THE COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Humphreys
Argued at Chesapeake, Virginia
ADRIAN O'BRIAN MORNING, S/K/A
ANDRIEN O'BRIAN MORNING
OPINION BY
v. Record No. 1604-01-1 JUDGE ROBERT J. HUMPHREYS
MARCH 19, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Verbena M. Askew, Judge
A. J. Stone, Jr., for appellant.
Michael T. Judge, Assistant Attorney General,
(Randolph A. Beales, Attorney General, on
brief), for appellee.
Adrian O'Brian Morning appeals from his conviction in a
bench trial of two counts of carnal knowledge of a minor. The
sole issue on appeal is whether the trial court erred in denying
his motion to strike the evidence, based upon the failure of the
Commonwealth to present evidence corroborating his confession.
For the reasons that follow, we affirm his convictions.
I. BACKGROUND
N.J., age thirteen, left her mother's home around midnight
on October 31, 2000. Her mother subsequently filed a "runaway
report" with the Newport News Police Department.
On November 1, 2000, police officers were dispatched to
appellant's residence, at 163-B Delmar Lane in Newport News, in
reference to "a runaway that would be at that location." The
residence was owned by appellant's grandmother.
Upon arrival, the officers explained to appellant and his
grandmother that the police had received information N.J. was at
the residence. Appellant told the officers he had not seen
N.J., and his grandmother responded there was no one in her home
"that shouldn't be there." Appellant's grandmother gave the
officers permission to search the home. However, appellant
objected, stating that "[h]e had not seen [N.J.] and nobody was
there." The officers responded that the police had "good
information" that N.J. was there and that she was "a minor."
Appellant reiterated that N.J. was not at the home and stated
once again that he had not seen her. Nevertheless, based upon
the consent of appellant's grandmother, the officers searched
the residence. They located N.J. in the closet of appellant's
bedroom.
Later that day, Detective T.D. Steverson of the Newport
News Police Department advised appellant of his Miranda rights. 1
Appellant waived his rights and gave Steverson a statement. In
his statement, appellant admitted he was twenty years old and
said he had known N.J. for about one month. He stated that on
October 31, he was picked up by an individual and that N.J. was
1
Referring to the Fifth Amendment rights to remain silent
and to have counsel present during questioning by police first
annunciated in Miranda v. Arizona, 384 U.S. 436 (1966).
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already in the car. Appellant told Steverson they went to a
movie - "The Blair Witch Project" - in Hampton and that he and
N.J. "engaged in kissing while watching the movie."
Appellant told Steverson that after the movie the driver
picked them up and drove N.J. home, before dropping him off at a
store. A short time later, the driver picked appellant up once
again, and the two returned to N.J.'s home to pick her up.
Appellant told Steverson that the driver then took him and N.J to
a Motel 6 in Newport News, where he and N.J. spent the night
together. Appellant stated that during their stay in the motel
room, he and N.J. engaged in both oral sex and intercourse.
Appellant claimed he thought N.J was seventeen years old.
Appellant was ultimately charged with two counts of carnal
knowledge of a minor, in violation of Code § 18.2-63.2
2
Code § 18.2-63 provides as follows, in relevant part:
If any person carnally knows, without the
use of force, a child thirteen years of age
or older but under fifteen years of age,
such person shall be guilty of a Class 4
felony.
However, if such child is thirteen years of
age or older but under fifteen years of age
and consents to sexual intercourse and the
accused is a minor and such consenting child
is three years or more the accused's junior,
the accused shall be guilty of a Class 6
felony. If such consenting child is less
than three years the accused's junior, the
accused shall be guilty of a Class 4
misdemeanor.
* * * * * * *
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At trial, N.J. confirmed nearly every point of appellant's
confession, including the fact that she and appellant had slept in
the same bed at the Motel 6. However, when the prosecutor asked
N.J. if "something happened between the two of [them] while [they]
were in the same bed," N.J. responded that she "did not want to
talk about it." When reminded by the prosecutor that she was
under oath, N.J. testified that they just "talked and watched
[television]."
Upon further questioning, N.J. testified that the defendant
"never asked [her] to have sex with him." Instead, she testified
that she asked to have sex with him, but stated that he refused
because "sometimes [her] best friend was around and his cousins
and friends were around." When N.J. was reminded that there was
no one else in the motel room, N.J. insisted that "nothing
happened" and that appellant had tried to convince her to return
to her mother's home.
At the close of the Commonwealth's case, appellant moved the
trial court to strike the Commonwealth's evidence on the ground
that the Commonwealth's "evidence cannot rise any higher than
their witness." The Commonwealth responded that "a confession
For the purposes of this section, (i) a
child under the age of thirteen years shall
not be considered a consenting child and
(ii) "carnal knowledge" includes the acts of
sexual intercourse, cunnilingus, fellatio,
anallingus, anal intercourse, and animate
and inanimate object sexual penetration.
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requires only a slight corroboration," and argued it had met this
burden. The trial court then denied the motion to strike, finding
the Commonwealth's evidence was "sufficient," based upon N.J.'s
corroboration of the events that had taken place, as well as her
demeanor on the witness stand. At that point, the appellant
rested without presenting evidence and renewed his motion to
strike, arguing that the Commonwealth had failed to prove the
charges beyond a reasonable doubt because "[the] evidence [could
not] rise higher than their own witness who [said] nothing
happened." The trial court again denied the motion to strike and
convicted appellant.
II. Analysis
On appeal, appellant argues the Commonwealth failed to prove the
corpus delicti by its failure to corroborate his confession. We
disagree. 3
3
The Commonwealth argues that Morning's appeal on this
issue is barred pursuant to Rule 5A:18. It contends that
because Morning argued only that the Commonwealth's evidence
could not rise "any higher than their witness," any argument
concerning corroboration was waived for purposes of appeal. We
disagree. "'The goal of the contemporaneous objection rule is
to avoid unnecessary appeals, reversals and mistrials by
allowing the trial judge to intelligently consider an issue and,
if necessary, to take corrective action.'" Zook v.
Commonwealth, 31 Va. App. 560, 568, 525 S.E.2d 32, 36 (2000)
(quoting Campbell v. Commonwealth, 12 Va. App. 476, 480, 405
S.E.2d 1, 2 (1991)). Here, the Commonwealth raised the
corroboration issue in its response to Morning's motion to
strike, and the trial court considered the issue in making its
ruling. Thus, we find that the issue was properly preserved and
consider it on the merits.
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It is well settled that in order to obtain a conviction, in
every criminal prosecution, the Commonwealth must prove the
element of corpus delicti - that is, the fact that the crime
charged has been actually perpetrated. 4 However, "[a] conviction
cannot be based solely on the uncorroborated statement of a
person that a crime has occurred and that he committed it. The
corpus delicti cannot be established by a confession of the
accused uncorroborated by any other evidence." 5 Nevertheless,
"'[w]here "the commission of the crime has been fully confessed
by the accused, only slight corroborative evidence is necessary
to establish the corpus delicti."'" 6 "The corroborative evidence
is sufficient if, when taken with the evidence of the
confession, it proves the commission of a crime beyond a
reasonable doubt." 7
N.J.'s testimony corroborated Morning's confession on
nearly every point, with the exception of the sexual activity.
When asked about the sexual activity, N.J. became visibly upset
4
See Maughs v. City of Charlottesville, 181 Va. 117, 120,
23 S.E.2d 784, 786 (1943).
5
Hamm v. Commonwealth, 16 Va. App. 150, 157, 428 S.E.2d
517, 522 (1993).
6
Id. (quoting Jefferson v. Commonwealth, 6 Va. App. 421,
424, 369 S.E.2d 212, 214 (1988) (quoting Clozza v. Commonwealth,
228 Va. 124, 133, 321 S.E.2d 273, 279 (1984))).
7
Claxton v. City of Lynchburg, 15 Va. App. 152, 155, 421
S.E.2d 891, 893 (1992).
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and refused at first to answer the question. When pressed, she
ultimately gave an explanation that the trial judge as fact
finder disbelieved as to why the two had not engaged in the
alleged sexual activity.
We have long held that where a trial court sitting without
a jury hears witnesses testify and observes their demeanor on
the stand, it has the right to believe or disbelieve their
statements. 8 Moreover, the finding of the judge on the
credibility of the witnesses and the weight to be given their
evidence, unless plainly wrong or without evidence to support
it, cannot be disturbed. 9 Here, although N.J. denied the sexual
activity, her testimony corroborated the remaining details of
appellant's confession. This fact, taken with the evidence of
appellant's confession, was sufficient evidence upon which the
trier of fact could reasonably find that N.J. lied about the
sexual activity and, therefore, could reasonably find that the
crime occurred beyond a reasonable doubt. Thus, here, the
"slight corroborative evidence" was sufficient to establish the
corpus delicti "when taken with the evidence of the
confession." 10
8
Lane v. Commonwealth, 184 Va. 603, 611, 35 S.E.2d 749, 752
(1945).
9
Id.
10
Claxton, 15 Va. App. at 155-56, 421 S.E.2d at 893-94.
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In addition to the above, other evidence demonstrated that
Morning attempted to conceal his relationship with N.J. by lying
to the police about his knowledge of N.J.'s whereabouts. We have
held that "[i]n all cases of circumstantial evidence the conduct
of the accused is always an important factor in the estimate of
the weight of circumstances which point to his guilt." 11
Appellant's words and deeds following the incident were factors
equally as important as his earlier conduct in establishing the
commission of a crime in this case. The testimony of Officer
Smith established that appellant deliberately lied to the police
in order to conceal what had happened. Significantly, he
persisted in that falsehood until the police found N.J. hiding in
his bedroom closet.
The inferences to be drawn from proven facts are within the
province of the trier of fact so long as the inferences are
reasonable and justified. 12 From this evidence, the trial judge
could have reasonably concluded that appellant's conduct was not
that of a man innocently involved with a teenager who had run away
from home. Thus, we find the evidence sufficient as a matter of
law to substantiate the truth of Morning's confession. Therefore,
11
Dean v. Commonwealth, 73 Va. (32 Gratt.) 912, 923 (1879).
12
See O'Brien v. Commonwealth, 4 Va. App. 261, 263, 356
S.E.2d 449, 450 (1987).
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the trial court did not err in denying appellant's motion to
strike.
Affirmed.
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