Hebden v. Com., 0482-96-1
| Decision Date | 26 August 1997 |
| Docket Number | No. 0482-96-1,0482-96-1 |
| Citation | 489 S.E.2d 245,25 Va.App. 448 |
| Parties | Stephen Laine HEBDEN v. COMMONWEALTH of Virginia. Record |
| Court | Virginia Court of Appeals |
Timothy H. Hankins, Newport News, for appellant.
Kathleen B. Martin, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: BAKER, ANNUNZIATA and OVERTON, JJ.
Stephen Laine Hebden was convicted in a bench trial of object sexual penetration and carnal knowledge of a child under the age of fifteen and was sentenced to thirty years confinement in the state penitentiary. He appeals, contending that the evidence is insufficient to support his convictions.
While a prosecutrix's uncorroborated testimony may suffice to support a conviction of a sexual offense, see Fisher v. Commonwealth, 228 Va. 296, 299, 321 S.E.2d 202, 203-04 (1984), such a conviction "cannot stand where that testimony is contrary to human experience." Schrum v. Commonwealth, 219 Va. 204, 207, 246 S.E.2d 893, 896 (1978). In the instant case we are compelled to apply this exception because the prosecutrix's uncorroborated account of events, when taken as a whole and considered with all the other evidence presented, is incredible as a matter of law. For this reason, we reverse and dismiss.
Our conclusion is based upon a number of factors that combine to undermine the credibility of the prosecutrix's accusations. First, the evidence at trial demonstrated that the prosecutrix had a motive to fabricate the accusations against the appellant. The prosecutrix, thirteen years of age, had lived with her mother, who was separated from her father, the appellant. Due to problems she was having in her mother's custody--truancy, poor grades, juvenile authorities--custody was transferred to her father. The appellant was much more strict with the prosecutrix than her mother had been, and imposed several restrictions. A friend of the prosecutrix testified that she had told him that the appellant would not let her see her boyfriend and that she "was going to get even with him." The prosecutrix denied making this statement. Other evidence corroborated the prosecutrix's desire to leave the appellant's home and to resume living with her mother where she could see her boyfriend and where restraints on her social life were much less severe. With evidence before the trial court of the prosecutrix's statement that she was going to get even with her father, the trial judge stated that "the Court is still stuck with why [the prosecutrix] would come in court and subject herself to this as well as to subject her father to this type of prosecution...."
Secondly, the accusations were made at a time convenient for the prosecutrix, as she recently had been subjected to further restrictions on her social life. She alleged that the appellant abused her in the early morning of May 25, 1995. Later that day, she visited the home of a friend who lived near her father's house and spent the night there. The next day, she went to her mother's residence in Portsmouth for the Memorial Day weekend. During that visit she was caught sneaking out of her mother's house at night. At the mother's telephoned request, appellant came to get the prosecutrix around midnight Sunday and took her back to his house in Newport News. He told the prosecutrix that he was placing restrictions on her social life for the entire summer. Two days later, she made her accusations to the school authorities, including the alleged incident of May 25, 1995 and one alleged to have occurred several months before, in January.
Thirdly, although the narrative of the incidents themselves did not contain many inconsistencies, some were present. The prosecutrix alternately referred to the January incidents as occurring regularly ("Sometimes he'd come back, and other times he would leave") and as a single incident ("that night"). She was unable to give a date or dates for the acts alleged to have occurred in January. She did not remember at the preliminary hearing what time of night the incident occurred, but at the trial five months later she remembered the time from looking at her digital alarm clock. These discrepancies do not by themselves render the prosecutrix's story incredible. Coupled with her mother's testimony that the prosecutrix lies and may lie to "get her way," however, a strong shadow is cast upon the prosecutrix's credibility. The prosecutrix also denied her statement about her boyfriend and about "getting even" with the appellant, a statement made to an unbiased third party. She never told her mother, or, as far as can be determined from the record, any other friend or family member about the appellant's alleged abuse. The prosecutrix had been involved with the juvenile authorities before moving to live with the appellant, and, after his arrest and her subsequent return to her mother, her mother filed charges against her for the unauthorized use of the mother's car. While corroboration of the prosecutrix's testimony is not required in this kind of case, it must be noted that no other evidence supported her accusations.
Fourthly, the appellant testified on his own behalf and denied all of the accusations. Two other witnesses testified that he had a good reputation for honesty in the community.
Finally, the prosecutrix's stepmother testified that she and the appellant slept together on a waterbed in a room next to the bedroom of the prosecutrix and that the doors to both rooms were always open. She stated that she knew her husband did not get up and go to the other room as alleged because she would have been awakened when he got out of the waterbed, and that this did not happen.
A careful review of the entire trial transcript reveals each of these individual facts, which, when taken together, form a more complete record of events than any one witness' account. As the Supreme Court stated in Young v. Commonwealth, 185 Va. 1032, 1042, 40 S.E.2d 805, 810 (1947):
If it was a choice between her veracity and his, we would not find fault with the [fact finder] for accepting her statement.... If there is not sufficient evidence to establish beyond a reasonable doubt that he is guilty of the offense of which he has been convicted, then the verdict is plainly wrong and it is our duty to set it aside. This we are compelled to do because there is too much that is contrary to human experience in her version of the matter when analyzed in the light of the facts and circumstances shown to exist, to say that the guilt of the defendant has been proved as the law requires.
We reach the same conclusion here. In this case, on this specific set of facts and upon consideration of all the evidence, we find that the prosecutrix's completely uncorroborated testimony is insufficient to prove beyond a reasonable doubt that the appellant committed the alleged offenses.
Reversed and dismissed.
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. Commonwealth, 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...
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Hebden v. Com., 0482-96-1
...by a panel of this Court on August 26, 1997 is withdrawn and the mandate entered that date is vacated. See Hebden v. Commonwealth, 25 Va.App. 448, 489 S.E.2d 245 (1997). The appellant shall pay to the Commonwealth of Virginia thirty dollars This order shall be published and certified to the......