COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Clements
Argued at Salem, Virginia
SHAWN WAYNE BREEDEN
MEMORANDUM OPINION * BY
v. Record No. 0404-02-3 JUDGE RUDOLPH BUMGARDNER, III
JANUARY 28, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
John J. McGrath, Jr., Judge
Aaron L. Cook (Aaron L. Cook, PC, on brief),
for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief) for appellee.
A jury convicted Shawn Wayne Breeden of forcible sodomy and
object sexual penetration in violation of Code §§ 18.2-67.1 and
18.2-67.2. He contends the evidence was insufficient to prove
penetration for either offense and the Commonwealth failed to
prove the chain of custody for evidence analyzed by the state
laboratory. We reverse the conviction of sodomy and affirm the
conviction of object sexual penetration.
On appeal, we view the evidence and all reasonable
inferences therefrom in the light most favorable to the
Commonwealth. Commonwealth v. Taylor, 256 Va. 514, 516, 506
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
S.E.2d 312, 313 (1998). The nine-year-old victim was spending
the night at the home of the defendant's sister. The victim
testified the defendant kneeled beside the bed where she was
sleeping and touched her vagina with his fingers and tongue.
She told the investigator and the nurse that the defendant was
licking her "between her legs," but she did not know whether his
tongue went inside her vagina. 1 His fingers touched her "around
the outside," but she could not recall whether his finger went
inside.
Penetration is an element of forcible sodomy. Code
§ 18.2-67.1; Hudson v. Commonwealth, 141 Va. 525, 527, 127 S.E.
89, 89 (1925). It is also an element of object sexual
penetration. Code § 18.2-67.2. In both cases the defendant
must penetrate the external part of the female genitalia.
1
At trial, the Commonwealth's attorney questioned the
victim:
Q: What body part was he touching?
A: I call it the vagina.
Q: And what part of his body was touching your
vagina?
A: His fingers and his tongue.
The Court then questioned the victim:
COURT: . . . [Y]ou also indicated that he was licking
your vagina?
A: Yes.
COURT: And did his tongue go inside of you? Could
you feel it going in a short distance?
A: I don't know.
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Horton v. Commonwealth, 255 Va. 606, 612-13, 499 S.E.2d 258, 261
(1998); Code § 18.2-67.2.
The victim's testimony established contact, but did not
establish penetration from either act. The nine-year-old victim
used the term "vagina" and responded affirmatively when asked,
"Do you know your body parts?" However, the record gives no
indication that she used the term "vagina" as a precise
anatomical term. As stated in Moore v. Commonwealth, 254 Va.
184, 190, 491 S.E.2d 739, 742 (1997), "there is no indication
whatever in the record that the young victim here was aware of
the intricate structure of her sexual organ." As further
explained in Horton, she "used the term 'vagina' generally to
describe the external portion of her genitalia." 255 Va. at
615, 499 S.E.2d at 262.
While the victim's testimony did not establish penetration,
the medical evidence proved digital penetration. The sexual
assault nurse examiner examined the victim a few hours after the
assault. She described the victim's genital area as very
swollen and reddened. The nurse observed a slight tear in the
vaginal vault just beyond the hymen, which was swollen. She
described it as "a significant tear in a child" because it was
visible with the naked eye. The tear was "a typical injury from
something either rubbing against or touching that would have
stretched that area." Something was either "inserted" into the
vagina or "some kind of pressure" caused stretching of the area.
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The injury could not have been self-inflicted, but a finger
could have caused it.
The nurse testified the victim had a tear in the "vaginal
vault" beyond her hymen. Insertion or pressure to the area
caused the tear. The nurse used the anatomical terms precisely.
Even the act of applying pressure to that area required that the
defendant had penetrated the labia majora. Code § 18.2-67.2
provides, "an accused is guilty of inanimate . . . object sexual
penetration if he . . . penetrates the labia majora . . . of a
complaining witness . . . ."
The victim's testimony was insufficient to prove
penetration, but when coupled with the medical testimony, the
evidence proved the defendant penetrated the victim with his
finger. "Given the circumstantial evidence of [digital]
penetration adduced by the Commonwealth in this case, the [fact
finder] could rationally discount the uncertainty reflected in
the prosecutrix's testimony . . . ." Elam v. Commonwealth, 229
Va. 113, 115, 326 S.E.2d 685, 687 (1985) (although victim's
testimony did not prove penetration, when coupled with medical
and forensic evidence, the evidence was sufficient). However,
the medical evidence that proved digital penetration negated
penetration during sodomy. The nurse stated a tongue could not
have created the tear she observed. Accordingly, the
Commonwealth failed to prove penetration for sodomy.
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The defendant contends the trial court erred in admitting
the certificate of analysis of the DNA evidence. He maintains
there was a break in the chain of custody because the
Commonwealth failed to call the evidence clerk who placed the
package in the mail. The Commonwealth proved all steps in the
chain of evidence from the time it was obtained by the nurse
until it was wrapped and sealed, and placed intact for the clerk
to mail. It also proved the laboratory received the package
unaltered. When returned to the police department, the only
alteration to the package and its seal was that made by the
forensic scientist during testing.
The evidence proved the evidence was sealed before being
left for the evidence clerk to mail. The laboratory received it
in the same condition, and returned it to the police department.
The police received it in the same condition as it left the
laboratory. "A chain of custody is properly established when
the Commonwealth's evidence provides reasonable assurance that
the sample to be admitted at trial is the same sample, and in
the same condition, as when it was first obtained." Johnson v.
Commonwealth, 259 Va. 654, 678, 529 S.E.2d 769, 783, cert.
denied, 531 U.S. 981 (2000). The evidence permits the finding
that the evidence was in the same condition as when obtained.
"[T]he Commonwealth is not required to eliminate every
conceivable possibility of substitution, alteration, or
tampering." Id.
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"Where there is mere speculation that contamination or
tampering could have occurred, it is not an abuse of discretion
to admit the evidence and let what doubt there may be go to the
weight to be given the evidence." Reedy v. Commonwealth, 9
Va. App. 386, 391, 388 S.E.2d 650, 651-52 (1990). The
Commonwealth proved the chain of custody, and the trial court
did not abuse its discretion in admitting the evidence.
Accordingly, we affirm the conviction of object sexual
penetration, and we reverse the conviction of sodomy.
Affirmed in part, and
reversed in part.
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