ENGLISH v. COMMONWEALTH
APRIL 29, 1997
Record No. 0947-96-3
BARRY EDWARDS ENGLISH
COMMONWEALTH OF VIRGINIA
William N. Alexander, II, Judge
Present: Judges Elder, Bray and Fitzpatrick
Argued at Salem, Virginia
BY JUDGE RICHARD S. BRAY
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
W. Clarke Whitfield, Jr. (Turner, Haskins & Whitfield, PLC,
on brief), for appellant.
Monica S. McElyea, Assistant Attorney General (James S. Gilmore,
III, Attorney General, on brief), for appellee.
Barry Edwards English (defendant) was convicted in a bench trial
of three counts of aggravated sexual battery in violation of Code
Sect. 18.2-67.3 and one count of forcible sodomy in violation of
Code Sect. 18.2-67.1. On appeal, he complains that the evidence
was insufficient to support the convictions. We disagree and
affirm the trial court.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
Under familiar principles of appellate review, we examine the
evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. See Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987). The judgment of a trial
court, sitting without a jury, is entitled to the same weight as
a jury verdict and will be disturbed only if plainly wrong or
without evidence to support it. See id. The
credibility of a witness, the weight accorded the testimony, and
the inferences to be drawn from proven facts are matters solely
for the fact finder’s determination. See Long v.
Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476
(1989). An appellate court "should not . . . substitute its
own judgment [on these issues], even if its opinion might differ
from [the fact finder's]." George v. Commonwealth,
242 Va. 264, 278, 411 S.E.2d 12, 20 (1991) (quoting Snyder v.
Commonwealth, 202 Va. 1009, 1016, 121 S.E.2d 452, 457
(1961)), cert. denied, 503 U.S. 973 (1992).
Here, the offenses occurred in the fall of 1989 and were not
reported until 1995. However, the victim was only nine or ten
years of age when assaulted, and defendant, with a history of
violence, threatened to harm both her and her family if she
reported the abuse. Following the crimes, defendant was
imprisoned on unrelated convictions, and the victim spoke only
after learning of his imminent release. The significance, if any,
attributable to such delay is a matter for consideration by the
fact finder, and the mere "failure to immediately report the
incident [does] not render [a victim's] testimony inherently
incredible as a matter of law." See Corvin v.
Commonwealth, 13 Va. App. 296, 299, 411 S.E.2d 235, 237
(1991). Under the instant circumstances, the court correctly
concluded that the victim’s conduct was reasonable and did not
discredit her testimony.
Moreover, other evidence provided ample support for the
convictions. Defendant had resided in the home with the victim
and her mother between early September and late November, 1989,
and was regularly alone with the child. The victim recounted the
offending events in detail, and her testimony was alone
sufficient to establish defendant’s guilt. See, e.g.,
Accordingly, we affirm the convictions.
to Code Sect. 17-116.010 this opinion is not designated for