Ken Derwin Davis v. Commonwealth of Virginia ( 2000 )

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
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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
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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
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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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