COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Friedman, Callins and White
Argued at Salem, Virginia
NELSON O’NEAL DEWS, II
MEMORANDUM OPINION* BY
v. Record No. 0577-22-3 KIMBERLEY SLAYTON WHITE
MAY 2, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
J. Frederick Watson, Judge
David W. Shreve for appellant.
Tanner M. Russo, Assistant Attorney General (Jason S. Miyares,
Attorney General; Mason D. Williams, Assistant Attorney General,
on brief), for appellee.
Nelson O’Neal Dews challenges the sufficiency of the evidence supporting his
convictions for attempted rape, in violation of Code § 18.2-67.5, strangulation, in violation of
Code § 18.2-51.6, and assault and battery, in violation of Code § 18.2-57. Specifically, he
argues that the victim’s testimony was inherently incredible and that the victim did not suffer a
bodily injury within the meaning of Code § 18.2-51.6. We affirm the trial court’s judgment.
BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party [below].” Poole v. Commonwealth,
73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)). This
standard requires us to “discard the evidence of the accused in conflict with that of the
*
This opinion is not designated for publication. See Code § 17.1-413.
Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and
all fair inferences to be drawn [from that evidence].” Bagley v. Commonwealth, 73 Va. App. 1,
26 (2021) (alteration in original) (quoting Cooper v. Commonwealth, 54 Va. App. 558, 562
(2009)).
Serenity Lambert testified that Dews messaged her on Snapchat around September 10,
2020,1 asking if she wanted to “hang out.” She and Dews had been friends for about three years
and had had consensual sex in March 2020.2 Lambert responded that they “could hang out as
long as it was just that” and clarified that she did not want to have sex with Dews.
Dews drove Lambert to Dews’ grandparents’ house, where Dews was staying. Once in
Dews’ room, he began to “pull at [Lambert’s] clothes trying to initiate sex.” He successfully
removed Lambert’s sweatpants and began removing his own clothes even though Lambert “kept
telling him no.” Wearing only a t-shirt, Dews got on top of Lambert and pinned her to the bed
with her arms above her head. Lambert could not remember if Dews had an erection but
remembered him rubbing his penis against her through her underwear while she “kept telling him
to stop and tried to fight him off.” He continued doing so for a couple of minutes before
stopping. Lambert speculated that he stopped because “he just got mad and gave up after [she]
kept fighting.” Lambert testified on cross-examination that Dews was “teasing” her and did not
threaten her. When asked what she meant by “teasing,” she responded, “I guess he thought that I
wanted it, but I didn’t.”
1
Lambert could not recall the exact date. Snapchat messages disappear after a certain
amount of time.
2
Lambert admitted that she had previously had consensual sex with Dews but could not
recall the exact date.
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After unsuccessfully trying to penetrate Lambert, Dews asked her why she “was being
like that,” to which Lambert responded that she did not want to have sex. Dews then placed his
hands around her throat and “tried to strangle [her] and he did it twice.” Lambert did not lose
consciousness but testified that she felt dizzy, could not breathe very well, and that it felt like
Dews cut off her air passage. Afterwards, he told her “that he hoped he didn’t scare [her] but it
just turned him on.” Her “neck was red and just a little sore” for the next day. She admitted that
she did not cry out for help during the incident nor seek medical attention. Lambert then put her
clothes back on, and Dews drove her home. She told her friend Nicole Chittum about the
incident when she got home but did not go to the police because she “was scared,” “didn’t know
what would happen,” and “didn’t want to think about it again.”
About five months later, the police interviewed Lambert while investigating a fight
between Dews’ brothers and Lambert’s friend. During that interview, Lambert told the police
about the September 2020 incident.3 When she did so, she knew that Dews had been charged
with the same crimes regarding another individual.
In his defense, Dews testified that Lambert was never at this grandparents’ house in early
September. He denied that he ever attempted to rape her. He denied that he strangled her.
In closing, Dews argued that Lambert’s testimony was uncorroborated and unreliable
because she did not report the incident when it happened, had a motive to fabricate her testimony
based on the alleged fight between her friend and Dews’ brothers, had prior consensual
intercourse with Dews, and made several inconsistent statements during the investigation, such
as initially telling the police that the incident happened in May 2020. Dews also argued that the
Commonwealth failed to prove that Lambert suffered a bodily injury within the meaning of the
3
Lambert told the first officer she spoke with that the event took place in May 2020
before telling a second officer that it took place in September.
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strangulation statute. The trial court found Dews guilty of all counts, finding that “this case
certainly does turn on the credibility of the witnesses.” The court found Lambert’s testimony to
be credible and that “what she described happened actually happened.” Regarding the
strangulation charge, the court explained that the evidence showed that Dews’ “hands went
around [Lambert’s] throat, she had difficulty breathing as a result and had red marks and
soreness,” which the court found sufficient to convict Dews of strangulation. The court
sentenced Dews to fifteen years and twelve months’ imprisonment with all but four years and
four months suspended. Dews appeals.
ANALYSIS
I. Credibility
Dews challenges the sufficiency of the evidence underlying his convictions. He does not
contend that Lambert’s testimony, if credible, would be insufficient to support his attempted rape
or assault and battery convictions. See Wilson v. Commonwealth, 46 Va. App. 73, 87 (2005)
(“[A] conviction for rape and other sexual offenses may be sustained solely upon the
uncorroborated testimony of the victim.”). Rather, he argues that Lambert’s testimony, which
constituted the entirety of the Commonwealth’s evidence, was inherently incredible.
Specifically, he focuses on Lambert’s delayed report, her asserted motive to fabricate, and
various inconsistencies in her statements.
“On review of the sufficiency of the evidence, ‘the judgment of the trial court is
presumed correct and will not be disturbed unless it is plainly wrong or without evidence to
support it.’” Ingram v. Commonwealth, 74 Va. App. 59, 76 (2021) (quoting Smith v.
Commonwealth, 296 Va. 450, 460 (2018)). “The question on appeal, is whether ‘any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’”
Id. (quoting Yoder v. Commonwealth, 298 Va. 180, 182 (2019)). “If there is evidentiary support
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for the conviction, ‘the reviewing court is not permitted to substitute its own judgment, even if its
opinion might differ from the conclusions reached by the finder of fact at the trial.’” Chavez v.
Commonwealth, 69 Va. App. 149, 161 (2018) (quoting Banks v. Commonwealth, 67 Va. App.
273, 288 (2017)).
“[D]etermining the credibility of witnesses and the weight afforded the testimony of
those witnesses are matters left to the trier of fact, who has the ability to hear and see them as
they testify.” Maldonado v. Commonwealth, 70 Va. App. 554, 562 (2019) (quoting Miller v.
Commonwealth, 64 Va. App. 527, 536 (2015)). “Thus, this Court must accept ‘the trial court’s
determination of the credibility of witness testimony unless, “as a matter of law, the testimony is
inherently incredible.”’” Canada v. Commonwealth, 75 Va. App. 367, 386 (2022) (quoting
Nobrega v. Commonwealth, 271 Va. 508, 518 (2006)). “[W]e may only disturb the trial court’s
credibility determination if the evidence is ‘inherently incredible, or so contrary to human
experience as to render it unworthy of belief.’” Lopez v. Commonwealth, 73 Va. App. 70, 84
(2021) (quoting Kelley v. Commonwealth, 69 Va. App. 617, 626 (2019)). “Evidence is not
‘incredible’ unless it is ‘so manifestly false that reasonable men ought not to believe it’ or
‘shown to be false by objects or things as to the existence and meaning of which reasonable men
should not differ.’” Gerald, 295 Va. 469 at 487 (quoting Juniper v. Commonwealth, 271 Va.
362, 415 (2006)). Thus, “[t]he mere fact that a witness may have delayed in reporting
knowledge of a case or given inconsistent statements during the investigation of a crime does not
necessarily render the testimony unworthy of belief.” Juniper, 271 Va. at 415. Instead, such
circumstances are “appropriately weighed as part of the entire issue of witness credibility, which
is left to the [fact finder] to determine.” Id. (citing Shelton v. Mullins, 207 Va. 17, 22 (1966)).
Dews fails to meet the high burden of showing that Lambert’s testimony was inherently
incredible as a matter of law. First, although Dews characterizes Lambert’s delayed report as
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“unexplained,” Lambert testified that she did not report the crimes to the police because she “was
scared,” “didn’t know what would happen,” and “didn’t want to think about it again.” The fact
finder was entitled to consider this explanation and attribute to it such significance it deemed
appropriate. See Love v. Commonwealth, 18 Va. App. 84, 90 (1994) (holding that the victim’s
seven-year delay in reporting abuse did not render her testimony inherently incredible); see also
Corvin v. Commonwealth, 13 Va. App. 296, 299 (1991) (holding that “[t]he victim’s youth,
fright and embarrassment certainly provided the jury with an acceptable explanation for his”
14-month delay).
Second, Dews presented Lambert’s alleged motive to fabricate to the trial court, which
rejected it. A witness’s potential bias is one circumstance that “is appropriately weighed as part
of the entire issue of witness credibility, which is left to the [fact finder] to determine.” Juniper,
271 Va. at 415. The trial court could reasonably reject Dews’ allegation of bias based on an
incident with extremely vague facts that did not directly involve Dews or Lambert.
Third, Dews asserts that Lambert’s statements were replete with inconsistencies. These
alleged inconsistencies, which primarily relate to Lambert’s inability to remember the dates on
which certain events occurred and do not relate to the essential elements of any of the offenses,4
4
Several of the asserted inconsistencies are not inconsistencies at all. For example, Dews
asserts that “[t]here was much confusion as to how she was dressed” and that “[s]he testified that
Mr. Dews tried to touch his penis to her vagina through her underwear but yet said she was
wearing sweatpants.” Lambert testified that she was wearing sweatpants in response to the
question, “You said he got your pants off but what kind of pants were you wearing?” Lambert’s
testimony was therefore clear that she was not wearing pants by the time Dews attempted to
penetrate her. As another example, Dews notes that Lambert never sought medical attention.
That is not an inconsistency, either; Lambert never claimed to have done so and her decision not
to do so is consistent with her testimony of having sustained only a red, sore throat. Dews also
argues Lambert’s inability to recollect whether his penis was erect as additional evidence of her
incredibility. Whether Dews was erect, however, is not an element of either offense and
Lambert’s inability to recall the status of his erection does not render her testimony inherently
incredible.
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do not render her testimony “so contrary to human experience as to render it unworthy of belief.”
See Lopez, 73 Va. App. at 84.
Finally, none of these issues in combination rendered Lambert’s testimony inherently
incredible. “When the law says that it is for triers of the facts to judge the credibility of a
witness, the issue is not a matter of degree. So long as a witness deposes as to facts [that], if
true, are sufficient to maintain [the] verdict,” and “[i]f the trier of the facts sees fit to base the
verdict upon that testimony[,] there can be no relief in the appellate court.” Smith v.
Commonwealth, 56 Va. App. 711, 718-19 (2010) (quoting Swanson v. Commonwealth, 8
Va. App. 376, 379 (1989)). Lambert testified to facts that were sufficient to establish the
elements of each of the charged offenses. Thus, there can be no relief in this Court.
II. Bodily injury
Dews next argues that the evidence was insufficient to sustain his strangulation
conviction because Lambert’s testimony did not establish that she suffered a bodily injury within
the meaning of Code § 18.2-51.6. That statute provides that “[a]ny person who, without consent,
impedes the blood circulation of another person by knowingly, intentionally, and unlawfully
applying pressure to the neck of such person resulting in the wounding or bodily injury of such
person is guilty of strangulation.” Code § 18.2-51.6. “Bodily injury” refers to “any bodily injury
whatsoever and includes an act of damage or harm or hurt that relates to the body; is an
impairment of a function of a bodily member, organ, or mental faculty; or is an act of
impairment of a physical condition.” Ricks v. Commonwealth, 290 Va. 470, 479 (2015). “To
prove a bodily injury, the victim need not experience any observable wounds, cuts, or breaking
of the skin.” Id. (quoting English v. Commonwealth, 58 Va. App. 711, 719 (2011)). Moreover,
“[t]he Commonwealth need not present medical testimony to prove bodily injury resulting from
strangulation.” Id. at 480.
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There is no dispute that Lambert’s testimony established that Dews knowingly,
intentionally, and unlawfully applied pressure to Lambert’s neck and impeded her blood
circulation. Dews contends only that Lambert’s red neck and sore throat was insufficiently
serious to constitute a bodily injury. In Ricks, the Supreme Court found that the victim suffered
a bodily injury where “the victim stated that she could not breathe when [the defendant’s] hand
was on her neck, and she had a red mark on her neck.”5 Id. Like Lambert, the victim in Ricks
did not seek medical attention. Id. at 474. In Wandemberg v. Commonwealth, 70 Va. App. 124,
136 (2019), this Court found the victim suffered bodily injury where she “testified that her neck
hurt and was red after the strangulation.” Consistent with those precedents, Lambert’s testimony
that her neck was red and sore the day after the incident was sufficient to support the trial court’s
conclusion that Lambert suffered a bodily injury. Therefore, we affirm Dews’ strangulation
conviction.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court.
Affirmed.
5
The victim in Ricks further testified that “she had bruises on her neck from the incident,
but no permanent injuries.” 290 Va. at 474. In analyzing whether the victim had suffered a
bodily injury, however, the Supreme Court focused on the red mark and made it clear that a
victim need not offer proof of bruises. Id. at 479.
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