                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Baker and Bray
Argued at Norfolk, Virginia


TIMOTHY WAYNE STARNES
                                        MEMORANDUM OPINION * BY
v.         Record No. 0905-97-1         JUDGE RICHARD S. BRAY
                                            APRIL 28, 1998
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                       Verbena M. Askew, Judge
           Karen M. Vannan (Buxton, Lasris & Vannan,
           P.L.C., on brief), for appellant.

           Michael T. Judge, Assistant Attorney General
           (Richard Cullen, Attorney General, on brief),
           for appellee.



     Timothy Wayne Starnes (defendant) was convicted in a bench

trial of forcible sodomy of a child less than thirteen years of

age in violation of Code § 18.2-67.1.    On appeal, defendant

complains that (1) the evidence was insufficient to support a

conviction for the offense charged in the subject indictment, and

(2) the trial court erroneously refused to postpone execution of

sentence during the pendency of this appeal.    Finding no error,

we affirm the conviction.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to the

disposition of the appeal.

     The victim of the alleged offense (child hereafter), the

eldest child of defendant and Tamara Starnes Ducy (Ducy), was
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
born on July 2, 1987.   He suffers from a learning disability and

Asperger's Syndrome 1 and requires specialized education.   Deborah

Higginbotham, a Licensed Clinical Social Worker and "play

therapist," testified that "Asperger's children" have

"difficulty" with "communication," "social skills," and

"express[ion]," despite "average to high average intelligence"

and "excellent wrote [sic] memory."

     The child's parents separated on November 8, 1991.

Incidental to the attendant divorce proceedings, Ducy alleged

that defendant had physically abused her and obtained an order

restricting defendant to supervised visitation with the children.
 However, the final decree of divorce, entered January 3, 1994,

while awarding Ducy custody of the children, reserved to

defendant "reasonable, unsupervised visitation."   (Emphasis

added).   Ducy remarried in May, 1994.

     In February, 1995, Ducy accused defendant of improper sexual

contact with the child and unilaterally terminated visitation.    A

related investigation by Child Protective Services, which

included an interview with the child, resulted in a report dated

March 21, 1995, that the allegations were "unfounded."

Nevertheless, Ducy continued to deny defendant visitation, and he

     1
      "Asperger's Disorder" is characterized by "severe and
sustained impairment in social interaction and the development of
restricted, repetitive patterns of behavior, interests and
activities," causing "clinically significant impairment in
social, occupational or other important areas of functioning."
Diagnostic and Statistical Manual of Mental Disorders § 299.80
(4th ed., 1994).



                               - 2 -
petitioned the juvenile and domestic relations district court for

relief in June, 1995.

     Ducy thereafter notified the child's therapist that the

child had reported additional prior sexual abuse by defendant.

The subsequent investigation included a videotaped interview

between the child, Newport News Detective William Hayes, and a

representative from Social Services on July 26, 1995.

Apparently, no action immediately resulted from this inquiry, and

defendant was granted supervised visitation by the juvenile and

domestic relations district court.     However, following a third,

audiotaped interview of the child by Detective Hayes on March 16,

1996, the Commonwealth initiated the instant prosecution. 2

     At trial, the child testified repeatedly that defendant

"suck[ed] on [his] wee wee," demonstrating such conduct by

touching the head of an adult doll to the genitalia of an

anatomically correct child doll.   The child further testified

that he was six years old when the "[f]ifty" incidents occurred

and recalled that "every time [defendant] sucks on my wee wee, he

tells me not to tell."   Despite confused statements to the

contrary during both the videotaped and audiotaped interviews

with police, the child denied that defendant had ever placed his

penis in the child's mouth and remembered no sexual contact with

or between other members of his family.

     On appeal, we view the evidence in the light most favorable
     2
      Both the video and audiotapes are a part of the record and
have been reviewed by this Court.



                               - 3 -
to the Commonwealth and grant to it all reasonable inferences

fairly deducible therefrom.     Higginbotham v. Commonwealth, 216

Va. 349, 352, 218 S.E.2d 534, 537 (1975).    "The credibility of

witnesses is a matter for the [fact finder] to decide, weighing

such factors as the appearance and manner of the witnesses on the

stand, their intelligence, their opportunity for knowing the

truth and observing the things about which they testify, their

interest in the outcome of the case, their bias, and if any had

been shown, their prior inconsistent statements . . . ."       Mullis

v. Commonwealth, 3 Va. App. 564, 571, 351 S.E.2d 919, 923 (1987)

(citing Zirkle v. Commonwealth, 189 Va. 862, 870, 55 S.E.2d 24,

29 (1949).   A finding based "'upon the credibility of the

witnesses and the weight to be given their evidence, . . . unless

. . . plainly wrong, or without evidence to support it, . . .

cannot be disturbed.'"     Yates v. Commonwealth, 4 Va. App. 140,

143, 355 S.E.2d 14, 16 (1987) (quoting Lane v. Commonwealth, 184

Va. 603, 611, 35 S.E.2d 749, 753 (1945)).

     This well established principle of appellate review simply

recognizes the fact finder's unique relationship with the

"'living record, as distinguished from a printed record.'"       See

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

(1989) (quoting Bradley v. Commonwealth, 196 Va. 1126, 1136, 86

S.E.2d 828, 834 (1955)).    "The living record contains many

guideposts to the truth which are not in the printed record; not

having seen them ourselves, we should give great weight to the




                                 - 4 -
conclusions of those who have seen and heard them." Id.     Thus,
          [s]o long as a witness deposes as to facts
          which, if true, are sufficient to maintain
          [a] 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. If
          the trier of the facts sees fit to base the
          verdict upon that testimony there can be no
          relief in the appellate court.


Id. (citing Simpson v. Commonwealth, 199 Va. 549, 557-58, 100

S.E.2d 701, 707 (1957)).
     Here, defendant did not challenge the child's competency as

a witness but, rather, the credibility of his trial testimony

when considered together with his inconsistent and oftentimes

nonsensical statements to police, the child's particular

limitations, and defendant's custody dispute with Ducy.    However,
          [t]he trial court had the opportunity, which
          we lack, to observe and weigh [child's]
          biases, [his] intelligence, [his] demeanor,
          and [his] ability to recall and communicate
          facts accurately. The trial court believed
          [his] testimony and found that the evidence
          constituted proof of guilt beyond a
          reasonable doubt. The evidence was neither
          incredible nor so contrary to human
          experience as to render it unworthy of
          belief. We will not, therefore, disturb the
          trial court's findings on appeal.

Fisher v. Commonwealth, 228 Va. 296, 300, 321 S.E.2d 202, 204

(1984).   Accordingly, we find the evidence sufficiently

established defendant's violation of Code § 18.2-67.1.

     Defendant further argues that the evidence failed to prove

that an offense occurred between January 1, 1994 and July 1,



                               - 5 -
1994, as alleged in the indictment and detailed in the

Commonwealth's Bill of Particulars.    The evidence, viewed in the

light most favorable to the Commonwealth, establishes that the

crime occurred during weekend visitations with defendant when the

child was six years of age.   Such visitation commenced in

January, 1994, and continued through February, 1995.   The child

was seven years old on July 2, 1994.   Therefore, the evidence

sufficiently established that the offense was committed within

the specified time span.
      Lastly, defendant complains that the trial court erroneously

refused to suspend the execution of sentence during the pendency

of this appeal.   Finding this issue moot, we decline to address

it.

      Accordingly, we affirm the conviction.

                                                    Affirmed.




                               - 6 -
