                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bray and Annunziata
Argued at Norfolk, Virginia


WILLIAM ANTHONY BOOKER
                                          MEMORANDUM OPINION * BY
v.   Record No. 1603-98-1                  JUDGE RICHARD S. BRAY
                                              AUGUST 3, 1999
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                  Christopher W. Hutton, Judge

          Charles E. Haden for appellant.

          Jeffrey S. Shapiro, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     William Anthony Booker (defendant) was convicted in a bench

trial of rape, two counts of inanimate object penetration and

four counts of forcible sodomy. 1   On appeal, defendant complains

that the trial court erroneously (1) denied his motion to

restrict the Commonwealth’s evidence to offenses committed on

dates specified in response to a bill of particulars, (2)

admitted hearsay evidence, and (3) found the evidence sufficient

to support the convictions.   Finding no error, we affirm the

trial court.



     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     1
       Defendant’s forcible sodomy convictions are not subject of
this appeal.
     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

                                I.

     Defendant first contends that he did not have “clear

notification of the offense with which he was charged” because

the trial court failed to limit the Commonwealth’s proof to

offense dates specified in response to the bill of particulars.

     It is uncontroverted that the initial indictments charging

defendant with the commission of the subject offenses, “on or

about June 11 and June 23,” 1996, were subsequently amended to

allege offense dates, “on or about June 1 - 30, 1996.”   In

response to defendant’s bill of particulars, the Commonwealth

specified that the crimes occurred “on or about” June 11 and

June 23, 1996.   The trial court, however, denied defendant’s

pretrial motion to limit the Commonwealth’s evidence to offenses

committed on the disputed dates.

     During trial, the victim testified that the offenses

occurred while she was in the second grade at school, 2 “in the

nighttime when [her mother] was at work,” adding, “I think it

was June . . . summertime.”   The victim reported the incidents

to her mother on June 28, 1996, and recalled that the most

recent had occurred within the month.


     2
       She also testified that school ended for summer recess on
“the 20th of June.”

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     Defendant moved to strike the evidence both at the

conclusion of the Commonwealth’s case and at the conclusion of

the trial, arguing that the evidence did not establish that the

offenses occurred on the dates specified in response to his bill

of particulars.   In denying the motion, the trial court noted:

            We know that these events occurred while
            [the victim] was in second grade, . . . from
            September of 1995, through June of ‘96. And
            . . . while the mother worked at Wendy’s,
            which was October of ‘95, until sometime
            after the complaint. There was indication
            that they occurred during a summer month, of
            which June is at least a portion. There was
            some indication . . . from the witness that
            it actually did occur in June. So that
            narrows it down. And, additionally, we have
            the response that while these events
            occurred a long time before the complaint
            was made, that was qualified . . . to within
            a month. Based on the Court's feeling about
            the credibility of the [victim] . . ., and
            . . . all of those things together and
            narrowing the timeline, the Court is
            convinced beyond a reasonable doubt that
            these events did occur within the time
            period alleged in the indictment . . . .

     Code § 19.2-220 provides, in pertinent part, that an

“indictment . . . shall be a plain, concise and definite written

statement, . . . (4) reciting that the accused committed the

offense on or about a certain date.”    “No indictment or other

accusation shall be quashed or deemed invalid:   . . . (6) For

omitting to state, or stating imperfectly, the time at which the

offense was committed when time is not the essence of the

offense.”   Code § 19.2-226; see Marlowe v. Commonwealth, 2 Va.

App. 619, 622, 347 S.E.2d 167, 169 (1986).   Thus, “the use of

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the term ‘on or about’ in the indictment [for such offenses] is

consistent” with statute, Marlowe, 2 Va. App. at 625, 347 S.E.2d

at 171, and “the Commonwealth may . . . prove a date other than

that alleged, if the date is not of the essence of the offense

or not shown to be significant.”     Id. at 622, 347 S.E.2d at 169

(citations omitted); see Code § 19.2-226(6).

     Code § 19.2-230 permits the trial court to “direct the

filing of a bill of particulars at any time before trial.”     Code

§ 19.2-230.   “‘The purpose of a bill of particulars is to state

sufficient facts regarding the crime to inform an accused in

advance of the offense for which he is to be tried.    He is

entitled to no more.’”   Swisher v. Commonwealth, 256 Va. 471,

480, 506 S.E.2d 763, 768 (1998) (citations omitted).    The bill

is relief available to an accused, at the discretion of the

court, to supplement an indictment which fails to “‘fully and

clearly set forth all the material elements of the offense,’”

but not “to expand the scope of discovery in a criminal case.”

Sims v. Commonwealth, 28 Va. App. 611, 619-20, 507 S.E.2d 648,

652-53 (1998) (citations omitted).     Hence, the import of time to

an offense ordinarily is of no greater significance in a bill of

particulars than in an indictment.

     Here, time was not an element of the offenses, and both the

indictments and the Commonwealth’s response to the bill of

particulars sufficiently informed defendant of the relevant

offense dates.   Moreover, the evidence supports the trial

                               - 4 -
court’s finding that the crimes occurred in June, 1996, clearly

within the period embraced both in the indictments and the

response.   Hence, the trial court properly denied defendant’s

motion to limit the Commonwealth’s proof and correctly overruled

his later motions to strike.

                                 II.

     Defendant next contends that the trial court erroneously

permitted witnesses to recount the victim’s statements relative

to the subject offenses.    He argues that such testimony was

inadmissible hearsay, because “the . . . statements were not an

outcry and were not recent.”

     Code § 19.2-268.2 provides that, “in any prosecution for

criminal sexual assault . . ., the fact that the person injured

made complaint of the offense recently after commission of the

offense is admissible, not as independent evidence of the

offense, but for the purpose of corroborating the testimony of

the complaining witness.”   “However, only the fact of the

complaint and not the details given therein may be admitted, but

the scope of admission rests with the sound discretion of the

trial court.”   Woodard v. Commonwealth, 19 Va. App. 24, 27, 448

S.E.2d 328, 330 (1994) (citations omitted).

     The “‘only time requirement is that the complaint have been

made without delay which is unexplained or is inconsistent with

the occurrence of the offense.’”       Id. (citations omitted).   “The

initial determination of timeliness under the recent complaint

                                - 5 -
rule is committed to the sound discretion of the trial court,

and thereafter, timeliness is a matter for the trier of fact to

consider in weighing the evidence.”      Id. (citations omitted).

     Here, the victim reported to her mother on June 28, 1996,

that defendant “had been touching her on her private parts.”

She was immediately taken to the emergency room and examined by

a pediatrician, who noted that the victim “made a specific

complaint, a red and yellow cord had been put in her private

parts, and that . . . [defendant] placed his penis in her

private part.”   At trial, the victim testified that she did not

immediately report the incidents to her mother because defendant

“threatened [her] not to tell nobody . . . [and] he said if

[she] tell anybody, something bad was going to happen.”     Thus,

the content of the complaint was clearly embraced by the

statute, and the delayed “outcry” explained by a “common

circumstance[] surrounding sexual assault on minors[,] . . .

threat of further harm from the assailant.”      Woodard, 19 Va.

App. at 28, 448 S.E.2d at 330.    Accordingly, the court properly

admitted the statements into evidence.

                                 III.

     Finally, defendant argues that the evidence was

insufficient to establish penetration, an indispensable element

of the subject crimes.   When the sufficiency of the evidence is

challenged on appeal, we must review the evidence in the light

most favorable to the Commonwealth, and will disturb a verdict

                                 - 6 -
only if plainly wrong or without evidence to support it.       See

Code § 8.01-680; Martin v. Commonwealth, 4 Va. App. 438, 443,

358 S.E.2d 415, 418 (1987).    The credibility of the witnesses,

the weight accorded testimony, and the inferences to be drawn

from proven facts are matters to be determined by the fact

finder.     See Long v. Commonwealth, 8 Va. App. 194, 199, 379

S.E.2d 473, 476 (1989).

        The victim testified that defendant “stuck his private

parts in my private part.”    Upon further questioning, she

specified that defendant “st[u]ck his penis . . . [i]n my

vagina,” and “it hurted . . . felt like something was in it.”

She recalled that defendant “stuck [a] sponge curler in [her]

butthole,” explaining to her that he was “seeing how deep [it]

is.”    She was certain that defendant “was able to put it in

. . . [b]ecause [she] felt it . . . [and] it was hurting real

bad.”    The victim also testified that defendant “took [his

index] finger, and he stuck that in [her] butthole.”    She was

aware “it was actually going in . . . [b]ecause [she] felt the

nail, and it felt like . . . [she] had to use the bathroom.”

Similarly, when defendant “stuck [a VCR cord] in [the victim’s]

vagina,” she “felt it” “going inside,” and “[i]t hurted.”

        “Under settled principles of law, the child’s testimony

alone, if believed by the [fact finder], [is] sufficient to

support [defendant’s] conviction, even in the absence of

corroborating physical or testimonial evidence.”     Love v.

                                 - 7 -
Commonwealth, 18 Va. App. 84, 90, 441 S.E.2d 709, 713 (1994)

(citations omitted).   The penetration necessary to establish

object sexual penetration and rape, “need be only slight.”      Jett

v. Commonwealth, 29 Va. App. 190, 194, 510 S.E.2d 747, 749

(1998) (en banc) (citations and internal quotations omitted).

Contrary to defendant’s contention, such evidence in the instant

record was not rendered incredible either by the testimony of

physicians or human experience.   Clearly, therefore, the

testimony of the victim, together with other evidence, was

sufficient to establish the requisite penetration.

     Accordingly, we affirm the convictions.

                                                        Affirmed.




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