Stephen Lane Hebden v. Commonwealth of Virginia

Tuesday 24th
February, 1998.
Stephen Lane Hebden, Appellant,
against Record No. 0482-96-1
Circuit Court Nos. 31715-95 and 31716-95
Commonwealth of Virginia, Appellee.
Upon a Rehearing En Banc
Before Chief Judge Fitzpatrick, Judges Baker, Benton,
Coleman, Willis, Elder, Bray, Annunziata, Overton and Bumgardner
Timothy H. Hankins for appellant.
Kathleen B. Martin, Assistant Attorney
General (Richard Cullen, Attorney General,
on brief), for appellee.
This cause was reviewed on rehearing en banc, and upon
consideration of the argument of counsel and the entire record in this
case, the judgments of the trial court rendered on February 23, 1996
are affirmed without opinion by an equally divided court. Judges
Baker, Benton, Bray, Overton and Bumgardner voted to reverse the
judgments of the trial court. Chief Judge Fitzpatrick and Judges
Coleman, Willis, Elder and Annunziata voted to affirm said judgments.
Accordingly, the opinion previously rendered by a panel of this Court
on August 26, 1997 is withdrawn and the mandate entered that date is
vacated. See Hebden v. Commonwealth, 25 Va. App. 448, 489 S.E.2d 245(1997). The appellant shall pay to the Commonwealth of Virginia
thirty dollars damages.
This order shall be published and certified to the trial
court.
A Copy,
Teste:
Clerk
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Tuesday 14th
October, 1997.
Stephen Laine Hebden, Appellant,
against Record No. 0482-96-1
Circuit Court Nos. 31715-95 and 31716-95
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing En Banc
Before the Full Court
On September 9, 1997 came the appellee, by counsel, and
filed a petition praying that the Court set aside the judgment
rendered herein on August 26, 1997, and grant a rehearing en banc
thereof.
On consideration whereof, the petition for rehearing en banc
is granted, the mandate entered herein on August 26, 1997 is stayed
pending the decision of the Court en banc, and the appeal is
reinstated on the docket of this Court.
The parties shall file briefs in compliance with Rule 5A:35.
It is further ordered that the appellee shall file with the clerk of
this Court ten additional copies of the appendix previously filed in
this case.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Overton
Argued at Norfolk, Virginia
STEPHEN LAINE HEBDEN
OPINION BY
v. Record No. 0482-96-1 JUDGE NELSON T. OVERTON
AUGUST 26, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Verbena M. Askew, Judge
Timothy H. Hankins for appellant.
Kathleen B. Martin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Stephen Laine Hebden was convicted in a bench trial of
object sexual penetration and carnal knowledge of a child under
the age of fifteen and was sentenced to thirty years confinement
in the state penitentiary. He appeals, contending that the
evidence is insufficient to support his convictions.
While a prosecutrix's uncorroborated testimony may suffice
to support a conviction of a sexual offense, see Fisher v.
Commonwealth, 228 Va. 296, 299, 321 S.E.2d 202, 203-04 (1984),
such a conviction "cannot stand where that testimony is contrary
to human experience." Schrum v. Commonwealth, 219 Va. 204, 207,
246 S.E.2d 893, 896 (1978). In the instant case we are compelled
to apply this exception because the prosecutrix's uncorroborated
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account of events, when taken as a whole and considered with all
the other evidence presented, is incredible as a matter of law.
For this reason, we reverse and dismiss.
Our conclusion is based upon a number of factors that
combine to undermine the credibility of the prosecutrix's
accusations. First, the evidence at trial demonstrated that the
prosecutrix had a motive to fabricate the accusations against the
appellant. The prosecutrix, thirteen years of age, had lived
with her mother, who was separated from her father, the
appellant. Due to problems she was having in her mother's
custody -- truancy, poor grades, juvenile authorities -- custody
was transferred to her father. The appellant was much more
strict with the prosecutrix than her mother had been, and imposed
several restrictions. A friend of the prosecutrix testified that
she had told him that the appellant would not let her see her
boyfriend and that she "was going to get even with him." The
prosecutrix denied making this statement. Other evidence
corroborated the prosecutrix's desire to leave the appellant's
home and to resume living with her mother where she could see her
boyfriend and where restraints on her social life were much less
severe. With evidence before the trial court of the
prosecutrix's statement that she was going to get even with her
father, the trial judge stated that "the Court is still stuck
with why [the prosecutrix] would come in court and subject
herself to this as well as to subject her father to this type of
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prosecution . . . ."
Secondly, the accusations were made at a time convenient for
the prosecutrix, as she recently had been subjected to further
restrictions on her social life. She alleged that the appellant
abused her in the early morning of May 25, 1995. Later that day,
she visited the home of a friend who lived near her father's
house and spent the night there. The next day, she went to her
mother's residence in Portsmouth for the Memorial Day weekend.
During that visit she was caught sneaking out of her mother's
house at night. At the mother's telephoned request, appellant
came to get the prosecutrix around midnight Sunday and took her
back to his house in Newport News. He told the prosecutrix that
he was placing restrictions on her social life for the entire
summer. Two days later, she made her accusations to the school
authorities, including the alleged incident of May 25, 1995 and
one alleged to have occurred several months before, in January.
Thirdly, although the narrative of the incidents themselves
did not contain many inconsistencies, some were present. The
prosecutrix alternately referred to the January incidents as
occurring regularly ("Sometimes he'd come back, and other times
he would leave") and as a single incident ("that night"). She
was unable to give a date or dates for the acts alleged to have
occurred in January. She did not remember at the preliminary
hearing what time of night the incident occurred, but at the
trial five months later she remembered the time from looking at
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her digital alarm clock. These discrepancies do not by
themselves render the prosecutrix's story incredible. Coupled
with her mother's testimony that the prosecutrix lies and may lie
to "get her way," however, a strong shadow is cast upon the
prosecutrix's credibility. The prosecutrix also denied her
statement about her boyfriend and about "getting even" with the
appellant, a statement made to an unbiased third party. She
never told her mother, or, as far as can be determined from the
record, any other friend or family member about the appellant's
alleged abuse. The prosecutrix had been involved with the
juvenile authorities before moving to live with the appellant,
and, after his arrest and her subsequent return to her mother,
her mother filed charges against her for the unauthorized use of
the mother's car. While corroboration of the prosecutrix's
testimony is not required in this kind of case, it must be noted
that no other evidence supported her accusations.
Fourthly, the appellant testified on his own behalf and
denied all of the accusations. Two other witnesses testified
that he had a good reputation for honesty in the community.
Finally, the prosecutrix's stepmother testified that she and
the appellant slept together on a waterbed in a room next to the
bedroom of the prosecutrix and that the doors to both rooms were
always open. She stated that she knew her husband did not get up
and go to the other room as alleged because she would have been
awakened when he got out of the waterbed, and that this did not
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happen.
A careful review of the entire trial transcript reveals each
of these individual facts, which, when taken together, form a
more complete record of events than any one witness' account. As
the Supreme Court stated in Young v. Commonwealth, 185 Va. 1032,
1042, 40 S.E.2d 805, 810 (1947):
If it was a choice between her veracity and
his, we would not find fault with the [fact
finder] for accepting her statement. . . .
If there is not sufficient evidence to
establish beyond a reasonable doubt that he
is guilty of the offense of which he has been
convicted, then the verdict is plainly wrong
and it is our duty to set it aside. This we
are compelled to do because there is too much
that is contrary to human experience in her
version of the matter when analyzed in the
light of the facts and circumstances shown to
exist, to say that the guilt of the defendant
has been proved as the law requires.
We reach the same conclusion here. In this case, on this
specific set of facts and upon consideration of all the evidence,
we find that the prosecutrix's completely uncorroborated
testimony is insufficient to prove beyond a reasonable doubt that
the appellant committed the alleged offenses.
Reversed and dismissed.
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Annunziata, J., dissenting.
This case turns on the credibility of the prosecutrix. The
trial court, which had the opportunity we lack to observe the
prosecutrix testify, "to weigh her biases, her intelligence, her
demeanor, and her ability to recall and communicate facts
accurately," believed the prosecutrix and found that the evidence
constituted proof of appellant's guilt beyond a reasonable doubt.
See Fisher v. Commonwealth, 228 Va. 296, 300, 321 S.E.2d 202,
204 (1984). The majority concludes that the evidence was
insufficient to support the trial court's finding of guilt
because the prosecutrix's testimony is contrary to human
experience and inherently incredible as a matter of law. I
respectfully disagree.
The standard of review when the sufficiency of the evidence
is challenged on appeal is well settled. We construe the
evidence "in the light most favorable to the Commonwealth," grant
the Commonwealth "all reasonable inferences fairly deducible
therefrom," and "discard the evidence of the accused in conflict
with that of the Commonwealth." Cirios v. Commonwealth, 7 Va.
App. 292, 295, 373 S.E.2d 164, 165 (1988) (citations omitted);
see also Higginbotham v. Commonwealth, 216 Va. 349, 352, 218
S.E.2d 534, 537 (1975). Unless the trial court's judgment
appears to be plainly wrong or without evidence to support it, it
cannot be set aside. Code § 8.01-680; Josephs v. Commonwealth,
10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc).
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Furthermore, "[i]t is fundamental that ``the credibility of
witnesses and the weight accorded their testimony are matters
solely for the fact finder who has the opportunity of seeing and
hearing the witnesses.'" Collins v. Commonwealth, 13 Va. App.
177, 179, 409 S.E.2d 175, 176 (1991) (quoting Schneider v.
Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985)).
The trial judge's determination of the facts, based on the trial
judge's evaluation of the credibility of the witnesses, is
entitled to great weight. E.g., Satterwhite v. Commonwealth, 201
Va. 478, 483, 111 S.E.2d 820, 823-24 (1960).
The thirteen-year-old victim in this case was the child of
divorced parents. She resided with each parent at different
times. At the time of the offenses, she lived with her father,
the appellant, and her stepmother, with whom she did not have a
close relationship. Appellant referred to his daughter as "his
best girlfriend."
The child's bedroom in appellant's home was located adjacent
to that of appellant and his wife. The child testified that
during the month of January 1995, appellant entered her room
after she had fallen asleep, knelt at the side of her bed, put
his hands under her blankets and felt her breasts and vagina
under her nightshirt. She further testified that appellant
inserted his fingers inside her vagina. She testified that she
pushed appellant away, and he would "sometimes . . . come back,
and other times . . . would leave but [come] back." She also
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testified that on May 25, 1995, appellant entered her bedroom
where she was lying in bed on her side, knelt on the floor next
to her bed, rolled her onto her back and touched her breast and
vagina as he had done before. On this date, however, she stated
that her father also used his tongue to lick her vagina after
pulling her underpants to her knees.
Until the May incident, the child did not report the sexual
assaults, and she acknowledged that, although her stepmother was
asleep in the next room, she did not cry out for help. On May
31, she reported the incident to her school counselor.
The evidence showed that, between May 25 and 31, while
visiting her mother, the child remained out past her curfew and
her father had to be called to retrieve her. The evidence showed
that appellant was a strong disciplinarian who had imposed strict
rules governing the child's behavior and academic performance
with which the child was generally compliant. As a result of the
weekend incident, appellant threatened to ground the child for
the entire summer.
The appellant denied the child's accusations. He contended
the child had fabricated her story in response to his threat to
prohibit her social activities for the summer and because she
wanted to return to live with her mother, who was less strict and
who lived in closer proximity to the child's boyfriend. A friend
of appellant, who also considered himself a friend of the child,
testified that the child had told him in March 1995,
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approximately two months before the May restrictions were
imposed, that she would get even with her father for not allowing
her to see her boyfriend.
The child explained her delay in reporting the earlier
molestations. She stated that she was afraid and that she did
not want to lose her relationship with her father or have him go
to jail. She ultimately reported the occurrences "[b]cause it
happened so many times, [she] . . . was tired of it." The child
specifically denied having threatened to get even with her
father.
If believed, the child's testimony, even uncorroborated, is
sufficient to support the finding of guilt beyond a reasonable
doubt. See Fisher, 228 Va. at 299, 321 S.E.2d at 203; Willis &
Bell v. Commonwealth, 218 Va. 560, 563, 238 S.E.2d 811, 812
(1977). 1 The child's testimony was believed by the trier of
fact, which declined to credit appellant's contention the story
was fabricated. At the close of the evidence, the court made the
following finding:
The Court looked very closely at the demeanor
of all the witnesses, but more particularly
the Court looked at the demeanor of
[appellant] and also with [the child], and
. . . the Court is still struck with why [the
child] would come in court and subject
1
I note, however, that the child's testimony was not
wholly uncorroborated. Rather, the child reported the offenses
to her school counselor. "Evidence of an out-of-court complaint
. . . is admissible, not as independent evidence of the offense,
but as corroboration of the victim's testimony." Fisher, 228 Va.
at 300, 321 S.E.2d at 204 (citing Cartera v. Commonwealth, 219
Va. 516, 518, 248 S.E.2d 784, 786 (1978)).
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herself to this as well as to subject her
father to this type of prosecution, and the
Court was most convinced really by [the
child's] explanation as to why she didn't
tell anybody was because she was afraid for
her father, frankly, and she's indicated that
she didn't want what was happening to happen.
She didn't want to see him go to jail, and
she didn't want anything to happen to him,
and the Court basically has to make a
judgment call as to which one of these
witnesses is telling the truth about what
happened, and as a result the Court believes
[the child].
Because witness credibility was the essential issue
surrounding the child's alleged motivation to fabricate the
accusations, and the trial court resolved the conflicts in the
evidence against the appellant, the only basis upon which the
conviction can be reversed is to find the child's testimony
"inherently incredible, or so contrary to human experience or to
usual human behavior as to render it unworthy of belief." Willis
& Bell, 218 Va. at 563, 238 S.E.2d at 813. I do not believe the
standard was met in this case.
That the incidents escaped detection by the child's
stepmother, apparently asleep in an adjoining room during the
early morning occurrences, is neither surprising nor inherently
unworthy of belief. The crime at issue is one that can be
perpetrated clandestinely, considerably more clandestinely than
the crime of rape. It is not a crime that leaves observable,
tell-tale physical evidence or necessarily provokes outcries of
pain. Further, it is easy to understand a child's natural
reluctance to call out to her stepmother for help in repelling
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her father's sexual assault.
With respect to the delay in reporting the incident, a
reasonable explanation was given: this child of divorced parents
did not wish to see her father go to jail or otherwise get in
trouble. Her decision to protect her father, the perpetrator, is
not contrary to human experience, and delayed reporting is not
uncommon. See, e.g., Corvin v. Commonwealth, 13 Va. App. 296,
299, 411 S.E.2d 235, 237 (1991).
Finally, the timing of the child's report, following the
father's threat to prohibit the teenage child's social life for
an entire summer, also followed an escalation in the nature of
the sexually assaultive conduct. The impact of the last assault,
which involved an act of cunnilingus on the thirteen year old,
must be evaluated together with her father's threat to restrict
her social contacts. But the evaluation of the evidence on the
issue of motivation requires the trier of fact to weigh the
evidence, a matter beyond the purview of an appellate court and
peculiarly within the province of the trier of fact. See, e.g.,
Fisher, 228 Va. at 300, 321 S.E.2d at 204. While the father's
threat may arguably have provoked fabrication in retaliation, the
trial court resolved the issue in favor of the other reasonable
inference to be drawn from the evidence, viz., the child found
the continuing and escalating nature of the sexual assaults
totally unacceptable and when balanced against the need to
protect her father, she chose to protect herself. Finally, even
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if we assume the child was angered by the appellant's threat to
limit her social contacts, the trial court's implicit conclusion
that the anger provoked the timing of the report, not its
content, was reasonable and reflective of common human
experience.
In sum, the testimony of the prosecutrix, if believed, was
sufficient to support appellant's conviction. The trial court,
which had the full opportunity to observe and evaluate the
witnesses, believed the prosecutrix. "``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.'" Ketchum v. Commonwealth, 12 Va. App. 258, 263, 403
S.E.2d 382, 384 (1991) (quoting Bradley v. Commonwealth, 196 Va.
1126, 1136, 86 S.E.2d 828, 834 (1955)). I find that the record
does not support the majority's conclusion that the prosecutrix's
testimony was inherently incredible or contrary to human
experience.
I would affirm the convictions.
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