                       COURT OF APPEALS OF VIRGINIA


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


JOSEPH DEAN GARDNER

v.             Record No. 1050-95-1        MEMORANDUM OPINION * BY
                                           JUDGE RICHARD S. BRAY
COMMONWEALTH OF VIRGINIA                      MARCH 19, 1996


               FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                           Walter J. Ford, Judge
               Ronald L. Smith for appellant.

               Linwood T. Wells, Jr., Assistant Attorney General
               (James S. Gilmore, III, Attorney General, on brief),
               for appellee.



        Joseph Dean Gardner (defendant) was convicted in a bench

trial       for taking indecent liberties with a child under the age

of fourteen years, rape, and sodomy.      On appeal, defendant

complains that the trial court erroneously admitted certain

inculpatory statements and challenges the sufficiency of the

evidence.      For the reasons set forth below, we reverse the

convictions.

        The parties are fully conversant with the record, and we

recite only those facts necessary to a disposition of this

appeal.
                                            1
        On September 5, 1993, Kathy Fallon notified police of the

subject offenses, which occurred in 1976, and defendant was
        *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
        1
         Also spelled "Fallen" in the record.
arrested at his home by Detective James B. Jarden on October 19,

1993, at approximately 8:30 p.m.     When arrested, defendant

instructed his wife to contact "his attorney."     Later, at the

station house, defendant was advised of his constitutional rights

in accordance with Miranda v. Arizona, 384 U.S. 436 (1966), and

repeated to Jarden that he "wanted to wait for his attorney," a

Mr. King, before talking to police.      However, while awaiting a

response from King, Jarden began to question defendant relative

to the subject offenses.
     At approximately 10:00 p.m., Jarden telephoned King at

defendant's request, and King advised Jarden that "he wasn't

coming . . . to the station and had already told [defendant] not

to answer any of [Jarden's] questions."     Jarden related this

conversation to defendant, including King's admonition not to

speak with Jarden, but, nevertheless, resumed his interrogation

of defendant.   During the interview, defendant asked "to see" the

victim, Fallon, and Jarden immediately arranged a meeting at the

police station.

     Meanwhile, defendant recounted to Jarden incidents involving

himself and Fallon, "similar to what [she] had said," but "things

. . . that she had initiated."    In response to Jarden's further

inquiries, defendant explained that he had not discussed Fallon's

conduct with his wife because she was a rape victim, easily upset

by "these kinds of things."   Jarden then contacted defendant's

wife to confirm this information and, upon learning that it was



                                 - 2 -
untrue, confronted defendant with the conflict.     Defendant became

"quite upset," "stood up in the interview room, took off his

glasses[,] and made a move [as if] he was going to hit [Jarden]."

 Jarden "pushed him in the chest[,] . . . backed him up to a

table, got a wrist lock on him[,] . . . flipped him around on the

table[,] and handcuffed him."

      Fallon arrived at the station during this scuffle, and the

officer accompanying her assisted Jarden in restraining

defendant. 2    Fallon was then seated at a desk "across the

way . . . from" defendant, an arrangement which "allowed . . .

them to talk," while Jarden listened "directly outside the

door." 3   During the ensuing "conversation," Fallon sought and

obtained defendant's admission to the subject offenses.        Jarden

also participated in the exchange between Fallon and defendant,

specifically asking defendant to verify Fallon's allegations.

           I.   ADMISSIBILITY OF STATEMENTS MADE TO VICTIM

      It is well established that an accused has a Fifth and

Fourteenth Amendment right to counsel during custodial

interrogation.     Correll v. Commonwealth, 232 Va. 454, 462, 352

S.E.2d 352, 356, cert. denied, 482 U.S. 931 (1987).     Once such

right is invoked, the accused may not be "subject to further

interrogation by the authorities until counsel has been made
      2
      The record indicates that Fallon arrived at approximately
12:30 a.m.
      3
      To accommodate defendant, Jarden "took off one of the
cuffs, so [defendant] could have his hands somewhat free . . . ."




                                 - 3 -
available to him, unless the accused himself initiates further

communication, exchanges, or conversations with the police."

Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).    "If a

confession is obtained in violation of Edwards, it is presumed to

have been the result of an involuntary waiver of Fifth Amendment

rights and, therefore, any evidence obtained as a result thereof

is inadmissible."    Pugliese v. Commonwealth, 16 Va. App. 82, 87,

428 S.E.2d 16, 21 (1993) (citing Edwards, 451 U.S. at 487).

     "Whether an individual requested counsel is a factual

determination . . . [which] will not be disturbed on appeal

unless clearly erroneous."    Id.   We similarly defer to the trial

court's factual finding that an accused did not "initiate[] the

discussions which led to his confession," if supported by the

evidence.    Correll, 232 Va. at 463, 352 S.E.2d at 357.

     Here, the trial court's determination that Jarden violated

defendant's right to counsel during Jarden's initial questioning

is well supported by the record.    Moreover, contrary to the

court's related ruling, this police misconduct also tainted

defendant's later statements during the meeting with Fallon.

Jarden, obviously calculating that the confrontation would likely

"'elicit an incriminating response,'" arranged and participated

in the exchange, which was an integral part of a "continued

inquiry" and interrogation of defendant that Jarden was "bound to

cease." 4   Hines v. Commonwealth, 19 Va. App. 218, 221-22, 450
     4
      Jarden considered "a confession . . . almost a necessity to
go forward with this case."



                                - 4 -
S.E.2d 403, 404 (1994) (quoting Rhode Island v. Innis, 446 U.S.

291, 301 (1980)).   Thus, defendant's statements resulting from

the Fallon encounter were similarly inadmissible. 5

     II.   SUFFICIENCY OF EVIDENCE REGARDING DEFENDANT'S AGE

     In reviewing a challenge to the sufficiency of the evidence,

we must consider the record in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom, and will disturb the judgment of the trial

court only if plainly wrong or without evidence to support it.
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

(1987).

     Code § 18.2-370 requires that an accused be "eighteen years

of age or over" at the time of the offense.      Fallon testified

that, at the time of the instant offense, defendant was married

and had two children, the oldest of whom was four years old.

Moreover, defendant was present at trial, and his "physical

appearance may be considered" by the court as evidence of his age

at the time of the offense.    Jewell v. Commonwealth, 8 Va. App.

353, 356, 382 S.E.2d 259, 261 (1989).      Such evidence sufficiently

established that defendant was no less than eighteen years of age

at the time of the offenses.

     Accordingly, we reverse the convictions and remand for

further proceedings consistent with this opinion, if the

Commonwealth be so advised.

                                        Reversed and remanded.
     5
      The Commonwealth's argument that this issue was not before
the trial court is without merit.

                                - 5 -
