                    COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Baker, Benton, Coleman,
     Koontz, Willis, Elder, Bray and Fitzpatrick
Argued at Richmond, Virginia


GEORGE THOMAS SMITH, JR.
                                            MEMORANDUM OPINION * BY
v.        Record No. 1902-93-1               JUDGE LARRY G. ELDER
                                                AUGUST 1, 1995
COMMONWEALTH OF VIRGINIA


                      UPON A REHEARING EN BANC

              FROM THE CIRCUIT COURT OF ACCOMACK COUNTY
                         Glen A. Tyler, Judge

          Thomas L. Northam (Vincent, Northam & Lewis,
          on brief), for appellant.

          G. Russell Stone, Jr., Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.



     By memorandum opinion dated March 28, 1995, record number

1902-93-1, a panel of this Court reversed the conviction of

George Thomas Smith (appellant) for violation of Code § 18.2-61.

 We granted the Commonwealth's petition for rehearing en banc and

stayed the mandate of that decision.

     Appellant contends the evidence failed to prove that the

victim was not his spouse, an element of the offense.     Because

the Commonwealth presented circumstantial evidence sufficient to

prove that the victim was not appellant's spouse, we affirm the

conviction.

     One of the elements of the charged offense is that the
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
defendant had sexual intercourse with "a complaining witness who

is not his . . . spouse."   Code § 18.2-61(A).   It is axiomatic

that the Commonwealth bears the burden of proving each element of

an offense beyond a reasonable doubt.     Hill v. Commonwealth, 17

Va. App. 480, 484, 438 S.E.2d 296, 298 (1993).    However, the

Commonwealth need not prove each element by direct evidence;

instead, it may prove an element by circumstantial evidence,

Reynolds v. Commonwealth, 9 Va. App. 430, 440, 388 S.E.2d 659,

665 (1990), which is entitled to the same weight as direct

evidence.   Hall v. Commonwealth, 14 Va. App. 65, 69, 415 S.E.2d

439, 442 (1992).   It is within the fact finder's province to draw

inferences from circumstantial evidence and to determine the

weight to be ascribed to such evidence.     Cook v. Commonwealth,

226 Va. 427, 432, 309 S.E.2d 325, 329 (1983); Schneider v.

Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985).

     At trial the following facts were adduced:    (1) appellant

did not live with the twelve-year-old victim; (2) appellant was

dating the victim's older sister, Sandra; (3) appellant and the

victim had different last names; (4) appellant and the victim

never had sexual relations before this incident; (5) the victim

was a virgin; (6) the victim told appellant "No, I can't do this.

 Get it from Sandra;" (7) appellant told police that he knew he

should not have attempted sexual intercourse with the victim; (8)

appellant never claimed to police that he was married to the

victim; (9) appellant described the victim as someone "who I



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knew;" (10) the deputy sheriff investigator testified that to his

knowledge, appellant was not married; (11) when asked how she

knew the defendant, the victim testified that her next to oldest

sister was his girlfriend; and (12) the trial court was aware

that a non-pregnant twelve-year-old could not legally enter into

a marriage in Virginia.   Code § 20-48.

     When viewed in the light most favorable to the Commonwealth,

the circumstantial evidence was sufficient to establish beyond a

reasonable doubt that the parties were not married.   Accordingly,

we affirm the conviction.

                                                         Affirmed.




                                -3-
BENTON, J., joined by Baker, and Koontz, J.J., dissenting.



     "[T]he Due Process Clause protects the accused against

conviction except upon proof beyond a reasonable doubt of every

fact necessary to constitute the crime with which he is charged."

 In re Winship, 397 U.S. 358, 364 (1970).      "Where inferences are

relied upon to establish [a factual element of the offense], they

must point to [that fact] so clearly that any other conclusion

would be inconsistent therewith."       Dotson v. Commonwealth, 171

Va. 514, 518, 199 S.E. 471, 473 (1938).      The Commonwealth

concedes, as it must, that it was required to prove as an element

of the offense that the accused was not the spouse of the victim

at the time of the offense.    See Code § 18.2-61.    The

circumstantial evidence in this record, however, did not prove

that fact beyond a reasonable doubt.

     The prosecutor failed to prove by the testimony of the child

or the child's mother the child's marital status at the time of

the offense.    In an attempt to prove the contested element of the

offense, the prosecutor made the following inquiry of a deputy

sheriff:
           Q: Was George Thomas Smith married at this
           time -- George Thomas Smith, Jr.?

           A:   Not to my knowledge, sir.


The essence of the deputy sheriff's testimony is that he did not

know whether Smith was married.    Neither this testimony nor the

other circumstantial evidence in the record was sufficient to


                                  -4-
prove beyond a reasonable doubt that the accused and the victim

had not been lawfully married in one of the many states that

permit non-age marriages.

     The trial judge substantially relied upon the belief that a

child twelve years old cannot lawfully marry.    However, that

belief is contrary to the provision of Code § 20-48.   Moreover,

reliance upon Virginia law is not dispositive.   "The general rule

. . . is that . . . a marriage valid where celebrated is valid

everywhere."   Toler v. Oakwood Smokeless Coal Corp., 173 Va. 425,

429, 4 S.E.2d 364, 366 (1939).    See also Kleinfeld v. Veruki, 7

Va. App. 183, 186, 372 S.E.2d 407, 409 (1988).   Several states,

including states that abut Virginia, recognize the marriage of a

minor if consent is properly obtained.    See, e.g., Ariz. Rev.

Stat. Ann. § 25-102 (1991); Cal. Family Code § 302 (West 1994);

Md. Family Code § 2-301 (1991); Nev. Rev. Stat. § 122.025 (1991);

W. Va. Code § 48-1-1 (1995).

     The child testified that she knew Smith.    The evidence did

not prove that the child had always lived in Virginia.   At age

twelve, she was not so young as to exclude as irrational the idea

of marriage.   Evidence such as different last names, not living

together, and not having sexual relations, are not proof beyond a

reasonable doubt that the parties were not married.

     In opposition to the motion to strike the evidence for

failure of the evidence to prove that the victim and the

defendant were not married, the prosecutor argued as follows:
          The evidence is that Investigator Matthews


                                 -5-
            has knowledge he is not married. The
            evidence is that he was going with her
            sister. The evidence is that the twelve year
            old had never had an experience like this
            before and that while going with his sister
            did this act to her when she was twelve years
            old in July of 1991 on his sister's bed and I
            think that is more than sufficient to fulfill
            that element. He has no knowledge whether
            she is married or not married.


     Taking all of these facts proved at trial, the

Commonwealth's evidence did not prove beyond a reasonable doubt

that Smith was not married to the child at the time of the

incident.   "'[A] suspicion of guilt, however strong, or even a

probability of guilt, is insufficient to support a criminal

conviction.'"    Boothe v. Commonwealth, 4 Va. App. 484, 492, 358

S.E.2d 740, 745 (1987)(citation omitted).

     Accordingly, I would reverse and dismiss the conviction

against Smith.




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