                               COURT OF APPEALS OF VIRGINIA


Present: Judges Bumgardner, Clements and McClanahan
Argued at Salem, Virginia


JAMES ROBERT WELCH, JR.
                                                           MEMORANDUM OPINION∗ BY
v.     Record No. 1427-04-3                             JUDGE ELIZABETH A. McCLANAHAN
                                                                 JUNE 28, 2005
COMMONWEALTH OF VIRGINIA


                     FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
                                 Thomas H. Wood, Judge

                 Peter L. Boatner, Assistant Public Defender (Office of the Public
                 Defender, on brief), for appellant.

                 Leah A. Darron, Assistant Attorney General (Jerry W. Kilgore,
                 Attorney General, on brief), for appellee.


       James Robert Welch was convicted in a bench trial for having carnal knowledge of a

child between thirteen and fifteen years of age, in violation of Code §18.2-63. Welch contends

that the trial court erred in finding the evidence sufficient to convict him of this offense. For the

reasons that follow, we affirm the decision of the trial court.

                                           I. Background

       On appeal, we review the evidence in the “light most favorable” to the Commonwealth.

Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003) (citations omitted).

That principle requires us to “‘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 to be drawn therefrom.’” Parks v. Commonwealth, 221 Va. 492, 498, 270




       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
S.E.2d 755, 759 (1980) (quoting Wright v. Commonwealth, 196 Va. 132, 137, 82 S.E.2d 603,

606 (1954)).

          James Robert Welch, Jr., a twenty-seven-year-old man, who was previously convicted of

multiple felonies, was arrested and charged with malicious wounding after stabbing a man. A

fourteen-year-old female, who was the victim in the carnal knowledge charge now on appeal,

was interviewed in connection with the stabbing incident. After obtaining letters written to the

fourteen-year-old victim by Welch while he was incarcerated, the Augusta County Sheriff’s

Office began an investigation of their relationship. In one of Welch’s letters to the girl, he

stated:

                 Well, I was doing fine till someone got into my sh--, and read your
                 letter to me. Then Ronnie talked to one of the wifes of one of the
                 guys in my block . . . and told her I was a baby rapist so she told
                 her husband[. H]e told the whole jail that you and I were f---ing
                 now I don’t think I’ll ever get out cause everyone is trying to kill
                 me. . . . I do love you . . . my last thought will be of you and my
                 last breath will say your name. . . .

After further investigation, Welch was charged with carnal knowledge of a child in violation of

Code § 18.2-63.

          At trial, the victim testified that she dated Welch from June through August, 2003. When

asked, “Did you have any sexual relationship with Mr. Welch?,” the victim responded, “Yes,

sir.” Afterwards, when asked “How many times would you have had a sexual relationship with

him, at that location in Augusta?,” the victim responded, “Over twenty.” The victim testified

that when she first talked to Investigator Candace Jones about her relationship with Welch, she

“didn’t want to tell her” and she “wasn’t gonna say anything,” but then she “just told her.”

          Lisa Smith, the victim’s mother, testified that on the night Welch was arrested for the

malicious wounding charge, he told Smith that she “would be angry with him,” that “what [she]

had suspected was true,” that “he was involved with [the child],” that he “did love the [child],”

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that he and the victim “were having relations,” and that Welch told her that he stabbed a man

because he was jealous that the man was “coming on” to the victim. Smith later testified that she

suspected Welch and her daughter were having “sexual relations.” Smith also testified that

Welch wrote letters to her daughter and spoke to her daughter on the telephone while he was in

jail.

        At trial, Welch denied having a sexual relationship with the victim and testified that he

merely gave her hugs and held her hand. Welch testified that the victim first told Jones that she

and Welch did not have sex, but then admitted that they “had sex” because the victim thought her

mother could be arrested. Welch also denied telling Smith he had “sexual relations” with the

victim. Welch admitted writing letters to the victim and talking to her on the telephone while he

was incarcerated for the malicious wounding charge.

                                            II. Analysis

        “When considering on appeal the sufficiency of the evidence presented below, we

‘presume the judgment of the trial court to be correct’ and reverse only if the trial court’s

decision is ‘plainly wrong or without evidence to support it.’” Kelly v. Commonwealth, 41

Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (quoting Davis v. Commonwealth, 39

Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002)). We will not substitute our judgment for that

of the trier of fact, but will determine “‘whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.’” Kelly, 41 Va. App. at 257, 584 S.E.2d at 447 (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

        Code § 18.2-63 provides:

               If any person carnally knows, without the use of force, a child
               thirteen years of age or older but under fifteen years of age, such
               person shall be guilty of a Class 4 felony. . . . For the purposes of
               this section . . . “carnal knowledge” includes the acts of sexual
                                                -3-
               intercourse, cunnilingus, fellatio, anallingus, anal intercourse, and
               animate and inanimate object sexual penetration.

(Emphasis in original). Based on all of the evidence presented, particularly when viewed in the

light of Welch’s letter, the trial court made a finding that in this case, the terms “sexual

relations,” “sexual relationship,” and “having sex” were used by the victim, her mother and

Welch, to mean “sexual intercourse.” The victim testified that when she was fourteen years old,

she had a sexual relationship with Welch over twenty times at that location in Augusta County.

According to Welch’s testimony, the victim also stated to Jones that she and Welch had sex, after

first denying it. The victim’s mother testified that she suspected Welch and the victim were

having sexual relations, that Welch confirmed that her suspicions were true, and that Welch

admitted to her that he and the victim were having relations. Furthermore, the trial court stated,

“there’s no reason for me to think that this child doesn’t know what ‘sexual relations’ means.”

       Welch’s August 22, 2003 letter, and his motivation for the malicious wounding charge,

provide the context for the trial court’s interpretation that the terms “sexual relations,” “sexual

relationship” and “having sex” meant “sexual intercourse” to the parties. In the letter, Welch

explained to the victim that, after the information in her letter to him was disclosed to an inmate,

the other inmates were told he was a “baby rapist” and that he and the victim had been “f---ing.”

Welch also professed his love to the victim in the letter and stated “my last thought will be of

you and my last breath will say your name.” The trial court concluded that the victim’s

testimony and Welch’s admission to Smith were sufficient to convict, but that Welch’s letter was

the “straw that [broke] the camel’s back.” Specifically, the trial court stated that this letter “did

not have anything to do with the maiming charge,” and characterized it as an attempt to dissuade

the victim from testifying against him and pursuing the carnal knowledge charge. In explaining

his motivation for the malicious wounding charge, Welch admitted to Smith that he was jealous

and stabbed a man for coming on to the victim.
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        The trial court heard the testimony of the witnesses, observed their demeanor, and

reviewed Welch’s letters to the victim. In finding Welch guilty, the trial court stated, “this child

is very credible; a very credible witness . . . I think this evidence is clearly -- obviously, if I

believe [the victim] and her mother, the evidence is sufficient.” “Witness credibility

determinations shall only be disturbed on appeal if the testimony is ‘inherently incredible, or so

contrary to human experience so as to render it unworthy of belief.’” Sanchez v.

Commonwealth, 41 Va. App. 319, 335, 585 S.E.2d 327, 335 (2003) (quoting Fisher v.

Commonwealth, 228 Va. 296, 299-300, 321 S.E.2d 202, 204 (1984)).

        Welch offered no evidence, other than his own self-serving testimony, to rebut the

victim’s and her mother’s 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). The trial court was entitled to reject Welch’s testimony.

                                            III. Conclusion

        For these reasons, we hold that the evidence was sufficient for the trial court to convict

Welch of having carnal knowledge of a child, in violation of Code §18.2-63. We, therefore,

affirm his conviction.

                                                                                               Affirmed.




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