                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Bray
Argued at Richmond, Virginia


JAMES LEE STEVENS
                                         MEMORANDUM OPINION * BY
v.   Record No. 2416-97-2              JUDGE JAMES W. BENTON, JR.
                                           NOVEMBER 10, 1998
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
                 James M. Lumpkin, Judge Designate
           Ronald M. Maupin (Gardner, Maupin & Sutton,
           P.C., on brief), for appellant.

           Michael T. Judge, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellee.



      The trial judge convicted James Lee Stevens of aggravated

sexual battery, see Code § 18.2-67.3, and lasciviously exposing

his genital parts to a child under the age of fourteen, see Code

§ 18.2-370(1).   On appeal, Stevens contends that (1) the trial

judge erred in refusing to suppress his confession and (2) the

evidence was insufficient to corroborate his confession to

exposing his genital parts to the child.   For the reasons that

follow, we affirm the convictions.

                                 I.

      The standard of review of the trial judge's ruling on the

motion to suppress is as follows:
             In reviewing a trial [judge's] denial of a
          motion to suppress, "[t]he burden is upon
          [the defendant] to show that th[e] ruling,
      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
             when the evidence is considered most
             favorably to the Commonwealth, constituted
             reversible error." "Ultimate questions of
             . . . both law and fact . . . are reviewed de
             novo on appeal. In performing such analysis,
             we are bound by the trial [judge's] findings
             of historical fact unless "plainly wrong" or
             without evidence to support them and we give
             due weight to the inferences drawn from those
             facts by resident judges and local law
             enforcement officers.


McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259,

261 (1997) (en banc) (citations omitted).
     The evidence at the suppression hearing proved that Deputy

Sheriff Gregory Call went to Ashton Berry's residence on January

2, 1997, because Berry and James Stevens had gotten into an

altercation.    Berry told the deputy sheriff that Stevens, who

rented a room in Berry's residence, had sexually assaulted

Berry's children.    The deputy sheriff saw Stevens lying on his

stomach on the kitchen floor rocking back and forth with both

arms extended over his head.    Although the deputy knew Stevens

and was aware that Stevens was an epileptic, he told Stevens to

get up because he believed Stevens was not having an epileptic

seizure.   When Stevens immediately stood, the deputy sheriff

noticed a small gash on Stevens' forehead that was not bleeding.

The deputy sheriff testified that Stevens spoke coherently and

was responsive to his questions.    When Berry made the sexual

allegation against Stevens, Stevens responded that he "didn't do

anything."

     After the rescue squad took Stevens to the hospital, the



                                 - 2 -
deputy sheriff went to the hospital and located Stevens on a

gurney near the emergency room.   The deputy sheriff testified

that Stevens was "awake, conscious and oriented" while waiting to

be treated.   Based on numerous conversations with Stevens in the

ten years he had known Stevens and on a prior occasion when he

arrested Stevens for being drunk in public, the deputy testified

that Stevens' speech patterns and habits at the hospital were the

same as he had always known them to be.   When he asked Stevens

how he was feeling, Stevens said his head hurt.
     The deputy sheriff read Stevens his Miranda rights, asked

Stevens if he understood his rights, and asked Stevens whether he

wanted to talk about Berry's allegations.   Stevens said he

understood his rights and would talk without an attorney.

     When the deputy sheriff asked Stevens if he had touched the

"privates" of the two boys, aged 3 and 4, Stevens said he "didn't

know anything about it."   In response to the deputy sheriff's

questioning, Stevens said he was in his room on New Year's Eve

talking on the telephone with a "sex woman" and masturbating.

Stevens said he heard a noise behind him, saw the boys standing

in his room, and continued to masturbate for thirty minutes while

the boys were in the room.

     Detective Robert Jones arrived at the hospital and asked

Stevens whether the deputy sheriff had informed him of his

Miranda rights.   Stevens responded "yes" and said he would talk

to Detective Jones without a lawyer.   When the detective told



                               - 3 -
Stevens that the younger boy said Stevens touched his penis,

Stevens denied doing so.    However, Stevens again admitted that

the boys were in the room when he spoke on the telephone and

masturbated.    When the detective asked Stevens how the boys'

pants got down, Stevens said he didn't know and said he pulled up

the older boy's pants after he finished masturbating.    Stevens

also said he may have touched the younger boy's penis when he

pulled up the boy's pants.    The detective asked Stevens if the

boys were imitating what he was doing.    Stevens responded "yes"

and said he was "show[ing] them how to do it right."    Stevens

denied touching the older boy.
     After the detective left the hospital to obtain arrest

warrants, the hospital personnel gave Stevens Novocain, put

stitches in his head wound, and released him.    The deputy sheriff

testified that Stevens did not exhibit any physical distress

after he was discharged from the hospital and taken to the

magistrate's office.

     A psychological evaluation of Stevens, which was performed

by Dr. Frank DeForest, a licensed clinical psychologist, was

admitted as evidence.    In his report, Dr. DeForest noted the

following:
             [Stevens] has been diagnosed in the past as
             functioning in the mildly retarded range with
             respect to verbal reasoning ability, and
             persons with intellectual impairments are
             often perceived to be particularly
             susceptible to influence from others.
             However, such acquiescent tendencies were not
             especially noticeable during the interview,
             and his attribution of malevolent motives to



                                 - 4 -
            several of the parties involved is not
            consistent with the blindly trusting attitude
            presumed to underlie acquiescence.


Noting that "there is reason to suspect that the basis for

[Stevens'] apparent intellectual limitations is organic, being

the result of poisoning as a small child," Dr. DeForest stated,

however, that Stevens' "limitations are not consistent across

areas of functioning."   Dr. DeForest noted that, despite Stevens'

lengthy history of being treated as mentally retarded, Stevens

was, "in many spheres, . . . able to function at the level of

someone with average ability."
     According to Dr. DeForest, Stevens' failure to take his

seizure medication had not had any effect on his "reasoning

ability."   Dr. DeForest noted that in the absence of evidence

that Stevens' "orientation and functioning" had been affected by

the blow to his head, Stevens "most likely understood his rights

adequately, was able to weigh his options sufficiently to make an

intelligent choice and was not unduly susceptible to being

intimidated or duped into giving a statement."   He reported that

Stevens recalled having his rights read to him prior to giving

the police a statement and that Stevens gave Dr. DeForest a

"nearly verbatim recitation of the Miranda warning."   When Dr.

DeForest asked Stevens whether he understood the meaning of the

"right to remain silent," Stevens replied, it "means I can talk

to him or talk to my attorney."

     Barbara Westerby testified that Stevens, whom she has known




                                 - 5 -
for fifteen years, will not take a bath, change his underwear, or

change his clothes without someone making him do so.   She also

testified that Stevens behaves like a five year old.   In a

similar vein, Hazel Dickinson testified that Stevens "is a man in

a six year old body.   He thinks like a child.   To me, he thinks

like a child.   And he -- if you tell him to go jump the moon, he

will try to jump it.   I mean, he'll do whatever you tell him to

do."   Julia May Higham testified that Stevens has the mental

capacity of an eight year old, cannot dress himself, and must be

told to bathe and shave.
       Stevens, who is thirty-seven years old and has a tenth grade

education, testified extensively at the suppression hearing.     He

testified that when he was three years old, he and his stepsister

drank from a water hose contaminated with pesticide.   Stevens'

stepsister died.   He testified concerning the events that led to

his placement in a foster home and his medication.   Although he

should take Dilantin for epileptic seizures and hyperactivity, on

January 2, 1997, when the police questioned him, he had not taken

his epilepsy medicine in six months.    Stevens testified that

after Berry pushed him into a kitchen table, causing an injury to

his head, he had a seizure.

       Stevens testified that the deputy sheriff read Miranda

rights to him prior to the questioning at the hospital.   He said

that he understood his Miranda rights but could not remember

whether the deputy sheriff asked him if he wanted to have a



                                - 6 -
lawyer present.    Stevens testified that after he denied Berry's

accusations, "[the deputy sheriff] kept on, kept on, until I just

could not take it any more, and [I] said 'Look, maybe I

accidentally touched him somewhere when I pulled his pants up,'

because [the deputy sheriff] kept pressuring me."    Stevens

testified that the deputy sheriff made him confess and that "I

didn't want to say, you know, I touched him when I didn't touch

him."
                                  II.

        Stevens contends that the trial judge's refusal to suppress

his statement was erroneous because the statements to the police

were not voluntary.    "For a confession given during custodial

interrogation to be admissible, the Commonwealth must show that

the accused was apprised of his right to remain silent and that

he knowingly, intelligently, and voluntarily waived that right."

 Green v. Commonwealth, 27 Va. App. 646, 652, 500 S.E.2d 835, 838

(1998).    "[I]n determining voluntariness, [the test to be

applied] is whether the statement is the 'product of an

essentially free and unconstrained choice by its maker,' or . . .

whether the maker's will 'has been overborne and his capacity for

self-determination critically impaired.'"     Stockton v.

Commonwealth, 227 Va. 124, 140, 314 S.E.2d 371, 381 (1984)

(citation omitted).

        Stevens' "relatively low intelligence and limited education

[are] factors to be weighed, along with all surrounding




                                 - 7 -
circumstances, in determining whether he voluntarily and

intelligently waived his constitutional rights, and whether his

confession was voluntary."    Washington v. Commonwealth, 228 Va.

535, 547-48, 323 S.E.2d 577, 586 (1984).   However, Dr. DeForest's

report, the interviewing officers' testimony concerning Stevens'

alertness and responses, and Stevens' own responses and coherent

testimony at the hearing tend to establish voluntariness.

     The deputy sheriff, who had spoken with Stevens on numerous

occasions in the past, testified that Stevens was oriented and

coherent at the hospital.    The detective confirmed that Stevens

was alert and responsive when he began his questioning.    Stevens

himself acknowledged that he understood the Miranda rights.    Dr.

DeForest's report confirms that.    Based on this evidence,

including the trial judge's observation of Stevens' "attitude,

appearance, [and] demeanor," the trial judge found that although

Stevens is "somewhat retarded," he understood the Miranda

warnings and their consequences.    In view of the judge's factual

findings and opportunity to assess Stevens' demeanor and

responsiveness at trial, we hold that the evidence proved that

the statements were voluntary.

                                 III.

     Stevens also contends that the evidence failed to adequately

corroborate his confession concerning the charge of taking

indecent liberties with a minor.    We disagree.

     The principle is well established that an accused cannot be



                                 - 8 -
convicted solely on his or her uncorroborated extrajudicial

confession.   See Phillips v. Commonwealth, 202 Va. 207, 210-11,

116 S.E.2d 282, 284-85 (1960).    To sustain a conviction based on

an extrajudicial confession, the evidence must corroborate the

corpus delicti.   Id.   Establishing the corpus delicti "involves

the proof of two distinct propositions:    first, that the act was

done; and secondly, that it was done by the person charged."

Nicholas v. Commonwealth, 91 Va. 741, 750, 21 S.E. 364, 367

(1895).   See also Claxton v. City of Lynchburg, 15 Va. App. 152,

154, 421 S.E.2d 891, 893 (1992) (noting that "[t]he term corpus

delicti, meaning 'the body of a crime,' refers to 'the objective

proof or substantial fact that a crime has been committed' . . .

[and] 'ordinarily includes two elements:    the act and the

criminal agency of the act'").

     The principle is equally well established that "[w]hen . . .

the commission of the crime has been fully confessed by the

accused, only slight corroborative evidence is necessary to

establish the corpus delicti."     Clozza v. Commonwealth, 228 Va.

124, 133, 321 S.E.2d 273, 279 (1984).
          It is not necessary, however, that there be
          independent corroboration of all the contents
          of the confession, or even of all the
          elements of the crime. The requirement of
          corroboration is limited to the facts
          constituting the corpus delicti. . . .

               The confession is itself competent
           evidence tending to prove the corpus delicti,
           and all that is required of the Commonwealth
           in such a case is to present evidence of such
           circumstances as will, when taken in
           connection with the confession, establish the


                                 - 9 -
            corpus delicti beyond a reasonable doubt.
            Further, corroborative facts supporting the
            corpus delicti may be furnished by
            circumstantial evidence as readily as by
            direct evidence.


Watkins v. Commonwealth, 238 Va. 341, 348-49, 385 S.E.2d 50, 54

(1989).

     In addition to Stevens' confession, Stevens testified at

trial.    His own testimony proved he was talking with a "sex

operator" on the telephone on December 31, 1996, and

masturbating.   Other evidence proved that while Stevens lived

with the Berry family, he had his own room and his own telephone

line connected to his room.   Stevens was in his bedroom between

11:00 p.m. and 12:00 a.m., a time when the two minors were

separate from the other adults in the house.     A pediatric nurse

practitioner, who specializes in the assessment of child sexual

abuse cases, testified that the child's penis was bruised.      She

further testified that the bruise could have been caused by the

application of pressure by a hand and that the age of the bruise

was consistent with an occurrence on December 31, 1996.
     Under Code § 18.2-370, to prove a charge of indecent

liberties, the Commonwealth had to prove that "[a]ny person

eighteen years of age or over, . . . with lascivious intent,

. . . knowingly and intentionally:      (1) Expose[d] his or her

sexual or genital parts to any child under the age of fourteen

years to whom such person is not legally married or propose[d]

that any such child expose his or her sexual or genital parts to



                               - 10 -
such person."   The evidence at trial corroborated the date and

time of the offense, the presence of the children in the house

apart from their parents, and the location of the touching to

which Stevens confessed.   Stevens' own testimony corroborated his

presence in his room on the night of the offense as well as his

previously confessed conduct that he was masturbating while

talking on the telephone in the presence of the children.   The

evidence, which was extraneous to Stevens' confession,

sufficiently corroborated Stevens' confession that he committed

the charged offense.
     Accordingly, we affirm the convictions.

                                                         Affirmed.




                              - 11 -
