Opinion
Record No. 2421-92-2
March 29, 1994
FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY CHARLES L. MCCORMICK, III, JUDGE.
Andrea C. Long (Charles C. Cosby; Boone, Beale, Carpenter Cosby, on brief), for appellant.
Kathleen B. Martin, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Coleman and Elder.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Vernon C. Hargrove appeals his conviction for aggravated sexual battery in violation of Code § 18.2-67.3. On appeal, he asserts that the trial court erred (1) in finding the nine-year-old prosecutrix competent to testify and (2) in concluding that the evidence was sufficient as a matter of law to support his conviction. For the reasons that follow, we affirm appellant's conviction. Because the parties are familiar with the circumstances surrounding this case, we recite only those facts critical to our holding.
I.
Appellant first challenges the nine-year-old prosecutrix's competency to testify. "A child is competent to testify if . . . she possesses the capacity to observe, recollect, communicate events, and intelligently frame answers to the questions asked of . . . her with a consciousness of the duty to speak the truth."Mackall v. Commonwealth, 236 Va. 240, 253, 372 S.E.2d 759, 767 (1988), cert. denied, 492 U.S. 925 (1989). A seven-year-old child who does not understand the meaning of an oath but recognizes that she has a duty to tell the truth and testifies that God will not like it if she lies is competent to testify.Durant v. Commonwealth, 7 Va. App. 454, 463-67, 375 S.E.2d 396, 401-02 (1988). Evidence that a child is unable to recall all the details of an event or has made inconsistent statements regarding that event are facts that bear on her credibility only, not her competency. See Swanson v. Commonwealth, 8 Va. App. 376, 378-79, 382 S.E.2d 258, 258-59 (1989); Royal v. Commonwealth, 2 Va. App. 59, 63, 341 S.E.2d 660, 662 (1986),rev'd on other grounds, 234 Va. 403, 362 S.E.2d 323 (1987). Finally, "[b]ecause of the opportunity a trial court has to see and observe a child's demeanor on the stand, . . . her competence as a witness is a matter within the discretion of the trial court and its ruling will not be disturbed except for manifest error." Mackall, 236 Va. at 253, 372 S.E.2d at 767.
In this case, the prosecutor's and defendant's examination of the nine-year-old witness showed she understood that a lie meant "not telling truth" and that she should tell the truth in court, and she agreed that Jesus would not be happy if she told a lie. She also agreed that she was "not supposed to make up anything" and said that if she did tell a lie, "[n]obody would believe it." We simply cannot conclude, based on this evidence, that the trial court erred in finding the prosecutrix competent to testify. We reject appellant's assertions that the prosecutrix was incompetent to testify because she either refused or was unable to give a detailed verbal description of the incident. She ultimately demonstrated her version of the events with anatomically correct dolls, which was appropriate under the circumstances. See Kehinde v. Commonwealth, 1 Va. App. 342, 346-47, 338 S.E.2d 356, 358 (1986). Any challenge to her recollection of the events or to her inability to recall when they took place bore only on her credibility as a witness, not on her competency.
II.
A conviction for aggravated sexual battery under Code § 18.2-67.3(A)(1) requires proof that the accused "inten[ded] to sexually molest, arouse, or gratify any person, where . . . [t]he accused intentionally touches the complaining witness's intimate parts." Code § 18.2-67.10(6)(a). "'Intimate parts' means the genitalia, anus, groin, breast, or buttocks of any person." Code § 18.2-67.10(2). Because the victim in this case was less than thirteen years old, no showing of force, intimidation, or injury is required. Code § 18.2-67.3(A). Appellant challenges the sufficiency of the evidence on three separate grounds. He alleges it was insufficient to prove that he had the intent to molest the victim and that he touched her intimate parts. He also argues more generally that the victim's testimony lacked the credibility necessary to support his conviction.
On appeal of a criminal conviction, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. "The judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it." Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987) (citing Code § 8.01-680). "[T]he finding of the judge, upon the credibility of the witnesses and the weight to be given their evidence, stands on the same footing. . . ." Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987) (citation omitted). Finally, "[c]ircumstantial evidence is as acceptable to prove guilt as direct evidence, and in some cases, such as proof of intent . . ., it is practically the only method of proof." Cirios v. Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165 (1988) (citations omitted). In this type of situation, "[a]ll necessary circumstances proved must be consistent with guilt and inconsistent with innocence and must exclude every reasonable hypothesis of innocence." Boothe v. Commonwealth, 4 Va. App. 484, 492, 358 S.E.2d 740, 745 (1987).
Viewed in this light, the evidence in this case was clearly sufficient to support appellant's conviction. The victim testified that appellant removed her underpants and all of his own clothing, and she demonstrated with the anatomically correct dolls what transpired next. After observing her demonstration, the prosecutor stated, "Let the record show that she's placing the hand of [the doll] she calls Vernon in [the] private area, in the groin area[, of the female doll]." Appellant's counsel made no objection to the prosecutor's summary of the witness' demonstration, stating specifically that he did not "mind the record reflecting the demonstrative." His only objection related to whether her demonstration was sufficient without any accompanying explanatory testimony. As quoted above, the groin is included within the statutory definition of intimate parts. Furthermore, the fact that appellant removed all of his clothing before the touching took place and that the touching was of sufficient intensity and duration to hurt the prosecutrix and make her "vagina . . . [including] her lips . . . [a]nd her behind" red provides sufficient circumstantial evidence to support the conclusion that he acted with the requisite intent to molest or gratify either himself or the victim, or both.See Walker v. Commonwealth, 12 Va. App. 438, 445, 404 S.E.2d 394, 397 (1991) (upholding conviction on finding of intent inferred from nature of touching).
Finally, we cannot conclude that the victim's testimony was incredible as a matter of law. The credibility of a witness is a matter to be determined by the trier of fact — in this case, the trial judge — based on its assessment of the witness' appearance on the stand. The trial judge clearly considered his observations in reaching a decision in this case:
Well, the best defense that has been offered here today, of course, has been the one that these charges were brought through vindictiveness or a malicious motive, something of that nature.
And I might be inclined to buy that defense except for the tortuous and reluctant manner in which this little girl testified. It's difficult for me to believe that, listening to her testimony, that she was testifying out of vengeance or maliciousness or anything of that sort.
It is true that there were some problems with her testimony. But in the essential details, I think her testimony is credible and believable.
We cannot conclude that the trial court erred in this determination.
For these reasons, we affirm appellant's conviction.
Affirmed.