                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Elder and Lemons
Argued at Chesapeake, Virginia


AARON WYATT WILL, SR.
                                             OPINION BY
v.   Record No. 1995-98-1        CHIEF JUDGE JOHANNA L. FITZPATRICK
                                          FEBRUARY 22, 2000
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                         Joseph A. Leafe, Judge


             Ronald F. Schmidt for appellant.

             Eugene Murphy, Assistant Attorney General
             (Mark L. Earley, Attorney General, on brief),
             for appellee.


     Aaron Wyatt Will, Sr. (appellant) was convicted in a bench

trial of animate object sexual penetration, aggravated sexual

battery and indecent liberties with a child in a custodial

situation.     On appeal, he contends the trial court erred:    (1)

in permitting the assistant Commonwealth's attorney to speak

with the victim privately during the course of her testimony;

and (2) in finding the evidence sufficient to prove animate

object sexual penetration.     For the following reasons, we

affirm.

                                  I.

     Appellant was charged with sexually abusing his daughter,

M.W., who was nine years old at the time of trial.     At the
beginning of the Commonwealth's case-in-chief, the victim

testified that she had previously lived with her father and that

he would call her into his bedroom while he was nude.       During

those occasions, appellant would give her "bad touches," which

M.W. described as when "someone touches you and you're

uncomfortable."    Appellant would place the victim on the floor

in his bedroom, remove her underwear, and touch her "in [her]

private part."

     The Commonwealth continued its direct examination and the

victim responded in such a low voice that defense counsel could

not hear her.    The trial judge explained that it was all right

to tell him what had happened.    The assistant Commonwealth's

attorney requested a brief recess, observing that "it's a little

much for [the victim] right now." 1      Over appellant's objection,


     1
         The following colloquy occurred:

            [PROSECUTOR]: Judge, I would ask for a few
            minutes of recess. I think it's a little
            much for her right now.

            [DEFENSE]: I'm assuming the witness will
            not be talked to during the recess.

            [PROSECUTOR]:   I'd like to talk with her,
            Judge.

            [DEFENSE]: I think that would be improper,
            Your Honor.

            [PROSECUTOR]: Judge, I'm entitled to talk
            with my witnesses during the course of the
            trial. It's not to communicate anything
            anyone else said. It's to make sure she's
            okay. I know she's able to communicate

                                 - 2 -
the trial court granted a brief recess to the Commonwealth and

allowed the assistant Commonwealth's attorney to speak to and

comfort the victim.       Later, M.W. said she had been "kind of

quiet" because she was embarrassed.

     After the recess, but before direct examination of the

victim resumed, appellant moved for a mistrial, arguing that the

Commonwealth should not have been allowed "to speak to the child

outside of the presence of the Court, outside of the presence of

Counsel."    In the alternative to granting a mistrial, appellant

requested an evidentiary hearing to determine what occurred

during the private conference between the assistant

Commonwealth's attorney and the victim.       Counsel stated the

following:

             There is a preexisting motion for
             exculpatory evidence, an order entered by
             the Court May 11th. Based upon the child's
             testimony here, I would have every reason to
             believe that there was exculpatory evidence
             that was revealed in that conference during
             the course of her testimony, based upon what
             she said right here and not being able to
             remember certain things and other matters
             that I'm not going to refer to, but I'm sure
             the Court's aware of it.

The trial court denied appellant's motion for a mistrial and

request for an evidentiary hearing.


             these things and I want to go over them with
             her.

             THE COURT:    All right.   We'll take five
             minutes.


                                   - 3 -
        Prior to the recess, M.W. testified that appellant had

given her "bad touches" in her "private part."      The victim went

into greater detail after the recess, stating that appellant

"would give [her] bad touches in [her] vagina" with "his

finger."      The victim demonstrated with her two fingers what

occurred. 2     She also testified that appellant would make her

"touch [his penis] and then some white stuff would be coming

out."       M.W. reported these incidents to her mother after she

moved in with her.      She also reported these crimes to a

neighbor, to Detective James G. Ingram and to Rosa Hasty from

Child Protective Services.

        Appellant's counsel cross-examined the victim in detail

about her responses to the Commonwealth's questions and about

what had transpired during the recess.      Additionally, the trial

court also questioned the child about what had happened during

the recess.

        The evidence established that when initially questioned by

Detective Ingram, appellant denied sexually abusing his



        2
       The trial court described the victim's demonstration as
follows:

               The record would reflect that the fingers
               were basically closed, but she put -- it's
               the Court's recollection she put her finger
               from one hand, in effect, between the two
               fingers of the other, and the fingers were
               basically closed and described it as -- was
               described in her words, that he put his
               finger in her vagina.

                                   - 4 -
daughter.   Appellant claimed that Dr. Lalani McCann advised him

that his daughter was not cleansing herself properly and that,

periodically, appellant should check M.W.'s vaginal area.     The

detective telephoned the victim's doctor, who "vehemently

denied" ever giving that advice to appellant.   When confronted

with the doctor's statements, appellant's demeanor changed and

he admitted touching M.W. in an inappropriate manner.      In a

written confession, appellant admitted touching the victim's

vagina and rubbing between the "lips" of her vagina for his own

sexual pleasure.   Appellant denied having the victim touch his

penis.   At trial, Dr. McCann confirmed that she would not and

did not instruct appellant to inspect the victim's genitals.

     At the conclusion of the Commonwealth's case, appellant

renewed his motion for a mistrial, arguing that it was improper

to allow the Commonwealth to meet with the victim during a

recess in her testimony.   The trial court denied the motion,

stating the following:

            On the motion for the mistrial, it's the
            Court's belief and acceptance of the fact
            that the recess was appropriate to comfort
            the witness in an admittedly very foreign
            environment that she was in. It is the
            Court's recollection that, in fact, [the
            victim] had testified on the issue of finger
            stimulation or penetration prior to that
            recess taking place. The Court did not find
            any change in testimony following that brief
            recess, but the Court did find the witness
            to be slightly more forthcoming in terms of
            her responses to the questions . . . . I
            think that the recess and the counsel given
            the child of this age and the circumstances

                                - 5 -
             and environment in which she has testified,
             was entirely appropriate.

(Emphasis added).

     In his defense, appellant denied touching the victim

inappropriately.    He testified that Dr. McCann had told him to

check M.W.'s genital area to make sure it was not infected.

Appellant also stated that he lied in his confession to

Detective Ingram.

     At the conclusion of the evidence, appellant again renewed

his motion for a mistrial, which was denied by the trial court.

The trial court found that the victim's testimony did not change

as a result of the brief recess and that appellant was afforded

ample opportunity to cross-examine the victim regarding what

occurred during the private conference. 3   The trial court

accepted the Commonwealth's evidence and rejected appellant's

testimony.    Appellant was convicted of animate object sexual




     3
         The trial court stated the following:

                  I would say there was no lost
             opportunity as it relates to the defendant
             to confront the witnesses or her testimony
             in the presence of Counsel. There was no
             testimony on her part of any type outside of
             the courtroom and the confines of the
             defendant. And . . . while the Court
             provided Counsel with considerable latitude
             in cross-examination with regard to [the
             private conference], the Court is
             comfortable that that was a discussion with
             a very young child that was appropriate
             under the circumstances of this [case].

                                 - 6 -
penetration, aggravated sexual battery and indecent liberties

with a child in a custodial situation.

                                II.

     Appellant first contends the trial court erred in

permitting the assistant Commonwealth's attorney to speak with

the victim privately about the substance of her testimony during

the course of her testimony.   He argues that his constitutional

right to confront the witness was impaired because the trial

court denied his request for an evidentiary hearing to determine

the substance of the private conference.    This argument presents

an issue of first impression for this Court.

     We hold that the decision to grant a recess and allow a

conference between a lawyer and a testifying witness, while

narrow in scope, falls within the broad discretion of a trial

court and will not be reversed absent an abuse of discretion.

     The United States Supreme Court has long recognized the

important role a trial judge plays in the system of criminal

justice.   "[T]he judge is not a mere moderator, but is the

governor of the trial for the purpose of assuring its proper

conduct and of determining questions of law."     Quercia v. United

States, 289 U.S. 466, 469 (1933).     Because the outcome of a

trial depends upon innumerable factors, "[t]he trial judge must

meet situations as they arise and to do this must have broad

power to cope with the complexities and contingencies inherent



                               - 7 -
in the adversary process."   Geders v. United States, 425 U.S.

80, 86 (1976).

     In Virginia, the trial court is granted broad,

discretionary authority to determine, among other issues, the

admissibility of evidence, see Bowman v. Commonwealth, 30 Va.

App. 298, 302, 516 S.E.2d 705, 707 (1999); the order of evidence

before it, see Lebedun v. Commonwealth, 27 Va. App. 697, 715,

501 S.E.2d 427, 436 (1998); how voir dire is conducted, see

Buchanan v. Commonwealth, 238 Va. 389, 400, 384 S.E.2d 757, 764

(1989); whether to grant a continuance to obtain counsel, see

Bolden v. Commonwealth, 11 Va. App. 187, 190, 397 S.E.2d 534,

536 (1990); whether to order the separation and exclusion of

witnesses, see Near v. Commonwealth, 202 Va. 20, 30, 116 S.E.2d

85, 92 (1960); whether to sequester a jury, see Gray v.

Commonwealth, 233 Va. 313, 340, 356 S.E.2d 157, 172 (1987);

whether to grant a motion for mistrial or a change in venue, see

Kasi v. Commonwealth, 256 Va. 407, 420, 424, 508 S.E.2d 57, 64,

67 (1998); the extent of opening and closing arguments, see

O'Dell v. Commonwealth, 234 Va. 672, 703, 364 S.E.2d 491, 509

(1988); and whether to suspend a sentence or grant probation,

see Montalvo v. Commonwealth, 27 Va. App. 95, 98, 497 S.E.2d

519, 521 (1998).   In the instant case, we are asked to determine

whether the trial court has the discretion to permit a

mid-testimony conference between an attorney and a testifying

witness.   We hold that it does.

                               - 8 -
     In Geders, 425 U.S. 80, the United States Supreme Court

recognized the trial court's discretionary power to sequester

witnesses and held that where the defendant is the testifying

witness, consultation during an overnight recess may be

necessary to effectively prepare a defense.      See id. at 87.

Similarly, in Perry v. Leeke, 488 U.S. 272 (1989), the Court

concluded that the trial court may in its discretion permit a

defendant to consult with his attorney during a brief recess.

See id. at 284.   Although the Court in Perry concluded that a

criminal defendant does not have a constitutional right to

consult his lawyer while his testimony is in progress, the Court

was careful to emphasize that its ruling did not preclude

consultation in all instances.     See id.   "As a matter of

discretion in individual cases, or of practice for individual

trial judges, or indeed, as a matter of law in some States, it

may well be appropriate to permit such consultation."      Id.

     While Geders and Perry addressed mid-testimony conferences

involving defendants, we see no reason why the reasoning should

not apply to the victim in the present case.     Although no

Virginia case has addressed this precise issue, the Court of

Appeals of New York has held in a substantially similar case

that "the decision to grant a recess and to allow a conference

between a lawyer and a testifying witness falls within the broad

discretion allowed a trial court in its management of a trial."

People v. Branch, 634 N.E.2d 966, 968 (N.Y. 1994).

                                 - 9 -
     In Branch, during direct examination of the prosecution's

primary witness, the witness changed his account of events.      The

prosecutor immediately requested a recess to talk privately with

the witness.   The trial court granted the recess and told both

attorneys that the witness "could be cross-examined without

limitation about the recess and any conversation he had with the

prosecutor during it."    Id. at 967.     As a matter of first

impression, the Court of Appeals held that the decision to

permit the mid-testimony conference was within the trial court's

discretion.    See id. at 968.

     We find persuasive the following analysis by the Court of

Appeals of New York in Branch:

          A midtestimony conference may be a strategic
          maneuver designed to frustrate the other
          side's case, or it may be an important step
          toward making sure a flustered witness does
          not inadvertently misstate the facts. The
          trial court is in the best position to
          distinguish between the two. Its ruling
          necessarily turns on judgments we, as an
          appellate court, cannot easily make from a
          cold record: the apparent condition of the
          witness, the possible motivation of the
          attorney, the likelihood of undue delay, and
          the probability that cross-examination will
          be an adequate remedy. To unduly limit a
          trial court's discretionary power in matters
          concerning trial management increases the
          likelihood that rigid rules will replace
          common sense and that the truth-seeking
          function of a trial will be impaired not
          advanced.

Id. at 969.




                                 - 10 -
     Applying this rationale, we conclude that the decision

permitting a mid-testimony conference between an attorney and a

testifying witness lies within the sound discretion of the trial

court.   Our decision today is consistent with the decisions in

other jurisdictions allowing mid-testimony conferences as a

discretionary matter.   See, e.g., United States v. Malik, 800

F.2d 143, 149 (7th Cir. 1986) ("We view it as a matter of the

court's sound discretion depending upon the particular

circumstances in the case."); United States v. Loyd, 743 F.2d

1555, 1564 (11th Cir. 1984) ("A decision whether to allow a

prosecutor to 'work with' a witness is within the discretion of

the trial court and will not be reviewed absent an abuse of that

discretion."); United States v. Burke, 495 F.2d 1226, 1233 (5th

Cir. 1974) (applying abuse of discretion standard in determining

whether trial court erred in allowing prosecutor to "work with"

a witness during a weekend recess before cross-examination);

Branch, 634 N.E.2d at 968 (holding that the decision "falls

within the broad discretion allowed a trial court in its

management of a trial").

     In the instant case, the evidence established a clear basis

for granting the Commonwealth's motion for a brief recess.    The

victim later explained that her earlier reticence in testifying

was a result of being embarrassed.     The trial judge concluded

"the recess was appropriate to comfort the witness in an

admittedly very foreign environment that she was in. . . .

                              - 11 -
[Also,] the recess and the counsel given the child of this age

and the circumstances and the environment in which she has

testified, was entirely appropriate."   The trial court also

found that there were no substantive changes between the

victim's testimony before and after the recess.   We cannot say

the trial court abused its discretion in granting the

Commonwealth's request for a recess and allowing the assistant

Commonwealth's attorney to comfort and talk to the victim.     See,

e.g., United States v. Fuller, 942 F.2d 454, 458 (8th Cir.)

(finding no error where the trial court allowed the prosecutor

to speak with one of its witnesses "during a short recess in an

attempt to calm her"), cert. denied, 502 U.S. 914 (1991);

Frierson v. State, 543 N.E.2d 669, 673 (Ind. Ct. App. 1989)

(concluding that the trial court "was well within its discretion

to allow communications between the State and the victim if it

determined that such communications would help console the

victim"); State v. Delarosa-Flores, 799 P.2d 736, 738 (Wash. Ct.

App. 1990) (finding no abuse of discretion where trial court

granted "a short recess to consult with the victim and then

allowing her to answer leading questions about the oral rape").

     Appellant's argument that he was denied his Sixth Amendment

right to confront the witness is without merit.   As the Court in

Geders observed:

          The opposing counsel in the adversary system
          is not without weapons to cope with
          "coached" witnesses. A prosecutor may

                             - 12 -
          cross-examine a [witness] as to the extent
          of any "coaching" during a recess, subject,
          of course, to the control of the court.
          Skillful cross-examination could develop a
          record [to be used] in closing argument
          . . . raising questions as to the [witness']
          credibility . . . .

425 U.S. at 89-90.   Moreover, an important ethical distinction

exists between a prosecutor discussing a witness' testimony and

improperly seeking to influence it.      See id. at 90 n.3.

     Here, appellant's counsel cross-examined the victim in

great detail about the conversations she had with the assistant

Commonwealth's attorney during the recess.

          Q. What happened in the room today when you
          went back there and met with [the assistant
          Commonwealth's attorney] and [your
          counselor]?

          A.   She asked me some questions.

          Q.   What did they ask you?

          A. She asked me what did his private part
          look like, what was the white stuff like.

          Q. I'm sorry.    Go ahead.     Do you remember
          anything else?

          A.   (No response.)

          THE COURT: Is there anything else . . .
          that you can tell us?

               It's important for me as the Judge to
          be able to know the truth and to know
          everything that happened. So if you
          remember anything else that happened, tell
          me anything else. That would be important
          and I'd like for you to do that.

               You don't have anything to be concerned
          about. You just need to feel comfortable in

                                - 13 -
          telling the Judge what happened in response
          to the question.

               Is there anything else you can tell us
          . . . that you haven't told us about what
          happened in the room?

          A.   No, sir.

The victim also testified on cross-examination that the first

time she told anyone about touching appellant's penis was during

the private conference.   No evidence suggested that the

Commonwealth urged M.W. to create testimony, and the record

established that her testimony after the recess was consistent

with her initial testimony.   We find no error.

                               III.

     When the sufficiency of the evidence is challenged on

appeal, we determine whether the evidence, viewed in the light

most favorable to the prevailing party, and the reasonable

inferences fairly deducible from that evidence support each and

every element of the charged offense.   See Moore v.

Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740 (1997); Derr

v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662, 668 (1991).

"In so doing, we must discard the evidence of the accused in

conflict with that of the Commonwealth, and regard as true all

the credible evidence favorable to the Commonwealth and all fair

inferences that may be drawn therefrom."   Watkins v.

Commonwealth, 26 Va. App. 335, 349, 494 S.E.2d 859, 866 (1998).

"We will not reverse the judgment of the trial court, sitting as


                              - 14 -
the finder of fact in a bench trial, unless it is plainly wrong

or without evidence to support it."     Reynolds v. Commonwealth,

30 Va. App. 153, 163, 515 S.E.2d 808, 813 (1999) (citing Martin

v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

(1987)).

     Appellant challenges only the sufficiency of the evidence

of penetration, arguing that the victim never fully testified

that penetration occurred.   Viewed in the light most favorable

to the Commonwealth, the evidence proved that appellant would

call his young daughter into his bedroom as he was lying nude on

his bed.   Appellant would place the victim on the floor, remove

her underwear, and touch her "in [her] private part."    (Emphasis

added).    The victim later clarified her testimony, stating that

appellant gave her "bad touches in [her] vagina."     (Emphasis

added).    When these incidents occurred, the victim was seven and

eight years old.

     The victim told her mother, a neighbor, and the authorities

about appellant's actions.   When initially questioned by Ingram,

appellant first denied any improper action and later, when

confronted with Dr. McCann's statements, appellant's demeanor

changed and he admitted touching his daughter in an

inappropriate manner.   In a signed confession, appellant

admitted touching his daughter's vagina and rubbing between the

"lips" of her vagina for his own sexual gratification.    Although

he later recanted his confession, the trial court, as the trier

                               - 15 -
of fact, was free to accept or reject appellant's testimony.

See Montgomery v. Commonwealth, 221 Va. 188, 190, 269 S.E.2d

352, 353 (1980) (per curiam) ("[E]ven if the defendant's story

was not inherently incredible, the trier of fact need not have

believed the explanation."); Marable v. Commonwealth, 27 Va.

App. 505, 509-10, 500 S.E.2d 233, 235 (1998) ("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.").

     The Commonwealth's evidence, including the victim's direct

testimony that appellant placed his fingers in her vagina and

the victim's in-court demonstration with her fingers about what

occurred, was competent, was not inherently incredible and was

sufficient to prove beyond a reasonable doubt that appellant was

guilty of animate object sexual penetration.

     For the foregoing reasons, appellant's convictions are

affirmed.

                                                       Affirmed.




                             - 16 -
