                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Powell and Senior Judge Coleman
Argued at Richmond, Virginia


ERIC DOUGLAS ROSE
                                                             MEMORANDUM OPINION * BY
v.     Record No. 0173-08-2                                    JUDGE CLEO E. POWELL
                                                                 SEPTEMBER 1, 2009
COMMONWEALTH OF VIRGINIA


                      FROM THE CIRCUIT COURT OF HENRICO COUNTY
                                  Daniel T. Balfour, Judge

                 Steven D. Benjamin (Betty Layne DesPortes; Benjamin &
                 DesPortes, P.C., on briefs), for appellant.

                 John W. Blanton, Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       Eric Douglas Rose (“Rose”) appeals his convictions for object sexual penetration, in

violation of Code § 18.2-67.2, and aggravated sexual battery, in violation of Code § 18.2-67.3.

On appeal, Rose contends that there was insufficient evidence to support his convictions because

the sole evidence against him consisted of the uncorroborated testimony of the complaining

witness who was impeached by her own inconsistent and contradictory testimony and

statements. He further contends that the trial court erred as a matter of law in using the victim’s

prior inconsistent statements to bolster her credibility. Finding no error, we affirm.




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                         BACKGROUND1

       On October 26, 2006, the victim, an eleven-year-old girl, was interviewed by the

Department of Social Services and Investigator Timothy Morris of the Henrico County Police

Department in response to a report that she had been sexually assaulted. The victim alleged that,

during the summer of 2005, she had spent the night at Rose’s house. At some point during the

night, Rose placed his finger inside her vagina for approximately two minutes, until the victim

slapped his hand away. Rose was subsequently arrested and charged with object sexual

penetration and aggravated sexual battery.

       At trial, the Commonwealth relied almost exclusively on the victim’s testimony. On

cross-examination, the defense questioned the victim about the statement she gave to

Investigator Morris as well as the testimony she had previously given at the preliminary hearing.

The questioning revealed that the victim’s prior statements and testimony regarding the sexual

assault were significantly different from the testimony she had given at trial. 2 After the

Commonwealth presented its evidence, Rose testified in his own defense and denied that he had

ever touched the victim inappropriately. The trial court, sitting without a jury, found Rose guilty

of both charges.

       Rose subsequently filed a motion to set aside convictions. At the hearing on this motion,

Rose argued that that the totality of the circumstances indicated that the victim’s testimony was


       1
         As the parties are fully conversant with the record in this case, and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of
this appeal.
       2
         The record indicates that the victim gave inconsistent statements with regard to 1) the
number of times the victim claims to have slept in Rose’s bed; 2) why she went into Rose’s
bedroom; 3) whether she was asleep before the touching; 4) whether Rose was under or on top of
the covers; 5) whether Rose talked to her or was silent during the touching; 6) what happened
immediately after the touching; and 7) when the victim told her family about the touching.

                                                -2-
not credible. Additionally, Rose argued that the victim impact statement filed by the victim’s

mother after Rose was found guilty further contradicted the victim’s testimony with regard to

when the victim disclosed the incident to family members. The Commonwealth acknowledged

that there were a number of inconsistencies between the victim’s previous statements, her

testimony, and the victim impact statement that could not be explained. The court overruled the

motion to set aside the conviction, stating:

               The Court . . . has reread the statement, looked at various parts of
               the transcript, . . . read the victim’s statement, read it and marked
               up Dr. Nelson’s report, and looked at . . . the victim impact
               statement [written by the mother] . . . .

               As to this phase, that is looking at the Motion to Reconsider, I’ll
               repeat something I probably said the first time around, the
               inconsistencies in [a] case of this nature, in the court’s mind
               support [] the court’s original position of finding the Defendant
               guilty more so than if she had come in and testified and said
               exactly the same thing all the way through. Sort of like the, for all
               of us who studied the New Testament, the four Gospels they are
               inconsistent in parts. And that’s one reason they say they’re
               probably true. Because if they were all saying the same thing, it
               make me a little suspicious that they were fabricated. And so the
               inconsistencies don’t bother the court. . . .

               But to have the child testif[y] in lower court, testify here, and also
               talk to her family and also to Social Services, and even though
               there’s some differences and also some differences of the parent,
               the Court is convinced that it is beyond a reasonable doubt.

       Rose appeals to this Court.

                                               ANALYSIS

       Rose asserts that the testimony offered at trial, specifically the victim’s testimony, was

inherently incredible and insufficient to sustain the trial court’s verdict. Additionally, Rose

argues that the trial court erred, as a matter of law, in finding that the victim’s prior inconsistent

statements actually bolstered her credibility and in relying on those prior inconsistent statements

in making its decision.


                                                 -3-
       “When a defendant challenges on appeal the sufficiency of the evidence to sustain his

conviction, it is the duty of an appellate court to examine the evidence that tends to support the

conviction and to permit the conviction to stand unless the conviction is plainly wrong or without

evidentiary support.” Commonwealth v. Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72 (1998).

“If there is evidence to support the conviction, an appellate court is not permitted to substitute its

own judgment for that of the finder of fact, even if the appellate court might have reached a

different conclusion.” Id.

       It is well established that ‘“[t]he credibility of witnesses and the weight accorded their

testimony are matters solely for the fact finder who has the opportunity of seeing and hearing the

witnesses.’” Commonwealth v. Jackson, 276 Va. 184, 197, 661 S.E.2d 810, 816 (2008) (quoting

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

conclusions drawn by the fact finder on credibility issues may be disturbed on appeal only if the

appellate court finds that the witness’ testimony was “inherently incredible, or so contrary to

human experience as to render it unworthy of belief.” Fisher v. Commonwealth, 228 Va. 296,

299-300, 321 S.E.2d 202, 204 (1984). “In all other cases, we must defer to the conclusions of

‘the fact finder[,] who has the opportunity of seeing and hearing the witnesses.’” Ashby v.

Commonwealth, 33 Va. App. 540, 548, 535 S.E.2d 182, 187 (2000) (quoting Schneider, 230 Va.

at 382, 337 S.E.2d at 736-37). “These same principles apply in cases involving rape, sodomy and

other sexual offenses, which may be sustained solely upon the testimony of the victim, even in

the absence of corroborating evidence.” Id. at 548-49, 535 S.E.2d at 187.

               So long as a witness deposes as to facts which, if true, are
               sufficient to maintain their verdict, then the fact that the witness’
               credit is impeached by contradictory statements affects only the
               witness’ credibility; contradictory statements by a witness go not
               to competency but to the weight and sufficiency of the testimony.




                                                 -4-
                If the trier of the facts sees fit to base the verdict upon that
                testimony there can be no relief in the appellate court.

Swanson v. Commonwealth, 8 Va. App. 376, 379, 382 S.E.2d 258, 259 (1989).

        In the present case, as in most cases of this nature, it is undisputed that the only people

present at the time of the incident were Rose and the victim. As their testimony was mutually

exclusive, it was well within the province of the trial court to determine who was telling the

truth. It is clear in this case that the trial judge chose to believe the victim’s inconsistent

testimony over Rose’s self-serving testimony. “In its role of judging witness credibility, the fact

finder is entitled to disbelieve the self-serving testimony of the accused and to conclude that the

accused is lying to conceal his guilt.” Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500

S.E.2d 233, 235 (1998). Accordingly, we hold that the evidence was sufficient to sustain the

trial court’s verdict.

        Rose next argues that the trial court improperly found that the victim’s prior inconsistent

statements actually bolstered her credibility. Specifically, Rose asserts that by referencing the

victim’s prior inconsistent statements, “the trial court was using them as evidence of the truth of

the allegations, contrary to the law.” We disagree.

        “The fact that a witness makes inconsistent statements in regard to the subject matter

under investigation does not render [her] testimony nugatory or unworthy of belief.” Swanson, 8

Va. App. at 378, 382 S.E.2d at 259. Rather, “[i]nconsistent statements by a witness go to the

weight and sufficiency of the testimony, not the competency of the witness.” Fordham v.

Commonwealth, 13 Va. App. 235, 240, 409 S.E.2d 829, 832 (1991).

        However, our Supreme Court has admonished that a prior inconsistent statement is

neither substantive nor “evidence of the truth of the earlier account.” Royal v. Commonwealth,

234 Va. 403, 405, 362 S.E.2d 323, 324 (1987). Rather, “[a] prior inconsistent statement is

received into evidence exclusively to attack the credibility of the witness who has given different
                                                  -5-
accounts of the facts at different times.” Id. (emphasis added). Taking the holding in Royal to

its logical conclusion, a necessary corollary is that prior inconsistent statements cannot be used

to bolster the credibility of a witness.

        Rose’s argument focuses specifically on the statements made by the trial court during the

hearing on the motion to reconsider. In responding to defense counsel’s argument on the motion

to reconsider, the trial court stated:

                The Court . . . has reread the statement, looked at various parts of
                the transcript, . . . read the victim’s statement, read it and marked
                up Dr. Nelson’s report, and looked at . . . the victim impact
                statement [written by the mother] . . . .

                As to this phase, that is looking at the motion to reconsider, I’ll
                repeat something I probably said the first time around, the
                inconsistencies in [a] case of this nature, in the court’s mind
                support [] the court’s original position of finding the Defendant
                guilty more so than if she had come in and testified and said
                exactly the same thing all the way through. Sort of like the, for all
                of us who studied the New Testament, the four Gospels they are
                inconsistent in parts. And that’s one reason they say they’re
                probably true. Because if they were all saying the same thing, it
                make me a little suspicious that they were fabricated. And so the
                inconsistencies don’t bother the court. . . .

                But to have the child testif[y] in lower court, testify here, and also
                talk to her family and also to Social Services, and even though
                there’s some differences and also some differences of the parent,
                the Court is convinced that it is beyond a reasonable doubt.

        Rose argues that the inconsistencies the trial court is referring to in the second paragraph

are the inconsistencies in the victim’s testimony. In so doing, according to Rose, the trial court is

utilizing the victim’s inconsistent statements to improperly bolster her credibility.

        The trial court, however, begins by stating, “The Court . . . has reread the statement,

looked at various parts of the transcript, . . . read the victim’s statement, read it and marked up

Dr. Nelson’s report, and looked at . . . the victim impact statement.” Thus, it is clear that the

inconsistencies that the trial court is referring to are the inconsistencies between the victim’s


                                                 -6-
testimony, Dr. Nelson’s report, and the victim impact statement (which was prepared by the

victim’s mother). The trial court’s subsequent discussion of the four Gospels further indicates

that it was referring to multiple individuals recounting the same event as opposed to one person

recounting the same event multiple ways.

       The trial court then took the position that the inconsistencies between these renditions

support the verdict more so than if the victim had “testified and said exactly the same thing all

the way through.” As the trial court noted with its gospel analogy, it is not unusual, and indeed

expected, that different people might recount the same event differently. Indeed, such a

comparison is exactly what Rose asked the trial court to do in the motion to reconsider, that is, to

compare what the victim said to what the mother said the victim said.

       The fact Rose’s defense centered around the notion that Rose’s ex-wife and the victim’s

mother had convinced the victim to fabricate the story further supports this interpretation of the

trial court’s statements. If Rose’s ex-wife and the victim’s mother had convinced the victim to

fabricate the story, there is less of a likelihood that there would be inconsistencies between the

victim’s testimony and the victim impact statement. As the trial court stated, “[b]ecause if they

were all saying the same thing, it would make me a little suspicious that they were fabricated.”

       Most importantly, a contextual reading of the trial court’s third paragraph indicates that

the trial court properly weighed the inconsistencies. In the third paragraph, the trial court stated

that “the inconsistencies don’t bother the court,” thus indicating that the trial court was aware of

the inconsistencies and determined that they did not render the victim unbelievable. “Prior

inconsistent testimony is a factor in determining the credibility of a witness, but it does not

automatically render the witness’ testimony incredible.” Fordham, 13 Va. App. at 240, 409

S.E.2d at 832.




                                                -7-
       Additionally, when referring to the victim’s inconsistent statements, the trial court stated,

“even though there’s some differences.” (Emphasis added). The use of the phrase “even

though” indicates the trial court recognized that the inconsistent statements were an attack on the

victim’s credibility, but still found her to be credible. If Rose were correct and the trial court

used the victim’s prior inconsistent statements to bolster her credibility, the trial court would

have necessarily found that she was credible “because there’s some differences [in the victim’s

prior statements and testimony].” Thus, although the victim gave several inconsistent

statements, the record reflects that the trial court recognized and properly weighed those

statements.

                                           CONCLUSION

       For the foregoing reasons, we affirm Rose’s convictions of object sexual penetration and

aggravated sexual battery.

                                                                                            Affirmed.




                                                 -8-
