                     COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Elder and Overton
Argued at Richmond, Virginia


TONY CURTIS INGRAM, SR.
                                        MEMORANDUM OPINION * BY
v.       Record No. 2720-96-2     CHIEF JUDGE JOHANNA L. FITZPATRICK
                                            MARCH 3, 1998
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                      John F. Daffron, Jr., Judge

             David B. Hargett (Joseph D. Morrissey;
             Morrissey, Hershner & Jacobs, on brief), for
             appellant.
             Jeffrey S. Shapiro, Assistant Attorney
             General (Richard Cullen, Attorney General;
             Ruth Ann Morken, Assistant Attorney General,
             on brief), for appellee.



     Tony Curtis Ingram, Sr. (appellant) was convicted in a bench

trial of three counts of taking indecent liberties with a minor

while maintaining a custodial or supervisory relationship in

violation of Code § 18.2-370.1.    On appeal, he contends the

evidence was insufficient to prove his guilt beyond a reasonable

doubt.    For the following reasons, we affirm the convictions.

                                  I.

     "On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"     Archer v. Commonwealth,

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted).

 "'The judgment of a trial court sitting without a jury is
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
entitled to the same weight as a jury verdict and will not be set

aside unless it appears from the evidence that the judgment is

plainly wrong or without evidence to support it.'"      Id.

     Appellant and his wife, Tammy, were experienced foster

parents who had cared for between seventeen and twenty foster

children prior to August 1991.      In August 1991, pursuant to an

emergency removal procedure, a Richmond city social worker

removed five siblings - three girls and two boys - from the home

of their mother and placed them with Mr. and Mrs. Ingram.         At

that time the Ingram household included the Ingrams' son, Tony

Jr., and another foster child.      The three sisters were L.P., who

was age twelve in 1991 and seventeen at trial, C.T., who was age

eleven in 1991 and fifteen at trial, and S.D., who was age four

in 1991 and ten at trial.
     After some time in the Ingrams' home, the five siblings

expressed a desire to be adopted by the Ingrams.      The children

had relatives in Philadelphia who opposed the adoption and wanted
           1
custody.       The relationship between these relatives and the

Ingrams was poor.      For approximately a year, the children's

behavior followed a pattern:      first they would appear happy and

want the Ingrams to adopt them, then they would speak to their

relatives, become upset and rebellious for a few days, and would

no longer want the adoption.      In conversation with their

relatives, the children also accused the Ingrams of using social
     1
      The children's natural mother died in May 1993.




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services money intended for the children to buy a new car for

themselves.    These accusations and the pattern of fluctuating

behavior caused the Ingrams to cut off telephone communication

between the children and their relatives in Philadelphia.     When

the problems did not subside, the Ingrams requested that the

children be removed from their home, with the understanding that

if the children wanted to return, they could.     In July 1994, the

children were removed from the Ingram home.
        Approximately one year after the children left the Ingram

home, S.D., the youngest girl, confided to her foster parents'

daughter that appellant had touched her sexually.     Her sisters

also accused appellant of improper sexual conduct, and he was

tried on three counts of knowingly taking indecent liberties with

a child in his custody.

        Testimony at trial established that the three girls shared a

room throughout their stay with the Ingrams.     They were close to

Tammy Ingram and discussed intimate subjects with her on multiple

occasions.    They had contact with their case worker outside the

presence of the Ingrams, and they went to school, socialized, and

visited relatives.    The girls testified that none of them told of

the abuse until more than a year after they had left the Ingram

home.

        All three girls testified at trial.   L.P., the oldest,

testified that "everything just started going wrong" in the

middle of the first year with the Ingrams; she "was being




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molested and everything and just not being treated . . . fair

between [her] brothers and sisters."   She testified that

appellant began touching her over and then under her clothes.

She claimed he would "caress [her] breast or [her] vagina . . .

for . . . punishment."   She further testified that appellant "put

his finger in [her] vagina," but she could not say whether this

happened more than once or when it happened.   She added "[w]ell

his mouth was on my vagina that once," and claimed that he

propositioned her.   She stated that these incidents occurred when

she was alone with appellant in the basement family room or in

her bedroom and that "during the day [she] was punished one time,

that's when he came up to [her] room."
     L.P. testified that she allowed appellant to do and say

these things because she wanted to protect her sisters from him,

and she was afraid that the children would be split up if she

reported the acts.   Additionally, appellant told her that if she

spoke of his behavior, he would go to jail and the children would

be separated.

     C.T. testified that appellant began touching her "after

about a year" of residence with the Ingrams.   She claimed he

grabbed her breasts almost daily when she hugged him before

bedtime, even when Tammy Ingram was in the same room with them.

In addition, C.T. testified that appellant attempted to place her

hand on his penis on four occasions.   She did not tell Tammy

Ingram, with whom she had a close relationship, because she "was




                                 4
afraid that [Mrs. Ingram] would hate me," and she did not tell

the case worker because she did not trust her.

     S.D., the youngest, testified that the first time appellant

attempted sexual contact with her was when she and appellant were

lying under a blanket watching television with the rest of the

family.   She claimed he attempted to place her hand on his penis,

but that she resisted and moved to sit on the floor.   S.D. also

testified that she was grounded "most of the time" and that

appellant would "come up to [her] room and he'd ask [her] to suck

his dick."   Additionally, she stated that while she was supposed

to be grounded and in her room, she was sitting on the stairs and

overheard a conversation in the kitchen in which appellant asked

L.P. to "suck his dick."   S.D. admitted that she did not tell

anyone because she sometimes lies, and she was afraid no one

would believe her.
     Tammy Ingram testified that if the sisters were being

sexually mistreated by appellant, she was sure they would have

told her.    She further testified that, due to the Ingrams'

extensive experience with foster children, they had a standing

rule that "at no time would either one of us be left alone with

one particular child, there would always be somebody else with

us, and we were never left alone with one particular child at any

time."    Additionally, Tammy Ingram testified that, to her

knowledge, her husband was never alone with any of the girls

during the three years they lived together.




                                  5
     Appellant denied each allegation of sexual misconduct.

Several additional witnesses who knew appellant and the girls

testified to appellant's character and denied knowledge or

suspicion of sexual abuse.

     The trial court acknowledged that the central issue was one

of credibility:
          I listened closely to the testimony. I took
          notes in the testimony. I am aware of some
          things that I feel are just simply
          inconsistencies in the girls' statements, but
          the bottom line, as I see, is the children,
          and I'm convinced after hearing the testimony
          and evaluating this that the Commonwealth has
          proved its case beyond a reasonable doubt.
          So accordingly, I . . . find Mr. Ingram
          guilty as charged in each of the three
          indictments.

     On October 13, 1996, the trial court denied appellant's

motion to set aside the verdict.
          I've had the opportunity to go back and read
          the transcript of the proceedings and read it
          away from the tension or as lawyers say the
          heat of trial, and upon review of all the
          matters, I've concluded that the Commonwealth
          has proved its case.


The trial court sentenced appellant to five years in prison, four

years suspended, for each count, resulting in a sentence of three

years of active time in prison.

                                  II.

     Appellant challenges the girls' uncorroborated testimony of

abuse as vague and inconsistent, and he argues that the alleged

events are contrary to human experience and usual behavior to

such an extent that the testimony was inherently incredible.



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     "'It is within the province of the fact finder to evaluate

the credibility of the witnesses . . . .'"    Dicker v.

Commonwealth, 22 Va. App. 658, 662, 472 S.E.2d 655, 657 (1996)

(citation omitted).

          "In testing the credibility and weight to be

          ascribed [to] the evidence, we must give

          trial courts and juries the wide discretion

          to which a living record, as distinguished

          from a printed record, logically entitles

          them.    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."
Nicholas v. Commonwealth, 15 Va. App. 188, 194, 422 S.E.2d 790,

794 (1992) (citation omitted).   The conclusion of the fact finder

"may only be disturbed on appeal if this Court finds that [the

supporting] testimony was 'inherently incredible, or so contrary

to human experience as to render it unworthy of belief.'"
Robertson v. Commonwealth, 12 Va. App. 854, 858, 406 S.E.2d 417,

419 (1991) (citing Fisher v. Commonwealth, 228 Va. 296, 299-300,

321 S.E.2d 202, 204 (1984)).   "Under settled principles of law,

[a] child's testimony alone, if believed by the [fact finder],

[is] sufficient to support appellant's conviction, even in the




                                  7
absence of corroborating physical or testimonial evidence."       Love

v. Commonwealth, 18 Va. App. 84, 90, 441 S.E.2d 709, 713 (1994).

 See Swanson v. Commonwealth, 8 Va. App. 376, 382 S.E.2d 258

(1989) (a ten year old's uncorroborated, impeached testimony that

her uncle molested her was sufficient to find guilt).

     In the instant case, the victims testified they had suffered

abuse from appellant, and appellant denied abusing them.    The

trial court acknowledged that "the issue here is . . .

credibility," and stated that "credibility issues are the hardest

issues."   After due consideration, the trial court determined

that "the Commonwealth . . . proved its case beyond a reasonable

doubt."
     Appellant also contends the girls' delay of more than a year

in reporting the abuse casts doubt on the validity of the claims.

"[W]hile the lapse of time between the alleged event and the

report is certainly an issue, it is a question of weight rather

than of admissibility.   '[T]he accompanying circumstances must

determine how far the delay has been successfully explained

away.'"    Lindsey v. Commonwealth, 22 Va. App. 11, 16, 467 S.E.2d

824, 827 (1996) (citation omitted).   A delay of several months

before reporting abuse may be reasonably "explained by and

completely consistent with the all too common circumstances

surrounding sexual assault on minors - fear of disbelief by

others and threat of further harm from the assailant."     Woodard
v. Commonwealth, 19 Va. App. 24, 28, 448 S.E.2d 328, 330 (1994).




                                  8
     In the instant case, evidence was presented that appellant

threatened one child and that all feared separation if his

actions were reported.    Credible evidence explained the sisters'

delay in reporting the abuse, and we cannot say that the

evidence, when viewed in its entirety, was inherently incredible

or contrary to human experience.       For the foregoing reasons, we

affirm the convictions.

                                                            Affirmed.




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