Hebden v. Commonwealth

ANNUNZIATA, Judge,

dissenting.

This case turns on the credibility of the prosecutrix. The trial court, which had the opportunity we lack to observe the prosecutrix testify, “to weigh her biases, her intelligence, her demeanor, and her ability to recall and communicate facts accurately,” believed the prosecutrix and found that the evidence constituted proof of appellant’s guilt beyond a reasonable doubt. See Fisher v. Commonwealth, 228 Va. 296, 300, 321 S.E.2d 202, 204 (1984). The majority concludes that the evidence was insufficient to support the trial court’s finding of guilt because the prosecutrix’s testimony is contrary to human experience and inherently incredible as a matter of law. I respectfully disagree.

The standard of review when the sufficiency of the evidence is challenged on appeal is well settled. We construe the evidence “in the light most favorable to the Commonwealth,” grant the Commonwealth “all reasonable inferences fairly deducible therefrom,” and “discard the evidence of the accused in conflict with that of the Commonwealth.” Cirios v. Com*453monwealth, 7 Va.App. 292, 295, 373 S.E.2d 164, 165 (1988) (citations omitted); see also Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). Unless the trial court’s judgment appears to be plainly wrong or without evidence to support it, it cannot be set aside. Code § 8.01-680; Josephs v. Commonwealth, 10 Va.App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc).

Furthermore, “[i]t is fundamental that ‘the credibility of witnesses and the weight accorded their testimony are matters solely for the fact finder who has the opportunity of seeing and hearing the witnesses.’” Collins v. Commonwealth, 13 Va.App. 177, 179, 409 S.E.2d 175, 176 (1991) (quoting Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985)). The trial judge’s determination of the facts, based on the trial judge’s evaluation of the credibility of the witnesses, is entitled to great weight. E.g., Satterwhite v. Commonwealth, 201 Va. 478, 483, 111 S.E.2d 820, 823-24 (1960).

The thirteen-year-old victim in this case was the child of divorced parents. She resided with each parent at different times. At the time of the offenses, she lived with her father, the appellant, and her stepmother, with whom she did not have a close relationship. Appellant referred to his daughter as “his best girlfriend.”

The child’s bedroom in appellant’s home was located adjacent to that of appellant and his wife. The child testified that during the month of January 1995, appellant entered her room after she had fallen asleep, knelt at the side of her bed, put his hands under her blankets and felt her breasts and vagina under her nightshirt. She further testified that appellant inserted his fingers inside her vagina. She testified that she pushed appellant away, and he would “sometimes ... come back, and other times ... would leave but [come] back.” She also testified that on May 25, 1995, appellant entered her bedroom where she was lying in bed on her side, knelt on the floor next to her bed, rolled her onto her back and touched her breast and vagina as he had done before. On this date, *454however, she stated that her father also used his tongue to lick her vagina after pulling her underpants to her knees.

Until the May incident, the child did not report the sexual assaults, and she acknowledged that, although her stepmother was asleep in the next room, she did not cry out for help. On May 31, she reported the incident to her school counselor.

The evidence showed that, between May 25 and 31, while visiting her mother, the child remained out past her curfew and her father had to be called to retrieve her. The evidence showed that appellant was a strong disciplinarian who had imposed strict rules governing the child’s behavior and academic performance with which the child was generally compliant. As a result of the weekend incident, appellant threatened to ground the child for the entire summer.

The appellant denied the child’s accusations. He contended the child had fabricated her story in response to his threat to prohibit her social activities for the summer and because she wanted to return to live with her mother, who was less strict and who lived in closer proximity to the child’s boyfriend. A Mend of appellant, who also considered himself a Mend of the child, testified that the child had told him in March 1995, approximately two months before the May restrictions were imposed, that she would get even with her father for not allowing her to see her boyMend.

The child explained her delay in reporting the earlier molestations. She stated that she was afraid and that she did not want to lose her relationship with her father or have him go to jail. She ultimately reported the occurrences “[b]cause it happened so many times, [she] ... was tired of it.” The child specifically denied having threatened to get even with her father.

If believed, the child’s testimony, even uncorroborated, is sufficient to support the finding of guilt beyond a reasonable doubt. See Fisher, 228 Va. at 299, 321 S.E.2d at 203; Willis & Bell v. Commonwealth, 218 Va. 560, 563, 238 S.E.2d 811, 812 *455(1977).1 The child’s testimony was believed by the trier of fact, which declined to credit appellant’s contention the story was fabricated. At the close of the evidence, the court made the following finding:

The Court looked very closely at the demeanor of all the witnesses, but more particularly the Court looked at the demeanor of [appellant] and also with [the child], and ... the Court is still struck with why [the child] would come in court and subject herself to this as well as to subject her father to this type of prosecution, and the Court was most convinced really by [the child’s] explanation as to why she didn’t tell anybody was because she was afraid for her father, frankly, and she’s indicated that she didn’t want what was happening to happen. She didn’t want to see him go to jail, and she didn’t want anything to happen to him, and the Court basically has to make a judgment call as to which one of these witnesses is telling the truth about what happened, and as a result the Court believes [the child].

Because witness credibility was the essential issue surrounding the child’s alleged motivation to fabricate the accusations, and the trial court resolved the conflicts in the evidence against the appellant, the only basis upon which the conviction can be reversed is to find the child’s testimony “inherently incredible, or so contrary to human experience or to usual human behavior as to render it unworthy of belief.” Willis & Bell, 218 Va. at 563, 238 S.E.2d at 813. I do not believe the standard was met in this case.

That the incidents escaped detection by the child’s stepmother, apparently asleep in an adjoining room during the early morning occurrences, is neither surprising nor inherently unworthy of belief. The crime at issue is one that can be perpetrated clandestinely, considerably more clandestinely than the crime of rape. It is not a crime that leaves observable, tell-tale physical evidence or necessarily provokes outcries of pain. Further, it is easy to understand a child’s natural *456reluctance to call out to her stepmother for help in repelling her father’s sexual assault.

With respect to the delay in reporting the incident, a reasonable explanation was given: this child of divorced parents did not wish to see her father go to jail or otherwise get in trouble. Her decision to protect her father, the perpetrator, is not contrary to human experience, and delayed reporting is not uncommon. See, e.g., Corvin v. Commonwealth, 13 Va.App. 296, 299, 411 S.E.2d 235, 237 (1991).

Finally, the timing of the child’s report, following the father’s threat to prohibit the teenage child's social life for an entire summer, also followed an escalation in the nature of the sexually assaultive conduct. The impact of the last assault, which involved an act of cunnilingus on the thirteen year old, must be evaluated together with her father’s threat to restrict her social contacts. But the evaluation of the evidence on the issue of motivation requires the trier of fact to weigh the evidence, a matter beyond the purview of an appellate court and peculiarly within the province of the trier of fact. See, e.g., Fisher, 228 Va. at 300, 321 S.E.2d at 204. While the father’s threat may arguably have provoked fabrication in retaliation, the trial court resolved the issue in favor of the other reasonable inference to be drawn from the evidence, viz., the child found the continuing and escalating nature of the sexual assaults totally unacceptable and when balanced against the need to protect her father, she chose to protect herself. Finally, even if we assume the child was angered by the appellant’s threat to limit her social contacts, the trial court’s implicit conclusion that the anger provoked the timing of the report, not its content, was reasonable and reflective of common human experience.

In sum, the testimony of the prosecutrix, if believed, was sufficient to support appellant’s conviction. The trial court, which had the full opportunity to observe and evaluate the witnesses, believed the prosecutrix. “ ‘The living record contains many guideposts to the truth which are not in the printed record; not having seen them ourselves, we should give great weight to the conclusions of those who have seen and heard them.’ ” Ketchum v. Commonwealth, 12 Va.App. 258, 263, 403 S.E.2d 382, 384 (1991) (quoting Bradley v. *457Commonwealth, 196 Va. 1126, 1136, 86 S.E.2d 828, 834 (1955)). I find that the record does not support the majority’s conclusion that the prosecutrix’s testimony was inherently incredible or contrary to human experience.

I would affirm the convictions.

. I note, however, that the child’s testimony was not wholly uncorroborated. Rather, the child reported the offenses to her school counselor. "Evidence of an out-of-court complaint ... is admissible, not as independent evidence of the offense, but as corroboration of the victim's testimony.” Fisher, 228 Va. at 300, 321 S.E.2d at 204 (citing Cartera v. Commonwealth, 219 Va. 516, 518, 248 S.E.2d 784, 786 (1978)).