Joseph Arthur Luis Klevenz v. Commonwealth of Virginia ( 2013 )


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  •                                              COURT OF APPEALS OF VIRGINIA
    Present: Judges Humphreys, Kelsey and Beales
    UNPUBLISHED
    Argued at Richmond, Virginia
    JOSEPH ARTHUR LUIS KLEVENZ
    MEMORANDUM OPINION * BY
    v.     Record No. 2481-11-2                                    JUDGE RANDOLPH A. BEALES
    FEBRUARY 5, 2013
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
    Frederick G. Rockwell, III, Judge
    Steven D. Benjamin (Betty Layne DesPortes; Benjamin &
    DesPortes, P.C., on briefs), for appellant.
    Donald E. Jeffrey, III, Senior Assistant Attorney General
    (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
    Joseph Arthur Luis Klevenz was convicted by a jury in the Circuit Court of the County of
    Chesterfield of forcible sodomy in violation of Code § 18.2-67.1 and was sentenced to five years
    of imprisonment. Appellant argues on appeal that the trial court erred in (1) “denying the
    defense motion for access to the residence where the [crime] allegedly occurred for the purpose
    of photographing and videotaping” the crime scene, (2) finding that the victim 1 was competent to
    testify, (3) “failing to administer the oath to the four-year-old child [victim] prior to her
    testimony before the jury and in giving the jury the false impression that the oath had been
    administered,” and (4) “denying the motion to strike at the conclusion of the evidence because
    the evidence was insufficient to support a conviction for sodomy where the Commonwealth
    *
    Pursuant to Code § 17.1-413, this opinion is not designated for publication.
    1
    We use “the victim” in place of the victim’s name in an effort to protect her identity and
    privacy.
    failed to prove appellant inserted his penis into the child’s mouth.” For the following reasons,
    we conclude that the trial court did not err with regard to assignments of error two and four and
    that assignments of error one and three are waived on appeal because they were not preserved in
    the trial court. Therefore, we affirm appellant’s conviction.
    I. BACKGROUND
    On appeal, we consider “the evidence in the light most favorable to the Commonwealth,
    as we must since it was the prevailing party” in the trial court. Riner v. Commonwealth, 
    268 Va. 296
    , 330, 
    601 S.E.2d 555
    , 574 (2004). So viewed, the offense occurred at the three-year-old
    victim’s grandparents’ home, in the basement playroom of their house, on Christmas Day 2010.
    Appellant, who was one of a number of relatives (approximately 25 or 30 people in total) at the
    home on that day, is the victim’s mother’s cousin.
    Access to the Residence
    The parties litigated appellant’s motion asking the trial court to enter an order directing
    the victim’s grandparents to allow defense counsel access to their home for the purpose of
    photographing and videotaping. The written motion stated the defendant needed to take “photos
    and video” and “videos and or pictures” of the residence to rebut the victim’s father’s assertion
    “that a corner of the room might not be visible from someone walking by the open door.”
    Defense counsel argued that “[t]his is disputed by the defense and pictures and video will reveal
    the truth to the jurors.” The trial judge denied the motion. Photographs were admitted, however,
    at trial from the Commonwealth and the defense, and these photographs are discussed infra.
    Competency of the Victim Witness
    During an in camera proceeding with the prosecutor and defense counsel present, the trial
    judge asked the victim questions to determine her competency to testify at trial. The evaluation
    took approximately five minutes. The trial judge asked the victim: “Is it a bad or a good thing to
    -2-
    tell a lie?” The victim responded, “Bad.” When the trial judge asked her what happens when
    one lies, the victim responded, “You get in trouble.” The judge then asked her, “What happens
    when you get in trouble?” She responded, “I can’t have any dessert.” The judge asked the
    victim: “Now, if I asked you to tell me the truth. And I said raise your right hand, and you
    promise you’ll tell the truth, can you do that?” The victim responded affirmatively by nodding
    her head. The judge followed up by asking, “What happens if you don’t [tell me the truth]?”
    When she indicated she was uncertain, he asked, “Bad or good?” The victim responded, “Um,
    maybe bad.”
    Counsel and the trial judge then returned to the courtroom, and the judge stated:
    I asked [the victim] the questions hopefully to ga[u]ge her ability
    to understand taking an oath and telling the truth.
    *        *      *      *         *     *       *
    After those questions I have no problem with her
    competency in that regard. I think I find her pretty competent
    based on her answers and responses. Unless you have some other
    comment?
    Defense counsel responded, “No, Your Honor.”
    Administration of the Oath to the Victim Witness
    Just before the victim took the witness stand at trial on September 1, 2011, the trial judge
    asked, “We are not going to swear [the victim]?” The Commonwealth’s attorney responded,
    “No, Judge. We already resolved that.” Defense counsel remained silent.
    The Incident
    The victim, her parents (T.B. and M.B.), 2 and her brother visited the victim’s
    grandparents’ home for the family Christmas celebration on December 25, 2010. The victim was
    2
    We use the victim’s parents’ initials instead of their names in an effort to better protect
    their privacy.
    -3-
    playing with appellant during the day. M.B. (the victim’s mother) testified that later in the day,
    the victim climbed into her lap and that her tights “were pulled down to her knees, the crouch
    [sic] part, and her underwear was pulled down in the back.” She testified that her daughter “is a
    chunky little thing, so [the tights] definitely fit,” and the tights “didn’t fall down before or after”
    this time. T.B. (the victim’s father) also testified that the victim told him and his wife “that she
    [was] ready to go home, [and] want[ed] to go home.” T.B. observed that she was acting “very
    mopy and clingy,” which was not typical behavior for her.
    The victim and her family left the grandparents’ house between 6:30 p.m. and 7:00 p.m.
    on Christmas Day. Once they returned to their home, the victim played with her other
    grandmother and prepared for bed. T.B. testified that, after the victim’s grandmother read her a
    story, he entered the room and asked his daughter to stand up and give him a hug. The victim
    stood up and started crying. T.B. asked her what was wrong and she responded, “Joe put his
    weenie in my mouth.” He “asked her what she [was] talking about,” and “she [told him] the
    same thing over again, that Joe put his weenie in [her] mouth.” He “asked her if she was
    confused . . . and she said no he put his weenie in my mouth.” T.B. testified that he then
    inquired why she did not tell her parents sooner, to which the victim responded “Joe told [her] it
    was a secret between the two of [them]” and that “he told her that if she said anything that she
    would be in big trouble.” T.B. then called his wife into the room, and the victim repeated the
    statement to her. T.B. testified that when M.B. left the room to call her parents’ house, the
    victim stated, “at first [she and appellant] were having fun in the playroom. And then he put his
    weenie in her mouth.” T.B. asked the victim “how she knew it was a weenie, and she told [him]
    it was soft and squishy with a hole in the end of it.” He asked if appellant had taken his pants
    down, and the victim said, “[N]o, he had pulled it out of his pants.” T.B. stated he “knew [the
    victim] was talking about a penis” when she used the term “weenie.” The following day, the
    -4-
    victim’s parents and her paternal grandmother spoke with her again, and M.B. testified that “she
    repeated that Joe put his weenie in [her] mouth.”
    The victim testified at trial that when she was playing with appellant, he “put his weenie
    in my mouth” while she was sitting down on a bean bag chair with a blanket. This testimony
    was consistent with information she provided during a forensic interview with Chesterfield
    County Police Detective Laura Kay. The victim testified that she did not see appellant’s “weenie
    . . . because [she] closed [her] eyes . . . because he told [her] to.” Counsel asked the victim “How
    do you know what he put in your mouth?” and she responded “Because I just did . . . Because it
    was so squishy I know what it was.” She explained that it came from his pants, and noted that no
    one else was in the room, that it was “Just me and Joe.” The victim testified at trial and also
    stated during the forensic interview that appellant told her this conduct was a secret.
    During her interview with Detective Kay, the victim correctly identified the mouth on a
    drawing and pointed to the genital area of a male drawing to demonstrate where appellant’s
    “weenie” was. When asked to demonstrate with anatomically correct dolls (depicting male and
    female genitalia) what appellant had done, the victim pulled the male doll’s pants down enough
    to expose the penis and shoved the penis into the female doll’s mouth. She also said appellant’s
    penis was “pointing up” when he removed it from his pants. The victim told Detective Kay that
    appellant told her to close her eyes during the incident on the blanket.
    When Detective Kay asked the victim to demonstrate on a drawing depicting a female
    where her “girlfriend” (which the record reveals is the term the victim’s parents taught her to use
    when referring to her vagina) was located, the victim pointed to the vaginal area. The victim
    testified that her “girlfriend” is in the middle of her legs. She said appellant’s “weenie” is in the
    middle of his legs.
    -5-
    During an interview with Detective Kay, appellant denied placing his penis in the
    victim’s mouth. He described sexual and physical abuse that he experienced from his family
    members which occurred before his father, Michael Klevenz, adopted him. Appellant offered
    various versions of the incident to Detective Kay. First, he told Detective Kay that the victim
    had gotten dust in her mouth from the ceiling fan while they were playing near it, causing him to
    insert his thumb into her mouth to clear it. Second, he explained that he and the victim were
    playing with a stuffed dragon that was “squishy” with a “hole in it” and the victim bit the toy
    dragon at some point. Third, appellant explained that he had allowed the victim to play with his
    tongue ring.
    Appellant admitted to Detective Kay that he had told the victim not to tell anyone about
    his behavior. However, he claimed this statement was related to his allowing the victim to touch
    his tongue ring. He elaborated that his father did not like his tongue ring. He denied telling the
    victim she would be in trouble if she were to tell. He claimed that he told her he would be in
    trouble if anyone found out about the tongue ring incident, which he called his secret. At trial,
    appellant denied any improper sexual activity with the victim.
    The trial court denied appellant’s motion to strike. In that motion, appellant maintained
    the Commonwealth had failed to prove he had penetrated the victim’s mouth with his penis. The
    trial judge also denied appellant’s renewed motion to strike.
    II. ANALYSIS
    Access to the Residence
    In his first assignment of error, appellant argues that the trial court erred in denying the
    defense motion for access to the residence where the crime occurred for the purpose of
    photographing and videotaping. Appellant contends that the information to be gained through
    access to the residence was central to his defense because the question whether the conduct could
    -6-
    have occurred in the open playroom without detection by the numerous people walking by and in
    the adjacent den area was a crucial factual determination to be made by the jury. Thus, he asserts
    that taking pictures and videotape of the scene was necessary to convey to the jurors what the
    view into the playroom was – and to show the playroom’s close proximity to family members.
    At trial, appellant focused his argument on this issue on his contention that the trial judge
    had the authority to grant third party access to the residence for the purpose of photographing
    and videotaping the crime scene. The trial judge did not think he had this authority and denied
    appellant’s motion. But see, Henshaw v. Commonwealth, 
    19 Va. App. 338
    , 346, 348, 
    451 S.E.2d 415
    , 419-21 (1994). However, the trial judge admitted into evidence photographs and a
    diagram of the residence, which had been produced by the police department. See id. at 346-48,
    451 S.E.2d at 419-21 (explaining that due process affords criminal defendants “a right to view
    [and] photograph . . . the crime scene” if the defendant “makes a showing that a substantial basis
    exists for claiming that the proposed inspection . . . will enable the defendant to obtain evidence
    relevant and material to his defense”; noting that there is an exception to this right when “due to
    special circumstances the private citizen’s constitutional right to privacy outweighs the accused’s
    right to view” the premises; and holding, under the circumstances of that case, that the defendant
    “was fully able to present his evidence through the Commonwealth’s photographs that were
    made available [and] the diagram of the room,” thereby affirming the defendant’s conviction
    even though the trial judge erred in denying defendant access to the crime scene).
    Here, when the topic of photographing and videotaping the residence came up, the trial
    judge inquired, “Can’t we agree to have pictures taken of the interior?” The Commonwealth
    stated, “[Defense counsel] never asked me to facilitate or to figure that out. The police
    department has already done that. We have a sketch. We have 58 photographs.” The trial judge
    ultimately admitted into evidence a three-page diagram of the house and a total of 33
    -7-
    photographs – 12 of which depict the house, 20 of which are casual photographs of family
    members at the house on the day of the incident, and one of which shows the toy dragon that
    appellant claims was the object that entered the victim’s mouth.
    The diagram shows the layout of the house, including the playroom where the incident
    occurred, and its relation to the rest of the house where the family was spending Christmas Day.
    The 12 photographs of the house include photographs of the house itself, the entrance to the
    playroom where the incident occurred, the adjacent den, and the interior of the playroom. The
    photographs of the entrance to the playroom are taken from more than one angle, and they
    suggest that it would be difficult for a passerby to see into all of the room.
    Appellant contends for the first time on appeal that the documentation introduced by the
    Commonwealth (the photographs and diagram) was not to scale, lacked panoramic views, and
    inaccurately conveyed the lighting and other conditions in the room. Appellant never made these
    arguments at trial. Appellant never contended at trial that the photographs and diagram in
    evidence were insufficient and, thus, that additional photographs and video would be necessary
    for him to develop his defense. 3 Appellant simply failed to make any argument at all at trial that
    the Commonwealth’s photographs and diagram would be insufficient for the preparation of his
    defense. 4 Accordingly, this argument has been waived on appeal under Rule 5A:18, which states
    in pertinent part:
    3
    In addition, appellant’s father, Michael Klevenz, testified at trial that he and appellant’s
    trial counsel went to the grandparents' residence after the incident occurred.
    4
    Because not all of the 58 photographs offered by the Commonwealth were even
    admitted into evidence, we cannot tell whether any of those unadmitted photographs would have
    sufficed for defense purposes. Thus, in addition to the fact that this argument is waived under
    Rule 5A:18, the record is inadequate to decide this assignment of error. See Jenkins v.
    Winchester Dep’t of Soc. Servs., 
    12 Va. App. 1178
    , 1185, 
    409 S.E.2d 16
    , 20 (1991) (holding that
    “[t]he burden is upon the appellant to provide us with a record which substantiates the claim of
    error. In the absence thereof, we will not consider the point.”).
    -8-
    No ruling of the trial court or the Virginia Workers’ Compensation
    Commission will be considered as a basis for reversal unless an
    objection was stated with reasonable certainty at the time of the
    ruling, except for good cause shown or to enable the Court of
    Appeals to attain the ends of justice.
    Furthermore, appellant has not asked this Court to invoke the good cause or ends of justice
    exceptions to Rule 5A:18, and this Court does not invoke those exceptions sua sponte. Edwards
    v. Commonwealth, 
    41 Va. App. 752
    , 761, 
    589 S.E.2d 444
    , 448 (2003) (en banc).
    Therefore, on this record, we cannot conclude as a matter of law that the trial court’s
    denial of appellant’s motion for access to the residence constituted reversible error.
    Competency of the Victim to Testify
    In his second assignment of error, appellant argues that the trial court erred in finding that
    the victim, who was four years old at the time of trial, was competent to testify. A trial court’s
    determination on the competency of a witness is reviewed under an abuse of discretion standard.
    Ortiz v. Commonwealth, 
    276 Va. 705
    , 712, 
    667 S.E.2d 751
    , 756 (2008). Evidence from the trial
    judge’s evaluation of the victim supports his finding that she was competent to testify.
    Accordingly, we find that the trial judge did not abuse his discretion in making this finding.
    A child witness is competent to testify “if he or she possesses the capacity to observe,
    recollect, communicate events, and intelligently frame answers to the questions asked of him or
    her with a consciousness of a duty to speak the truth.” Greenway v. Commonwealth, 
    254 Va. 147
    , 153, 
    487 S.E.2d 224
    , 227 (1997) (citing Cross v. Commonwealth, 
    195 Va. 62
    , 64, 
    77 S.E.2d 447
    , 449 (1953)). “It is the duty of the trial judge to determine such competency after a careful
    examination of the child.” Helper v. Helper, 
    195 Va. 611
    , 619, 
    79 S.E.2d 652
    , 657 (1954); see
    also Virginia Rules of Evidence, Rule 2:601(b) (“A court may declare a person incompetent to
    testify if the court finds that the person does not have sufficient physical or mental capacity to
    testify truthfully, accurately, or understandably.”). “There is no fixed age at which a child must
    -9-
    have arrived in order to be competent as a witness.” Davis v. Commonwealth, 
    161 Va. 1037
    ,
    1039, 
    171 S.E. 598
    , 598 (1933) (citing Rogers v. Commonwealth, 
    132 Va. 771
    , 773, 
    111 S.E. 231
    , 231 (1922)).
    Here, the trial judge asked the victim numerous questions to effectively evaluate her
    competency during a five-minute evaluation in camera in which attorneys for both parties were
    present. The trial judge’s evaluation of the victim reads in pertinent part:
    Q: Is it bad or a good thing to tell a lie?
    A: Bad.
    Q: What happens?
    A: You get in trouble.
    Q: What happens when you get in trouble?
    A: I can’t have any dessert.
    *       *        *       *         *   *       *
    Q: If you were to tell your mommy and daddy a lie, what would
    happen?
    A: They would – my daddy – or my mommy doesn’t have treats if
    they didn’t lie.
    Q: Do you know what a promise is? When you make a promise,
    what are you doing? Do you know?
    A: (Shakes her head side to side.) Mm-mm . . .
    *       *        *       *         *   *       *
    Q: Now, if I asked you to tell me the truth. And I said raise your
    right hand, and you promise you’ll tell the truth, can you do that?
    A: (Nods her head up and down.)
    Q: What happens if you don’t?
    A: (Shrugging her shoulders up and down.) Mm-mm . . .
    - 10 -
    Q: Bad or good?
    A: Um, maybe bad.
    The victim also accurately recalled a past traumatic event. She remembered her family had a
    dog, but had to get rid of it because it had bitten one of her parents.
    It is clear from the trial judge’s evaluation of the victim that she was intelligent and
    reasonably articulate, had the ability to recall past traumatic events (as is pertinent here), and
    appreciated the concept of telling the truth and the adverse consequences of lying. See Durant v.
    Commonwealth, 
    7 Va. App. 454
    , 466-67, 
    375 S.E.2d 396
    , 402 (1988) (holding that the child
    need not understand the meaning of the “oath,” but must recognize that she has a duty to tell the
    truth). Therefore, we find that the trial judge did not abuse his discretion in finding that the
    victim was competent to testify.
    The Oath
    In his third assignment of error, appellant argues that the trial court erred in failing to
    administer the oath to the four-year-old child accuser prior to her testimony before the jury and
    in giving the jury the false impression that the oath had been administered. This argument has
    been waived on appeal under Rule 5A:18 because defense counsel had an opportunity and an
    obligation to object at trial to the victim not being sworn, but defense counsel did not do so.
    Just before the victim took the witness stand at trial, the trial judge asked, “We are not
    going to swear [the victim]?” The Commonwealth’s attorney responded, “No, Judge. We
    already resolved that.” At this point, defense counsel remained silent and did not raise any
    objection or argument.
    Because defense counsel did not object to the trial judge’s failure to administer the oath,
    this argument is waived on appeal under Rule 5A:18. Appellant unpersuasively argues that the
    “ends of justice” exception to Rule 5A:18 applies here. However, we find that that this argument
    - 11 -
    amounts merely to a contention that a miscarriage of justice “might have occurred” because he
    essentially asks this Court to speculate that the four-year-old victim’s testimony would have been
    different if the trial court had not failed to administer the oath to her. See e.g., Redman v.
    Commonwealth, 
    25 Va. App. 215
    , 221, 
    487 S.E.2d 269
    , 272 (1997) (“In order to avail oneself of
    the exception, a defendant must affirmatively show that a miscarriage of justice has occurred, not
    that a miscarriage might have occurred.” (emphasis added)).
    Sufficiency of the Evidence
    In his fourth assignment of error, appellant argues that the trial court erred in denying the
    motion to strike at the conclusion of the evidence because the evidence was insufficient to
    support a conviction for forcible sodomy where the Commonwealth failed to prove the defendant
    inserted his penis into the child’s mouth.
    When considering the sufficiency of the evidence on appeal, “a reviewing court does not
    ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable
    doubt.’” Crowder v. Commonwealth, 
    41 Va. App. 658
    , 663, 
    588 S.E.2d 384
    , 387 (2003)
    (quoting Jackson v. Virginia, 
    443 U.S. 307
    , 318-19 (1979)). “Viewing the evidence in the light
    most favorable to the Commonwealth, as we must since it was the prevailing party in the trial
    court,” Riner, 268 Va. at 330, 601 S.E.2d at 574, “[w]e must instead ask whether ‘any rational
    trier of fact could have found the essential elements of the crime beyond a reasonable doubt,’”
    Crowder, 41 Va. App. at 663, 588 S.E.2d at 387 (quoting Kelly v. Commonwealth, 
    41 Va. App. 250
    , 257, 
    584 S.E.2d 444
    , 447 (2003) (en banc)). See also Maxwell v. Commonwealth, 
    275 Va. 437
    , 442, 
    657 S.E.2d 499
    , 502 (2008). “This familiar standard gives full play to the
    responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the
    evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443
    U.S. at 319.
    - 12 -
    Appellant was charged with violating Code § 18.2-67.1, which reads in pertinent part:
    An accused shall be guilty of forcible sodomy if he or she engages
    in cunnilingus, fellatio, anilingus, or anal intercourse with a
    complaining witness whether or not his or her spouse, or causes a
    complaining witness, whether or not his or her spouse, to engage in
    such acts with any other person, and . . . [t]he complaining witness
    is less than 13 years of age.
    To prove fellatio, the Commonwealth had to prove that appellant put his penis in the victim’s
    mouth. 5 There is ample evidence supporting the trial court’s conclusion that appellant put his
    penis in the victim’s mouth, and, thus, is guilty of forcible sodomy.
    Specifically, the victim testified at trial that appellant put his “weenie in [her] mouth.”
    She elaborated in her testimony that appellant’s “weenie” is in the middle of his legs. During her
    videotaped forensic interview with Detective Kay (which was admitted into evidence without
    limitation), she did not hesitate to demonstrate with anatomically correct dolls exactly how
    appellant inserted his penis in her mouth. She pulled the male doll’s pants down enough to
    expose the penis and shoved the penis into the female doll’s mouth. The victim also identified
    various parts of the male and female body, including the relevant groin area and the mouth. The
    victim also pointed to the groin area on a drawing when asked where appellant’s “weenie” was
    located. The victim testified at trial that her “girlfriend” is in the middle of her legs. The record
    establishes that the victim referred to her vagina as her “girlfriend” because her parents had told
    her to use that term prior to the offense. Although the location of the vagina is not at issue in this
    appeal, the victim’s ability to identify it – along with the other relevant body parts – goes to her
    credibility as a witness.
    The jury was entitled to find that the object placed in the victim’s mouth (which she
    testified “was soft and squishy with a hole in the end of it”) was a penis. Viewing the evidence
    5
    Since Code § 18.2-67.1 does not define “fellatio,” the term is given its ordinary
    meaning. See Horton v. Commonwealth, 
    255 Va. 606
    , 612, 
    499 S.E.2d 258
    , 261 (1998).
    - 13 -
    in the light most favorable to the Commonwealth, as we must since it was the prevailing party
    below, such a finding is particularly reasonable because the victim told Detective Kay she
    observed the “weenie” as it was “pointing up,” which is consistent with an erection, and the
    victim’s father testified that he asked her “if [appellant] had taken his pants down, and she said
    no, he had pulled it out of his pants.” The victim testified that she closed her eyes because
    appellant instructed her to do so. This testimony is additional circumstantial evidence of guilt. 6
    Moreover, T.B. testified that the victim told him that “Joe told [her] it was a secret
    between the two of [them]” and that “he [Joe] told her that if she said anything that she would be
    in big trouble.” This threat was consistent with the victim’s statement to Detective Kay during
    the forensic interview that appellant told her what he had done was a secret. Our case law is
    replete with examples of defendants, who committed sexual offenses against child victims,
    making similar threats or directives to the victims in an effort to ensure their silence. See Brown
    v. Commonwealth, 
    37 Va. App. 169
    , 171, 
    554 S.E.2d 711
    , 712 (2001) (Brown told victim “not
    to tell” because “she would get in trouble”); Santillo v. Commonwealth, 
    30 Va. App. 470
    , 481,
    
    517 S.E.2d 733
    , 739 (1999) (Santillo told victim “not to tell anyone”); Tharrington v.
    Commonwealth, 
    2 Va. App. 491
    , 493, 
    346 S.E.2d 337
    , 339 (1986) (Tharrington told victim not
    to “tell anyone” or “she would get in trouble”). Appellant admitted during his interview with
    Detective Kay he had made a similar statement to the victim (i.e. it was “my secret”), although
    he stated he told the victim not to tell anyone he had allowed her to touch his tongue ring out of
    fear that he would get in trouble because his father does not like him having a tongue ring. The
    jury was entitled to infer that appellant lied to Detective Kay about the reason he told the victim
    6
    Furthermore, a rational factfinder could certainly consider the mother’s testimony that
    the victim’s tights “were pulled down to her knees, the crouch [sic] part, and her underwear was
    pulled down in the back” as circumstantial evidence of appellant’s guilt. This is particularly
    plausible given that the victim’s mother testified that her daughter “is a chunky little thing, so
    [the tights] definitely fit,” and the tights “didn’t fall down before or after” this time.
    - 14 -
    to keep a secret in an effort to provide an innocent explanation for the damaging information the
    victim had provided police. See Rollston v. Commonwealth, 
    11 Va. App. 535
    , 547-48, 
    399 S.E.2d 823
    , 830-31 (1991).
    During his interview with Detective Kay, appellant provided three different explanations
    of what occurred in an attempt to show that the victim was confused when she testified that
    appellant put his “weenie” in her mouth. He provided the tongue ring explanation, the
    explanation about her biting on the toy dragon while they were playing with it, and the story
    about how he had placed his thumb into her mouth to remove dust that had gotten into the
    victim’s mouth from the ceiling fan while they were playing. At trial, he narrowed his list of
    explanations to one – the testimony that she had bitten the toy dragon while they were playing
    with it. Appellant’s photo of the toy dragon, which was admitted at trial, does not support that
    explanation – or so a rational factfinder could have found. Moreover, “[t]he defendant’s
    contradictory statements ‘furnish bases for reasonable inferences that his explanations were
    made falsely in an effort to conceal his guilt.’” Sheppard v. Commonwealth, 
    250 Va. 379
    , 389,
    
    464 S.E.2d 131
    , 137 (1995) (quoting Toler v. Commonwealth, 
    188 Va. 774
    , 782, 
    51 S.E.2d 210
    ,
    214 (1949)). A rational factfinder certainly could have reasonably disregarded appellant’s
    various stories about the incident and, when weighing the evidence, have found the victim’s
    testimony to be more credible. See Commonwealth v. Taylor, 
    256 Va. 514
    , 518, 
    506 S.E.2d 312
    , 314 (1998) (holding that the factfinder, “who has the opportunity to see and hear the
    witnesses, has the sole responsibility to determine their credibility, the weight to be given their
    testimony, and the inferences to be drawn from proven facts”).
    Therefore, we cannot conclude that no rational factfinder could find that appellant put his
    penis in the victim’s mouth, and, therefore, that the evidence is sufficient beyond a reasonable
    doubt that appellant committed forcible sodomy in violation of Code § 18.2-67.1.
    - 15 -
    III. CONCLUSION
    Accordingly, for the foregoing reasons, we affirm appellant’s conviction for forcible
    sodomy in violation of Code § 18.2-67.1.
    Affirmed.
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