Bobby F. Collins v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
BOBBY F. COLLINS
v. Record No. 1544-94-1 MEMORANDUM OPINION*
BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA OCTOBER 10, 1995
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
William F. Rutherford, Judge
Andrew M. Sacks (Sacks, Sacks & Imprevento, on brief),
for appellant.
Steven Andrew Witmer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
Bobby F. Collins (appellant) appeals from his bench trial
conviction of aggravated sexual battery by the Circuit Court of
the City of Norfolk (trial court). Appellant contends that the
evidence was (1) insufficient to support the verdict and (2)
inherently incredible. The Commonwealth contends that the appeal
should be dismissed without further consideration because
appellant failed to make a motion to strike the evidence when the
Commonwealth rested, or renew, or move to strike when appellant
rested his case.
When sufficiency of the evidence is at issue on appeal, the
evidence must be viewed in the light most favorable to the
Commonwealth, and the evidence must be accorded all reasonable
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*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
inferences fairly deducible therefrom. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The
trial court's verdict will not be disturbed unless it was plainly
wrong or without evidence to support it. Code § 8.01-680;
Stockton v. Commonwealth, 227 Va. 124, 145, 314 S.E.2d 371, 385
(1984); Albert v. Commonwealth, 2 Va. App. 734, 741-42, 347
S.E.2d 534, 538-39 (1986).
At the time of the trial, the victim was seven years old and
in the second grade at school. No challenge was made as to her
qualification to testify. Appellant, an eighteen-year-old man,
would occasionally baby-sit the victim at her home. During the
year preceding the trial date, between September and October of
1992, appellant was baby-sitting the victim. The victim
testified that appellant took her to an upstairs bedroom where he
"pulled down [her] pants," and "put his thing" around her while
his pants were down. She said that his "thing" was called a
"ding-a-ling," and pointing to the area of her vagina, she added
that he rubbed his "ding-a-ling" in that area. She further
testified that she had a disease that caused her to go to a
doctor.
The victim's mother, Kiwanda Davis, testified that between
September and October of 1992, the victim complained "about being
sore in her vagina area," and that mother "checked her panties"
and noticed "a lot of discoloration and a lot of chapness, and
the smell was real bad, so I took her to King's Daughter's
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Hospital." Lab tests were performed and the victim was diagnosed
as having Chlamydia. Chlamydia is a sexually transmitted
disease.
Norfolk Police Officer J. G. Ingram testified that he
investigated the complaint that the victim had been sexually
assaulted. He interviewed appellant who admitted that while
baby-sitting for the victim around the time the crime is alleged
to have occurred, he touched appellant's vagina with his hand but
that it may have been an accident. Appellant also told Ingram
that he thought he had a venereal disease for which he took
penicillin that he had on hand.
Appellant testified in his behalf and denied having a
venereal disease. He admitted that on the night on which the
complaint arose he baby-sat the victim and that on that night he
touched the victim, but he said that at the time he did so, she
had all her clothes on. He said: "I probably pushed her on her
vagina," and "I probably touched her in her private part."
At trial, appellant failed to make a motion to strike the
Commonwealth's evidence when the Commonwealth rested or at the
conclusion of the presentation of all the evidence. Nor did he,
as he does on appeal, state any reason that the evidence was
insufficient because the child's testimony was incredible.
Except to meet the requirements of the ends of justice provisions
of Rule 5A:18, an appellate court cannot review the actions of
the lower court unless the ground urged on appeal is set forth in
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the trial record. See McGee v. Commonwealth, 4 Va. App. 317,
321, 357 S.E.2d 738, 740 (1987), and cases there cited.
Appellant argues that notwithstanding Rule 5A:18, the
testimony of the seven-year-old victim is incredible and
insufficient to support his conviction. Appellant's explanation
and the victim's inconsistencies were all presented to the trier
of fact together with the evidence that supports his conviction.
When weighing the evidence, the fact finder is not required to
accept entirely either the Commonwealth's or defendant's account
of the facts. Barrett v. Commonwealth, 231 Va. 102, 107, 341
S.E.2d 190, 193 (1986). Similarly, the fact finder is not
required to believe all aspects of a defendant's statement or
testimony; the trial judge as the trier of fact may reject that
which he finds implausible, but accept other parts which he finds
to be believable. Durham v. Commonwealth, 214 Va. 166, 169, 198
S.E.2d 603, 606 (1973). Thus, the trial court was entitled to
accept only those parts of the witnesses' and appellant's
testimony concerning how the touching occurred which the court
found to be plausible and credible. Moreover, the trial judge is
in the best position to weigh any inconsistencies in a witness's
testimony. See Swanson v. Commonwealth, 8 Va. App. 376, 382
S.E.2d 202 (1984).
Although appellant asserts that it may have been an accident
when he touched the victim's vagina, when viewed with the
testimony of the victim, it is clear that there is no
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justification to invoke the ends of justice provisions of Rule
5A:18. In determining whether the evidence is sufficient, when
the defense presents evidence, we review the record including the
evidence presented by appellant. Hargraves v. Commonwealth, 219
Va. 604, 605, 248 S.E.2d 814, 815 (1978); Spangler v.
Commonwealth, 188 Va. 436, 438, 50 S.E.2d 263, 266 (1948). In
reviewing this record, we find no justification for invoking the
ends of justice provision of Rule 5A:18.
This Court has repeatedly held that in the absence of a
reason to invoke the ends of justice provision, the failure to
make the appropriate motions to strike or set aside the verdict,
none of which were made in this case, bars our consideration of
insufficiency arguments. E.g., Fields v. Commonwealth, 5 Va.
App. 229, 236, 361 S.E.2d 359, 363 (1987) (citing White v.
Commonwealth, 3 Va. App. 231, 234, 348 S.E.2d 866, 868 (1986)).
Therefore, pursuant to Rule 5A:18, upon the evidence contained in
this record, appellant's request that we reverse his conviction
is denied.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
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