                                COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Clements and Petty
Argued at Salem, Virginia


CHAD WILLIAM EDWARD ROBESON
                                                               MEMORANDUM OPINION * BY
v.      Record No. 1795-07-3                                    JUDGE WILLIAM G. PETTY
                                                                     MAY 27, 2008
COMMONWEALTH OF VIRGINIA


                     FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
                                  Michael S. Irvine, Judge

                  Thomas E. Wray for appellant.

                  Karen Misbach, Assistant Attorney General II (Robert F.
                  McDonnell, Attorney General, on brief), for appellee.


        Following a bench trial, appellant, Chad William Edward Robeson, was convicted of

sodomy of a child in violation of Code § 18.2-67.1. He challenges this conviction, arguing that the

trial court abused its discretion when it allowed the Commonwealth to reopen its case-in-chief and

that the evidence adduced below was insufficient to support his conviction. We disagree and affirm

Robeson’s conviction.

                                           I. BACKGROUND

        On appeal, we review the evidence in the “light most favorable to” the Commonwealth.

Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003) (citation omitted). This

principle requires us to “‘discard the evidence of the accused in conflict with that of the

Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all

fair inferences that may be drawn therefrom.’” Kelly v. Commonwealth, 41 Va. App. 250, 254, 584


        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
S.E.2d 444, 446 (2003) (en banc) (quoting Watkins v. Commonwealth, 26 Va. App. 335, 348, 494

S.E.2d 859, 866 (1998)).

       The record establishes that the victim, H.H., had known Robeson since she was six years

old. He was a friend of her brother, and had lived with her family “off and on” for some time. At

the time of the offense, H.H. was twelve and Robeson was nineteen. On the victim’s last day of

school, she and Robeson, whom she considered her boyfriend, were alone together when he began

kissing her. Eventually, H.H. unbuttoned her pants and “he started kissing [her] there.” H.H.

described the crime as follows:

               [Commonwealth’s attorney]: And you said that you unbuttoned
               your pants and did he, did he have oral sex with you?

               [H.H.]: Yes.

               [Commonwealth’s attorney]: Okay. And do you know how long
               that lasted?

               [H.H.]: Right around five minutes, five to ten minutes.

               [Commonwealth’s attorney]: Okay. And were you, did he say
               anything to you at the time or did you say anything to him at the
               time?

               [H.H.]: No.

               [Commonwealth’s attorney]: [W]hat made the act stop?

               [H.H.]: Well I knew my mom was coming home in a few
               minutes . . . .

                           *      *      *       *       *      *        *

               [Commonwealth’s attorney]: And when did you first tell
               somebody about this?

               [H.H.]: Well I, at first I had a urinary tract infection and my mom
               took me to the doctor. And they gave me medicine and then it just
               kept on and kept on . . . .

                           *      *      *       *       *      *        *

               [H.H.]: Later we found out it was Herpes Type I . . . .

                                               -2-
                           *       *       *        *        *       *       *

               [Commonwealth’s attorney]: Okay. And is, I guess, is [Robeson]
               the only person that you’ve done this with?

               [H.H.]: Yes.

               [Commonwealth’s attorney]: Okay. And the herpes that you had
               was in your vaginal area?

               [H.H.]: Yes.

               [Commonwealth’s attorney]: Okay. The person who, as you
               indicated, I guess, had his mouth in your vagina, is he in the
               courtroom?

               [H.H.]: Yes.

               [Commonwealth’s attorney]: Could you point him out please?

               [H.H.]: I’m sorry, what was the question?

               [Commonwealth’s attorney]: The person, I guess the person who
               performed this act, is he in the courtroom?

                       *       *       *       *         *       *       *

               [Commonwealth’s attorney]: Okay. The record reflects she
               identified the defendant, Your Honor.

       After H.H. was diagnosed with herpes, she told her mother about this incident. Following

an investigation, Investigator M.E. McFarland of the Botetourt County Sheriff’s Office arrested

Robeson. At trial, the Commonwealth introduced a taped conversation between McFarland and

Robeson containing the following dialog:

               [McFarland]: [T]he situation between you and [H.H.] and the oral
               sodomy of her [sic]. And we call it oral sodomy but it’s oral sex.
               You know what I’m, do you know what I’m talking about?

               [Robeson]: Yeah.

               [McFarland]: Okay, and that being the last situation where your
               mouth was on her vaginal area and that was um, the end, it
               happened over the course of about five times, um, over the last
               year. Um, was it any more than that, or was it just that?

               [Robeson]: That, that was it.
                                                   -3-
                [McFarland]: Just the oral part?

                [Robeson]: Oral, yeah.

                           *        *       *       *       *       *        *

                [McFarland]: Okay, and there were times that her mouth was on
                you?

                [Robeson]: Yeah.

                [McFarland]: And I mean your penis and times that your mouth
                was on her vaginal area. And it was no more than that?

                [Robeson]: No more than that.

                           *        *       *       *       *       *        *

                [McFarland]: And did you know she was twelve when you had
                oral sex with her?

                [Robeson]: Yeah.

        At the conclusion of Investigator McFarland’s testimony, the Commonwealth rested.

Robeson moved to strike, arguing that the Commonwealth had not presented evidence on the

element of penetration. The Commonwealth responded that the victim’s testimony, as well as

Robeson’s confession to Investigator McFarland, were sufficient to prove that element of the

offense. The Commonwealth’s attorney also argued that the victim testified that Robeson’s “mouth

[was] in [her] vagina” in answer to a question that the Commonwealth’s attorney specifically asked.

After some discussion, and after the trial court and the parties listened to the transcript tape of the

victim’s testimony, the Commonwealth moved to reopen its case to recall the victim to clarify

whether there had been penetration. The trial court granted the Commonwealth’s motion, and made

the following statement:

                When the question was asked to the child witness, the question was
                a leading question, it was not objected to but it was is the person
                who had his mouth in your vagina in the courtroom today and the
                answer to that was yes. The problem the Court has is that the
                [victim] really didn’t say that other than the person’s in the
                courtroom. She had never previously testified that his mouth was

                                                  -4-
       in her vagina. . . . I mean she said yes, the person is in the
       courtroom. But she had never said where his mouth was other than
       he had kissed her. I’m going to grant the Commonwealth’s motion
       to reopen the case. I’m going to clarify this to see really where his
       mouth was. That’s the crux of the case. That’s within the
       discretion of the Court.

The Commonwealth’s attorney then recalled the victim, who testified as follows:

       [Commonwealth’s attorney]: During the five minute period that
       you described that he was having oral sex with you [sic]. I mean
       what were you feeling, what did he do? If you remember.

       [H.H.]: Well I can’t remember exactly, you know, but it kind of
       felt wet.

                  *      *       *       *        *     *       *

       [Commonwealth’s attorney]: Okay, and where did it feel like he
       was touching?

       [H.H.]: Well on my vagina.

       [Commonwealth’s attorney]: Do you know whether it was his
       mouth or his tongue [touching you]?

       [H.H.]: [I]t probably was his tongue.

                  *      *       *       *        *     *       *

       [Commonwealth’s attorney]: Were you watching what he was
       doing?

       [H.H.]: No.

       [Commonwealth’s attorney]: Okay. So this is just based on what
       you felt?

       [H.H.]: Yeah.

                  *      *       *       *        *     *       *

       [Trial Court]: What they’re trying to figure out, [H.H.], and this is
       probably kind of simple. [The Commonwealth’s attorney] has
       asked you about the opening at your vagina.

       [H.H.]: Um-hmm.

       [Trial Court]: Was he inside or outside?


                                       -5-
                [H.H.]: He was inside.

                [Trial Court]: And he was inside with what you think was his
                tongue or something wet?

                [H.H.] Yes.

                            *       *       *        *         *     *       *

                [Commonwealth’s attorney]: You also feel like he was on the
                outside as well?

                [H.H.]: Yeah.

                [Commonwealth’s attorney]: Is that what you’re, I mean is that
                true?

                [H.H.]: Yeah.

                [Commonwealth’s attorney]: Do you feel like he was on the
                outside as well . . . ?

                [H.H.]: Yeah.

        The trial court determined that the Commonwealth met its burden. Accordingly, the trial

court denied Robeson’s motion to strike. The trial court ultimately found Robeson guilty, and

subsequently sentenced him to twenty-five years in prison with twenty years suspended. This

appeal followed.

                                                II. ANALYSIS

                                A. Reopening The Commonwealth’s Case

        Robeson contends that the trial court abused its discretion by allowing the Commonwealth

to reopen its case and submit further evidence on the element of penetration. Based on our review

of the record and the application of relevant legal principles, we disagree.

                                          Standard of Review

        “We have long followed the rule that the order of proof is a matter within the sound

discretion of the trial court and [a reviewing court] will not reverse the judgment . . . unless it

affirmatively appears that this discretion has been abused.” Hargraves v. Commonwealth, 219 Va.

                                                    -6-
604, 608, 248 S.E.2d 817, 817 (1978) (citing Flick v. Commonwealth, 97 Va. 766, 774, 34 S.E. 39,

42 (1899); Mundy v. Commonwealth, 161 Va. 1049, 1064, 171 S.E. 691, 696 (1933)). This rule

includes the principle that the trial court may, in its discretion, determine whether “the

Commonwealth should be permitted to introduce additional evidence in chief after it has rested.”

Chrisman v. Commonwealth, 3 Va. App. 371, 375-76, 349 S.E.2d 899, 902 (1986) (citations

omitted). “When all of the testimony has been concluded – and all of the witnesses excused – if the

trial court exercises its discretion and permits the introduction of other testimony, the record must

affirmatively show that the trial court abused its discretion if the appellate court is to reverse based

on the trial court’s ruling” allowing the Commonwealth to reopen its case. Id. at 376, 349 S.E.2d at

902.

                                               Discussion

        While the trial court has wide discretion in determining whether to allow a party to reopen

its case, “such discretion is judicial and not arbitrary.” Fink v. Higgins Gas & Oil Co., Inc., 203 Va.

86, 89, 122 S.E.2d 539, 542 (1961). Prior decisions of this Court and our Supreme Court have

given us guidance in determining whether a trial court abuses its discretion in permitting further

evidence.

        First, the trial court’s discretion “should be reasonably exercised so as not to injure the

[non-moving] party through surprise or otherwise, and so as not to deprive either party of the

opportunity to introduce material evidence.” Id. For instance, in Fink, a personal injury case, the

Virginia Supreme Court reversed a trial court’s refusal to allow the plaintiff to reopen his case.

There, the Court looked to the fact that the plaintiff had failed to introduce evidence regarding

causation due to a mere oversight and would have been able to introduce the evidence in question

“without any inconvenience to the defendant and with no appreciable amount of delay.” Id. at 91,

122 S.E.2d at 543 (citation omitted). In Lebedun v. Commonwealth, 27 Va. App. 697, 715-16,

                                                  -7-
501 S.E.2d 427, 436 (1998), this Court affirmed the trial court’s sua sponte decision to allow the

Commonwealth to reopen its case after the trial court noticed that the Commonwealth did not

present an in-court identification of the defendant. We stated, “[a]lthough the trial judge is a neutral

and impartial arbiter and should not abandon that role by becoming an advocate, the trial judge is

not required to sit idly and observe a miscarriage of justice occur because one party inadvertently

overlooks establishing a routine element of proof[,]” and concluded that the trial court had not

abused its discretion in allowing further evidence. Id. at 716, 501 S.E.2d at 436.

        In Chrisman, 3 Va. App. at 375-76, 349 S.E.2d at 902, this Court affirmed a trial court’s

decision to allow the Commonwealth to reopen its case to present further evidence regarding

whether a victim in a sodomy case understood the meaning of the term “penetration.” We held that

the trial court “acted with due regard to conscientious judgment, not arbitrary action” when it

allowed the Commonwealth to reopen its case for a “stated limited purpose.” Id.

        We hold that the trial court did not abuse its discretion when it allowed further testimony

from the victim in this case. The trial court acted conscientiously in making its decision to grant

leave to the Commonwealth to reopen. The trial court had the transcript tape re-wound and

reviewed the victim’s testimony, focusing on the following excerpt:

                [Commonwealth’s attorney]: Okay. The person who, as you
                indicated, I guess, had his mouth in your vagina, is he in the
                courtroom?

                [H.H.]: Yes.

                [Commonwealth’s attorney]: Could you point him out please?

                [H.H.]: I’m sorry, what was the question?

                [Commonwealth’s attorney]: The person, I guess the person who
                performed this act, is he in the courtroom?

        The compound question posed by the Commonwealth was, without question, confusing. It

prefaced the in-court identification of Robeson as the assailant with the assumption that the victim

                                                  -8-
had previously testified to the act of penetration. Thus, it is not surprising that the Commonwealth’s

attorney, the victim, and the trial court were apparently all confused regarding the meaning of the

victim’s affirmative response. It was entirely appropriate for the trial court to allow the

Commonwealth to reopen its case for further limited questioning of the victim in order to clarify her

answer. Based on our prior cases, we cannot say that the trial court abused its discretion in allowing

the Commonwealth to reopen its case for further limited questioning of the victim in order to clarify

her answer.

                                    B. Sufficiency Of The Evidence

        In order to convict Robeson of forcible sodomy in this case, the Commonwealth had to

prove, as pertinent to the allegations in this case that Robeson had “engage[d] in cunnilingus . . .

with a complaining witness [who] is less than 13 years of age.” In his motion to strike, Robeson

relied on Welch v. Commonwealth, 271 Va. 558, 563-64, 628 S.E.2d 340, 343 (2006), to argue that

the Commonwealth had not proven the element of penetration necessary to show that he committed

sodomy on the child. In Welch, our Supreme Court restated its earlier holding that, “to prove

cunnilingus, the Commonwealth must prove that there was ‘penetration of any portion of the vulva’

by the mouth or tongue.” Id. at 563-64, 628 S.E.2d at 343 (quoting Horton v. Commonwealth, 255

Va. 606, 613, 499 S.E.2d 258, 261-62 (1998)). While Robeson correctly stated the law in his

motion to strike, we cannot say that the evidence in this case is so scant that the trier of fact erred in

finding the element of penetration had been proven.

                                               Standard of Review

        “[O]n appeal, the issue of” the sufficiency of the evidence “to support the [trier of fact’s]

determination is a question of law for determination by [the reviewing] Court.” Reilly v.

Shepherd, 273 Va. 728, 733, 643 S.E.2d 216, 219 (2007) (citing Lee v. Southland Corp., 219 Va.

23, 27, 244 S.E.2d 756, 759 (1978)). When considering the sufficiency of the evidence

                                                   -9-
presented below, we “presume the judgment of the trial court to be correct” and reverse only if

the trial court’s decision is “plainly wrong or without evidence to support it.” Davis v.

Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002); see also Code § 8.01-680.

The credibility of the witnesses, the weight accorded testimony, and the inferences drawn from

proven facts are matters to be determined by the fact finder. Long v. Commonwealth, 8

Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).

       We do not, therefore, “substitute our judgment for that of the trier of fact.” Wactor v.

Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002). “Instead, the

relevant question is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).

                                       Evidence Presented At Trial

       At trial, the Commonwealth introduced Robeson’s taped confession into evidence

without objection. 1 As recounted above, Robeson confirmed that he and the victim had had oral

sex “over the course of about five times” and that, specifically, his “mouth was on [the victim’s]

vaginal area.”

       Moreover, the record contains significant evidence that not only corroborated Robeson’s

confession, but also constituted sufficient independent evidence of his guilt. The victim testified

that she considered Robeson her “boyfriend,” that he “unbuttoned her pants” and had “oral sex”

with her for five to ten minutes, and that she contracted herpes as a result of her contact with


       1
          In Claxton v. City of Lynchburg, 15 Va. App. 152, 155, 421 S.E.2d 891, 893 (1992), we
defined a confession as “a statement admitting or acknowledging all facts necessary for
conviction of the crimes charged.” Here, Robeson acknowledged that he had oral sex with the
victim, that his mouth was on her vaginal area, and that she was twelve years old at the time--
facts fulfilling the elements of Code § 18.2-67.1. Thus, Robeson’s statement meets the legal
definition of a confession.

                                               - 10 -
Robeson. The victim further testified that based on what she felt she concluded that Robeson’s

tongue was both on and “in the opening” of her vagina. Finally, in response to the trial court’s

questions, the victim testified that Robeson put what she believed to be his tongue inside her

vagina. We conclude that the statement by Robeson, combined with the victim’s testimony,

sufficiently establishes penetration. See Newby v. Commonwealth, 255 Va. 606, 610-11, 499

S.E.2d 258, 259 (1998) (affirming a conviction for sodomy and holding that the element of

penetration was established when the victim testified that Newby “put his mouth on [her] vaginal

area . . .”); see also Love v. Commonwealth, 18 Va. App. 84, 88, 441 S.E.2d 709, 712 (1994)

(“[I]nsertion of the defendant’s tongue into the victim’s vagina need not be shown to prove

cunnilingus.”). Thus, the trial court’s verdict was supported by ample evidence of each and every

element of the offense of sodomy of a child.

                                         III. CONCLUSION

       Based on the foregoing, we do not find error on this record. Accordingly, we affirm.

                                                                             Affirmed.




                                               - 11 -
