Baszo Randolph Goode v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Bray
Argued at Richmond, Virginia
BASZO RANDOLPH GOODE
MEMORANDUM OPINION * BY
v. Record No. 1125-00-2 JUDGE RICHARD S. BRAY
MAY 8, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Benjamin A. Williams, Jr., Judge Designate
John N. Clifford (Clifford & Duke, P.C., on
briefs), for appellant.
Susan M. Harris, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Baszo Randolph Goode (defendant) was convicted in a bench
trial of aggravated sexual battery of a minor, a violation of Code
§ 18.2-67.3. On appeal, defendant challenges the sufficiency of
the evidence to support the conviction. Finding no error, we
affirm the trial court.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
In reviewing the sufficiency of the evidence, we consider
the record, "in the light most favorable to the Commonwealth,
giving it all reasonable inferences fairly deducible therefrom."
Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859,
866 (1998) (citation omitted). The credibility of the witnesses,
the weight accorded testimony, and the inferences drawn from
proven facts are matters to be determined by the fact finder.
Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476
(1989). Thus, a "child's testimony alone, if believed by the
[fact finder], [is] sufficient to support [the instant]
conviction, even in the absence of corroborating physical or
testimonial evidence." Love v. Commonwealth, 18 Va. App. 84, 90,
441 S.E.2d 709, 713 (1994) (citations omitted). The judgment of
the trial court will not be disturbed unless plainly wrong or
unsupported by the evidence. See Code § 8.01-680.
The instant record discloses that K.J., age eight, was
overnighting for a weekend with her friend, B., and B.'s mother at
the residence of defendant's sister. During the first evening,
K.J. and B. shared a bedroom in the "big house," without incident.
However, on the second night, K.J., B., and B.'s mother, joined by
defendant, slept in the nearby "pool house," "one big room" and a
bathroom, "very small." The children, K.J. and B., occupied the
only bed, and B.'s mother and defendant, both of whom had been
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"drinking" earlier in the evening, slept on the floor "beside"
K.J.
K.J. testified she was awakened by defendant "touching [her]
on [her] privates," "underneath" her shorts, with "his hand" and
"underneath [her] leg" with "his tongue." K.J. acknowledged that
her "private parts" were located "between [her] legs." When K.J.
directed defendant, "stop," he "moved his hand," returned to "the
floor" and she "went back to sleep." Although K.J. did not report
the incident to B.'s mother, she told her mother, upon return
home, "that she had been touched by defendant," resulting in the
instant prosecution, conviction and appeal.
II.
Code § 18.2-67.3 provides, in pertinent part: "An accused
shall be guilty of aggravated sexual battery if he or she sexually
abuses the complaining witness, and . . . [t]he complaining
witness is less than thirteen years of age . . . ." To prove a
violation, the Commonwealth must establish that defendant
"intentionally touche[d] the complaining witness's intimate parts
or clothing covering such intimate parts[,]" "with the intent to
sexually molest, arouse, or gratify." Code § 18.2-67.10(6).
"'Intimate parts' means the genitalia, anus, groin, breast,
buttocks of any person." Code § 18.2-67.10(2).
In challenging the sufficiency of the evidence, defendant
advances three arguments. First, he contends K.J.'s testimonial
reference to "privates" was insufficient to prove the requisite
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touching of the "genitalia, anus, groin, breast, [or] buttocks."
However, we have recognized that "[i]t cannot be expected that
children will know enough to use the word 'vagina,' nor is such
specificity required. It is enough if the trier of fact can
reasonably infer from the evidence adduced where the [touching]
took place." Kehinde v. Commonwealth, 1 Va. App. 342, 346, 338
S.E.2d 356, 358 (1986). K.J. defined "privates" as "the area
between [her] legs," and the court, therefore, reasonably inferred
that defendant touched an "intimate part" of the child's body, as
contemplated by the statute.
Defendant next asserts the evidence failed to establish he
touched K.J. with the requisite intent. "'Intent is the purpose
formed in a person's mind which may, and often must, be inferred
from the facts and circumstances in a particular case. The state
of mind of an alleged offender may be shown by his acts and
conduct.'" Walker v. Commonwealth, 12 Va. App. 438, 445, 404
S.E.2d 394, 397 (1991) (citation omitted). Defendant touched the
intimate parts of K.J.'s body with his hand and "underneath" her
leg with his tongue, as she and others slept in a darkened room.
He acted deliberately, with stealth and singular purpose. Such
evidence is clearly sufficient to support a finding that defendant
then intended to "sexually molest, arouse, or gratify" in
violation of Code § 18.2-67.3.
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Finally, defendant characterizes K.J.'s testimony as
incredible, relying upon differences in her trial and preliminary
hearing testimony.
In testing the credibility and weight to be
ascribed to the evidence, we must give trial
courts and juries the wide discretion to
which a living record, as distinguished from
a printed record, logically entitles them.
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.
Lockhart v. Commonwealth, 34 Va. App. 329, 342, 542 S.E.2d 1, 7
(2001) (citations omitted). The trial court, as fact finder,
assessed K.J.'s credibility, including her inconsistent testimony,
accepted her evidence and convicted defendant. Under such
circumstances, the record does not support a finding on appeal
that the court was plainly wrong.
Accordingly, we affirm the conviction.
Affirmed.
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