                                 COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bumgardner and Senior Judge Overton
Argued by teleconference


JOHN IAN MITCHELL
                                                                     OPINION BY
v.     Record No. 2668-02-2                                   JUDGE NELSON T. OVERTON
                                                                  OCTOBER 28, 2003
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                              Bruce H. Kushner, Judge

               Melvin J. Radin for appellant.

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


       John Ian Mitchell appeals his bench trial conviction for forcible sodomy. He argues the

evidence was insufficient to support his conviction. Specifically, he contends the Commonwealth

failed to establish he performed the act through the use of the victim's mental incapacity. For the

reasons that follow, we disagree and affirm his conviction.

       "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).

       So viewed, the evidence proved that on December 8, 2001, Michael Wright picked up

Ross Klinefelter, a twenty-two-year-old mentally retarded male. Wright drove Klinefelter to

Mitchell's residence. Mitchell played a pornographic videotape depicting homosexual sex acts

and asked Klinefelter if he was "getting turned on." Mitchell then performed oral sex on

Klinefelter. Klinefelter became upset, left the house, and reported the incident to his mother who

contacted the police.
       In a statement to the police, Mitchell initially denied having performed oral sodomy on

Klinefelter, but later admitted having done so. Mitchell also remarked that he knew Klinefelter

was mentally ill and that he thought Klinefelter "did not know what was going on."

               In pertinent part, Code § 18.2-67.1 provides:

               An accused shall be guilty of forcible sodomy if he or she engages
               in . . . fellatio . . . with a complaining witness who is not his or her
               spouse . . . and . . . [t]he act is accomplished against the will of the
               complaining witness . . . through the use of the complaining
               witness's mental incapacity . . . .

The evidence established Klinefelter is mentally retarded. Mitchell admitted he knew Klinefelter

was retarded, and in his written statement acknowledged he did not think Klinefelter knew what

was happening. Mitchell, alone with Klinefelter in his bedroom, played a pornographic video in

order to arouse his victim. He admitted he then performed oral sex on Klinefelter. The evidence

also indicated that Klinefelter did "not understand 'the nature and consequences of the sexual act

involved.'" Adkins v. Commonwealth, 20 Va. App. 332, 343, 457 S.E.2d 382, 387 (1995)

(citation omitted).

       "The inferences to be drawn from proven facts, so long as they are reasonable, are within the

province of the trier of fact." Hancock v. Commonwealth, 12 Va. App. 774, 782, 407 S.E.2d 301,

306 (1991). Based upon the evidence presented, the trial court reasonably concluded Mitchell

performed the sex act through the use of Klinefelter's mental incapacity. The Commonwealth's

evidence was competent, was not inherently incredible, and was sufficient to prove beyond a

reasonable doubt that Mitchell was guilty of forcible sodomy.

       Accordingly, we affirm the decision of the trial court.

                                                                                          Affirmed.




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