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HEBDEN v. COMMONWEALTH OF VIRGINIA (53500)


HEBDEN v. COMMONWEALTH OF
VIRGINIA


Tuesday, February 24th, 1998.

Record No. 0482-96-1
Circuit Court Nos. 31715-95 and 31716-95

Stephen Lane Hebden, Appellant,

against

Commonwealth of Virginia, Appellee.

Upon a Rehearing En Banc

Before Chief Judge Fitzpatrick, Judges Baker, Benton,
Coleman, Willis, Elder, Bray, Annunziata, Overton and Bumgardner

Timothy H. Hankins for appellant.

Kathleen B. Martin, Assistant Attorney General (Richard Cullen,
Attorney General, on brief), for appellee.


This cause was reviewed on rehearing en banc,
and upon consideration of the argument of counsel and the entire
record in this case, the judgments of the trial court rendered on
February 23, 1996 are affirmed without opinion by an equally
divided court. Judges Baker, Benton, Bray, Overton and Bumgardner
voted to reverse the judgments of the trial court. Chief Judge
Fitzpatrick and Judges Coleman, Willis, Elder and Annunziata
voted to affirm said judgments. Accordingly, the opinion
previously rendered 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is withdrawn and the mandate entered that date is vacated.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 damages.

This order shall be published and certified to the trial
court.

A Copy,

Teste:

Clerk


Tuesday October 14th, 1997.

Record No. 0482-96-1
Circuit Court Nos. 31715-95 and 31716-95

Stephen Laine Hebden, Appellant,

against

Commonwealth of Virginia, Appellee.

Upon a Petition for Rehearing En Banc

Before the Full Court


On September 9, 1997 came the appellee, by counsel, and filed
a petition praying that the Court set aside the judgment rendered
herein on August 26, 1997, and grant a rehearing en banc thereof.

On consideration whereof, the petition for rehearing en banc
is granted, the mandate entered herein on August 26, 1997 is
stayed pending the decision of the Court en banc, and the appeal
is reinstated on the docket of this Court.

The parties shall file briefs in compliance with Rule 5A:35.
It is further ordered that the appellee shall file with the clerk
of this Court ten additional copies of the appendix previously
filed in this case.

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk


AUGUST 26, 1997
Record No. 0482-96-1

STEPHEN LAINE HEBDEN

v.

COMMONWEALTH OF VIRGINIA

OPINION BY JUDGE NELSON T. OVERTON
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS

Verbena M. Askew, Judge
Present: Judges Baker, Annunziata and Overton
Argued at Norfolk, Virginia

Timothy H. Hankins for appellant.

Kathleen B. Martin, Assistant Attorney General (James S. Gilmore,
III, Attorney General, on brief), for appellee.


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.

Annunziata, J., dissenting.

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 was lying in bed on her side, knelt on the
floor next to her bed, rolled her onto her back and touched her
breast and vagina as he had done before. On this date, however,
she stated that her father also used his tongue to lick her
vagina after pulling her underpants to her knees.

Until the May incident, the child did not report the sexual
assaults, and she acknowledged that, although her stepmother was
asleep in the next room, she did not cry out for help. On May 31,
she reported the incident to her school counselor.

The evidence showed that, between May 25 and 31, while
visiting her mother, the child remained out past her curfew and
her father had to be called to retrieve her. The evidence showed
that appellant was a strong disciplinarian who had imposed strict
rules governing the child’s behavior and academic performance
with which the child was generally compliant. As a result of the
weekend incident, appellant threatened to ground the child for
the entire summer.

The appellant denied the child’s accusations. He contended the
child had fabricated her story in response to his threat to
prohibit her social activities for the summer and because she
wanted to return to live with her mother, who was less strict and
who lived in closer proximity to the child’s boyfriend. A friend
of appellant, who also considered himself a friend of the child,
testified that the child had told him in March 1995,
approximately two months before the May restrictions were
imposed, that she would get even with her father for not allowing
her to see her boyfriend.

The child explained her delay in reporting the earlier
molestations. She stated that she was afraid and that she did not
want to lose her relationship with her father or have him go to
jail. She ultimately reported the occurrences "[b]cause it
happened so many times, [she] . . . was tired of it." The
child specifically denied having threatened to get even with her
father.

If believed, the child’s testimony, even uncorroborated, is
sufficient to support the finding of guilt beyond a reasonable
doubt. See Fisher, 228 Va. at 299, 321 S.E.2d at
203; Willis & Bell v. Commonwealth, 218 Va. 560, 563,
238 S.E.2d 811, 812 (1977).[1]
The child’s testimony was believed by the trier of fact, which
declined to credit appellant’s contention the story was
fabricated. At the close of the evidence, the court made the
following finding:

The Court looked very closely at the demeanor of all the
witnesses, but more particularly the Court looked at the
demeanor of [appellant] and also with [the child],
and   . . . the Court is still struck with why [the
child] would come in court and subject herself to this as
well as to subject her father to this type of prosecution,
and the Court was most convinced really by [the child's] explanation as to why she didn’t tell anybody was because she
was afraid for her father, frankly, and she’s indicated that
she didn’t want what was happening to happen. She didn’t want
to see him go to jail, and she didn’t want anything to happen
to him, and the Court basically has to make a judgment call
as to which one of these witnesses is telling the truth about
what happened, and as a result the Court believes [the
child].

Because witness credibility was the essential issue
surrounding the child’s alleged motivation to fabricate the
accusations, and the trial court resolved the conflicts in the
evidence against the appellant, the only basis upon which the
conviction can be reversed is to find the child’s testimony
"inherently incredible, or so contrary to human experience
or to usual human behavior as to render it unworthy of
belief." Willis & Bell, 218 Va. at 563, 238
S.E.2d at 813. I do not believe the standard was met in this
case.

That the incidents escaped detection by the child’s
stepmother, apparently asleep in an adjoining room during the
early morning occurrences, is neither surprising nor inherently
unworthy of belief. The crime at issue is one that can be
perpetrated clandestinely, considerably more clandestinely than
the crime of rape. It is not a crime that leaves observable,
tell-tale physical evidence or necessarily provokes outcries of
pain. Further, it is easy to understand a child’s natural
reluctance to call out to her stepmother for help in repelling
her father’s sexual assault.

With respect to the delay in reporting the incident, a
reasonable explanation was given: this child of divorced parents
did not wish to see her father go to jail or otherwise get in
trouble. Her decision to protect her father, the perpetrator, is
not contrary to human experience, and delayed reporting is not
uncommon. See, e.g., Corvin v. Commonwealth, 13 Va.
App. 296, 299, 411 S.E.2d 235, 237 (1991).

Finally, the timing of the child’s report, following the
father’s threat to prohibit the teenage child’s social life for
an entire summer, also followed an escalation in the nature of
the sexually assaultive conduct. The impact of the last assault,
which involved an act of cunnilingus on the thirteen year old,
must be evaluated together with her father’s threat to restrict
her social contacts. But the evaluation of the evidence on the
issue of motivation requires the trier of fact to weigh the
evidence, a matter beyond the purview of an appellate court and
peculiarly within the province of the trier of fact. See, e.g.,
Fisher, 228 Va. at 300, 321 S.E.2d at 204. While the
father’s threat may arguably have provoked fabrication in
retaliation, the trial court resolved the issue in favor of the
other reasonable inference to be drawn from the evidence, viz.,
the child found the continuing and escalating nature of the
sexual assaults totally unacceptable and when balanced against
the need to protect her father, she chose to protect herself.
Finally, even if we assume the child was angered by the
appellant’s threat to limit her social contacts, the trial
court’s implicit conclusion that the anger provoked the timing of
the report, not its content, was reasonable and reflective of
common human experience.

In sum, the testimony of the prosecutrix, if believed, was
sufficient to support appellant’s conviction. The trial court,
which had the full opportunity to observe and evaluate the
witnesses, believed the prosecutrix. "`The living record
contains many guideposts to the truth which are not in the
printed record; not having seen them ourselves, we should give
great weight to the conclusions of those who have seen and heard
them.’" Ketchum v. Commonwealth, 12 Va. App. 258,
263, 403 S.E.2d 382, 384 (1991) (quoting Bradley v.
Commonwealth
, 196 Va. 1126, 1136, 86 S.E.2d 828, 834 (1955)).
I find that the record does not support the majority’s conclusion
that the prosecutrix’s testimony was inherently incredible or
contrary to human experience.

I would affirm the convictions.

FOOTNOTES:

[1] I
note, however, that the child’s testimony was not wholly
uncorroborated. Rather, the child reported the offenses to her
school counselor. "Evidence of an out-of-court complaint . .
. is admissible, not as independent evidence of the offense, but
as corroboration of the victim’s testimony." Fisher,
228 Va. at 300, 321 S.E.2d at 204 (citing Cartera v.
Commonwealth
, 219 Va. 516, 518, 248 S.E.2d 784, 786 (1978)).

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