                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bray and Bumgardner
Argued at Salem, Virginia


KEN DERWIN DAVIS
                                         MEMORANDUM OPINION * BY
v.   Record No. 1637-99-2            JUDGE RUDOLPH BUMGARDNER, III
                                             AUGUST 22, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Robert W. Duling, Judge

          Patricia P. Nagel, Assistant Public Defender
          (David J. Johnson, Public Defender, on
          brief), for appellant.

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


     Ken Derwin Davis challenges the sufficiency of the evidence

supporting his conviction of object sexual penetration.    The

defendant argues that the victim's testimony is inherently

incredible.   For the following reason, we reverse.

      When a defendant challenges the sufficiency of the

evidence, we examine the evidence that tends to support the

conviction and allow it to stand unless it is plainly wrong or

unsupported by the evidence.   See Commonwealth v. Presley, 256

Va. 465, 466, 507 S.E.2d 72, 72 (1998).   So viewed, the victim

rented a room in her apartment to the defendant, a first cousin.

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
The victim and some friends "were drinking in the New Year."

The defendant was with them part of the time and repeatedly

stated "he was going to get him some p______" for the New Year.

At 12:30 a.m., the victim and her two friends returned to her

apartment where they drank gin until about 2:30 a.m.   When the

friends left, the victim retired to her bedroom and fell asleep

on her bed fully dressed, still wearing her winter coat and

boots.

     The victim awoke as the defendant pulled her off the bed

and she struck her head on the floor.   The defendant dragged the

victim by her feet into his room, threw her on his bed, and

choked her.   The defendant tried to insert his penis into her

vagina, but she resisted.    He then stuck his finger into her

vagina one time while stating, "I told you I'm going to get some

p_______ for the New Year."

     The victim struggled to get free, knocked over and

shattered a glass table in the defendant's room, and ran down

stairs to call the police.    She then ran back upstairs to Lola

Horton's apartment where she told her neighbor and friend that

the defendant had raped her.   In a short time, Officer Thomas

Gilbert arrived.   The victim told him about the incident, but

when asked "if he had penetrated her," she answered "no."   The

victim told Gilbert the defendant had his pants on but no shirt,

and she denied the defendant took her clothes off.   She made no

complaint that he fondled or sucked her breasts.   Gilbert noted

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that the victim had been drinking and had a scratch above her

lip.       He placed no charges.

       Later that day around noon, the victim called a second

officer to her apartment and complained that the defendant had

sexually assaulted her.      Officer T. M. Arthur wrote out the

victim's statement and read it back to her.      After reviewing it,

the victim signed it. 1     She said the defendant removed his pants

and pulled her pants and underwear halfway down.      The defendant

"stuck his finger into my vagina numerous times."       Arthur

testified the victim said she did not understand the question

when he asked whether the defendant had penetrated her with his

penis.      After he explained the phrase in plain language, the

victim said that she had not been penetrated with the

defendant's penis.

       1
       The entire statement, which Officer Arthur transcribed and
the victim signed at 2:20 p.m. on January 1, 1999, reads as
follows:

                    I was watching t.v. in my room when
               [the defendant] came into my room [and] drug
               [sic] me into his room. Once he got me into
               his room, he was undressing, groping me,
               beating and choking me. He removed my bra
               and sucked my nipples. He had part-way
               removed my pants and underwear. During
               which time he stuck his finger into my
               vagina numerous times. He never was able to
               get his penis inserted into my vagina.
               There was a long struggle between us where I
               finally was able to get away and go next
               door to call the police. During the choking
               I thought he was going to kill me; he
               probably would have killed me if I had not
               been able to fight him off.

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       Ordinarily, the fact finder may accept or reject a witness'

testimony in whole or in part.     See Marable v. Commonwealth, 27

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

conclusions of the fact finder on issues of witness credibility

"may . . . be disturbed on appeal if this Court finds that [the

witness'] . . . testimony was 'inherently incredible or so

contrary to human experience [or to usual human behavior] as to

render it unworthy of belief.'"     Robertson v. Commonwealth, 12

Va. App. 854, 858, 406 S.E.2d 417, 419 (1991) (quoting Fisher v.

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

       The victim provided the only evidence of object sexual

penetration because she was the only Commonwealth witness to the

events that occurred at her apartment between the defendant and

her.   The Commonwealth presented that evidence by direct

examination and through the victim's statements to her neighbor,

Lola Horton, and to the two officers with whom she spoke on

separate occasions.   The facts gleaned from those four sources

of evidence leave irreconcilable conflicts in essential elements

and corroborating details.

       Rape was the immediate complaint made to the victim's

neighbor and friend, Lola Horton.    When Officer Gilbert arrived

the victim made no mention of rape, denied any penetration, and

gave no indication of a sexual assault.    By noon, she complained

of digital penetration performed numerous times.    From the



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witness stand, she related a single instance of digital

penetration.

     The victim gave confused and contradictory explanations for

the varied complaints.   She told Officer Gilbert there was no

penetration because she did not understand the term,

"penetrate."    However, she also claimed to understand the term

to mean penile intrusion only.    She maintained that she answered

Officer Arthur's question about penetration correctly but only

because he explained to her that the term meant penile

penetration.

     Similar internal confusion surrounds the exact nature of

the initial complaint of rape.    The victim testified that she

told Horton, "I said Lola, don't you know Ken just raped me."

She also maintains that she told Horton the defendant only

"tried to rape" her.   Horton maintains that the victim

complained the defendant "had raped her."

     The confusion continues when trying to determine the

meaning that the victim attached to the terms she employed.     She

defined rape as an unwanted touching:    "Don't touch me if I

don't want to be bothered.   Don't put your hands on me."   Almost

immediately, the victim testified the term "involves a penis

penetrating."   This conflict in usage illustrates an inherent

conflict in the Commonwealth's evidence.    If rape means an

unwanted touching, then the victim understood that she had been

raped when she complained to Horton of rape.   However, she did

                                 - 5 -
not complain of rape to anyone else.    If rape meant penile

penetration, then she had not been raped when she complained

that she had been.   This inherent discrepancy is unexplained,

and there is no way to know in which sense she was comprehending

the term when making her reports of the incident.

     Inconsistencies appear in most of the details of the

incident.   The victim said she was digitally penetrated numerous

times, then said it happened only once, but she maintained both

statements were correct.    The initial complaint to Officer

Gilbert stated the defendant did not take his pants off and did

not take her clothes off.   That complaint made no mention that

the defendant pushed up her shirt and bra and fondled and sucked

her breasts.   However, her subsequent statements to Officer

Arthur, and those at trial, maintain that he did do that.      The

victim initially testified that she was intoxicated, but later

maintained that she was not.   She said she went to bed, but

later said she lay across the bed to watch television and did

not remember falling asleep.   The victim said the defendant was

dragging her by her feet while choking her, but she cannot

explain how he did that.    Later, she said he choked her after

getting her to his bedroom.

     The Commonwealth's evidence contradicted itself.    "We are

not unmindful of the weight to be accorded a . . . verdict

. . ., but we have repeatedly said we are not required to

believe that which we know to be inherently incredible or

                                - 6 -
contrary to human experience or to usual behavior."     See Willis

v. Commonwealth, 218 Va. 560, 564, 238 S.E.2d 811, 813 (1977)

(citation omitted).   In this case, the issues arising from the

evidence are not matters of credibility or of the weight of the

evidence because the victim's statements are internally

self-contradictory and do not permit reconciliation of the

differences.   There is no other source of evidence that could

corroborate the crime or permit resolution of the

inconsistencies in the victim's testimony.   While there is

evidence of a struggle, suspicion that the defendant may have

sexually assaulted her is insufficient to sustain his

conviction.    See Stover v. Commonwealth, 222 Va. 618, 624, 283

S.E.2d 194, 197 (1981).

     In oral argument, the Commonwealth conceded the evidence

comprises inconsistent versions.   The Commonwealth argued that

two facts kept the evidence from being incredible:    the victim

made a recent complaint; and the defendant made statements of

intent earlier in the day that corresponded to statements he

made during the assault.   However, the victim did not complain

of the offense for which the defendant stands convicted.    She

complained of rape and never mentioned object sexual penetration

until the third time she recounted the events.

     The defendant did state while he was drinking with the

victim and two other women that he intended to have sexual

relations.    The victim testified that he referred to that remark

                                - 7 -
during his assault on her.   However, the remark does not help

resolve whether he actually did the crime charged because the

remark is equally applicable to rape and object sexual

penetration.   Additionally, when the defendant made the

statement, he did not direct it at the victim or any other woman

there.

     The evidence of recent complaint and statement of intent

are not sufficient to resolve the inherent inconsistencies in

the Commonwealth's evidence and to permit a finding of guilt of

object sexual penetration beyond a reasonable doubt.     See

Willis, 218 Va. at 563-64, 238 S.E.2d at 813 (rape victim's

testimony is incredible as a matter of law where it is wholly

uncorroborated, replete with contradictions and inconsistencies,

and coupled with delay in reporting incident and an attempt to

have the warrants withdrawn).   Accordingly, we reverse the

conviction.

                                                   Reversed and
                                                   final judgment.




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