                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia


ABRAHAM FELDER
                                          MEMORANDUM OPINION * BY
v.   Record No. 1617-98-2                  JUDGE ROBERT P. FRANK
                                              AUGUST 3, 1999
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
                   James F. D’Alton, Jr., Judge

          Mary Katherine Martin, Senior Assistant
          Public Defender (Office of the Public
          Defender, on brief), for appellant.

          Donald E. Jeffrey, III, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Abraham Felder (appellant) appeals his conviction of two

counts of rape after a jury trial.   On appeal, he asserts that

the trial court erroneously:   (1) refused to suppress the entire

videotaped statement that he made to the police prior to his

arrest, (2) held that the indictments stated the dates of the

offenses with sufficient specificity, and (3) held the evidence

sufficient to support the convictions for rape.     For the reasons

that follow, we affirm the convictions.




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                          I.   Background

     Appellant was charged with three counts of rape.      The

indictments set forth the following dates for the rapes:     (1) on

or about July 1, 1996, (2) on or about August 1, 1996, and (3)

on or about November 11, 1996.    Appellant was found not guilty

of the November 11, 1996 offense, but we recite the related

facts because the discovery of the two prior offenses arose out

of the circumstances surrounding the November 11, 1996 incident.

      At trial, the victim, a twelve-year-old female child at

the time of the offenses, testified that on November 11, 1996,

she was outside her home when a friend of her mother asked her

to bring her mother outside.   The child testified that a

neighbor, Abraham “Ham” Felder (appellant), was outside with her

mother’s friend and asked the child to come to his home for

spaghetti.   When she brought her mother outside, the child asked

her mother if she could go to “Ham’s” house for spaghetti.       Her

mother gave her permission to go to appellant’s home.

     The mother testified that when she finished talking with

her friend, she realized that it was getting late.     She went

home and did not find the child there.      She began looking for

the child and went next door to appellant’s home.     She called

out for the child three or four times, and as she approached

appellant’s home, she could hear bedsprings squeaking.     Soon

thereafter, the child opened the door.      The child’s hair and



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clothing were in disarray.    The mother testified that she saw

appellant run from the bed.

     When the child went to “Ham’s” for spaghetti, he told her

that the spaghetti was on the kitchen table.    When she came out

of the kitchen after getting the spaghetti, appellant locked the

door, threw her on the bed and began taking her clothes off.

Appellant put her legs in the air and started putting his penis

in her.    She testified that he put his penis in her “poo-poo,”

and indicated that her “poo-poo” is between her legs.    She also

testified that appellant unlaced her bra and played with her

breasts.   The child testified that she tried to get appellant

off her, but was unable to do so.    He also put his hand over her

mouth when she tried to speak.    The child testified that

appellant jumped off her when her mother knocked on his door.

      The mother took the child to the emergency room.       At the

hospital, the child was examined by a sexual assault nurse

examiner, Linda Sayers.   Sayers performed a sexual assault

examination on the child which included a Physical Evidence

Recovery Kit (PERK), an eighteen-step evidence collection

process, a perineal exam of the vaginal area, and an internal

exam of the vaginal wall and cervix.     As part of the PERK,

Sayers collected head hair samples, collected the child’s

underwear, and performed a pubic combing.    Sayers noted that the

child did not have pubic hair, so she was unable to get a

sample.    Additionally, Sayers testified that she used an

                                 - 3 -
ultraviolet light to look for semen on the child’s body.       Sayers

swabbed the child’s thighs, external genitalia, and vaginal

vault.    Sayers testified that she was able to use a speculum on

the child during the internal exam because there was no evidence

of a hymen, meaning that the child had been vaginally penetrated

at some point.    Sayers testified that it was unusual for a

premenstrual twelve year old not to have a hymen.     There were no

tears or bruising in the child’s genital area.      Additionally,

there were no signs of struggle on other parts of the child’s

body.

        The child testified that she had sexual contact with

appellant on two prior occasions.    One occasion occurred when

the child went to appellant’s house while he was there eating

chicken with his girlfriend’s granddaughter.    Appellant pushed

her against the refrigerator and put “his thing back in” her.

The child testified that this event occurred in the winter and

it was cold outside.

        The other occasion occurred at Christmas.   Appellant bought

the child a pair of Reebok sport shoes, and she went to his

house.    She testified that he got on top of her and started

“putting his thing back in” her.

        The Commonwealth introduced a videotaped statement that

appellant gave the police on November 12, 1996.     Investigator

Covington testified that appellant followed him to the police

station after Investigator Covington went to appellant’s home

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and invited him to come to the station.    Appellant drove his own

car and stopped to pick up his girlfriend before driving to the

station.   Investigator Covington testified that appellant was

unaware that he was being videotaped.    Appellant told

Investigator Covington that he did not touch the child on

November 11, 1996, but that they had “played around” a couple of

times.   He told Investigator Covington that the child took his

penis out of his pants and played with it and “put it in” on two

occasions in “the summertime.” 1   He agreed that his penis was in

the child’s vagina.   He asserted, however, that he never “did it

to her.”

     The jury convicted Felder on two rape charges resulting

from the events on or about July 1, 1996, and on or about August

1, 1996.   The jury acquitted appellant of the November 11, 1996

offense.

           II.   Suppression of the Videotaped Statement

     Appellant assigns error to the refusal of the trial court

to suppress the entire videotaped statement he made to police on

November 12, 1996.    We find no merit in this assignment of

error.




     1
       Although the transcript of the videotaped statement does
not include appellant’s statement that the two occasions
occurred during the summer, appellant states on the actual
videotape that the two occasions occurred during “the
summertime.” The videotape was shown to the jury.


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     At the suppression hearing, the trial court ruled that

appellant should have been advised of his rights under Miranda

v. Arizona, 384 U.S. 436 (1966), after his first admission that

implicated him in a criminal act.   The trial court suppressed

all portions of the statement following appellant’s first

admission of sexual contact with the child.   At trial,

appellant’s trial counsel renewed the motion to suppress the

entire videotaped statement.   The trial court denied the motion

and confirmed its earlier ruling that suppressed only the

portion of the statement following appellant’s first admission

of sexual contact.   Appellant then elected to present the entire

videotaped statement to the jury, rather than the partial

statement allowed by the trial judge.

     “‘No litigant, even a defendant in a criminal case, will be

permitted to approbate and reprobate--to invite error . . . and

then to take advantage of the situation created by his own

wrong.’”   Manns v. Commonwealth, 13 Va. App. 677, 680, 414

S.E.2d 613, 615 (1992) (quoting Fisher v. Commonwealth, 236 Va.

403, 417, 374 S.E.2d 46, 54 (1988)).    “‘The defendant, having

agreed upon the action taken by the trial court, should not be

allowed to assume an inconsistent position.’”    Id. at 679, 414

S.E.2d at 615 (quoting Clark v. Commonwealth, 220 Va. 201, 214,

257 S.E.2d 784, 792 (1979)).

     Appellant requested that the trial court admit the entire

videotaped statement to the jury.   In electing to do so, the

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following was admitted into evidence which otherwise would have

been inadmissible pursuant to the trial court’s ruling:

appellant’s admission to Investigator Covington that he put his

penis in the child’s vagina; his agreement that he remembered

other times he had sex with her; his admission that the child

“grabbed” his penis and “put it in”; his admission that the

child would take his penis out and “play with it”; and his

admission that he put his penis in the child’s vagina on two

occasions in the summertime.

     Appellant did not merely agree to the actions of the trial

court, but requested the admission into evidence of the entire

videotaped statement, which included inculpatory evidence.     He

now assigns error to the admission of the statement.   We find no

merit to his assignment as appellant cannot invite error and

then challenge it on appeal.   We hold, therefore, that appellant

waived any objection to the admissibility of the videotaped

statement, as he requested its admission into evidence.

  III.   Variance Between the Indictment Dates and the Evidence

     Appellant challenges the trial court’s denial of his motion

to strike based on inconsistencies between the indictment dates

and the evidence.   We find this assignment of error without

merit.

     An indictment is not invalid “[f]or omitting to state, or

stating imperfectly, the time at which the offense was committed

when time is not the essence of the offense.”   Code

                               - 7 -
§ 19.2-226(6).    Time is not a material element of the offense of

rape.     See Lear v. Commonwealth, 195 Va. 187, 193, 77 S.E.2d

424, 427 (1953).

        In Marlowe v. Commonwealth, 2 Va. App. 619, 623-24, 347

S.E.2d 167, 170 (1986), this Court held

             [w]hen time is not an element of the crime
             charged, the jury verdict will stand if the
             evidence is sufficient to prove beyond a
             reasonable doubt that a crime occurred and
             that the defendant committed the crime, even
             though the evidence is such that there may
             be a reasonable doubt as to the day on which
             the offense occurred. Such does not
             constitute a denial of due process of law.

        Marlowe was an aggravated sexual battery case involving two

minors under the age of thirteen.    Marlowe asserted an alibi

defense and argued that the language “on or about” in the

indictments allowed the jury to find him guilty even if it

believed his alibi.     See id. at 624, 347 S.E.2d at 170.   This

Court held that the alibi defense did not raise reasonable doubt

because there was corroboration by an independent witness that

the criminal events occurred and that Marlowe was the criminal

agent, even though the evidence was not certain as to the

specific date of one of the offenses.     See id.   Further, this

Court stated that in cases involving a child victim,

prosecutions would be precluded if the child was required to

recall the exact date of the offense in order to obtain the

conviction.     See id. at 625-26, 347 S.E.2d at 171.   Usually,

such crimes against children are not discovered for a period of

                                 - 8 -
time, and the Commonwealth’s case would fail if it was required

to prove the exact date of the offense against the child.        See

id. at 626, 347 S.E.2d at 171.      “It is this same reasoning which

permits the Commonwealth to prove the commission of the crime

charged on a date different than that alleged in the

indictment.”       Id.

        In this case, appellant was convicted of two counts of rape

occurring on or about July 1, 1996 and on or about August 1,

1996.    Time is not an element of the offense of rape, and under

Marlowe, the Commonwealth is not required to prove the exact

date of an offense against a child as long as the evidence

establishes beyond a reasonable doubt that a crime occurred and

the defendant committed the crime.        Appellant did not raise an

alibi defense.      Appellant, in the videotaped statement to the

police, said that he had sexual contact with the child on two

occasions in “the summertime.”     Although the child testified

that appellant had sex with her on three occasions--on November

11, 1996, when it was cold outside, and at Christmas--appellant,

himself, admitted that the two occasions occurred during the

summer.    We find that the trial judge did not err in overruling

appellant’s motion to strike as the evidence was sufficient to

prove the offenses.

            III.   Sufficiency of the Evidence to Prove Rape

        Appellant challenges the trial court’s denial of his motion

to strike based on insufficiency of the evidence to prove

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penetration, an essential element of the offense of rape.      We

find this assignment of error without merit.

     Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible

therefrom.     See Martin v. Commonwealth, 4 Va. App. 438, 443, 358

S.E.2d 415, 418 (1987).     The judgment of the trial court will

not be disturbed unless plainly wrong or without evidence to

support it.     See id.   “‘Additionally, the credibility of

witnesses and the weight to be given their testimony are

questions exclusively within the province’ of the fact finder.”

May v. Commonwealth, 3 Va. App. 348, 356-57, 349 S.E.2d 428, 432

(1986) (quoting Barker v. Commonwealth, 230 Va. 370, 373, 337

S.E.2d 729, 732 (1985)).

     “The penetration necessary to constitute rape need be only

slight . . . .”     Rowland v. Commonwealth, 147 Va. 636, 639, 136

S.E. 564, 565 (1927).     In Rowland, the Supreme Court of Virginia

upheld a rape conviction based on circumstantial medical

evidence.     See id.   The doctor testified that, although the

victim’s hymen was intact, the vulva could have been penetrated

without damaging the hymen.      See id.   The victim testified she

did not know whether penetration occurred.       See id.

     This Court, relying on the reasoning in Rowland, has

defined penetration as “penetration of any portion of the

vulva--which encompasses the ‘external parts of the female sex

                                 - 10 -
organs considered as a whole’ and includes, beginning with the

outermost parts, the labia majora, labia minora, hymen, vaginal

opening and vagina.”     Love v. Commonwealth, 18 Va. App. 84, 88,

441 S.E.2d 709, 712 (1994) (quoting 4 J.E. Schmidt, Attorney’s

Dictionary of Medicine V-106 (18th ed. 1990)).     Penetration of

the vaginal opening is not required.     See id.

       We held in Kehinde v. Commonwealth, 1 Va. App. 342, 345,

338 S.E.2d 356, 357 (1986) (citing Snyder v. Commonwealth, 220

Va. 792, 796, 263 S.E.2d 55, 57-58 (1980)), that penetration may

be established solely by the victim’s testimony “unless such

testimony is inherently incredible or so contrary to human

experience or usual human behavior as to render it unworthy of

belief.”   In Kehinde, the victim testified that the appellant

“‘stuck it in’” her, and explained that “‘it’” meant the

appellant’s penis.     Id. at 346, 338 S.E.2d at 358.   We held that

the victim’s testimony was sufficient to establish penetration.

See id.

       In this case, the child testified that on the occasion when

she went to appellant’s house while he was eating chicken, he

had her “against the refrigerator putting his thing back in”

her.   On the other occasion, appellant got on top of the child

and put “his thing back in” her.    She testified that a penis is

“on somebody’s thing,” that she did not have a penis and

indicated that a penis is located between the legs.     We find the

victim’s testimony similar to the testimony of the victim in

                                - 11 -
Kehinde and more conclusive than the evidence in Rowland.

Additionally, appellant, in the videotaped statement, admitted

that on two occasions he put his penis in the child’s vagina and

that he put his penis “to the lips.”   We, therefore, hold that

the evidence is sufficient to establish penetration.

     For these reasons, we hold that appellant waived his right

to challenge the trial court’s denial of his motion to suppress.

We also hold that the trial court properly ruled that the

indictments stated the dates of the offenses with sufficient

specificity and that the evidence was sufficient to support the

convictions for rape.   Therefore, we affirm appellant’s

convictions.

                                                           Affirmed.




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