                                               Tuesday       24th

            February, 1998.



Stephen Lane Hebden,                                         Appellant,

against        Record No. 0482-96-1
               Circuit Court Nos. 31715-95 and 31716-95

Commonwealth of Virginia,                                    Appellee.

                          Upon a Rehearing En Banc

          Before Chief Judge Fitzpatrick, Judges Baker, Benton,
   Coleman, Willis, Elder, Bray, Annunziata, Overton and Bumgardner


               Timothy H. Hankins for appellant.

               Kathleen B. Martin, Assistant Attorney
               General (Richard Cullen, Attorney General,
               on brief), for appellee.



            This cause was reviewed on rehearing en banc, and upon

consideration of the argument of counsel and the entire record in this

case, the judgments of the trial court rendered on February 23, 1996

are affirmed without opinion by an equally divided court.   Judges

Baker, Benton, Bray, Overton and Bumgardner voted to reverse the

judgments of the trial court.    Chief Judge Fitzpatrick and Judges

Coleman, Willis, Elder and Annunziata voted to affirm said judgments.

Accordingly, the opinion previously rendered by a panel of this Court

on August 26, 1997 is withdrawn and the mandate entered that date is

vacated.    See Hebden v. Commonwealth, 25 Va. App. 448, 489 S.E.2d 245

(1997).    The appellant shall pay to the Commonwealth of Virginia

thirty dollars damages.
         This order shall be published and certified to the trial

court.

                         A Copy,

                              Teste:

                                        Clerk




                                -2-
                                                Tuesday          14th

               October, 1997.



Stephen Laine Hebden,                                      Appellant,

against        Record No. 0482-96-1
               Circuit Court Nos. 31715-95 and 31716-95

Commonwealth of Virginia,                                  Appellee.


                   Upon a Petition for Rehearing En Banc
                           Before the Full Court



             On September 9, 1997 came the appellee, by counsel, and

filed a petition praying that the Court set aside the judgment

rendered herein on August 26, 1997, and grant a rehearing en banc

thereof.

             On consideration whereof, the petition for rehearing en banc

is granted, the mandate entered herein on August 26, 1997 is stayed

pending the decision of the Court en banc, and the appeal is

reinstated on the docket of this Court.

             The parties shall file briefs in compliance with Rule 5A:35.

It is further ordered that the appellee shall file with the clerk of

this Court ten additional copies of the appendix previously filed in

this case.

                             A Copy,

                                  Teste:

                                            Cynthia L. McCoy, Clerk

                                  By:

                                            Deputy Clerk
                  COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Annunziata and Overton
Argued at Norfolk, Virginia


STEPHEN LAINE HEBDEN
                                                OPINION BY
v.        Record No. 0482-96-1            JUDGE NELSON T. OVERTON
                                              AUGUST 26, 1997
COMMONWEALTH OF VIRGINIA


       FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                     Verbena M. Askew, Judge

          Timothy H. Hankins for appellant.

          Kathleen B. Martin, Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.



     Stephen Laine Hebden was convicted in a bench trial of

object sexual penetration and carnal knowledge of a child under

the age of fifteen and was sentenced to thirty years confinement

in the state penitentiary.    He appeals, contending that the

evidence is insufficient to support his convictions.

     While a prosecutrix's uncorroborated testimony may suffice

to support a conviction of a sexual offense, see Fisher v.

Commonwealth, 228 Va. 296, 299, 321 S.E.2d 202, 203-04 (1984),

such a conviction "cannot stand where that testimony is contrary

to human experience."   Schrum v. Commonwealth, 219 Va. 204, 207,

246 S.E.2d 893, 896 (1978).   In the instant case we are compelled

to apply this exception because the prosecutrix's uncorroborated



                                   -4-
account of events, when taken as a whole and considered with all

the other evidence presented, is incredible as a matter of law.

For this reason, we reverse and dismiss.

     Our conclusion is based upon a number of factors that

combine to undermine the credibility of the prosecutrix's

accusations.   First, the evidence at trial demonstrated that the

prosecutrix had a motive to fabricate the accusations against the

appellant.   The prosecutrix, thirteen years of age, had lived

with her mother, who was separated from her father, the

appellant.   Due to problems she was having in her mother's

custody -- truancy, poor grades, juvenile authorities -- custody

was transferred to her father.   The appellant was much more

strict with the prosecutrix than her mother had been, and imposed

several restrictions.   A friend of the prosecutrix testified that

she had told him that the appellant would not let her see her

boyfriend and that she "was going to get even with him."     The

prosecutrix denied making this statement.   Other evidence

corroborated the prosecutrix's desire to leave the appellant's

home and to resume living with her mother where she could see her

boyfriend and where restraints on her social life were much less

severe.   With evidence before the trial court of the

prosecutrix's statement that she was going to get even with her

father, the trial judge stated that "the Court is still stuck

with why [the prosecutrix] would come in court and subject

herself to this as well as to subject her father to this type of



                                  -5-
prosecution . . . ."

     Secondly, the accusations were made at a time convenient for

the prosecutrix, as she recently had been subjected to further

restrictions on her social life.   She alleged that the appellant

abused her in the early morning of May 25, 1995.   Later that day,

she visited the home of a friend who lived near her father's

house and spent the night there.   The next day, she went to her

mother's residence in Portsmouth for the Memorial Day weekend.

During that visit she was caught sneaking out of her mother's

house at night.   At the mother's telephoned request, appellant

came to get the prosecutrix around midnight Sunday and took her

back to his house in Newport News.   He told the prosecutrix that

he was placing restrictions on her social life for the entire

summer.   Two days later, she made her accusations to the school

authorities, including the alleged incident of May 25, 1995 and

one alleged to have occurred several months before, in January.
     Thirdly, although the narrative of the incidents themselves

did not contain many inconsistencies, some were present.    The

prosecutrix alternately referred to the January incidents as

occurring regularly ("Sometimes he'd come back, and other times

he would leave") and as a single incident ("that night").   She

was unable to give a date or dates for the acts alleged to have

occurred in January.   She did not remember at the preliminary

hearing what time of night the incident occurred, but at the

trial five months later she remembered the time from looking at




                                   -6-
her digital alarm clock.   These discrepancies do not by

themselves render the prosecutrix's story incredible.   Coupled

with her mother's testimony that the prosecutrix lies and may lie

to "get her way," however, a strong shadow is cast upon the

prosecutrix's credibility.   The prosecutrix also denied her

statement about her boyfriend and about "getting even" with the

appellant, a statement made to an unbiased third party.    She

never told her mother, or, as far as can be determined from the

record, any other friend or family member about the appellant's

alleged abuse.   The prosecutrix had been involved with the

juvenile authorities before moving to live with the appellant,

and, after his arrest and her subsequent return to her mother,

her mother filed charges against her for the unauthorized use of

the mother's car.   While corroboration of the prosecutrix's

testimony is not required in this kind of case, it must be noted

that no other evidence supported her accusations.
     Fourthly, the appellant testified on his own behalf and

denied all of the accusations.   Two other witnesses testified

that he had a good reputation for honesty in the community.

     Finally, the prosecutrix's stepmother testified that she and

the appellant slept together on a waterbed in a room next to the

bedroom of the prosecutrix and that the doors to both rooms were

always open.   She stated that she knew her husband did not get up

and go to the other room as alleged because she would have been

awakened when he got out of the waterbed, and that this did not




                                  -7-
happen.

     A careful review of the entire trial transcript reveals each

of these individual facts, which, when taken together, form a

more complete record of events than any one witness' account.   As

the Supreme Court stated in Young v. Commonwealth, 185 Va. 1032,

1042, 40 S.E.2d 805, 810 (1947):
          If it was a choice between her veracity and
          his, we would not find fault with the [fact
          finder] for accepting her statement. . . .
          If there is not sufficient evidence to
          establish beyond a reasonable doubt that he
          is guilty of the offense of which he has been
          convicted, then the verdict is plainly wrong
          and it is our duty to set it aside. This we
          are compelled to do because there is too much
          that is contrary to human experience in her
          version of the matter when analyzed in the
          light of the facts and circumstances shown to
          exist, to say that the guilt of the defendant
          has been proved as the law requires.

We reach the same conclusion here.   In this case, on this

specific set of facts and upon consideration of all the evidence,

we find that the prosecutrix's completely uncorroborated

testimony is insufficient to prove beyond a reasonable doubt that

the appellant committed the alleged offenses.
                                         Reversed and dismissed.




                                 -8-
Annunziata, J., dissenting.

     This case turns on the credibility of the prosecutrix.      The

trial court, which had the opportunity we lack to observe the

prosecutrix testify, "to weigh her biases, her intelligence, her

demeanor, and her ability to recall and communicate facts

accurately," believed the prosecutrix and found that the evidence

constituted proof of appellant's guilt beyond a reasonable doubt.

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

204 (1984).   The majority concludes that the evidence was

insufficient to support the trial court's finding of guilt

because the prosecutrix's testimony is contrary to human

experience and inherently incredible as a matter of law.     I

respectfully disagree.
     The standard of review when the sufficiency of the evidence

is challenged on appeal is well settled.   We construe the

evidence "in the light most favorable to the Commonwealth," grant

the Commonwealth "all reasonable inferences fairly deducible

therefrom," and "discard the evidence of the accused in conflict

with that of the Commonwealth."   Cirios v. Commonwealth, 7 Va.

App. 292, 295, 373 S.E.2d 164, 165 (1988) (citations omitted);

see also Higginbotham v. Commonwealth, 216 Va. 349, 352, 218

S.E.2d 534, 537 (1975).   Unless the trial court's judgment

appears to be plainly wrong or without evidence to support it, it

cannot be set aside.   Code § 8.01-680; Josephs v. Commonwealth,

10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc).



                                  -9-
     Furthermore, "[i]t is fundamental that `the credibility of

witnesses and the weight accorded their testimony are matters

solely for the fact finder who has the opportunity of seeing and

hearing the witnesses.'"    Collins v. Commonwealth, 13 Va. App.

177, 179, 409 S.E.2d 175, 176 (1991) (quoting Schneider v.

Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985)).

The trial judge's determination of the facts, based on the trial

judge's evaluation of the credibility of the witnesses, is

entitled to great weight.    E.g., Satterwhite v. Commonwealth, 201

Va. 478, 483, 111 S.E.2d 820, 823-24 (1960).

     The thirteen-year-old victim in this case was the child of

divorced parents.   She resided with each parent at different

times.   At the time of the offenses, she lived with her father,

the appellant, and her stepmother, with whom she did not have a

close relationship.   Appellant referred to his daughter as "his

best girlfriend."

     The child's bedroom in appellant's home was located adjacent

to that of appellant and his wife.   The child testified that

during the month of January 1995, appellant entered her room

after she had fallen asleep, knelt at the side of her bed, put

his hands under her blankets and felt her breasts and vagina

under her nightshirt.   She further testified that appellant

inserted his fingers inside her vagina.   She testified that she

pushed appellant away, and he would "sometimes . . . come back,

and other times . . . would leave but [come] back."   She also



                                   -10-
testified that on May 25, 1995, appellant entered her bedroom

where she was lying in bed on her side, knelt on the floor next

to her bed, rolled her onto her back and touched her breast and

vagina as he had done before.   On this date, however, she stated

that her father also used his tongue to lick her vagina after

pulling her underpants to her knees.

     Until the May incident, the child did not report the sexual

assaults, and she acknowledged that, although her stepmother was

asleep in the next room, she did not cry out for help.    On May

31, she reported the incident to her school counselor.
     The evidence showed that, between May 25 and 31, while

visiting her mother, the child remained out past her curfew and

her father had to be called to retrieve her.    The evidence showed

that appellant was a strong disciplinarian who had imposed strict

rules governing the child's behavior and academic performance

with which the child was generally compliant.   As a result of the

weekend incident, appellant threatened to ground the child for

the entire summer.

     The appellant denied the child's accusations.     He contended

the child had fabricated her story in response to his threat to

prohibit her social activities for the summer and because she

wanted to return to live with her mother, who was less strict and

who lived in closer proximity to the child's boyfriend.    A friend

of appellant, who also considered himself a friend of the child,

testified that the child had told him in March 1995,




                                  -11-
approximately two months before the May restrictions were

imposed, that she would get even with her father for not allowing

her to see her boyfriend.

     The child explained her delay in reporting the earlier

molestations.     She stated that she was afraid and that she did

not want to lose her relationship with her father or have him go

to jail.     She ultimately reported the occurrences "[b]cause it

happened so many times, [she] . . . was tired of it."     The child

specifically denied having threatened to get even with her

father.
     If believed, the child's testimony, even uncorroborated, is

sufficient to support the finding of guilt beyond a reasonable

doubt.      See Fisher, 228 Va. at 299, 321 S.E.2d at 203; Willis &

Bell v. Commonwealth, 218 Va. 560, 563, 238 S.E.2d 811, 812

(1977). 1    The child's testimony was believed by the trier of

fact, which declined to credit appellant's contention the story

was fabricated.     At the close of the evidence, the court made the

following finding:
          The Court looked very closely at the demeanor
          of all the witnesses, but more particularly
          the Court looked at the demeanor of
          [appellant] and also with [the child], and
          . . . the Court is still struck with why [the
          child] would come in court and subject
     1
          I note, however, that the child's testimony was not
wholly uncorroborated. Rather, the child reported the offenses
to her school counselor. "Evidence of an out-of-court complaint
. . . is admissible, not as independent evidence of the offense,
but as corroboration of the victim's testimony." Fisher, 228 Va.
at 300, 321 S.E.2d at 204 (citing Cartera v. Commonwealth, 219
Va. 516, 518, 248 S.E.2d 784, 786 (1978)).




                                     -12-
             herself to this as well as to subject her
             father to this type of prosecution, and the
             Court was most convinced really by [the
             child's] explanation as to why she didn't
             tell anybody was because she was afraid for
             her father, frankly, and she's indicated that
             she didn't want what was happening to happen.
              She didn't want to see him go to jail, and
             she didn't want anything to happen to him,
             and the Court basically has to make a
             judgment call as to which one of these
             witnesses is telling the truth about what
             happened, and as a result the Court believes
             [the child].


        Because witness credibility was the essential issue

surrounding the child's alleged motivation to fabricate the

accusations, and the trial court resolved the conflicts in the

evidence against the appellant, the only basis upon which the

conviction can be reversed is to find the child's testimony

"inherently incredible, or so contrary to human experience or to

usual human behavior as to render it unworthy of belief."      Willis

& Bell, 218 Va. at 563, 238 S.E.2d at 813.     I do not believe the

standard was met in this case.

        That the incidents escaped detection by the child's

stepmother, apparently asleep in an adjoining room during the

early morning occurrences, is neither surprising nor inherently

unworthy of belief.    The crime at issue is one that can be

perpetrated clandestinely, considerably more clandestinely than

the crime of rape.    It is not a crime that leaves observable,

tell-tale physical evidence or necessarily provokes outcries of

pain.    Further, it is easy to understand a child's natural

reluctance to call out to her stepmother for help in repelling


                                    -13-
her father's sexual assault.

     With respect to the delay in reporting the incident, a

reasonable explanation was given: this child of divorced parents

did not wish to see her father go to jail or otherwise get in

trouble.    Her decision to protect her father, the perpetrator, is

not contrary to human experience, and delayed reporting is not

uncommon.    See, e.g., Corvin v. Commonwealth, 13 Va. App. 296,

299, 411 S.E.2d 235, 237 (1991).
     Finally, the timing of the child's report, following the

father's threat to prohibit the teenage child's social life for

an entire summer, also followed an escalation in the nature of

the sexually assaultive conduct.   The impact of the last assault,

which involved an act of cunnilingus on the thirteen year old,

must be evaluated together with her father's threat to restrict

her social contacts.   But the evaluation of the evidence on the

issue of motivation requires the trier of fact to weigh the

evidence, a matter beyond the purview of an appellate court and

peculiarly within the province of the trier of fact.    See, e.g.,

Fisher, 228 Va. at 300, 321 S.E.2d at 204.    While the father's

threat may arguably have provoked fabrication in retaliation, the

trial court resolved the issue in favor of the other reasonable

inference to be drawn from the evidence, viz., the child found

the continuing and escalating nature of the sexual assaults

totally unacceptable and when balanced against the need to

protect her father, she chose to protect herself.   Finally, even




                                   -14-
if we assume the child was angered by the appellant's threat to

limit her social contacts, the trial court's implicit conclusion

that the anger provoked the timing of the report, not its

content, was reasonable and reflective of common human

experience.

     In sum, the testimony of the prosecutrix, if believed, was

sufficient to support appellant's conviction.    The trial court,

which had the full opportunity to observe and evaluate the

witnesses, believed the prosecutrix.     "`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 conclusions of those who have seen and heard

them.'"   Ketchum v. Commonwealth, 12 Va. App. 258, 263, 403

S.E.2d 382, 384 (1991) (quoting Bradley v. Commonwealth, 196 Va.

1126, 1136, 86 S.E.2d 828, 834 (1955)).    I find that the record

does not support the majority's conclusion that the prosecutrix's

testimony was inherently incredible or contrary to human

experience.

     I would affirm the convictions.




                                  -15-
