COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia
ABRAHAM FELDER
MEMORANDUM OPINION * BY
v. Record No. 1617-98-2 JUDGE ROBERT P. FRANK
AUGUST 3, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
James F. D’Alton, Jr., Judge
Mary Katherine Martin, Senior Assistant
Public Defender (Office of the Public
Defender, on brief), for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Abraham Felder (appellant) appeals his conviction of two
counts of rape after a jury trial. On appeal, he asserts that
the trial court erroneously: (1) refused to suppress the entire
videotaped statement that he made to the police prior to his
arrest, (2) held that the indictments stated the dates of the
offenses with sufficient specificity, and (3) held the evidence
sufficient to support the convictions for rape. For the reasons
that follow, we affirm the convictions.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I. Background
Appellant was charged with three counts of rape. The
indictments set forth the following dates for the rapes: (1) on
or about July 1, 1996, (2) on or about August 1, 1996, and (3)
on or about November 11, 1996. Appellant was found not guilty
of the November 11, 1996 offense, but we recite the related
facts because the discovery of the two prior offenses arose out
of the circumstances surrounding the November 11, 1996 incident.
At trial, the victim, a twelve-year-old female child at
the time of the offenses, testified that on November 11, 1996,
she was outside her home when a friend of her mother asked her
to bring her mother outside. The child testified that a
neighbor, Abraham “Ham” Felder (appellant), was outside with her
mother’s friend and asked the child to come to his home for
spaghetti. When she brought her mother outside, the child asked
her mother if she could go to “Ham’s” house for spaghetti. Her
mother gave her permission to go to appellant’s home.
The mother testified that when she finished talking with
her friend, she realized that it was getting late. She went
home and did not find the child there. She began looking for
the child and went next door to appellant’s home. She called
out for the child three or four times, and as she approached
appellant’s home, she could hear bedsprings squeaking. Soon
thereafter, the child opened the door. The child’s hair and
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clothing were in disarray. The mother testified that she saw
appellant run from the bed.
When the child went to “Ham’s” for spaghetti, he told her
that the spaghetti was on the kitchen table. When she came out
of the kitchen after getting the spaghetti, appellant locked the
door, threw her on the bed and began taking her clothes off.
Appellant put her legs in the air and started putting his penis
in her. She testified that he put his penis in her “poo-poo,”
and indicated that her “poo-poo” is between her legs. She also
testified that appellant unlaced her bra and played with her
breasts. The child testified that she tried to get appellant
off her, but was unable to do so. He also put his hand over her
mouth when she tried to speak. The child testified that
appellant jumped off her when her mother knocked on his door.
The mother took the child to the emergency room. At the
hospital, the child was examined by a sexual assault nurse
examiner, Linda Sayers. Sayers performed a sexual assault
examination on the child which included a Physical Evidence
Recovery Kit (PERK), an eighteen-step evidence collection
process, a perineal exam of the vaginal area, and an internal
exam of the vaginal wall and cervix. As part of the PERK,
Sayers collected head hair samples, collected the child’s
underwear, and performed a pubic combing. Sayers noted that the
child did not have pubic hair, so she was unable to get a
sample. Additionally, Sayers testified that she used an
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ultraviolet light to look for semen on the child’s body. Sayers
swabbed the child’s thighs, external genitalia, and vaginal
vault. Sayers testified that she was able to use a speculum on
the child during the internal exam because there was no evidence
of a hymen, meaning that the child had been vaginally penetrated
at some point. Sayers testified that it was unusual for a
premenstrual twelve year old not to have a hymen. There were no
tears or bruising in the child’s genital area. Additionally,
there were no signs of struggle on other parts of the child’s
body.
The child testified that she had sexual contact with
appellant on two prior occasions. One occasion occurred when
the child went to appellant’s house while he was there eating
chicken with his girlfriend’s granddaughter. Appellant pushed
her against the refrigerator and put “his thing back in” her.
The child testified that this event occurred in the winter and
it was cold outside.
The other occasion occurred at Christmas. Appellant bought
the child a pair of Reebok sport shoes, and she went to his
house. She testified that he got on top of her and started
“putting his thing back in” her.
The Commonwealth introduced a videotaped statement that
appellant gave the police on November 12, 1996. Investigator
Covington testified that appellant followed him to the police
station after Investigator Covington went to appellant’s home
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and invited him to come to the station. Appellant drove his own
car and stopped to pick up his girlfriend before driving to the
station. Investigator Covington testified that appellant was
unaware that he was being videotaped. Appellant told
Investigator Covington that he did not touch the child on
November 11, 1996, but that they had “played around” a couple of
times. He told Investigator Covington that the child took his
penis out of his pants and played with it and “put it in” on two
occasions in “the summertime.” 1 He agreed that his penis was in
the child’s vagina. He asserted, however, that he never “did it
to her.”
The jury convicted Felder on two rape charges resulting
from the events on or about July 1, 1996, and on or about August
1, 1996. The jury acquitted appellant of the November 11, 1996
offense.
II. Suppression of the Videotaped Statement
Appellant assigns error to the refusal of the trial court
to suppress the entire videotaped statement he made to police on
November 12, 1996. We find no merit in this assignment of
error.
1
Although the transcript of the videotaped statement does
not include appellant’s statement that the two occasions
occurred during the summer, appellant states on the actual
videotape that the two occasions occurred during “the
summertime.” The videotape was shown to the jury.
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At the suppression hearing, the trial court ruled that
appellant should have been advised of his rights under Miranda
v. Arizona, 384 U.S. 436 (1966), after his first admission that
implicated him in a criminal act. The trial court suppressed
all portions of the statement following appellant’s first
admission of sexual contact with the child. At trial,
appellant’s trial counsel renewed the motion to suppress the
entire videotaped statement. The trial court denied the motion
and confirmed its earlier ruling that suppressed only the
portion of the statement following appellant’s first admission
of sexual contact. Appellant then elected to present the entire
videotaped statement to the jury, rather than the partial
statement allowed by the trial judge.
“‘No litigant, even a defendant in a criminal case, will be
permitted to approbate and reprobate--to invite error . . . and
then to take advantage of the situation created by his own
wrong.’” Manns v. Commonwealth, 13 Va. App. 677, 680, 414
S.E.2d 613, 615 (1992) (quoting Fisher v. Commonwealth, 236 Va.
403, 417, 374 S.E.2d 46, 54 (1988)). “‘The defendant, having
agreed upon the action taken by the trial court, should not be
allowed to assume an inconsistent position.’” Id. at 679, 414
S.E.2d at 615 (quoting Clark v. Commonwealth, 220 Va. 201, 214,
257 S.E.2d 784, 792 (1979)).
Appellant requested that the trial court admit the entire
videotaped statement to the jury. In electing to do so, the
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following was admitted into evidence which otherwise would have
been inadmissible pursuant to the trial court’s ruling:
appellant’s admission to Investigator Covington that he put his
penis in the child’s vagina; his agreement that he remembered
other times he had sex with her; his admission that the child
“grabbed” his penis and “put it in”; his admission that the
child would take his penis out and “play with it”; and his
admission that he put his penis in the child’s vagina on two
occasions in the summertime.
Appellant did not merely agree to the actions of the trial
court, but requested the admission into evidence of the entire
videotaped statement, which included inculpatory evidence. He
now assigns error to the admission of the statement. We find no
merit to his assignment as appellant cannot invite error and
then challenge it on appeal. We hold, therefore, that appellant
waived any objection to the admissibility of the videotaped
statement, as he requested its admission into evidence.
III. Variance Between the Indictment Dates and the Evidence
Appellant challenges the trial court’s denial of his motion
to strike based on inconsistencies between the indictment dates
and the evidence. We find this assignment of error without
merit.
An indictment is not invalid “[f]or omitting to state, or
stating imperfectly, the time at which the offense was committed
when time is not the essence of the offense.” Code
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§ 19.2-226(6). Time is not a material element of the offense of
rape. See Lear v. Commonwealth, 195 Va. 187, 193, 77 S.E.2d
424, 427 (1953).
In Marlowe v. Commonwealth, 2 Va. App. 619, 623-24, 347
S.E.2d 167, 170 (1986), this Court held
[w]hen time is not an element of the crime
charged, the jury verdict will stand if the
evidence is sufficient to prove beyond a
reasonable doubt that a crime occurred and
that the defendant committed the crime, even
though the evidence is such that there may
be a reasonable doubt as to the day on which
the offense occurred. Such does not
constitute a denial of due process of law.
Marlowe was an aggravated sexual battery case involving two
minors under the age of thirteen. Marlowe asserted an alibi
defense and argued that the language “on or about” in the
indictments allowed the jury to find him guilty even if it
believed his alibi. See id. at 624, 347 S.E.2d at 170. This
Court held that the alibi defense did not raise reasonable doubt
because there was corroboration by an independent witness that
the criminal events occurred and that Marlowe was the criminal
agent, even though the evidence was not certain as to the
specific date of one of the offenses. See id. Further, this
Court stated that in cases involving a child victim,
prosecutions would be precluded if the child was required to
recall the exact date of the offense in order to obtain the
conviction. See id. at 625-26, 347 S.E.2d at 171. Usually,
such crimes against children are not discovered for a period of
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time, and the Commonwealth’s case would fail if it was required
to prove the exact date of the offense against the child. See
id. at 626, 347 S.E.2d at 171. “It is this same reasoning which
permits the Commonwealth to prove the commission of the crime
charged on a date different than that alleged in the
indictment.” Id.
In this case, appellant was convicted of two counts of rape
occurring on or about July 1, 1996 and on or about August 1,
1996. Time is not an element of the offense of rape, and under
Marlowe, the Commonwealth is not required to prove the exact
date of an offense against a child as long as the evidence
establishes beyond a reasonable doubt that a crime occurred and
the defendant committed the crime. Appellant did not raise an
alibi defense. Appellant, in the videotaped statement to the
police, said that he had sexual contact with the child on two
occasions in “the summertime.” Although the child testified
that appellant had sex with her on three occasions--on November
11, 1996, when it was cold outside, and at Christmas--appellant,
himself, admitted that the two occasions occurred during the
summer. We find that the trial judge did not err in overruling
appellant’s motion to strike as the evidence was sufficient to
prove the offenses.
III. Sufficiency of the Evidence to Prove Rape
Appellant challenges the trial court’s denial of his motion
to strike based on insufficiency of the evidence to prove
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penetration, an essential element of the offense of rape. We
find this assignment of error without merit.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987). The judgment of the trial court will
not be disturbed unless plainly wrong or without evidence to
support it. See id. “‘Additionally, the credibility of
witnesses and the weight to be given their testimony are
questions exclusively within the province’ of the fact finder.”
May v. Commonwealth, 3 Va. App. 348, 356-57, 349 S.E.2d 428, 432
(1986) (quoting Barker v. Commonwealth, 230 Va. 370, 373, 337
S.E.2d 729, 732 (1985)).
“The penetration necessary to constitute rape need be only
slight . . . .” Rowland v. Commonwealth, 147 Va. 636, 639, 136
S.E. 564, 565 (1927). In Rowland, the Supreme Court of Virginia
upheld a rape conviction based on circumstantial medical
evidence. See id. The doctor testified that, although the
victim’s hymen was intact, the vulva could have been penetrated
without damaging the hymen. See id. The victim testified she
did not know whether penetration occurred. See id.
This Court, relying on the reasoning in Rowland, has
defined penetration as “penetration of any portion of the
vulva--which encompasses the ‘external parts of the female sex
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organs considered as a whole’ and includes, beginning with the
outermost parts, the labia majora, labia minora, hymen, vaginal
opening and vagina.” Love v. Commonwealth, 18 Va. App. 84, 88,
441 S.E.2d 709, 712 (1994) (quoting 4 J.E. Schmidt, Attorney’s
Dictionary of Medicine V-106 (18th ed. 1990)). Penetration of
the vaginal opening is not required. See id.
We held in Kehinde v. Commonwealth, 1 Va. App. 342, 345,
338 S.E.2d 356, 357 (1986) (citing Snyder v. Commonwealth, 220
Va. 792, 796, 263 S.E.2d 55, 57-58 (1980)), that penetration may
be established solely by the victim’s testimony “unless such
testimony is inherently incredible or so contrary to human
experience or usual human behavior as to render it unworthy of
belief.” In Kehinde, the victim testified that the appellant
“‘stuck it in’” her, and explained that “‘it’” meant the
appellant’s penis. Id. at 346, 338 S.E.2d at 358. We held that
the victim’s testimony was sufficient to establish penetration.
See id.
In this case, the child testified that on the occasion when
she went to appellant’s house while he was eating chicken, he
had her “against the refrigerator putting his thing back in”
her. On the other occasion, appellant got on top of the child
and put “his thing back in” her. She testified that a penis is
“on somebody’s thing,” that she did not have a penis and
indicated that a penis is located between the legs. We find the
victim’s testimony similar to the testimony of the victim in
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Kehinde and more conclusive than the evidence in Rowland.
Additionally, appellant, in the videotaped statement, admitted
that on two occasions he put his penis in the child’s vagina and
that he put his penis “to the lips.” We, therefore, hold that
the evidence is sufficient to establish penetration.
For these reasons, we hold that appellant waived his right
to challenge the trial court’s denial of his motion to suppress.
We also hold that the trial court properly ruled that the
indictments stated the dates of the offenses with sufficient
specificity and that the evidence was sufficient to support the
convictions for rape. Therefore, we affirm appellant’s
convictions.
Affirmed.
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