COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Humphreys
Argued at Richmond, Virginia
MICHAEL D. JARRELL
MEMORANDUM OPINION * BY
v. Record No. 0984-01-2 JUDGE JERE M. H. WILLIS, JR.
JUNE 18, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS
William R. Shelton, Judge
James M. Goff II (James M. Goff II, P.C., on
brief), for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Michael Jarrell was convicted in a bench trial of four counts
of aggravated sexual battery, in violation of Code § 18.2-67.3.
On appeal, he contends that the trial court erred in admitting for
impeachment purposes evidence of his prior conviction for
contributing to the delinquency of a minor. He further contends
that the evidence was insufficient to support his convictions. We
affirm the judgment of the trial court.
I. BACKGROUND
It was charged that on five occasions between July 1999 and
December 1999, Jarrell touched the breasts, buttocks, or groin
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
of a twelve-year-old girl. At trial, the girl testified that
some of the touchings occurred in the presence of Jarrell's
girlfriend and of his son. When asked why she delayed reporting
the incidents, she said she was afraid because Jarrell owned
guns and she feared he would hurt her or someone else if she
told what he had done. Jarrell's girlfriend and son both
testified that they did not recall seeing contact between him
and the girl.
Jarrell testified that none of the incidents described by
the girl took place. He stated that in December 1999, he had an
argument with the girl's mother and had sworn out a warrant
against her. Soon thereafter, he was arrested on warrants
setting forth the subject charges. During cross-examination,
Jarrell was asked whether he had ever been convicted of a felony
or a misdemeanor involving lying, cheating, or stealing. He
answered that he was "going to say no." Upon further
questioning, he acknowledged convictions for passing bad checks,
giving false information to a police officer, and failing to
return rental property.
The Commonwealth's attorney then asked Jarrell whether he
remembered being convicted in 1997 of contributing to the
delinquency of a minor. Jarrell stated he recalled no such
conviction. Over the objection of Jarrell's attorney, the trial
court permitted the Commonwealth to prove conviction of that
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charge. The trial court convicted Jarrell of four counts of
aggravated sexual battery.
II. PRIOR CONVICTION ERRONEOUSLY ADMITTED
Jarrell contends that the trial court erred in admitting,
for impeachment purposes, evidence of his prior conviction of
contributing to the delinquency of a minor. We agree.
Proof of a defendant's prior conviction of a felony or a
misdemeanor involving moral turpitude is admissible for
impeachment. The Supreme Court has held that contributing to the
delinquency of a minor is not per se a crime of moral turpitude.
Therefore, a mere conviction of that crime, absent proof of
circumstances of moral turpitude, cannot be used to impeach the
credibility of a defendant. Tasker v. Commonwealth, 202 Va. 1019,
1025, 121 S.E.2d 459, 463 (1961). No evidence that Jarrell's
conviction involved moral turpitude was presented in this case.
Therefore, the trial court erred in allowing the Commonwealth to
introduce evidence of Jarrell's prior conviction of contributing
to the delinquency of a minor. However, we find that error to be
harmless in this case.
The erroneously admitted evidence was received solely for
purposes of impeachment. Jarrell's credibility was abundantly
impeached by his acknowledged convictions of felonies and other
misdemeanors involving moral turpitude. His conviction of a
further misdemeanor had little significance, if any, in impeaching
his credibility.
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Jarrell argues that the nature of the erroneously admitted
conviction was prejudicial to him, suggesting a propensity on his
part to engage in improper conduct with children. Had this been a
jury trial, that argument might be persuasive. However, this was
a bench trial. The evidence was admissible and received only as
impeachment of Jarrell's credibility. In the absence of proof to
the contrary, we presume that the trial judge received and
considered the evidence only for the purpose for which it was
tendered and received. A trial judge is presumed to apply the law
correctly and to consider evidence within its proper context. See
Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291
(1977); Mason v. Commonwealth, 219 Va. 1091, 1098, 254 S.E.2d 116,
120 (1979).
III. SUFFICIENT EVIDENCE EXISTED
Jarrell next contends that the evidence was insufficient to
prove his guilt beyond a reasonable doubt. We disagree. When the
sufficiency of the evidence is challenged on appeal, we consider
the evidence in the light most favorable to the Commonwealth,
affording to it all reasonable inferences fairly deducible
therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218
S.E.2d 534, 537 (1975).
Arguing that reasonable doubt exists, Jarrell notes that the
girl gave conflicting statements during the investigation,
preliminary hearing, and trial; that she could not identify
specifically where and when the alleged incidents occurred; and
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that no independent witness corroborated her accusations. He
argues that his witnesses contradicted the uncorroborated
testimony of the girl.
The credibility of witnesses, the weight to be given their
testimony, and the inferences to be drawn from proven facts are
matters solely for the fact finder's determination. Long v.
Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1986).
The conclusions of the fact finder on issues of witness
credibility may be disturbed on appeal only if the witness'
testimony was "inherently incredible, or so contrary to human
experience as to render it unworthy of belief." McCary v.
Commonwealth, 36 Va. App. 27, 41, 548 S.E.2d 239, 246 (2001).
The victim's testimony in this case was not inherently
incredible or unworthy of belief. She testified as to the times
when the acts committed upon her took place. She testified to the
locations where the acts were committed. She testified to the
exact nature of the acts. Although she may have given conflicting
statements, this did not render her testimony inherently
incredible. Her testimony is sufficient to support the
convictions.
The judgment of the trial court is affirmed.
Affirmed.
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