Virginia Lawyers Weekly VA Lawyers Weekly
Where appellant argues his conviction of aggravated sexual battery of a child over the age of 13 by a step-grandparent should be overturned because the child’s testimony was not credible, we will not disturb the trial court’s credibility determinations.
Credibility
“Mitchell argues that B.S.’s testimony was inconsistent and therefore not credible. However, the trial court accepted B.S.’s testimony and rejected Mitchell’s testimony and arguments in finding Mitchell guilty. “‘The fact finder, who has the opportunity to see and hear the witnesses, has the sole responsibility to determine their credibility, the weight to be given their testimony, and the inferences to be drawn from proven facts.’ …
“The record does not reflect that B.S.’s testimony was inherently incredible. Contrary to Mitchell’s assertions, B.S. consistently testified that Mitchell entered her bedroom while she was naked; rubbed Vaseline on her legs, buttocks, and breasts; removed his pants; and penetrated her vagina with his penis.
“B.S. reported the attack to a friend that same day and submitted to a sexual assault examination the next day. Her testimony was corroborated by DNA testing, which proved that Mitchell’s sperm was in B.S.’s vagina.
“Finally, when confronted with the DNA evidence, Mitchell admitted that he became aroused, touched B.S. inappropriately, inserted his fingers into her vagina, and ejaculated.
“Considering these facts and circumstances, a reasonable finder of fact could conclude beyond a reasonable doubt that Mitchell was guilty of aggravated sexual battery.”
Mitchell v. Commonwealth, Record No. 0023-22-3, Nov. 9, 2022. CAV unpublished opinion (Ortiz). From the Circuit Court of Amherst County (Garrett). Herbert E. Taylor III for appellant. Jason S. Miyares, John Beamer for appellee. VLW 022-7-515, 5 pp.
