NORFOLK

The full Virginia Court of Appeals ruled Tuesday that Dustin Turner, a former Navy SEAL trainee, should stay in prison for the 1995 murder of a Georgia college student at the Virginia Beach Oceanfront.

The ruling overturns a split decision by a three-judge panel of the same court last year, which said Turner should be freed on the basis of a confession by Turner's co-defendant, Billy Joe Brown, that he alone was responsible for the slaying.

Turner's lawyer, David Hargett, said he will appeal Tuesday's decision to the state Supreme Court.

"I'm confident the Supreme Court will see this case differently," he said.

Last year's ruling by the three-judge panel was the first time a murder conviction had been overturned under a 2004 Virginia law allowing consideration of new non biological evidence of innocence after sentencing.

Turner, of Bloomington, Ind., is serving an 82-year prison term - essentially a life sentence because the state has abolished parole. Brown is serving 72 years.

Jennifer Evans, a 21-year-old pre-med student at Emory University, was staying with friends in Sandbridge on summer vacation. She was choked to death in Turner's car after she and Turner met at the Bayou, a now-defunct Oceanfront nightspot.

After several days of questioning by police, Turner led them to Evans' decomposed body in a wooded park in Newport News.

Turner has proclaimed his innocence from the start, acknowledging only that he is guilty of being an accessory after the fact - a misdemeanor punishable by no more than a year in jail - because he helped Brown dispose of Evans' body and cover up the crime.

Brown, Turner's SEAL "swim buddy," gave several accounts of the murder but always blamed Turner until his 2002 confession, in which he said he had become a Christian in prison and could no longer allow an innocent man to pay for a crime he had committed.

Virginia Beach Circuit Judge Frederick B. Lowe ruled in 2008 that Brown's confession was credible.

The appeals court majority concluded that it was bound by Lowe's ruling as to Brown's credibility, but said "the fact that Brown may have acted alone in restraining Evans and in murdering her does not absolve Turner of his guilt."

Turner was convicted of murdering Evans in the course of committing another felony, specifically "abduction with intent to defile" Evans. The appeals court majority found that Turner had not produced clear and convincing evidence of innocence on that charge.

The most telling piece of evidence, the court found, was another SEAL trainee's testimony that Turner told him he and Brown planned to have three-way sex with Evans. Turner denied making the remark.

The court acknowledged there was no evidence that Turner used any force or restraint, but said the jury "could have found that Turner deceived Evans into leaving the bar, his nefarious intent unbeknownst to her."

Judge Larry Elder, who was part of the 2-1 majority on the panel that overturned Turner's conviction last year, dissented from Tuesday's ruling.

Accusing the court majority of adopting "a novel theory of abduction by deception," Elder wrote: "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."

Judge William Petty, joined by two other members of the court, issued a separate opinion concurring with the majority but saying he would have gone further and dismissed Turner's petition for release outright. He said he does not believe the court was bound to accept Lowe's finding that Brown's confession was credible.

"I believe that the evidence that Turner has offered falls woefully short of the extremely high burden of proof established by the General Assembly," Petty wrote.

Evans' mother, Delores Evans of Tucker, Ga., said she was pleased with the ruling, which came two days after the 15th anniversary of the day her daughter's body was found. However, her happiness was tempered by the knowledge that another court battle lies ahead.

"There's just no rest," she said. "God has helped heal my broken heart, but there will always be that empty spot. It keeps getting reopened - the wound does - every time one of these court appeals comes up."

Turner's mother, Linda Summitt, said it seemed to her the appeals court was "looking for a way to not be fair. I wasn't entirely surprised, but I was truly devastated."

The Associated Press contributed to this report.

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