                        COURT OF APPEALS OF VIRGINIA


Present: Judges Bumgardner, Humphreys and Clements
Argued at Salem, Virginia


SHAWN WAYNE BREEDEN
                                            MEMORANDUM OPINION * BY
v.   Record No. 0404-02-3               JUDGE RUDOLPH BUMGARDNER, III
                                               JANUARY 28, 2003
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
                      John J. McGrath, Jr., Judge

             Aaron L. Cook (Aaron L. Cook, PC, on brief),
             for appellant.

             Donald E. Jeffrey, III, Assistant Attorney
             General (Jerry W. Kilgore, Attorney General,
             on brief) for appellee.


     A jury convicted Shawn Wayne Breeden of forcible sodomy and

object sexual penetration in violation of Code §§ 18.2-67.1 and

18.2-67.2.     He contends the evidence was insufficient to prove

penetration for either offense and the Commonwealth failed to

prove the chain of custody for evidence analyzed by the state

laboratory.     We reverse the conviction of sodomy and affirm the

conviction of object sexual penetration.

     On appeal, we view the evidence and all reasonable

inferences therefrom in the light most favorable to the

Commonwealth.     Commonwealth v. Taylor, 256 Va. 514, 516, 506


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
S.E.2d 312, 313 (1998).    The nine-year-old victim was spending

the night at the home of the defendant's sister.    The victim

testified the defendant kneeled beside the bed where she was

sleeping and touched her vagina with his fingers and tongue.

She told the investigator and the nurse that the defendant was

licking her "between her legs," but she did not know whether his

tongue went inside her vagina. 1   His fingers touched her "around

the outside," but she could not recall whether his finger went

inside.

     Penetration is an element of forcible sodomy.    Code

§ 18.2-67.1; Hudson v. Commonwealth, 141 Va. 525, 527, 127 S.E.

89, 89 (1925).    It is also an element of object sexual

penetration.   Code § 18.2-67.2.   In both cases the defendant

must penetrate the external part of the female genitalia.



     1
       At trial, the Commonwealth's attorney questioned the
victim:

          Q:     What body part was he touching?
          A:     I call it the vagina.
          Q:     And what part of his body was touching your
     vagina?
          A:     His fingers and his tongue.

     The Court then questioned the victim:

          COURT: . . . [Y]ou also indicated that he was licking
     your vagina?
          A: Yes.
          COURT: And did his tongue go inside of you? Could
     you feel it going in a short distance?
          A: I don't know.



                                 - 2 -
Horton v. Commonwealth, 255 Va. 606, 612-13, 499 S.E.2d 258, 261

(1998); Code § 18.2-67.2.

     The victim's testimony established contact, but did not

establish penetration from either act.   The nine-year-old victim

used the term "vagina" and responded affirmatively when asked,

"Do you know your body parts?"    However, the record gives no

indication that she used the term "vagina" as a precise

anatomical term.   As stated in Moore v. Commonwealth, 254 Va.

184, 190, 491 S.E.2d 739, 742 (1997), "there is no indication

whatever in the record that the young victim here was aware of

the intricate structure of her sexual organ."   As further

explained in Horton, she "used the term 'vagina' generally to

describe the external portion of her genitalia."   255 Va. at

615, 499 S.E.2d at 262.

     While the victim's testimony did not establish penetration,

the medical evidence proved digital penetration.   The sexual

assault nurse examiner examined the victim a few hours after the

assault.   She described the victim's genital area as very

swollen and reddened.   The nurse observed a slight tear in the

vaginal vault just beyond the hymen, which was swollen.   She

described it as "a significant tear in a child" because it was

visible with the naked eye.   The tear was "a typical injury from

something either rubbing against or touching that would have

stretched that area."   Something was either "inserted" into the

vagina or "some kind of pressure" caused stretching of the area.

                                 - 3 -
The injury could not have been self-inflicted, but a finger

could have caused it.

     The nurse testified the victim had a tear in the "vaginal

vault" beyond her hymen.   Insertion or pressure to the area

caused the tear.   The nurse used the anatomical terms precisely.

Even the act of applying pressure to that area required that the

defendant had penetrated the labia majora.   Code § 18.2-67.2

provides, "an accused is guilty of inanimate . . . object sexual

penetration if he . . . penetrates the labia majora . . . of a

complaining witness . . . ."

     The victim's testimony was insufficient to prove

penetration, but when coupled with the medical testimony, the

evidence proved the defendant penetrated the victim with his

finger.   "Given the circumstantial evidence of [digital]

penetration adduced by the Commonwealth in this case, the [fact

finder] could rationally discount the uncertainty reflected in

the prosecutrix's testimony . . . ."    Elam v. Commonwealth, 229

Va. 113, 115, 326 S.E.2d 685, 687 (1985) (although victim's

testimony did not prove penetration, when coupled with medical

and forensic evidence, the evidence was sufficient).      However,

the medical evidence that proved digital penetration negated

penetration during sodomy.   The nurse stated a tongue could not

have created the tear she observed.    Accordingly, the

Commonwealth failed to prove penetration for sodomy.



                               - 4 -
     The defendant contends the trial court erred in admitting

the certificate of analysis of the DNA evidence.   He maintains

there was a break in the chain of custody because the

Commonwealth failed to call the evidence clerk who placed the

package in the mail.   The Commonwealth proved all steps in the

chain of evidence from the time it was obtained by the nurse

until it was wrapped and sealed, and placed intact for the clerk

to mail.   It also proved the laboratory received the package

unaltered.    When returned to the police department, the only

alteration to the package and its seal was that made by the

forensic scientist during testing.

     The evidence proved the evidence was sealed before being

left for the evidence clerk to mail.    The laboratory received it

in the same condition, and returned it to the police department.

The police received it in the same condition as it left the

laboratory.   "A chain of custody is properly established when

the Commonwealth's evidence provides reasonable assurance that

the sample to be admitted at trial is the same sample, and in

the same condition, as when it was first obtained."     Johnson v.

Commonwealth, 259 Va. 654, 678, 529 S.E.2d 769, 783, cert.

denied, 531 U.S. 981 (2000).    The evidence permits the finding

that the evidence was in the same condition as when obtained.

"[T]he Commonwealth is not required to eliminate every

conceivable possibility of substitution, alteration, or

tampering."    Id.

                                - 5 -
     "Where there is mere speculation that contamination or

tampering could have occurred, it is not an abuse of discretion

to admit the evidence and let what doubt there may be go to the

weight to be given the evidence."     Reedy v. Commonwealth, 9

Va. App. 386, 391, 388 S.E.2d 650, 651-52 (1990).    The

Commonwealth proved the chain of custody, and the trial court

did not abuse its discretion in admitting the evidence.

     Accordingly, we affirm the conviction of object sexual

penetration, and we reverse the conviction of sodomy.

                                           Affirmed in part, and
                                           reversed in part.




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