COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Powell and Senior Judge Coleman Argued at Richmond, Virginia

ERIC DOUGLAS ROSE MEMORANDUM OPINION * BY v. Record No. 0173-08-2 J UDGE CLEO E. POWELL SEPTEMBER 1, 2009 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF HENRICO COUNTY Daniel T. Balfour, Judge Steven D. Benjamin (Betty Layne DesPortes; Benjamin & DesPortes, P.C., on briefs), for appellant. John W. Blanton, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Eric Douglas Rose (“Rose”) appeals his convictions for object sexual penetration, in violation of Code § 18.2-67.2, and aggravated sexua l battery, in violati on of Code § 18.2-67.3. On appeal, Rose contends that there was insufficient evidence to support his convictions because the sole evidence against him consisted of th e uncorroborated testimony of the complaining witness who was impeached by her own inconsistent and contradictory testimony and statements. He further contends that the trial court erred as a matter of law in using the victim’s prior inconsistent statements to bolster her credibility. Finding no error, we affirm.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - BACKGROUND 1 On October 26, 2006, the victim, an eleven -year-old girl, was interviewed by the Department of Social Services and Investigat or Timothy Morris of th e Henrico County Police Department in response to a report that she had b een sexually assaulted. Th e victim alleged that, during the summer of 2005, she had spent the night at Rose’s house. At some point during the night, Rose placed his finger inside her vagina for approximately two minutes, until the victim slapped his hand away. Rose was subsequent ly arrested and charged with object sexual penetration and aggravated sexual battery. At trial, the Commonwealth re lied almost exclusively on the victim’s testimony. On cross-examination, the defense questioned the victim about the statement she gave to Investigator Morris as well as th e testimony she had previously give n at the preliminary hearing. The questioning revealed that the victim’s prio r statements and testimony regarding the sexual assault were significantly different from the testimony she had given at trial. 2 After the Commonwealth presented its evidence, Rose testifie d in his own defense and denied that he had ever touched the victim inappropriately. The tr ial court, sitting without a jury, found Rose guilty of both charges. Rose subsequently filed a motion to set asid e convictions. At the hearing on this motion, Rose argued that that the totality of the circum stances indicated that the victim’s testimony was

1 As the parties are fully conversant with th e record in this case, and because this memorandum opinion carries no precedential value, this opinion recites only those facts and incidents of the proceedings as are necessary to the parties’ understandin g of the disposition of this appeal.

2 The record indicates that the victim gave inconsistent statem ents with regard to 1) the number of times the victim claims to have slept in Rose’s bed; 2) why she went into Rose’s bedroom; 3) whether she was asleep before the to uching; 4) whether Rose was under or on top of the covers; 5) whether Rose talked to her or was silent during the touc hing; 6) what happened immediately after the touching; and 7) when the victim told her family about the touching.- 3 - not credible. Additionally, Rose argued that the victim impact statement filed by the victim’s mother after Rose was found guilty further contra dicted the victim’s testimony with regard to when the victim disclosed the incident to family members. The Commonwealth acknowledged that there were a number of inconsistencies be tween the victim’s previous statements, her testimony, and the victim impact statement that c ould not be explained. The court overruled the motion to set aside th e conviction, stating: The Court . . . has reread the stat ement, looked at various parts of the transcript, . . . read the victim’s statement, read it and marked up Dr. Nelson’s report, and looked at . . . the victim impact statement [written by the mother] . . . . As to this phase, that is looki ng at the Motion to Reconsider, I’ll repeat something I probably sa id the first time around, the inconsistencies in [a] case of this nature, in the court’s mind support [] the court’s original pos ition of finding the Defendant guilty more so than if she had come in and testified and said exactly the same thing all the way through. Sort of like the, for all of us who studied the New Testam ent, the four Gospels they are inconsistent in parts. And th at’s one reason they say they’re probably true. Because if they were all saying the same thing, it make me a little suspicious that they were fabricated. And so the inconsistencies don’t bothe r the court. . . . But to have the child testif[y] in lower court, testify here, and also talk to her family and also to Social Services, and even though there’s some differences and also some differences of the parent, the Court is convinced that it is beyond a reasonable doubt. Rose appeals to this Court.
ANALYSIS Rose asserts that the testimony offered at trial, specifically the victim’s testimony, was inherently incredible and insufficient to sustai n the trial court’s verdict. Additionally, Rose argues that the trial court erred, as a matter of law, in finding that the victim’s prior inconsistent statements actually bolstered her credibility and in relying on those prior in consistent statements in making its decision.- 4 - “When a defendant challenges on appeal the su fficiency of the evidence to sustain his conviction, it is the duty of an appellate court to examine the evidence th at tends to support the conviction and to permit the convict ion to stand unless the convicti on is plainly wrong or without evidentiary support.” Commonwealth v. Presley , 256 Va. 465, 466, 507 S.E.2d 72, 72 (1998). “If there is evidence to support the conviction, an appellate court is not permitted to substitute its own judgment for that of the finder of fact, ev en if the appellate court might have reached a different conclusion.” Id. It is well established that ‘“[t]he credibility of witnesses and the weight accorded their testimony are matters solely for the fact finder w ho has the opportunity of seeing and hearing the witnesses.’” Commonwealth v. Jackson , 276 Va. 184, 197, 661 S.E.2d 810, 816 (2008) (quoting Schneider v. Commonwealth , 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985)). The conclusions drawn by the fact finde r on credibility issues may be disturbed on appeal only if the appellate court finds that the w itness’ testimony was “inherently in credible, or so contrary to human experience as to re nder it unworthy of belief.” Fisher v. Commonwealth , 228 Va. 296, 299-300, 321 S.E.2d 202, 204 (1984). “In all other cases, we must defer to the conclusions of ‘the fact finder[,] who has the opportunity of seeing and hearing the witnesses.’” Ashby v. Commonwealth , 33 Va. App. 540, 548, 535 S.E.2d 182, 187 (2000) (quoting Schneider , 230 Va. at 382, 337 S.E.2d at 736-37). “These same principles apply in cases involv ing rape, sodomy and other sexual offenses, which ma y be sustained solely upon the testimony of the victim, even in the absence of corrobor ating evidence.” Id. at 548-49, 535 S.E.2d at 187. So long as a witness deposes as to facts which, if true, are sufficient to maintain their verdict, then the fact that the witness’ credit is impeached by contradict ory statements affects only the witness’ credibility; contradictor y statements by a witness go not to competency but to the weight and sufficiency of the testimony.- 5 - If the trier of the facts sees fit to base the verdict upon that testimony there can be no reli ef in the appellate court. Swanson v. Commonwealth , 8 Va. App. 376, 379, 382 S.E.2d 258, 259 (1989). In the present case, as in mo st cases of this nature, it is undisputed that the only people present at the time of the incide nt were Rose and the victim. As their testimony was mutually exclusive, it was well within the province of th e trial court to determine who was telling the truth. It is clear in th is case that the trial judge chose to believe the victim’s inconsistent testimony over Rose’s self-serving testimony. “In its role of judging witne ss credibility, the fact finder is entitled to disbelieve the self-serving testimony of the accu sed and to conclude that the accused is lying to conceal his guilt.” Marable v. Commonwealth , 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998). Accordingly, we hold that the evidence was sufficient to sustain the trial court’s verdict. Rose next argues that the trial court imprope rly found that the victim ’s prior inconsistent statements actually bolstered her credibility. Sp ecifically, Rose asserts that by referencing the victim’s prior inconsistent statements, “the trial court was using them as evidence of the truth of the allegations, contrary to the law.” We disagree. “The fact that a witness makes inconsistent statements in regard to the subject matter under investigation does not render [her] test imony nugatory or unworthy of belief.” Swanson , 8 Va. App. at 378, 382 S.E.2d at 259. Rather, “[i]nc onsistent statements by a witness go to the weight and sufficiency of the testimony, not the competency of the witness.” Fordham v. Commonwealth , 13 Va. App. 235, 240, 409 S.E.2d 829, 832 (1991). However, our Supreme Court has admonished that a prior inconsistent statement is neither substantive nor “evidence of the truth of the earlier account.” Royal v. Commonwealth , 234 Va. 403, 405, 362 S.E.2d 323, 324 (1987). Rather, “[ a] prior inconsiste nt statement is received into evidence exclusively to attack the credibility of the witness who has given different- 6 - accounts of the facts at different times.” Id. (emphasis added). Taking the holding in Royal to its logical conclusion, a necessary corollary is that prio r inconsistent statements cannot be used to bolster the credib ility of a witness. Rose’s argument focuses specifically on the statements made by the trial court during the hearing on the motion to reconsider. In respond ing to defense counsel’s argument on the motion to reconsider, the trial court stated: The Court . . . has reread the stat ement, looked at various parts of the transcript, . . . read the victim’s statement, read it and marked up Dr. Nelson’s report, and looked at . . . the victim impact statement [written by the mother] . . . . As to this phase, that is looki ng at the motion to reconsider, I’ll repeat something I probably sa id the first time around, the inconsistencies in [a] case of this nature, in the court’s mind support [] the court’s original pos ition of finding the Defendant guilty more so than if she had come in and testified and said exactly the same thing all the way through. Sort of like the, for all of us who studied the New Testam ent, the four Gospels they are inconsistent in parts. And th at’s one reason they say they’re probably true. Because if they were all saying the same thing, it make me a little suspicious that they were fabricated. And so the inconsistencies don’t bothe r the court. . . . But to have the child testif[y] in lower court, testify here, and also talk to her family and also to Social Services, and even though there’s some differences and also some differences of the parent, the Court is convinced that it is beyond a reasonable doubt. Rose argues that the inconsiste ncies the trial court is referr ing to in the second paragraph are the inconsistencies in the victim’s testimony. In so doing, according to Rose, the trial court is utilizing the victim’s inconsistent statem ents to improperly bolster her credibility. The trial court, however, begins by stating, “The Court . . . has re read the statement, looked at various parts of the transcript, . . . r ead the victim’s statement, read it and marked up Dr. Nelson’s report, and looked at . . . the victim impact statement.” Thus, it is clear that the inconsistencies that the trial court is referring to are the inconsistencies between the victim’s- 7 - testimony, Dr. Nelson’s report, and the victim im pact statement (which was prepared by the victim’s mother). The trial court’s subsequent discussion of the four Go spels further indicates that it was referring to multiple individuals rec ounting the same event as opposed to one person recounting the same event multiple ways. The trial court then took the position that the inconsistencies between these renditions support the verdict more so than if the victim had “tes tified and said exactly the same thing all the way through.” As the trial court noted with its gospel analogy, it is not unusual, and indeed expected, that different people might recount the same event differently. Indeed, such a comparison is exactly what Rose asked the trial court to do in the motion to reconsider, that is, to compare what the victim said to what the mother said the victim said. The fact Rose’s defense centered around the notion that Rose’s ex-wife and the victim’s mother had convinced the victim to fabricate the story further supports this interpretation of the trial court’s statements. If Rose ’s ex-wife and the victim’s moth er had convinced the victim to fabricate the story, there is less of a likelihood that there would be inconsistencies between the victim’s testimony and the victim impact statement. As the trial court stated, “[b]ecause if they were all saying the same thing, it would make me a little suspicious that they were fabricated.” Most importantly, a contextual reading of the trial court’s third paragraph indicates that the trial court properly weighed the inconsistencies. In the third paragrap h, the trial court stated that “the inconsistencies don’t bot her the court,” thus indicating th at the trial court was aware of the inconsistencies and determined that they did not render the victim unbelievable. “Prior inconsistent testimony is a factor in determini ng the credibility of a w itness, but it does not automatically render the witness’ testimony incredible.” Fordham , 13 Va. App. at 240, 409 S.E.2d at 832.- 8 - Additionally, when referring to the victim’s inc onsistent statements, the trial court stated,

“ even though there’s some differences.” (Emphasi s added). The use of the phrase “even though” indicates the trial court reco gnized that the inconsistent st atements were an attack on the victim’s credibility, but still found her to be cred ible. If Rose were correct and the trial court used the victim’s prior inconsistent statements to bolster her credibility, the trial court would have necessarily found that she was credible “ because there’s some differences [in the victim’s prior statements and testimony].” Thus, alt hough the victim gave several inconsistent statements, the record reflects that the tria l court recognized and properly weighed those

statements. CONCLUSION For the foregoing reasons, we affirm Rose’s convictions of object sexual penetration and aggravated sexual battery. Affirmed.