence in the current record, will prove that no rational trier of fact could have found proof of guilt beyond a reasonable doubt;” Code § 19.2-327.11(A)(vii), and

(4) “is not merely cumulative, corroborative or collateral,” Code § 19.2-327.11(A)(viii).

Carpitcher, 273 Va. at 343-44, 641 S.E.2d at 491. The parties agree that the newly-discovered, non-biological evidence at issue in this case is Brown’s confession that he alone restrained and killed Evans. Brovm provided this confession six years after Turner’s conviction. Thus, of the four elements listed above, only the third is at issue in this case: Whether *410Turner has carried Ms burden of proving, by clear and convincing evidence,7 (a) that Brown’s new confession is “material” and (b) that, when considering Brown’s confession with all the other evidence in the current record, “no rational trier of fact could have found proof of guilt beyond a reasonable doubt.”8 Code § 19.2-327.11(A)(vii).

*411In analyzing Turner’s petition, we must first determine whether Brown’s statement is “material.” In order to be “material” within the meaning of Code § 19.2-327.11(A)(vii), “evidence supporting a petition for a writ of actual innocence based on non-biological evidence must be true.” Carpitcher, 273 Va. at 345, 641 S.E.2d at 492. If the circuit court cannot determine whether the original testimony, the recantation testimony, or some other version of events is true, the petitioner has not met his burden of proving materiality because “the General Assembly intended to provide relief only to those individuals who can establish that they did not, as a matter of fact, commit the crime for which they were convicted” and not to those “who merely produce evidence contrary to the evidence presented at their criminal trial.” Id. “Because the Court of Appeals cannot hold its own evidentiary hearing to assess a witness’ credibility, but must ultimately determine whether a recantation is true, Code § 19.2-327.12 provides a mechanism to assist the Court of Appeals in this task.” Johnson v. Commonwealth, 273 Va. 315, 322, 641 S.E.2d 480, 484 (2007). Pursuant to that code section,

[i]f the Court of Appeals determines ... that a resolution of the case requires further development of the facts, the court may order the circuit court in which the order of conviction was originally entered to conduct a hearing ... to certify findings of fact with respect to such issues as the Court of Appeals shall direct.

Code § 19.2-327.12 (emphasis added).

To determine the credibility of Brown’s statement, we ordered the circuit court in which the order of conviction was originally entered to conduct a hearing on the credibility of Brown’s recantation testimony and issue certified findings of fact.9 See Code § 19.2-327.12; see also Johnson, 273 Va. at *412322-23, 641 S.E.2d at 484 (involving a referral of the recantation of a co-defendant, which the circuit court found was not credible). After conducting an evidentiary hearing, as well as reviewing in detail the evidence that was presented in the prior trials of both Brown and Turner, the circuit court expressly found Brown credible both in his assertion that he testified falsely to a “material” fact at his own trial and in his present statement that “he acted independently in murdering [Evans] and that Turner played no role in the murder or any restraint of the victim.”

Code § 19.2-327.13 then provides, in relevant part:

[u]pon consideration of the petition, the response by the Commonwealth, previous records of the case, the record of *413any hearing held under this chapter and, if applicable, any findings certified from, the circuit court pursuant to an order issued under this chapter, the Court of Appeals, if it has not already summarily dismissed the petition, shall either dismiss the petition for failure to state a claim or assert grounds upon which relief shall be granted; or the Court shall (i) dismiss the petition for failure to establish previously unknown or unavailable evidence sufficient to justify the issuance of the writ, or (ii) only upon a finding that the petitioner has proven by clear and convincing evidence all of the allegations contained in clauses (iv) through (viii) of subsection A of § 19.2-327.11, and upon a finding that no rational trier of fact could have found proof of guilt beyond a reasonable doubt, grant the writ, and vacate the conviction____

(Emphasis added). The plain language of this code section requires that we give “consideration” to “any findings certified from the circuit court pursuant to an order issued [under Code § 19.2-327.12].” See Marble Techs., Inc. v. City of Hampton, 279 Va. 409, 418, 690 S.E.2d 84, 88 (2010) (“ ‘Legislative intent is determined from the plain meaning of the words used.’ ” (quoting City of Richmond v. Confrere Club of Richmond, 239 Va. 77, 80, 387 S.E.2d 471, 473 (1990))).

Moreover, in explaining how the “factual findings certified by the circuit court in response to the Court of Appeals’ order referring certain factual issues pursuant to Code § 19.2-327.12” should be treated by Virginia’s appellate courts, the Supreme Court of Virginia established the analytic framework to be applied, mandating that “[s]uch factual findings are similar to circuit court findings made under Code § 8.01-654(0 in habeas corpus cases in which [the Supreme Court] ha[s] original jurisdiction and ha[s] referred certain factual issues to the circuit court for an evidentiary hearing.”10 *414Carpitcher, 273 Va. at 342-43, 641 S.E.2d at 490 (citations omitted). In habeas corpus cases, “[t]he circuit court’s factual findings ... are entitled to deference and are binding upon [the Supreme] Court unless plainly wrong or without evidence to support them.” Hedrick v. Warden, 264 Va. 486, 496, 570 S.E.2d 840, 847 (2002); see also Yarbrough v. Warden, 269 Va. 184, 195, 609 S.E.2d 30, 36 (2005); Lovitt v. Warden, 266 Va. 216, 229, 585 S.E.2d 801, 808 (2003). The rationale for this framework is that a determination of a witness’ credibility hinges on more than his mere words.

As the trier of fact, the circuit court is charged with the responsibility of considering various factors, including the witness’ demeanor, his opportunity for knowing the things about which he has testified, his bias, and any prior inconsistent statements relating to the subject of his present testimony. In addition, the circumstances of a particular case may raise other factors that the circuit court deems relevant in assessing a witness’ credibility.

Johnson, 273 Va. at 323, 641 S.E.2d at 485 (citations omitted). These observations are available only through live witness testimony. This Court is not authorized to hear testimony and, as a result, we are not equipped to judge the credibility of a witness’ testimony based on his demeanor. Despite our original jurisdiction and the unique nature of the writ, we *415simply cannot sit as a fact finder in the same sense that a jury or circuit court does. Therefore, like the Supreme Court of Virginia when it sits with original jurisdiction in habeas corpus cases and reviews factual findings made by a circuit court pursuant to Code § 8.01-654(0,11 we must accept the circuit court’s factual findings made pursuant to Code § 19.2-327.12 unless they are plainly wrong or without evidence to support them. In other words, we may not simply ignore the circuit court’s findings as though they had never been made, as the concurrence advocates.

Here, the order of referral stated as follows: “Upon consideration of the petition, the response of the Attorney General [entitled “Motion to Dismiss”], petitioner’s reply, the records of prior proceedings in this case, and the other exhibits, this Court finds that a resolution of the case requires further development of the facts.” (Emphasis added). Thus, as previously stated, the initial panel that decided to refer Turner’s case to the circuit court for an evidentiary hearing implicitly denied the Commonwealth’s motion to dismiss and made preliminary determinations as to materiality and relevance. On rehearing en banc, we may reject the initial panel’s legal conclusions related to relevance and materiality but not the factual findings made by the circuit court at the panel’s instruction. See Carpitcher, 273 Va. at 342-43, 641 S.E.2d at 490; Johnson, 273 Va. at 323, 641 S.E.2d at 485. Therefore, we are bound to accept the circuit court’s determinations that Brown “is credible in his assertion that he testified falsely at his own trial,” that Brown “testified falsely as to a material fact in the case,” that “Brown’s recantation of his earlier testimony was unknown and unavailable to the petitioner in this proceeding ... at the time of his conviction and at the time his conviction became final,” and that Brown “is credible *416in his assertion that he acted independently in murdering the victim and that ... Turner played no role in the murder or in the restraining of the victim.”12

Moreover, we reject the Commonwealth’s contention that the circuit court’s factual findings were fatally incomplete and conelusory. On referral to the circuit court for factual findings, “[tjhere is no mandatory formula for a circuit court’s consideration of the credibility of a particular witness.” John*417son, 273 Va. at 323, 641 S.E.2d at 485 (citations omitted). Here, the circuit court clearly answered, albeit briefly, the four questions referred by this Court and thus Mfilled its obligations under Code § 19.2-327.12. Having fully considered the record in this case, we cannot say that the circuit court’s factual findings are plainly wrong or without evidence to support them and, therefore, we are bound by these findings.

B. Turner’s Role in Evans’ Death

Next, we must consider whether Brown’s credible confession, “when considered with all of the other evidence in the current record, ... prove[s] that no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Code § 19.2-327.11(A)(vii). Turner was convicted of abduction with intent to defile, in violation of Code § 18.2-48, and murder, in violation of Code § 18.2-32, under the felony-murder doctrine. Thus, Brown’s recantation must obviate Turner’s participation in killing Evans and sever the causal connection between Brown’s conduct and the underlying crime that gave rise to Evans’ murder.

Turner argues that we cannot arbitrarily disregard Brown’s recantation and that all other evidence must be viewed in the context of Brown’s assuming sole responsibility for the murder. To that end, Turner asserts that the Commonwealth’s evidence against him is merely circumstantial and does not exclude the reasonable hypothesis of innocence that Brown acted independently in murdering Evans and that Turner had no role in the murder or restraint of Evans. The Commonwealth responds that, based on all of the evidence, a reasonable fact finder could find that Turner abducted Evans with the intent to defile her and, therefore, is not entitled to a writ of actual innocence.

Before this Court may properly grant the writ of actual innocence that Turner seeks, he must demonstrate by clear *418and convincing evidence that based on all of the evidence in the record, “no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Code § 19.2-327.11(A)(vii) (emphasis added); accord Carpitcher, 273 Va. at 344, 641 S.E.2d at 491. This analysis is not as simple as merely accepting the circuit court’s determination that Brown testified credibly that he acted alone when he physically committed the murder and that Turner played no role in murdering or restraining Evans.13 The relevant question is not whether Brown acted alone in killing Evans, but whether Turner abducted her with the intent to defile her.14 If he did, the fact that Brown may have acted alone in restraining Evans and in murdering her does not absolve Turner of his guilt. In order to be granted a writ of actual innocence, Turner must produce clear and convincing evidence that he did not abduct Evans with the intent to defile her and, therefore, that he is not guilty of felony murder. It is this Court’s statutory duty to examine the entire record, including Brown’s credible confession to Evans’ murder, to determine whether Turner has met his burden. See Code §§ 19.2-327.11 to 19.2-327.14. Having examined the entire record,15 we conclude that Turner has not *419met his statutory burden. From the record, a rational fact finder could have found that Turner abducted Evans by deception—meaning no finding of force or restraint would have been required—and that the abduction ended with Evan’s murder. Therefore, we dismiss Turner’s request for a writ of actual innocence and deny his request to vacate his convictions for murder and abduction with intent to defile.

A defendant is guilty of first-degree murder under Code § 18.2-32 where the killing occurs “in the commission of, or attempt to commit, arson, rape, forcible sodomy, inanimate or animate sexual penetration, robbery, burglary or abduction.” This legislation codifies the common law doctrine of felony murder and “elevate[s] to murder a homicide committed during the course of a felony by imputing malice to the killing.” King v. Commonwealth, 6 Va.App. 351, 354, 368 S.E.2d 704, 705 (1988). “[T]he felony murder statute applies where the initial felony and the homicide were parts of one continuous transaction, and were closely related in point of time, place, and causal connection.” Berkeley v. Commonwealth, 19 Va.App. 279, 286, 451 S.E.2d 41, 45 (1994) (holding that a fact finder could reasonably infer that an abduction with intent to rape continued until the victim’s death and, therefore, felony murder occurred). Abduction is a continuing offense and “ ‘it [is] for the fact finder to determine in each case ... whether the [abduction] had been terminated within the purview of [Code § 18.2-32].’ ” Barnes v. Commonwealth, 33 Va.App. 619, 629, 535 S.E.2d 706, 711 (2000) (quoting Haskell v. Commonwealth, 218 Va. 1033, 1043, 243 S.E.2d 477, 483 (1978)). Thus, to determine whether Turner committed felony murder, we must first decide whether the evidence in *420the record is such that a rational finder of fact could conclude that Turner abducted Evans with the intent to defile her.

A person commits abduction when he “[b]y force, intimidation or deception and without legal justification or excuse, seizes, takes, transports, detains or secretes the person of another, with the intent to deprive such person of his personal liberty----” Code § 18.2-47.16 Abduction requires proof of asportation or detention, either of which may be accomplished by force, intimidation, or deception. Jerman v. Dir. of the Dep’t of Corr., 267 Va. 432, 439, 593 S.E.2d 255, 259 (2004) (citing Scott v. Commonwealth, 228 Va. 519, 526, 323 S.E.2d 572, 576 (1984)). The accused need not have used any physical force or restraint against the victim. Kent v. Commonwealth, 165 Va. 840, 841-42, 183 S.E. 177, 177-78 (1936).17 Virginia case law is clear that, under Code § 18.2-47, an abduction includes a taking away or detention of a person induced by fraud or deception. Jerman, 267 Va. at 439, 593 S.E.2d at 259.

In Jerman, the Supreme Court of Virginia found that an abduction occurred where the evidence proved that one of the petitioner’s confederates convinced the victim to come with her under the ruse of selling illegal narcotics to her and petitioner when their true intent was to harm the victim. Id.; see also Taylor v. Commonwealth, 260 Va. 683, 688, 537 S.E.2d 592, 595 (2000) (holding that the appellant accomplished the abduction through the use of both deception and intimidation). The Supreme Court of Virginia made no men*421tion of any “restraint” upon the victim in the first abduction in Jerman; rather, the fact that the victim was tricked into getting into the vehicle and traveling with the co-conspirator was enough to prove abduction. 267 Va. at 439, 593 S.E.2d at 259.

Similarly in Kent, the defendant kidnapped the victim with intent to extort money for pecuniary benefit. 165 Va. at 842, 183 S.E. at 178. The evidence showed that the defendant induced the victim to accompany him to Washington, D.C., on the assurance that he would obtain money to satisfy a debt he owed her. Id. at 842, 183 S.E. at 177-78. The defendant argued that he could not be found guilty of kidnapping because the evidence failed to show any force or restraint was used by the accused in taking the victim with him. Id. at 841, 183 S.E. at 177. The Supreme Court of Virginia disagreed with the defendant and held that he was guilty of kidnapping because the evidence showed that the accused took the victim with him under “such circumstances [that] amounted to fraud and coercion on [the defendant’s] part and for the purpose of pecuniary benefit____”18 Id. at 842, 183 S.E. at 178.

Thus, if based on all of the evidence before this Court, any rational fact finder could have concluded that Turner deceived Evans into leaving the club while at the same time intending to defile her, then a writ of actual innocence should not issue.

The intent to defile element requires proof that the perpetrator intended to engage in sexual contact against the victim’s will. See, e.g., Code §§ 18.2-61 (rape), 18.2-67.1 (forcible sodomy), 18.2-67.3 (aggravated sexual battery), and *42218.2-67.1 (sexual battery). To prove that Turner abducted Evans with the intent to defile, the Commonwealth was required to prove that he had the specific intent to sexually molest her. Simms v. Commonwealth, 2 Va.App. 614, 617, 346 S.E.2d 734, 735 (1986). “Intent is the purpose formed in a person’s mind which may, and often must, be inferred from the facts and circumstances in a particular case.” Ridley v. Commonwealth, 219 Va. 834, 836, 252 S.E.2d 313, 314 (1979). Code §§ 18.2-47 and 18.2-48 do not require that the deception be verbalized and, certainly, it is well settled that one’s intention, such as the intent to deceive, may and often must be proven through the use of circumstantial evidence. See Williams v. Commonwealth, 278 Va. 190, 194, 677 S.E.2d 280, 282 (2009) (reiterating that “[a]bsent a direct admission by the defendant, intent ... must necessarily be proved by circumstantial evidence”).

“There is no distinction in the law between the weight or value to be given to either direct or circumstantial evidence.” Muhammad v. Commonwealth, 269 Va. 451, 479, 619 S.E.2d 16, 31-32 (2005), cert. denied, 547 U.S. 1136 [126 S.Ct. 2035, 164 L.Ed.2d 794] (2006). Our Supreme Court has held that “ ‘circumstantial evidence is competent and is entitled to as much weight as direct evidence[,] provided that the circumstantial evidence is sufficiently convincing to exclude every reasonable hypothesis except that of guilt.’ ” Finney v. Commonwealth, 277 Va. 83, 89, 671 S.E.2d 169, 173 (2009) (quoting Dowden v. Commonwealth, 260 Va. 459, 468, 536 S.E.2d 437, 441 (2000)). Furthermore, circumstantial evidence “is not viewed in isolation.” Muhammad, 269 Va. at 479, 619 S.E.2d at 32. “While no single piece of evidence may be sufficient, the combined force of many concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion.” Id. (citation omitted).

Brown v. Commonwealth, 54 Va.App. 107, 119, 676 S.E.2d 326, 332 (2009).

Turner’s acts, conduct, and statements may be considered to discern his state of mind. Long v. Common*423wealth, 8 Va.App. 194, 198, 379 S.E.2d 473, 476 (1989). “The fact finder may consider the conduct of the person involved and all the circumstances revealed by the evidence.” Wynn v. Commonwealth, 5 Va.App. 283, 292, 362 S.E.2d 193, 198 (1987). “When weighing the evidence, the fact finder is not required to accept entirely either party’s account of the facts. The fact finder may reject that which it finds implausible, yet accept other parts which it finds to be believable.” Barnes v. Commonwealth, 33 Va.App. at 630, 535 S.E.2d at 711-12 (2000) (citing Barrett v. Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193 (1986)).

Because it is Turner’s intent that is relevant, Brown’s credible confession to killing Evans cannot be found to be dispositive of what Turner was thinking when he left the club with Evans. Indeed, Brown’s confession only establishes what occurred after he got into the car with Turner and Evans.19 Thus, Brown’s confession does not change the evidence of Turner’s intent to defile that was before the jury in Turner’s trial. The jury was instructed that abduction with the intent to defile could be accomplished by, inter alia, deception and could have found that Turner deceived Evans into leaving the bar, his nefarious intent unbeknownst to her.20 Accordingly, it *424cannot be said that no rational trier of fact could have found Turner guilty beyond a reasonable doubt as the jury did.

Moreover, contrary to the dissent’s contention that “the record is devoid of any evidence that Turner ever engaged or intended to engage in any sexual activity against the will of’ Evans, a review of the entire record before this Court reveals that it is replete with evidence from which a rational finder of fact could reach a conclusion that Turner deceived Evans into leaving the club with him for stated innocent purposes while his true intent was to defile her. Turner testified that he only wanted to talk with Evans and that he had no sexual interest in her. Turner’s actions and, more tellingly, his own words, belie his claim that he did not intend to have sex with Evans. Turner arranged for Bishop to give Brown a ride home if Turner did not return to the club by closing time. During that conversation, Bishop asked Turner if she needed to give Brown a ride home because Turner “was going home with [Evans], and [Turner] said yes.” When Bishop warned Turner that “if that’s what [he’s] going to do, use a condom,” Turner just smirked and laughed in response.21

*425The most telling piece of evidence is Turner’s conversation with Fitzgibbons in which Turner stated that he and Brown were going to have a “threesome” with Evans.22 Within a few seconds of this, Evans approached and Turner introduced her to Fitzgibbons as she stood next to Brown. Before leaving, Fitzgibbons gave them the thumbs up sign, which Turner returned with a smile on his face.23

While Turner denies having made this statement, his petition for a writ of actual innocence supports this sequence of events and the fact that there was an exchange with him, Brown, and Fitzgibbons regarding a “threesome.” In paragraph forty-seven of his petition, Turner states under oath

Petitioner was happy with Bishop’s response and he went to tell Brown about the arrangements. Petitioner remarked that the plan was if he wasn’t back by 2:00 a.m., Bishop should take Brown home. Brown asked Petitioner where he was going with “that chick,” and Petitioner explained. Brown was slurring his words and asked Petitioner what the chances were for him to “get it on with her too.” At that moment, [Fitzgibbons] walked up to them and asked what their plans were for the night. Brown said something to the effect, “I’m going to get a threesome going.”

(Emphasis added).

Turner confirms that he talked with Brown after he arranged for Bishop to take Brown home. Based on Turner’s own version of events, it is clear that Turner planned to have a *426sexual encounter with Evans as Brown’s response was to inquire about the chances for him to “get[ ] it on with her too.” (Emphasis added). The evidence is also clear that the plan was formulated for both Turner and Brown to have sex with Evans as Fitzgibbons was told that they were going to have a “threesome.” While Turner tries to attribute the “threesome” comment to Brown, Fitzgibbons was clear that it was a declaration made by Turner. Clearly, Brown and Turner made a plan before either left the club to have sex with Evans.

Turner’s intent to have sex with Evans despite that he did not believe Evans would agree is also clear from Evans’ character. Evans’ friend, Burdette, described Evans as a woman who would not speak to anyone using sexual overtures. Burdette also testified that she believed that Evans would not have been speaking to Turner had he made any sexual invitations to Evans. Evans’ other friend, McCammon, similarly believed that Evans had no intent to have a “romantic interlude” that night. As further proof of his intent to defile Evans, Turner confirms these descriptions of Evans. He testified that during the course of the evening, he never discussed sex with her. He also echoed Evans’ friends with regard to her character. Specifically, he stated that in the short time he spent with her, Evans was not the kind of woman who would have engaged in a “threesome.” Yet, he spoke to two different people about having sex with her, although she and he had not discussed it. Moreover, he unreservedly declared that he was going to have a “threesome” with Evans and Brown, even though he did not believe she would have willingly engaged in a “threesome.” From this, a rational trier of fact could conclude that Evans was unaware of Turner’s sexual plans for her and would not have willingly engaged in a “threesome,” despite that being his intention.

The record also contains evidence of Turner’s aggressive nature, especially when things were not going his way. Burdette testified that Turner was “exceptionally rude” to her and McCammon and that he spoke to them in a “horribly belligerent tone[.]” Burdette told the jury that Turner “pulled the *427[car] door open with surprising force” when he and Evans finally prevailed in devising the plan for Evans to stay with Turner for one additional hour.

Moreover, statements and conduct of an accused after the events that constitute the charged crime also are relevant circumstantial evidence of intent. See Canipe v. Commonwealth, 25 Va.App. 629, 645, 491 S.E.2d 747, 754 (1997). Here, Turner’s callous disregard for Evans, displayed after her murder, is consistent with a finding that he intended to defile her before she was murdered. The evidence demonstrates that within minutes of Brown Wiling Evans, Turner alone took the lead in finding an isolated spot to dispose of her body, as both men testified that Brown passed out seconds after he killed Evans. Rather than maWng known what occurred, Turner drove from Virginia Beach to a secluded area in a Newport News city park where it was unlikely that Evans’ body would be found. After finding the appropriate spot, he then woke Brown up to assist him in moving and covering Evans’ body. The day after Turner witnessed Brown end a young woman’s life without any provocation, Turner still desired to rent an apartment with Brown. Additionally, a few days after the police and FBI agents interviewed Turner and Brown at the naval base, Turner and Brown had occasion to peruse the current, local newspaper covering Evans’ death. One of the newspapers contained a composite sketch purportedly of Turner. Throughout the meal, Turner and Brown repeatedly laughed and joked that the sketch looked nothing like Turner.

Turner’s aptitude for being convincing even when being deceptive is also demonstrated by the record. An FBI agent interviewing Turner found him to be “very calm, very collected” and his answers seemed very forthright while Turner repeatedly lied to police and FBI officials about leaving the club separately from Evans. Another police officer present for the interview said that Turner “seemed calm, cool. Had his thoughts about him and talked very straightforward.”

*428Thus, the record provides ample evidence of Turner’s art of deception, determination to spend time with Evans, aggressive demeanor toward her friends, and unremorseful reaction after witnessing Brown end Evans’ life. There is also significant, contradictory evidence of Turner’s claim that he had no interest in having sexual relations with Evans and his attempts to facilitate such relations. The evidence further proves that Turner walked Evans to his car on the pretext of waiting for her friends. He did not disclose to her his stated intention to Fitzgibbons to have a “threesome” -with her and Brown. Certainly, the act of engaging in a “threesome” does not, in and of itself, provide evidence of Turner’s intent to defile Evans. However, the evidence in the record when considered as a whole—including Turner’s belief that Evans would not be receptive to sexual advances, Turner’s claims that he had no interest in having sexual relations with Evans, and his declaration to Fitzgibbons that he intended to have a “threesome” with Evans—enables a rational trier of fact to infer that Turner intended to have sexual relations with Evans against her will.

As discussed above, the record in toto provides more than sufficient evidence from which a rational trier of fact could conclude that Turner deceived Evans into going to his car with the true intent of both he and Brown having a “threesome” with Evans against her will. Moreover, the fact finder could also reasonably find that this was a shared intent as Brown was present when Turner told Fitzgibbons that he and Brown intended to have a “threesome” with Evans. The evidence also demonstrates that when Turner saw Brown approaching, he cautioned Evans not to believe a word Brown said. The evidence further shows that when Brown joined Evans and Turner in Turner’s car, Brown asked Evans whether she was a virgin and whether she had ever had sex with a “frogman” immediately before “snapping” and killing her. From all of this evidence, a rational trier of fact could conclude that Brown and Turner intended to forcibly have sexual relations with Evans and that Brown killed Evans when she rebuffed his advances. The trier of fact could have found that because *429of this shared sexual desire, the abduction had not ended prior to Evans’ murder.

III. Conclusion

Based on all of the evidence in the record, it cannot be said that Brown’s credible recantation provides this Court with clear and convincing evidence that no rational fact finder could have found that Turner used deception to abduct Evans with the intent to have sexual intercourse with her against her will. Therefore, Turner was properly convicted of abduction with intent to defile and murder. Accordingly, we dismiss his petition for a writ of actual innocence and vacate the August 4, 2009 order issued by a panel of this Court.

concurring, with whom KELSEY and HALEY, JJ., join.

While I concur that a writ of actual innocence should not issue in this case, my rationale for this conclusion is quite different from that to which the majority subscribes. Therefore, I write separately.

Before we can address the merits of Turner’s petition, I believe that we must address the distinct procedural posture of this case. Prior to its decision to grant the writ of actual innocence, the three-judge panel of this Court made two preliminary decisions that were critical to the ultimate outcome. The first was to defer ruling on the Commonwealth’s motion to dismiss. The second was to remand the case to the circuit court for a factual finding regarding the credibility of the testimony of Billy Joe Brown. Before this Court sitting en banc can address the merits of the petition, we must address whether those two decisions are binding upon the full court. For me, the answer to that question is no. I believe that once this Court granted the Commonwealth’s motion for a rehearing en banc, it did more than just stay the panel’s decision that the writ should issue. I believe our grant of rehearing en banc also effectively vacated the other two decisions made by the panel. Thus, I believe that the full Court is bound by neither the panel’s decision that further *430development of the facts by way of a remand is required, nor the panel’s order to the circuit court setting out the specific factual findings to be made by that court. For this reason, I believe that Turner’s petition for a writ of actual innocence based on non-biological evidence as well as the motion to dismiss filed by the Attorney General are now before this Court, sitting en banc, for our de novo consideration.

I further conclude that in considering Turner’s petition and the supporting affidavit, we are bound by the General Assembly’s manifest intent that the writ was to be an extraordinary measure granting extraordinary relief. The General Assembly did not choose to call this the “writ of more likely than not innocent,” or even the “writ of probably innocent.” It chose the phrase the “writ of actual innocence” because it intended for this writ to issue only when the newly-discovered evidence was of such a compelling nature that no reasonable juror would disagree that the defendant was both factually and legally innocent. Because I believe that the evidence that Turner has offered falls woefully short of the extremely high burden of proof established by the General Assembly, I believe this Court need go no further than to grant the Attorney General’s motion and dismiss the petition.

I. Procedural Posture

At the outset, I note that both the majority and the dissent refer to the “standard of review” to be used in analyzing this case. This is an example of how this Court has conflated our traditional appellate role with our role as the court having original jurisdiction in this case. There is no “standard of review” because we are not reviewing anything. We, the Court of Appeals sitting en banc, are charged by statute with assessing the weight to be assigned to the evidence before us and making the initial decision on whether the writ should issue.24 Neither the majority nor the dissent have addressed *431this unique procedural posture—how does a multi-panel appellate court, sitting en banc, consider a matter of original jurisdiction? I believe that this fundamental procedural Gordian knot must be unraveled before we can begin to consider the merits of the petition.

In doing so, we need to recognize why this case is unique among other cases that come before us. First, the General Assembly vested this Court—not the circuit court—with original jurisdiction over cases involving actual innocence petitions based on non-biological evidence. Code § 19.2-327.10.25 Original jurisdiction is the “jurisdiction to take cognizance of a case at the outset, to try it, and to decide the issues.” Bryan A. Gamer, A Dictionary of Modem Legal Usage, 626 (2d ed. 1995). One group of issues we are responsible for deciding are the factual findings that ultimately determine the outcome of the case. These factual findings include both the credibility of the witnesses and the weight of the evidence. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (The trier of fact has “the responsibility ... fairly to resolve conflicts in the testimony, to weigh the evidence, *432and to draw reasonable inferences from basic facts to ultimate facts.”). And, the term “[t]he weight of the evidence refers to a determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other.” Tibbs v. Florida, 457 U.S. 31, 37-38, 102 S.Ct. 2211, 2216, 72 L.Ed.2d 652 (1982) (internal quotation marks and citations omitted). To be clear, the General Assembly’s grant of original jurisdiction to decide cases involving writs of actual innocence to this Court means that this Court sits as a trial court in these cases.26 Just like the Supreme Court of Virginia, when exercising its original jurisdiction, this Court “considers the evidence and makes factual determinations de novo.” Judicial Inquiry & Review Comm’n v. Lewis, 264 Va. 401, 405, 568 S.E.2d 687, 689 (2002). Thus, it is this Court’s ultimate responsibility to make both the findings of fact and conclusions of law necessary to determine whether a writ should issue.27

*433Additionally, when this Court granted the Attorney General’s petition for rehearing en banc, it vacated the panel opinion in this case. Glenn v. Commonwealth, 49 Va.App. 413, 423 n. 3, 642 S.E.2d 282, 287 n. 3 (2007) (en banc). “The grant of en banc review vacates the prior panel opinion in toto.” Id. (emphasis added), cited with approval in Moore v. Commonwealth, 276 Va. 747, 755, 668 S.E.2d 150, 155 (2008). This view of the effect of a grant of a rehearing en banc is consistent with that employed by a majority of the United States Courts of Appeals, which employ an en banc process similar to that employed by this Court. Compare 28 U.S.C. § 46(c); Fed. R.App. P. 35 with Code § 17.1-402(D) (setting forth the procedures for en banc review in the United States Courts of Appeal and this Court, respectively); see also Hon. George C. Pratt, 20A-355 Moore’s Fed. Practice—Civil § 335.11 (“The effect of an order granting en banc rehearing on the panel’s decision depends on local practice.”).

The Fourth Circuit falls within this majority, United States v. Moye, 454 F.3d 390, 394 (4th Cir. 2006) (“Granting of rehearing en banc vacates the previous panel judgment and opinion.”), along with eight other federal circuits. See, e.g., SEC v. Tambone, 597 F.3d 436, 450 (1st Cir. 2010) (reinstating portions of panel opinion that were vacated upon grant of rehearing); Guilmette v. Howes, 591 F.3d 505 (6th Cir.Ct.App. 2010) (granting rehearing en banc, and noting that Local Rule 35(a) of the Sixth Circuit Court of Appeals provides that “[t]he effect of granting a hearing en banc shall be to vacate the previous opinion and judgment of this court, to stay the mandate and to restore the case on the docket sheet as a pending appeal”); Wis. Cmty. Servs. v. City of Milwaukee, Rec. No. 04-1966 (7th Cir.Ct.App. Aug. 31, 2005) (granting rehearing en banc, vacating the panel’s decision and judgment, staying the mandate, and restoring the case to the docket as a pending appeal); Socop-Gonzalez v. INS, 272 F.3d 1176, 1186 n. 8 (9th Cir. 2001) (“The Court’s decision to rehear a case en banc effectively means that the original three-judge panel never existed---- [T]he en banc court acts as if it were hearing the case on appeal for the first time.”); 5th Cir. R. *43441.3 (“Unless otherwise expressly provided, the granting of a rehearing en banc vacates the panel opinion and judgment of the court and stays the mandate.”); 11th Cir. R. 35.11 (“Unless otherwise expressly provided, the effect of granting a rehearing en banc is to vacate the panel opinion and to stay the mandate.”); but see United States v. Cavera, 550 F.3d 180 (2d Cir.N.Y. 2008) (noting that the panel opinion was vacated after the en banc hearing); 10th Cir. R. 35.6 (“The grant of rehearing en banc vacates the judgment, stays the mandate, and restores the case on the docket as a pending appeal. The panel decision is not vacated unless the court so orders.”).

Because the decision to rehear a case en banc “effectively means that the original three judge panel never existed,” Socop-Gonzalez, 272 F.3d at 1186 n. 8, logic dictates that decisions of the panel that were critical to the ultimate outcome of the case are vacated as well. Otherwise, those members of this Court who were not members of the panel would be precluded from exercising their independent judgment regarding the merits of the entire petition. Hence, this Court, sitting en banc, is not bound by any of the panel’s decisions in this case. All of those decisions were a component of the panel’s final order that was nullified by this Court’s decision to grant a rehearing in this case. Therefore, as the Court with original jurisdiction, this Court, sitting en banc, has both the authority and the duty to decide the issues presented in this case as if the panel proceedings had never occurred.

The majority’s reliance on what appears to be an application of the interpanel accord doctrine,28 see supra at 406, n. 4, 694 S.E.2d at 258, n. 4; 411-12 n. 9, 694 S.E.2d at 261-62 n. 9, ignores the fact that this case is before us for consideration by the full court. The majority notes that the panel that determined to certify this case for a credibility finding was separate *435from the panel that ultimately granted the writ in this case, and to address the first panel’s decision at this time would be “inappropriate.”29 While it is true that two separate panels were involved in this case, it cannot be said that the first panel’s decision was final or binding. This was an interlocutory order reflecting the initial panel’s decision to take further evidence, not a disposition of the case.30 Further, even if the initial panel’s remand order were a final decision, this Court, sitting en banc, “may overrule any previous decision by any panel or of the full court.” Code 17.1-402(D). And it matters not whether the decision to be overruled is from the case on which we granted en banc review, or a previous decision of another panel. Startin v. Commonwealth, 56 Va.App. 26, 39-40, 690 S.E.2d 310, 316 (2010) (Powell, J.) (finding “a mistake exist[ed] in our prior decisions” and “exercising] our authority under Code § 17.1-402(D) [to] overrule [that decision]” (citations and internal quotation marks omitted)).

Thus, I believe that my colleagues’ position that we are now bound by the original panel’s decision to certify this case to the circuit court for a credibility determination, as well as the results of that credibility determination, is mistaken. The Commonwealth petitioned this Court to rehear the case. *436When we granted that petition, we completely vacated the panel’s order. Upon the grant of rehearing en bam:, the panel’s decision, and all that went along with it, was nullified, and we must determine this case anew. Accordingly, I conclude that this case is in the same posture before this Court en bane as a misdemeanor conviction appealed from a district court to a circuit court—we start over.31

II. Background

In 1996, a jury convicted Dustin Turner of acting in concert with Billy Joe Brown in the abduction with intent to defile and the murder of Jennifer Evans. In an earlier jury trial, Brown had been convicted of the same crimes, as well as one count of attempted rape. This Court affirmed Brown’s convictions, Brown v. Commonwealth, 28 Va.App. 315, 504 S.E.2d 399 (1998), and, in an unpublished order, denied Turner’s petition for appeal on the issues of sufficiency and admissibility of evidence, Turner v. Commonwealth, Rec. No. 0381-97-1 (Va. Ct.App. Jan. 23, 1998). The Virginia Supreme Court also denied both Turner and Brown’s petitions for appeal. Turner v. Commonwealth, Rec. No. 980220 (Va. May 29, 1998); Brown v. Commonwealth, Rec. No. 982174 (Va. Feb. 23,1999).

Four years later, Brown provided a new version of the events of the crime that was inconsistent with his testimony at his own trial and the sundry other versions of the crime to which he had previously subscribed.32 At that time, in an *437interview with Turner’s attorney, Brown stated that he acted alone in killing Jennifer Evans. This newest version of the facts was consistent with, and apparently based on, Turner’s testimony at Turner’s trial. At that time, Turner testified that he and Jennifer Evans had been sitting together in the front seat of his car, which was parked in a busy parking lot of a bar. Brown came out of the bar and sat in the back seat behind Evans. According to Turner, Brown became enraged and suddenly reached around the seat and choked Jennifer Evans until she died. Turner testified that he was in shock, had made a futile attempt to pull Brown’s arms off of Evans, and, when commanded to by Brown, had driven away. Turner maintained that Evans died almost instantaneously.33

The transcript of Brown’s 2002 interview was filed by Turner as support for his petition. It begins with Brown explaining that during the days and weeks leading up to the *438murder, he engaged in heavy alcohol, steroid, and marijuana use. On the actual day of the murder, Brown consumed a large quantity of alcohol as well. Because of Brown’s self-destructive behavior, he could only remember “bits and pieces” of the events on the night Jennifer Evans died, both because of his impaired memory and because he had blacked out several times that night.

While Brown’s new statement is consistent with Turner’s testimony at Turner’s trial, it is important to note that this “newly discovered testimony” is simply a version of the facts that had been presented to, and rejected by, Turner’s jury. In fact, three times in his recorded statement, Brown indicated that portions of his “memories” of that night came from reading Turner’s statement. First, Brown could not recall how he came to be in Jennifer Evans’ presence:

I left [the bar] and went to find [Turner]. I saw him in the car, him and Jennifer was [sic] sitting in the car. I had gotten in the car and they let me in the back seat and I began talking with them and I read Dustin [sic] testimony and honestly I don’t remember all the bits and pieces, I only remember bits and pieces, I don’t remember all the details.

(Emphasis added). Second, when Turner’s attorney asked Brown what he, Turner, and Evans discussed while all three of them were in the car, Brown’s memory failed him: “Honestly I vaguely remember. I think I was making rude comments to her. What [sic] I read the report that Dusty had given and I was making comments to her.” (Emphasis added). Finally, when Turner’s attorney asked Brown what Turner was doing while Brown was choking the victim—a critical question considering that Turner’s conviction was predicated on a concert of action theory—Brown responded, “Honestly, I vaguely remember a little bit but I read in his [Turner’s] report that he had tried to pull my hand away and I think I do recall, I believe at one point, I believe I recall his hand on my arm.” (Emphasis added).

Turner’s attorney subsequently had the recorded statement reduced to an affidavit for the purposes of Turner’s petition *439for actual innocence. In the version of the affidavit34 that was submitted with the petition for actual innocence, Brown described the act of Evans’ murder as follows:

I left the bar and went to find Dusty. I saw him in the parking lot. He and Jennifer were sitting in the car. I had gotten in the car and they let me in the back seat and I began talking with them. I was being vulgar and I vaguely recall [sic]. We were sitting there talking and next thing you know I reached up and choked Jennifer. I did this on my own without any prior discussion with Dustin Turner. He did not encourage me in any way and in fact, I remember one instance while I was choking Jennifer, Dustin trying to pull my hands away. Jennifer became unconscious and I am certain she was dead at that time. We were still in the parking lot. I do not know why I did it.

Turner, relying on the affidavit, then filed a petition for a writ of actual innocence in this Court pursuant to Code §§ 19.2-327.10 through 19.2-327.13. The Attorney General filed a motion to dismiss, arguing that Brown’s inherently incredible *440statement could not meet the burden of proof imposed on Turner by Code § 19.2-327.13. Upon consideration of the pleadings and the record, a panel of this Court, without acting on the Commonwealth’s motion to dismiss, certified this case to the circuit court, pursuant to Code § 19.2-327.12,35 with instructions to assess Brown’s credibility. Because the circuit court found Brown’s statement credible,36 the panel granted *441Turner’s petition. Turner v. Commonwealth, 54 Va.App. 458, 491-92, 680 S.E.2d 312, 329 (2009).

Upon the Commonwealth’s petition for rehearing, this Court granted an en banc hearing to consider Turner’s petition. As discussed above, because this Court has original jurisdiction in cases involving writs of actual innocence based on non-biological evidence, it is our responsibility to determine both the scope of the evidence before us and the merits of Turner’s petition. Code § 19.2-327.10. Finally, this Court sitting en banc must now “consider and decide the case” and in doing so we “may overrule any previous decision of any panel or of the fuH court.” Code § 17.1-402(D).

III. Discussion

I believe that the record before us is sufficient to decide the case and no further development of the facts is necessary. Upon consideration of that record, I believe we must grant the Attorney General’s motion to dismiss Turner’s petition. The evidence upon which Turner exclusively relies—Brown’s affidavit and statement—simply does not meet the high burden of proof set forth in Code §§ 19.2-327.11 and 19.2-327.13. Brown’s highly impeachable and dubious statement does not, *442and never could, prove that Turner is factually and legally innocent of the crime for which the jury convicted him. Hence, as the subsequent discussion shows, there is no reason for this Court to remand the case to the circuit court for an evidentiary hearing. This Court is perfectly capable of evaluating the petition and supporting affidavit in light of the statutory burden of proof. Simply put, Turner’s proffered after-discovered evidence simply is not of the requisite conclusive nature to warrant granting the writ of actual innocence.

“Once a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears____” Herrera v. Collins, 506 U.S. 390, 399-400, 113 S.Ct. 853, 860, 122 L.Ed.2d 203 (1993). Accordingly, “in the eyes of the law, petitioner does not come before the Court as one who is ‘innocent,’ but, on the contrary, as one who has been convicted by due process of law of [a] brutal murder[ ].” Id. In order to overcome the fact that he is, as a matter of law, guilty of Jennifer Evans’ murder, Dustin Turner must meet quite possibly the heaviest burden the law imposes. According to Code § 19.2-327.11, a petitioner must produce evidence that is not only material to the issue of actual innocence, but is also the kind of evidence that “when considered with all of the evidence in the current record ... prove[s] that no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Code § 19.2-327.11(A)(vii) (emphasis added).

This Court is required to apply Code § 19.2-327.11(A)(vii) in a manner that is “harmonious with its legislative purpose and [to] avoid any construction defeating that purpose.” Carpitcher v. Commonwealth, 273 Va. 335, 345, 641 S.E.2d 486, 492 (2007). To that end, we must “consider the words the legislature has employed, the subject matter of the statutes governing writs of actual innocence based on non-biological evidence, the statutes’ apparent object, and the legislative purpose in enacting the statutes[.]” Id. (citing Esteban v. Commonwealth, 266 Va. 605, 609, 587 S.E.2d 523, 526 (2003); Commonwealth v. Bruhn, 264 Va. 597, 602, 570 S.E.2d 866, 869 (2002); Lucy v. County of Albemarle, 258 Va. 118, 129-30, 516 S.E.2d *443480, 485 (1999); Mapp v. Holland, 138 Va. 519, 527-28, 122 S.E. 430, 432-33 (1924)). The history of both the biological and non-biological writs of actual innocence is instructive as to the General Assembly’s purpose in enacting them. Hence, a discussion of that history can guide this Court in applying the law in accordance with the General Assembly’s intent.

A. Statutory History

1. Development of the Writ

Approximately a decade ago, scientific advances and Virginia’s twenty-one-day rule collided. At that time, an individual who had been convicted of a crime could only challenge his conviction on the basis of after-discovered evidence within twenty-one days of the trial court’s entry of final judgment— regardless of whether the evidence completely exonerated him. See Rule 1:1. Advances in the preservation, extraction, and analysis of human biological evidence, commonly referred to as DNA evidence, highlighted a flaw in the application of the twenty-one-day rule. Using DNA evidence, several convicts, including one on death row,37 were able to conclusively prove that they did not commit the crimes for which they had been convicted. In each of these cases, the proof of innocence often was only obtained well after the twenty-one-day period had run. See, e.g., William J. Dinkin and Cullen D. Seltzer, Criminal Law and Procedure, 35 U. Rich L.Rev. 537, 561-64 (2001); Marjorie A. Shields, DNA Evidence as Newly Discovered Evidence Which Will Warrant Grant of New Trial or Other Postconviction Relief in Criminal Case, 125 A.L.R.5th 497 (collecting cases, statutes, and court rules). Virginia was thus placed in the indefensible position of prohibiting an *444individual who was demonstrably and factually innocent of a crime from seeking judicial relief from his incarceration.

In response to that situation, our General Assembly created an exceedingly narrow exception to Virginia’s twenty-one-day rule: the writ of actual innocence based on after-discovered biological evidence (biological evidence writ). 2001 Va. Acts ch. 878, 874; see also 35 U. Rich L.Rev. at 562 (discussing the passage of the writ of actual innocence based on after-discovered biological evidence); Crime Comm’n Rep. at 5 (discussing the twenty-one-day rule).38

Following the enactment of the biological evidence writ, members of the General Assembly recognized that there could be other conclusive, exonerating evidence besides DNA evidence, and proposed the creation of a writ of actual innocence based on non-biological evidence. Crime Comm’n Rep. at 7, 12. According to the Crime Commission’s Report, the proposed legislation was designed to “use[ ] the same high level of proof that must be met in order to obtain relief’ under the biological evidence writ. Id. at 16 (emphasis added). The Commission’s proposed legislation, which eventually became the writ for actual innocence based on non-biological innocence, Code §§ 19.2-327.10 through 19.2-327.13, closely tracked the language of the biological evidence writ and, just like the biological evidence writ, reflected Virginia courts’ long-held suspicion of after-discovered evidence. Crime Comm’n Rep. at 13. Because the General Assembly relied “on Virginia’s traditional treatment of after-discovered evidence,” *445Id. at 7 & 7 n. 13, the writs reflect the deference with which Virginia has always viewed the final judgment of a trial court, In re Carpitcher, 47 Va.App. 513, 526, 624 S.E.2d 700, 706 (2006) (“A verdict resulting from a trial, during which the evidence has been tested by the adversarial process, is presumed to be correct, and, thus, a heavy burden is placed upon those seeking to overturn it.”).

2. After-Discovered Evidence Standard

As part of that deference for the finality of judgment, Virginia law views motions for a new trial based on after-discovered evidence with disfavor. They “are considered with special care and caution, and are awarded with great reluctance.” Commonwealth v. Tweed, 264 Va. 524, 528, 570 S.E.2d 797, 800 (2002). This is so because the law “give[s] every litigant one, and only one, opportunity of presenting his case to the jury or before the court, and when this has been had, the results of the trial will not usually be disturbed____” Pauley v. Commonwealth, 151 Va. 510, 518, 144 S.E. 361, 363 (1928). It is well settled in Virginia law that a new trial will be granted on the grounds of after-discovered evidence only if the moving party can prove that: 1) the evidence was discovered since the trial; 2) the evidence could not, by the exercise of reasonable diligence, have been discovered before the trial terminated; 3) the evidence is material and such as ought to produce a different result on the next trial; and 4) the evidence is not merely cumulative, corroborative, or collateral. See, e.g., Avent v. Commonwealth, 279 Va. 175, 206, 688 S.E.2d 244, 261 (2010).

However, in recognition that the relief sought by actual innocence petitioners is complete exoneration and release from prison—instead of a new trial—the burden of proof an actual innocence petitioner must meet with his after-discovered evidence is much higher. Criminal defendants seeking a new trial need only show that the after-discovered evidence would likely lead to a different result upon retrial. In sharp contrast, actual innocence petitioners must produce clear and convincing evidence that proves that “no rational trier of fact *446could have found proof of guilt beyond a reasonable doubt” in light of the newly-discovered evidence, taken together with the rest of the evidence in the case. Code §§ 19.2—327.3(A)(vii); 19.2-327.11(A)(vii). In other words, the new evidence must conclusively show that the petitioner’s guilt is a factual impossibility.

The General Assembly, as reflected in the language of the statute and the purpose of the legislation, intended that an actual innocence petitioner—regardless of whether he proceeds under the biological evidence writ or the non-biological evidence writ—meet a burden of showing not merely evidence that could call his conviction into question, but evidence that actually exonerates him of the crime for which he was convicted.39 Indeed, our Supreme Court has specifically recognized this high burden:

By enacting these provisions, the General Assembly intended to provide relief only to those individuals who can establish that they did not, as a matter of fact, commit the crimes for which they were convicted____ [The writ was] not intended to provide relief to individuals who merely produce evidence contrary to the evidence presented at their criminal trial.

Carpitcher, 273 Va. at 345, 641 S.E.2d at 492 (emphasis added).

Because the General Assembly adopted the same requirements for the non-biological writ as it did for the biological evidence 'writ, the General Assembly clearly demonstrated its intent to limit the application of the writ to newly-discovered evidence of the same conclusive nature as DNA evidence. Thus, the writ at issue in this case establishes, and was *447intended by the General Assembly to establish, an extraordinarily high burden. Although there is no restriction on the type of evidence upon which a petitioner may rely in his attempt to prove his actual innocence, see Code § 19.2-327.11; Crime Comm’n Rpt. at 16, only “a truly persuasive demonstration of actual innocence made after trial” will provide “the necessarily ... extraordinarily high” “threshold showing” required to demonstrate actual innocence. Herrera, 506 U.S. at 417-18, 113 S.Ct. at 869 (O’Connor, J., concurring) (discussing the assumed due process right a prisoner would have to challenge a capital sentence with after-discovered evidence of actual innocence). A truly persuasive demonstration of actual innocence, then, will prove to be a difficult task, because evidence that will meet the high standard required by Code § 19.2-311(A)(vii) is of necessity limited.

B. Burden of Proof

Unless the petitioner proffers after-discovered evidence that can prove, by clear and convincing evidence, that “no reasonable trier of fact could have found proof of guilt beyond a reasonable doubt,” upon consideration of the new evidence along with the evidence presented at trial, Code § 19.2-327.11(A)(vii), our inquiry should end, and we should dismiss the petition. Code § 19.2-327.13. If the proffered evidence cannot conclusively establish innocence, there is simply no reason to proceed further; factual findings are not “require[d].” Code § 19.2-327.12.

Of course, the General Assembly did not create this Court’s function in determining whether the after-discovered evidence can support the petitioner’s claim out of whole cloth. Again, this procedure is similar to that employed by a circuit court in deciding whether to grant a motion for a new trial based on after-discovered evidence. “When ... evidence supporting the new trial motion is contradicted by evidence in opposition to the motion, the circuit court is not permitted to presume that the moving party’s evidence is true but is required to weigh all the evidence presented____” Orndorff v. Commonwealth, 271 Va. 486, 505, 628 S.E.2d 344, 354 (2006) (citations omitted). In sorting through that conflicting evidence, “the *448court’s role resembles that of a fact finder in determining whether the evidence is such that it should produce an opposite result on the merits at a new trial.” Id.

However, unlike a circuit court’s evaluation of after-discovered evidence proffered in support of a motion for a new trial, this Court must evaluate the probative value of uncorroborated, after-discovered witness testimony in an actual innocence proceeding through the prism of the incredibly high burden of proof set by the General Assembly. Effectively, we must ask ourselves whether this new testimony would produce the certainty of opinion in the minds of jurors that the statute demands. This type of witness testimony is problematic because it is, by its very nature, uncertain.

When a witness testifies to a fact, he is testifying not to what that fact actually is, but rather his belief in or perception of that fact. See Judicial Inquiry & Review Comm’n v. Peatross, 269 Va. 428, 445-46, 611 S.E.2d 392, 401 (2005) (determining that evidence of credibility was in equipoise when three witnesses gave conflicting evidence based on each witness’ “honest[ ] • • • recollection of the events____”). The witness could be telling the truth as he understands it, but he could be mistaken due to poor eyesight or poor memory. Or, the witness can appear entirely credible, but actually be lying. Either way, testimony can be credible—that is, believable— without being factually dispositive of the issue of innocence. That is why our criminal justice system allows twelve jurors, as triers of fact, to individually assess and weigh testimony and assign it such credence as each individual juror determines appropriate. Jurors are instructed that they may “accept or disregard all or part of the testimony of a witness as [they] think proper” and that they may “determine which witnesses are more believable and weigh their testimony accordingly.” 1-2 Virginia Model Jury Instructions, Criminal Instruction No. 2.500 (2009). Hung juries are proof positive that there are times when reasonable jurors do not agree on whether to believe a witness’ testimony.40

*449That is not to say that a newly-discovered witness’ testimony can never be conclusive enough to survive a motion to dismiss the petition. However, to reach that point, the after-discovered testimonial evidence must “undermine[ ] the prosecution’s entire case.” In re Clark, 5 Cal.4th 750, 759, 21 Cal.Rptr.2d 509, 514, 855 P.2d 729, 734 (1993). “It is not sufficient that the evidence might have weakened the prosecution case or presented a more difficult question for the judge *450or jury.” Id. at 766, 21 Cal.Rptr.2d at 519, 855 P.2d at 739. Nor is it sufficient that the new evidence, when combined with other evidence favorable toward the petitioner, put the evidence as to the petitioner’s guilt or innocence in equipoise. See Peatross, 269 Va. at 446, 611 S.E.2d at 402 (holding that evidence which is in equipoise cannot satisfy the clear and convincing burden of proof). Instead, only evidence that “casts fundamental doubt on the accuracy and reliability of the proceedings ... [and] undermine[s] the entire prosecution case and point[s] unerringly to innocenee[,]” In re Clark, 5 Cal.4th at 766, 21 Cal.Rptr.2d at 519, 855 P.2d at 739, needs to be further examined for credibility.

That is exactly the situation that was before the Supreme Court in both Carpitcher and Johnson v. Commonwealth, 273 Va. 315, 641 S.E.2d 480 (2007). In both of those cases, the after-discovered testimony consisted of the recantation of testimony presented at trial and without which the petitioner could not have been convicted. If the recantation were true, there would have been no evidence that the petitioner committed the crime for which he was convicted. Or, put another way, if the only evidence supporting the convictions proved to be false, no reasonable juror could have convicted the petitioners in those cases.

In Carpitcher, the complaining witness recanted her trial testimony that Carpitcher sexually abused her. 273 Va. at 340, 641 S.E.2d at 489. The complaining witness was “the Commonwealth’s only witness during the trial, and, thus, the jury predicated Carpitcher’s convictions solely upon her testimony.” Carpitcher, 47 Va.App. at 517-18, 624 S.E.2d at 702 (2006) (emphasis added). Thus, because the only evidence supporting Carpitcher’s conviction would have been eliminated had the recantation testimony been true, no reasonable juror could have convicted Carpitcher. Carpitcher, 273 Va. at 345-46, 641 S.E.2d at 492-93.

There, the Supreme Court affirmed this Court’s determination to certify two specific questions to the circuit court: first, “[w]hether the victim in this case has recanted the testimony *451she gave at trial in any material way -with regard to the culpability of the petitioner;” and second, “if such material recantation of her trial testimony has taken place, whether or not such recantation is the product of duress, undue influence or inappropriate pressure from others.” Id. at 341, 346, 641 S.E.2d at 489, 493. The Supreme Court also affirmed this Court’s subsequent decision to dismiss the petition upon the circuit court’s finding that the victim was no longer a credible witness because “she had testified inconsistently about the same issues on three separate occasions” and had been subjected to threats and intimidation designed to elicit her recantation. Id. at 341, 348-49, 641 S.E.2d at 489-90, 494.

The Supreme Court came to a similar conclusion in Johnson. There, the petitioner was convicted of capital murder and conspiracy to commit capital murder for hire. 273 Va. at 318, 641 S.E.2d at 482. One of Johnson’s co-conspirators, Smith, testified at Johnson’s trial and established that “Johnson asked Smith to kill [the victim] or find someone to kill her. According to Smith, Johnson stated that he would ‘give his next paycheck’ to any person willing to kill [the victim].” Id. at 319, 641 S.E.2d at 482. Smith’s testimony provided the critical link between Johnson and the crime for which Johnson was convicted. Several weeks after the trial, however, Smith recanted his trial testimony, and Johnson relied upon that recantation in pursuit of a writ of actual innocence. Id. at 319-20, 641 S.E.2d at 482-83. This Court certified the question of Smith’s credibility to the circuit court. Id. at 320, 641 S.E.2d at 483. After the circuit court found that Smith’s testimony was “neither logical or believable,” this Court dismissed the petition, and our Supreme Court affirmed. Id.

This case is distinguishable from Carpitcher and Johnson in that Brown’s most recent statement in no way undermines the Commonwealth’s entire case at trial. First and foremost, Brown did not testify at Turner’s trial—thus, his new statement, unlike the recantations in Carpitcher and Johnson—did not reduce the quantum of evidence presented at trial and *452with which the Commonwealth met its burden.41 Second, in a related point, the Commonwealth did not rely on Brown to make the critical link between Turner and the crime. Instead, the Commonwealth relied upon extensive direct and circumstantial evidence42 to carry its burden of proving that Turner participated in the murder and abduction of Jennifer Evans. Finally, Brown’s proffered testimony is simply a repetition of the testimony Turner gave at trial—testimony that was specifically rejected by the jury that heard the case.

C. Evaluating the Evidence

Thus, in evaluating the petition, this Court should view Brown’s affidavit along with the other evidence in the record to determine whether Turner’s newly-discovered evidence could possibly be conclusive on the issue of his innocence. Code § 19.2-327.11(A)(vii) (“[Wjhen considered with all of the other evidence in the current record [the after-discovered evidence] will prove that no rational trier of fact could have found proof of guilt beyond a reasonable doubt.”). If the newly-presented evidence is not of such a clear and convincing nature that we can say that no reasonable juror would have voted to convict, he has failed to state a claim and we must dismiss the petition.

*453To determine whether Turner stated a claim, this Court need only evaluate the evidence he proffered. This Court must then must weigh the proffered after-discovered evidence with the evidence in the trial record and decide whether the after-discovered evidence is so absolute and compelling that no reasonable juror would have voted to convict the accused in light of that evidence. See House v. Bell, 547 U.S. 518, 538, 126 S.Ct. 2064, 2078, 165 L.Ed.2d 1 (2006) (discussing claims of actual innocence in the federal habeas corpus context) (“Because [an actual innocence] claim involves evidence the trial jury did not have before it, the inquiry requires the ... court to assess how reasonable jurors would react to the overall, newly supplemented record.”).

Hence, it is our proper function to evaluate the probable effect this evidence would have had on a jury. When properly viewed through the prism of the statute, Brown’s statement becomes just another piece of evidence that the jury would have considered. Even though Brown was undeniably an eyewitness to the crime, it is quite foreseeable that a reasonable juror would have considered Brown’s statement as what it was—simply one more in a series of conflicting and unreliable tales emanating from the steroid and alcohol impaired memory of a self-confessed murderer. It is quite reasonable to conclude that a hypothetical juror would have chosen to ignore Brown’s testimony in its entirety and decide the case on the same evidence considered by the original jury. In fact, finders of fact are explicitly allowed to do just that under our jurisprudence.43 See Bridgeman v. Commonwealth, 3 Va.App. 523, 528, 351 S.E.2d 598, 601 (1986) (The finder of fact may accept or reject a witness’ testimony in whole or in part.); see *454also Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (A fact finder is at liberty to reject the conflicting evidence presented on behalf of the accused.). Furthermore, Brown’s many inconsistent prior statements, which would have certainly been used to impeach his testimony, make his statement the very antithesis of the kind of evidence that can support a petition for a writ of actual innocence: that is, rock-solid evidence that has the same unquestionable, conclusive nature as DNA evidence.

IV. Conclusion

It is incumbent upon an actual innocence petitioner to present clear and convincing evidence proving that his guilt is a factual impossibility. The writ was “not intended to provide relief to individuals who merely produce evidence contrary to the evidence presented at their criminal trial.” Carpitcher, 273 Va. at 345, 641 S.E.2d at 492. Even assuming that Brown’s testimony would have been consistent with his affidavit, that testimony is not, either by its nature or its weight, sufficient to convince me that no reasonable juror would have voted to convict Turner had they heard it. Therefore, in my opinion, Turner has not met the high standard of proof set by the General Assembly in Code § 19.2-327.11(A)(vii). I would grant the Commonwealth’s motion and dismiss Turner’s petition pursuant to Code § 19.2-327.13.

concurring in part, dissenting in part, and dissenting from the judgment.

I concur in Parts I and 11(A) of Judge Powell’s opinion. However, I believe applying the proper standard of review,44 *455as set out in Part 11(A), to the facts in this case compels the granting of the petition for a writ of actual innocence. Thus, for the reasons stated below, I respectfully dissent from the remainder of the opinion.

The foregoing opinions dismissing the petition for a writ provide a lengthy recitation of facts and many paragraphs of heart-wrenching, emotional narrative. There is no denying that this case involves a horrible crime that has had an unimaginable impact on the victim’s family. However, that is not what this petition for actual innocence concerns. We are not charged with determining whether Dustin Turner is without moral fault. He is not. We are not charged with determining whether he reacted in a morally or legally proper way when Billy Joe Brown ended Jennifer Evans’ life. He did not. Instead, we are charged with applying the existing legal framework to determine if Turner is “actually] innocen[t]” of the murder and abduction for which he was previously convicted. I believe the record before us compels the conclusion that he is.45

*456In the previous panel majority, I discussed at length the detailed legal rationale for the panel’s decision—a rationale I continue to follow and explain more fully in the pages below. This case has taken many twists and turns and involves a complex record of conflicting evidence. However, we instruct jurors they are entitled to use their common sense. I suggest the fact that we normally write in great detail—with many citations to legal authority—does not negate the fact that we, too, should apply a commonsense approach. There is no denying that this petition is of a most serious nature. Having said that, and no matter how many novel legal theories we apply to this case, the issue before us is really quite simple.

First, a clear majority of this Court agrees on the proper standard of review, as enunciated in Carpitcher v. Commonwealth, 273 Va. 335, 641 S.E.2d 486 (2007). A panel of this Court referred this matter to the circuit court for fact finding pursuant to Code § 19.2-327.12, and we are bound by that decision. The Supreme Court of Virginia could not have been clearer in setting out the relevant legal principles in Carpitcher and Johnson v. Commonwealth, 273 Va. 315, 322, 641 S.E.2d 480, 484 (2007) (giving “the Court of Appeals broad discretion to certify to the circuit court issues of fact that must be resolved before deciding the merits of a petition” (emphasis added)).

Second, the circuit court found that “Brown [was] credible in his assertion that he acted independently in murdering the victim and that Turner had no role in the murder or any restraint of the victim.” Because the referring panel determined that Brown’s recantation was material to Turner’s petition for a writ of actual innocence and, therefore, that referral to the circuit court was required, we must accept the circuit court’s findings of fact in that regard unless plainly wrong. See Carpitcher, 273 Va. at 342-43, 641 S.E.2d at 490 (binding this Court “by the factual findings in the present record ... unless they are plainly wrong or without evidence *457to support them”). Much is made of the contention that “credibility” and “truth” are not necessarily the same. While this is an accurate assessment of reality, our judicial system has always been based on credibility findings made by the trier of fact. I am aware of no legal concept that allows an appellate court, even one acting on a matter over which it has original jurisdiction, to ignore a credibility finding because it might not be “the truth,” unless the record meets the higher burden of establishing that credibility finding is plainly wrong. Although the search for real truth is elusive, it is abundantly clear in this case that the trier of fact credited Brown’s testimony that he alone restrained and killed the victim with no participation from Turner.

Third, the question then becomes whether any rational fact finder could convict Turner of the victim’s murder and abduction when told it had to accept the above finding as credible— that is, that the fact finder was required to believe Brown’s most recent testimony. The answer to that question is obvious: If X says that he did it and that Y did not participate in any way, and the jury believes X, there is no legal way to convict Y. A rational fact finder simply cannot apply any interpretation to the remaining circumstantial evidence that will allow it to find Y guilty in light of this direct credible evidence.

Because Brown’s credible recantation prevents a finding that Turner participated directly in Evans’ murder, the majority applies a novel theory of abduction by deception in order to manufacture the intent to defile, a required element a rational fact finder would need to find Turner guilty of felony murder. However, the record is devoid of any evidence that Turner ever engaged or intended to engage in any sexual activity against the will of the participant. Turner’s mere desire to engage in sexual activity with Evans cannot serve as the basis for concluding he would have used force if she did not consent. Applying the theory of abduction by deception in this fashion lends itself to abuse.

*458Dustin Turner deserves no accolades for his behavior on the terrible night of the victim’s death, but based on the circuit court’s findings regarding Brown’s credibility in the context of the entire record, the evidence proves Turner did not restrain or murder the victim. He has been incarcerated for fourteen years for a crime the fact finder has found he did not commit. The petition should be granted.

TURNER’S PARTICIPATION IN THE CRIMES

My disagreement with the majority stems from its holding that “a rational fact finder could have found that Turner!, acting with intent to defile,] abducted Evans by deception— meaning no finding of force or restraint would have been required—and that the abduction ended with Evans’ murder.” The majority first errs by not considering, in light of Brown’s credible recantation, whether Brown acted alone in killing Evans. While the majority properly recognizes that we must “reject! ] all evidence that is in conflict with the circuit court’s findings,” I believe Brown’s recantation has a more far-reaching impact on the circumstantial evidence relevant to demonstrating Turner’s intent than the majority acknowledges. I would conclude Brown’s testimony on referral compels us to reject any evidence that suggests Brown and Turner acted in concert to engage in sexual intercourse with Evans against her will. Second, and central to my dissent, I believe no rational fact finder could find Turner guilty of abduction with intent to defile and felony murder based on the remaining circumstantial evidence contained in the record.

Where two or more parties engage in criminal concert of action, one who participates in the initial felony giving rise to the homicide may be found guilty of murder whether or not he was the one who actually dealt the killing stroke. See Rollston v. Commonwealth, 11 Va.App. 535, 543, 399 S.E.2d 823, 828 (1991) (recognizing the application of concert of action in felony murder cases); see also Wooden v. Commonwealth, 222 Va. 758, 762, 284 S.E.2d 811, 814 (1981); Berkeley v. Commonwealth, 19 Va.App. 279, 286-87, 451 S.E.2d 41, 45 (1994) (holding that the victim’s death resulted from her abduction so *459that the defendant’s participation in the continuing transaction provided sufficient evidence to affirm his conviction of first-degree murder). “Concerted action is defined as ‘[ajction that has been planned, arranged, adjusted, agreed on and settled between parties acting together pursuant to some design or scheme.’” Rollston, 11 Va.App. at 542, 399 S.E.2d at 827 (quoting Black’s Law Dictionary 262 (5th ed. 1979)).

“[W]hen the homicide is within the res gestae of the initial felony and is an emanation thereof, it is committed in the perpetration of that felony.” King v. Commonwealth, 6 Va. App. 351, 354, 368 S.E.2d 704, 705 (1988). Our courts have interpreted this concept to prohibit application of the felony-murder doctrine where the killing merely coincided with the underlying felony and was not a consequence thereof.46 See id. at 356, 368 S.E.2d at 707 (citing Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472, 476 (1958)); see also Griffin v. Commonwealth, 33 Va.App. 413, 425, 533 S.E.2d 653, 659 (2000) (requiring evidence that the killing “resulted from an act which was an integral part of the felony or an act in direct furtherance of or necessitated by the felony” (emphases added)).

As a result of Turner’s petition for a writ of actual innocence, this Court ordered the circuit court to make factual findings on four questions, only one of which related directly to the specific offenses for which Turner had been convicted, murder and abduction with intent to defile: “4) [I]s Brown credible in his assertion that he acted independently in murdering the victim and that Turner had no role in the murder or any restraint of the victim?” (Emphasis added). In response to that question, the circuit court determined Brown *460was “credible in his assertion that he acted independently in murdering the victim and that ... Turner played no role in the murder or in the restraining of the victim.” (Emphasis added). By assuming Brown’s recantation “has no bearing on what a reasonable fact finder could conclude about Turner’s ... sexual intent,” the majority does not view both the question and the answer in the context of the convictions Turner challenges—for murder and abduction with intent to defile.

The circuit court, by referring to the murder and the restraint in the disjunctive, contemplated Brown’s recantation in light of both the actual killing and the underlying crime of abduction. “Restrain” means “‘[t]o control’” or “‘[t]o take away freedom or liberty of.’ ” United States v. Stokley, 881 F.2d 114, 116 (4th Cir. 1989) (quoting Webster’s Second New Riverside University Dictionary (1984)); see also Black’s Law Dictionary 1340 (8th ed. 2004) (defining “restraint” as “[c]onfinement,” “limitation,” or “[prohibition of action”). The legislature has provided that abduction as defined in Code § 18.2-47 is synonymous with kidnapping, see Code § 18.2-47(C), which is not separately defined in the Virginia Code. At common law, kidnapping required proof of both “an unlawful restraint” and an asportation. See State v. Dix, 282 N.C. 490, 193 S.E.2d 897, 899 (1973).

Relying on Jerman v. Dir. of the Dep’t of Corr., 267 Va. 432, 593 S.E.2d 255 (2004), and Kent v. Commonwealth, 165 Va. 840,183 S.E. 177 (1936), the majority concludes “[t]he accused need not have used any physical force or restraint against the victim” in order to uphold a conviction for abduction. (Emphasis added). Although our legislature, like many others, now permits a conviction for abduction upon proof of a detention without any asportation, see, e.g., Scott v. Commonwealth, 228 Va. 519, 526, 323 S.E.2d 572, 576 (1984), the statutory language provides no indication the legislature has removed the “restraint” requirement. To the contrary, one who “seizes, takes, transports, detains or secretes the person of another,” as those terms are used in Code § 18.2-47, “restrains” that person under the accepted legal definition of the term. The Supreme Court has recognized that a conviction for abduction *461under Code § 18.2-47 requires proof of restraint of the victim either by asportation or detention and that the asportation or detention may be accomplished by force, intimidation, or deception. Jerman, 267 Va. at 439, 593 S.E.2d at 259; see John L. Costello, Virginia Criminal Law and Procedure § 5.1[6] (2009) (“[A]bduction consists of restraints on the personal liberty of another.” (Emphasis added)). Thus, an asportation by force or deception is a type of restraint47 and, if the other statutory elements are proved, constitutes abduction in violation of Code § 18.2-47.

Based on the crimes for which Turner was convicted, the wording of the question posed by this Court to the circuit court, and the accepted “assum[ption] that trial judges have knowledge of the Commonwealth’s laws and properly apply those laws” absent clear evidence to the contrary, Wilson v. Commonwealth, 23 Va.App. 318, 326 477 S.E.2d 7, 10 (1996), I would hold the circuit court’s use of the word “restraint” constitutes a finding that Turner did not participate with Brown in an abduction by either force or deception. I would therefore reject the theory that Turner and Brown engaged in any criminal concert of action such that any rational fact finder could believe any causal connection existed between Turner’s conduct and Evans’ death.

*462In light of the circuit court’s acceptance of Brown’s testimony that Turner did not participate in the murder or the abduction leading to the murder, the hypothetical fact finder must necessarily reject any evidence or interpretation thereof that suggests an agreement between Turner and Brown existed to undertake these acts.48 Specifically, I would reject the majority’s conclusion that Fitzgibbons’ testimony, heavily relied upon by the majority, implies a formulated plan between Turner and Brown to engage in group sex with Evans against her will. A plain reading of the record compels such a rejection. At approximately 1:15 a.m., Turner made arrangements with Kate Bishop to take Brown home if Turner did not return to the club in time to do so himself. Then, at approximately 1:30 a.m., Turner spoke to Fitzgibbons and indicated that he, Brown, and Evans were going to have a “threesome.” The majority posits that “[fjifteen minutes would have been more than enough time for their plan [to have sex with Evans] to have changed[,]” but it inexplicably ignores the fact that at approximately 1:45 a.m., Bishop approached Brown to take him home. According to Bishop’s testimony, Brown refused to accompany her because he did not want to wait for Bishop’s friend to arrive and not because he had alternate plans with Turner to engage in sexual intercourse with Evans. It is a stretch of the imagination to believe a rational fact finder could conclude Turner made arrangements to have sex with Evans without Brown, changed the plans to include Brown in the sexual activity, changed his mind again to have Brown ride home with Bishop, and finally returned to the original plan of engaging in a threesome, all in the span of thirty minutes. Under the same logic, we cannot interpret Brown’s salacious request to “get[] it on with [Evans] too” as evidence of a nefarious agreement between him and Turner. No rational *463fact finder could infer from this evidence that an agreement between Turner and Brown existed to engage in a threesome with Evans against her will.

In the absence of such an agreement, no rational trier of fact could find the men acted in concert to abduct or kill Evans. Because the two men each acted of their own volition, Turner’s conduct and Brown’s entry into the vehicle and subsequent killing were not “interdependent objects of a common criminal design.” Edmonds v. Commonwealth, 229 Va. 303, 310, 329 S.E.2d 807, 813 (1985). Indeed, Turner’s waiting with Evans in his vehicle merely accounted for his “presence at the location of the [murder], and nothing directly related to the commission of the felony that caused the [murder].” King, 6 Va.App. at 358, 368 S.E.2d at 708 (finding no causal connection between flying a plane containing marijuana as part of a drug smuggling operation and the death of a co-felon caused by crashing the plane into a mountain); see Rollston, 11 Va.App. at 542, 399 S.E.2d at 827 (“Mere presence during the commission of a crime is not sufficient to render one criminally liable.”). Whatever intentions Turner possessed when he left the club with Evans, the circuit court’s findings on referral compel the conclusion that he did not act in concert with Brown to lure her into leaving the club for the purpose of engaging in sexual intercourse against her will. Those findings instead compel the conclusion that Brown acted as an independent and superseding force so that his actions constituted a separate—and completely coincidental—enterprise with no causal connection to Turner’s own conduct.

Not only has Brown’s recantation severed Turner from the criminal enterprise leading to Evans’ murder, but, in light of the circuit court’s acceptance of Brown’s recantation, I believe a rational trier of fact could not have concluded beyond a reasonable doubt that Turner abducted Evans with intent to defile prior to and separate from Brown’s acts of restraint and murder. The majority takes the opposite view that “a rational fact finder could have found that Turner abducted Evans by deception.” It is at this critical juncture where the majority *464premises its dismissal of Turner’s petition for a writ of actual innocence and where the heart of my dissent lies.

Under Code § 18.2-47, abduction requires proof of an asportation or detention. See Scott, 228 Va. at 526, 323 S.E.2d at 576. The accused need not have used any actual force against the victim in order to sustain a conviction. Kent, 165 Va. at 841-42, 183 S.E. at 177-78. Instead, restraint for purposes of abduction includes a taking away or detention induced by fraud or deception. See Code § 18.2-47; Jerman, 267 Va. at 439, 593 S.E.2d at 259; Kent, 165 Va. at 841-42, 183 S.E. at 177-78; Costello, supra, § 5.1[6]. However, the evidence must show that the accused effected such deception with the specific intent to defile the victim. See Johnson v. Commonwealth (Johnson II), 221 Va. 872, 879, 275 S.E.2d 592, 597 (1981); see also Simms v. Commonwealth, 2 Va.App. 614, 617, 346 S.E.2d 734, 735 (1986) (equating “defile” with “sexually molest”). This intent-to-defile element requires proof of an intent to engage in sexual contact against the will of the claimed victim. See, e.g., Code §§ 18.2-61 (rape), 18.2-67.1 (forcible sodomy), 18.2-67.3 (aggravated sexual battery), 18.2-67.4 (sexual battery).

“ ‘Intent is the purpose formed in a person’s mind which may, and often must, be inferred from the facts and circumstances in a particular case.’ ” Hughes v. Commonwealth, 18 Va.App. 510, 519, 446 S.E.2d 451, 457 (1994) (quoting David v. Commonwealth, 2 Va.App. 1, 3, 340 S.E.2d 576, 577 (1986)). The state of mind of an accused may be shown by his conduct and by his statements. Long v. Commonwealth, 8 Va.App. 194, 198, 379 S.E.2d 473, 476 (1989). “Circumstantial evidence is as competent and is entitled to as much weight as direct evidence, provided [the evidence as a whole] is sufficiently convincing to exclude every reasonable hypothesis except that of guilt.” Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). In its role of judging witness credibility, the fact finder is entitled to disbelieve, in whole or in part, the self-serving testimony of the accused and to conclude that the accused is lying to conceal his guilt. Speight v. Commonwealth, 4 Va.App. 83, 88, 354 S.E.2d 95, 98 (1987) (en banc). *465The rejection of that testimony, however, does not provide substantive evidence that the opposite is true. Tarpley v. Commonwealth, 261 Va. 251, 256-57, 542 S.E.2d 761, 764 (2001).

In both Kent and Jerman, the Court determined that the abductions occurred when the defendants told a specific lie that induced or coerced their respective victims into going places they would not otherwise have gone. In this case, by contrast, no rational fact finder could find beyond a reasonable doubt that Turner made any statement or engaged in any act showing an intent to deceive Evans for the purpose of sexually molesting her against her will. Although the evidence does not preclude the possibility that Turner had such an intent, reasonable hypotheses of innocence flow from the evidence, thereby precluding any rational trier of fact from finding Turner guilty beyond a reasonable doubt of abduction with intent to defile. To support its conclusion, the majority applies a novel theory of abduction by deception to manufacture the intent to defile that a rational fact finder would require to find Turner guilty of felony murder. In essence, the majority concludes that it is rational to find that any rude individual who desires sex also harbors an intent to defile.49 The record contains neither legal authority nor factual support for such a conclusion.

In Johnson II, the Supreme Court of Virginia reversed the defendant’s conviction of abduction where his acts of restraint were “done in furtherance of his sexual advances and not with *466the intent to deprive [the victim] of her personal liberty.”50 221 Va. at 879, 275 S.E.2d at 597. In that case, the defendant followed the victim into her kitchen after knocking on her door. He grabbed the victim from behind, attempted to kiss her, and rubbed his hips against her buttocks. When the victim’s landlady responded to her cries for help, the defendant released the victim and walked rapidly out of the apartment. The Court held that the defendant clearly “entered the apartment with the intention of having sexual intercourse with the [victim] and that the advances he made, however limited and fleeting, were designed to accomplish that purpose. However, his assault was frustrated by her resistance and stopped short of constituting an attempted rape.” Id. at 879, 275 S.E.2d at 596-97. On those facts, the evidence did not prove the defendant acted with the separate intent to deprive the victim of her personal liberty with the intent to defile.

Similarly here, the circumstantial evidence “fails ‘to form an unbroken chain which links [Turner] to the crime beyond a reasonable doubt,’ ” Hickson v. Commonwealth, 258 Va. 383, 388, 520 S.E.2d 643, 645 (1999) (quoting Bishop v. Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984)), because a rational trier of fact could find Turner acted with an intent to defile Evans, i.e., to engage in sexual contact against her will, only by “resorting to speculation and surmise,” Patterson v. Commonwealth, 215 Va. 698, 699, 213 S.E.2d 752, 753 (1975). Turner’s stated purpose for leaving the club with Evans was to wait with her in his vehicle for her friends Andria Burdette and Michelle McCammon to return. Although a rational fact finder could have rejected Turner’s testimony regarding his purpose, such a rejection does not support a finding that he acted instead with the requisite criminal intent to abduct Evans with an intent to defile. See Tarpley, 261 Va. at 256-*46757, 542 S.E.2d at 764. Indeed, even if a rational fact finder could conclude Turner lied to Evans about his purpose in going with her to his car and that he actually hoped to have some form of sexual contact with her, the record contains no indication that Turner acted , with the intent to have that sexual contact by force if Evans had refused. The evidence provided by Andria Burdette, Michelle McCammon, and Turner himself indicating that Evans would have refused such advances does not bridge that gap in logic. Moreover, it defies rationality to suggest that displaying poor manners toward an individual’s friends and opening a door with “surprising force” could indicate an intent to defile. In fact, the record contains no evidence that Turner overbore Evans’ will at any point dining their encounter. Turner did not force Evans to stay behind; she willingly agreed to remain with him at the club and to meet her friends later that night. Turner did not make Evans uncomfortable; to the contrary, she appeared to have enjoyed his company. The evidence of the condition in which Evans’ body was found supports a finding that she had been sexually molested because her pants and underwear had been removed and her vest had been pushed up. However, Brown’s recantation, credited by the circuit court on referral, accounts for this because he fully admitted to defiling Evans’ body after he had killed her. In a similar vein, Turner’s callous behavior after Evans’ murder goes toward his guilt of being an accessory after the fact, a crime he conceded to have committed.

In sum, the majority makes a fatal leap in logic from Turner’s possible desire to engage in sexual intercourse to his alleged intent to defile Evans. In light of Brown’s recantation, the evidence proves beyond a reasonable doubt, at most, that when Turner invited Evans to wait with him in his vehicle for her friends, he did so with the hope of persuading her to have consensual sexual contact. The record is devoid of evidence supporting a rational finding that Turner acted with the intent to force Evans into having sex against her will. Brown’s recantation negates the inculpatory evidence against *468Turner to such an extent that no rational trier of fact could have found Turner guilty beyond a reasonable doubt of abduction with intent to defile.

CONCLUSION

For these reasons, I would conclude Turner has met his burden of proving, by clear and convincing evidence, that Brown’s recantation is truthful and, consequently, that no rational trier of fact could have found proof beyond a reasonable doubt of abduction with intent to defile and felony murder. Code § 19.2-327.11(A)(vii). For the reasons stated in the panel majority opinion, I would further “accept Turner’s concession that he is guilty of being an accessory after the fact.” Turner v. Commonwealth, 54 Va.App. 458, 491, 680 S.E.2d 312, 328 (2009). Accordingly, I would grant Turner’s petition for a writ of actual innocence and vacate his convictions for abduction with intent to defile and first-degree murder. I respectfully dissent.

Because the issues addressed herein are of first impression and potential litigants and members of the bar may benefit from the directives herein, we direct the Clerk to publish this order.

The Commonwealth shall recover of the petitioner the costs in this Court. The Attorney General shall recover of the petitioner his costs expended herein.

Costs due the Commonwealth by petitioner in Court of Appeals of Virginia:

Costs of transcripts, briefs, and appendices, pursuant to Court’s November 6, 2008 and December 16, 2008 orders

Attorney General’s cost:

Attorney’s fee $50.00