Where appellant was convicted of attempted forcible sodomy and aggravated sexual battery, his wife, who saw him molesting their adult daughter, provided credible testimony about the incident.
The evidence is reviewed in a light most favorable to the commonwealth.
Appellant was married to Jennifer Bishop. They have an adult daughter, S.B., who came to visit them. While appellant slept on the sofa, Jennifer and S.B. stayed up and watched television. Jennifer had several alcoholic drinks. She did not see S.B. drinking but said that she could have been. Jennifer said S.B. was “coherent.”
Appellant awoke at 4 a.m. Jennifer retired to her bedroom about a half hour later. Appellant and S.B. were both awake. Jennifer took “a Zanax” and listened to an online music service to help her sleep. Later after turning off the music, she heard S.B. moaning. She looked into the living room. S.B. was in a recliner, thrashing around.
Jennifer returned to her bedroom but went to the living room a few minutes later because S.B. was still moaning. S.B. was on the sofa. Her pants were off, her legs were spread and she continued to moan. Jennifer testified that appellant’s head was between S.B.’s legs and he appeared to be performing oral sex.
Appellant looked at Jennifer but said nothing. Jennifer got her cell phone, left the house and called the police. She returned to the house after the police arrived.
“She saw her daughter’s pants across the room and noticed her thong underwear was ‘twisted’ and ‘over to the side.’ Officer Sykes testified that S.B. was ‘extremely inebriated’ and unresponsive. He was not able to wake her up.”
Sykes asked Jennifer for help. S.B. “‘made noises’ before her eyes rolled back in her head.” Officer Dobson stated that when they tried to awake S.B. up, “she could not respond and merely shook her head. According to Dobson, S.B. remained in this state for nearly two hours.
“When she finally spoke, she was ‘confused’ and began talking about her car at her boyfriend’s house. Before the officers could collect her underwear, S.B. urinated on herself.”
Sykes said he could smell alcohol on Jennifer’s breath but she “did not appear to be intoxicated. … Sykes noted that appellant appeared ‘intoxicated’ and ‘lost.’” Sykes observed that appellant was sweating. Dobson stated that appellant was sweating, shaking and pale.
A forensic scientist testified that no male genetic material was recovered from the underwear and that if S.B. urinated on the underwear only female genetic material could be recovered.
S.B. remembered a few details. She said she drank alcohol, became intoxicated and moved from the recliner to the sofa “while still wearing her pajamas. Her next memory was being awakened by the police, but she had no recollection of speaking with them.
“Although Sykes said S.B. told him that night appellant had not ‘do[ne] anything sexual’ to her, S.B. testified that she could not recall the police questioning her about any ‘inappropriate touching’ by appellant.”
Appellant argued at trial that the commonwealth failed to prove its case. He “stressed that Jennifer’s testimony was not credible.”
The court found Jennifer’s testimony was credible and convicted appellant. On appeal, he argues there was insufficient evidence to convict him of either charge.
“[T]he record does not establish that Jennifer’s testimony was inherently incredible. Consistent with her trial testimony, she told the police she could not see whether appellant penetrated S.B.’s vagina; however, she was adamant that appellant’s mouth was ‘on’ S.B.’s crotch.
“Although S.B. initially told the police her father had not touched her sexually, she was so incoherent that she could barely speak, permitting a rational inference that she was unaware of what was happening to her.
“And notably, appellant does not dispute the trial court’s finding that S.B. was mentally and physically incapacitated at the time of the offenses.
“Despite appellant’s claim that Jennifer’s testimony conflicted with S.B.’s regarding the time of S.B.’s arrival and whether they were both drinking, Jennifer expressly testified that she did not know if S.B. was drinking.
“Further, although appellant believes the combination of little sleep, alcohol, and Xanax rendered Jennifer’s observations unreliable, Sykes testified that she did not appear intoxicated when he spoke with her.
“Contrary to appellant’s view, a rational fact finder could conclude Jennifer’s behavior was consistent with having seen her husband molest their daughter: Jennifer immediately called the police and fled the house and was ‘very upset’ and ‘crying’ when the officers arrived.
“Further, S.B. testified that she was fully dressed when she moved from the chair to the sofa, allowing a rational inference that appellant removed her pants. S.B.’s testimony that she and appellant drank several shots of vodka during the thirty to forty minutes that Jennifer was in bed reasonably supported the conclusion that S.B. consumed enough alcohol within a short period of time to incapacitate her.
“Finally, Jennifer heard her daughter moaning and screaming as she entered the living room and encountered appellant with his face on S.B.’s crotch. When Jennifer returned with the police, she noticed her daughter’s thong underwear was pushed to the side.
“Although appellant’s DNA material was not recovered from the underwear, a forensic scientist explained that S.B.’s urine interfered with the collection of such evidence.”
“[T]he circumstances presented to the trial court were sufficient for a rational fact finder to conclude that appellant’s face was touching S.B.’s vaginal area and that he intended to perform oral sex on her.
“The evidence also reasonably supported a finding that appellant touched S.B. with the intent to sexually gratify himself or S.B., who referred to her boyfriend repeatedly when the police and Jennifer attempted to wake her.
“Accordingly, the evidence was competent, credible, and sufficient to prove beyond a reasonable doubt that appellant was guilty of attempted forcible sodomy and aggravated sexual battery.”
Bishop v. Commonwealth, Record No. 0774-21-2, April 19, 2022. CAV (Huff) from the Circuit Court of Chesterfield County (Johnson). James T. Maloney for appellant. Susan Brock Wosk for appellee. VLW 022-7-096, 9 pp. Unpublished opinion.