dissenting.
I concur with the majority in affirming the convictions for rape and breaking and entering a dwelling with intent to rape. I respectfully dissent from the majority opinion dismissing the conviction for sodomy. I would affirm.
On May 4, 1989, between 1:30 and 1:45 a.m., the victim was asleep in her apartment in Charlottesville when she was awakened by appellant kissing her on her cheek as he “straddled” her body. When she screamed, appellant grabbed her throat, placed a “sharp, cold object” against it, and warned her to be quiet. Appellant then proceeded to remove victim’s clothing. When she protested, appellant told her to shut up or he would shove his knife down her throat. On at least two occasions, he put his hands on her throat as if he were going to choke her.
*115The victim testified that appellant put his penis inside her vagina on two occasions and had “oral sex” with her between the rapes. The testimony indicates that appellant had the lights on and his jacket over the victim’s head during the first act of intercourse and during the “oral sex” act. During the second act of intercourse, the lights were off and the victim was directed to sit on the appellant. Appellant left between 4:30 and 4:45 a.m. after having been in the victim’s bedroom for approximately three hours. The police were called and a medical examination of the victim disclosed sperm in her vagina and an abrasion on the side of her neck.
The majority correctly states that to sustain a conviction for sodomy, the Commonwealth must prove beyond a reasonable doubt that penetration occurred. Chrisman v. Commonwealth, 3 Va. App. 371, 377, 349 S.E.2d 899, 903 (1986). Whether penetration occurred is a question for the jury. It may be proved by circumstantial evidence and that evidence need only be slight. Ryan v. Commonwealth, 219 Va. 439, 445, 247 S.E.2d 698, 702 (1978). In Ryan, the only sex act occurring was sodomy after the attacker was unable to perform sexual intercourse. In Ryan, the incident lasted forty-five minutes with the appellant licking the victim’s vagina and fondling her breasts. No direct testimony was presented that penetration occurred. In the case before us, the entire attack lasted three hours. Two acts of sexual intercourse and one act of “oral sex” was proved based on the victim’s testimony as follows:
A. Yes, at one time he had me laid back on the bed and he put the jacket over my head and he had my clothes off and he turned on the light and he just kept it over my head until he was done and then he turned the light back off and took the jacket off my head again.
Q. Unfortunately we have to go — explain a little bit more about what it was that he did, if you can tell us about that.
A. On two (2) separate occasions during the evening, because he was there for sometime, he had sex with me and on one occasion he had oral sex with me.
Q. And when you say he had sex with you, do you mean his penis inside your vagina?
*116A. Yes.
The victim’s head was covered by appellant’s jacket when the “oral sex” occurred. The victim’s testimony indicates that when she said “sex,” she meant penetration of her vagina by appellant’s penis. Two acts of sexual intercourse occurred and the entire episode lasted for three hours. Ryan holds that “[ejvidence of the condition, position, and proximity of the parties . . . may afford sufficient evidence of penetration to support a charge of sodomy by cunnilingus.” Id. (citations omitted). It is well understood that inferences to be drawn from proven facts are solely within the province of the trier of fact. Stockton v. Commonwealth, 227 Va. 124, 145, 314 S.E.2d 371, 385, cert. denied, 469 U.S. 873 (1984).
The jury was instructed in this case that in order to prove forcible sodomy, the Commonwealth had to prove beyond a reasonable doubt, inter alia, that the appellant “penetrated the outer lips of the female sexual organ . . . with his mouth or tongue.” The jury was further instructed that they could use “common sense in judging any testimony.” Based upon these facts and the use of “common sense,” the jury could have reasonably inferred that the appellant was guilty as charged.
Case law in this state and others is replete with decisions where words such as “sex,” “rape,” “intercourse,” “sexual intercourse” and “sexual relations” have been found sufficient, in the context of the case to prove penetration. See generally Annotation, Rape — What Constitutes Penetration in Prosecution for Rape or Statutory Rape, 76 A.L.R.3d 163 (1977). In King v. Commonwealth, 165 Va. 843, 183 S.E. 187 (1936), our Supreme Court made some observations that are just as pertinent today as they were fifty-five years ago. The facts in King established that the victim was grabbed by the throat, dragged between two houses, thrown to the ground, choked and according to the victim, “raped.” When asked if the defendant had “intercourse” with her, the victim answered in the affirmative. No other evidence regarding penetration was presented. Under those facts, the Supreme Court affirmed the conviction, saying:
[I]t does not require the assistance of a logician or lexicographer to lead the jury to infer that when the prosecutrix said she was raped that she meant anything other than that the defendant had committed an act of sexual intercourse with *117her. . . . [i]t would strain our credulity to reach the conclusion that she meant anything else than “sexual connection.”
Id. at 847-48, 183 S.E. at 189.
Likewise, under the facts of the case before us, the jury reasonably could have inferred that “oral sex” meant that the appellant “penetrated the outer lips of the female sexual organ . . . with his mouth or tongue.”
For the foregoing reasons, I would affirm the conviction for forcible sodomy.