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 JUDGE CLEO E. POWELL 

 SEPTEMBER 1, 2009 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT 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 sexual battery, in violation 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 the 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 opinion is not designated for publication. 
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BACKGROUND1

On October 26, 2006, the victim, an eleven-year-old girl, was interviewed by the 

Department of Social Services and Investigator Timothy Morris of the Henrico County Police 

Department in response to a report that she had been sexually assaulted. The 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 subsequently arrested and charged with object sexual 

penetration and aggravated sexual battery. 

At trial, the Commonwealth relied 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 the testimony she had previously given at the preliminary hearing. 

The questioning revealed that the victim’s prior 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 testified in his own defense and denied that he had 

ever touched the victim inappropriately. The trial court, sitting without a jury, found Rose guilty 

of both charges. 

 Rose subsequently filed a motion to set aside convictions. At the hearing on this motion, 

Rose argued that that the totality of the circumstances indicated that the victim’s testimony was 

1

 As the parties are fully conversant with the 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’ understanding of the disposition of 

this appeal. 

2

 The record indicates that the victim gave inconsistent statements 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 touching; 4) whether Rose was under or on top of 

the covers; 5) whether Rose talked to her or was silent during the touching; 6) what happened 

immediately after the touching; and 7) when the victim told her family about the touching. 
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not credible. Additionally, Rose argued that the victim impact statement filed by the victim’s 

mother after Rose was found guilty further contradicted 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 between the victim’s previous statements, her 

testimony, and the victim impact statement that could not be explained. The court overruled the 

motion to set aside the conviction, stating: 

The Court . . . has reread the statement, 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 looking at the Motion to Reconsider, I’ll 

repeat something I probably said the first time around, the 

inconsistencies in [a] case of this nature, in the court’s mind 

support [] the court’s original position 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 Testament, the four Gospels they are 

inconsistent in parts. And that’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 bother 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 sustain 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 inconsistent statements 

in making its decision. 
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 “When a defendant challenges on appeal the sufficiency of the evidence to sustain his 

conviction, it is the duty of an appellate court to examine the evidence that tends to support the 

conviction and to permit the conviction to stand unless the conviction 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, even 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 who 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 finder on credibility issues may be disturbed on appeal only if the 

appellate court finds that the witness’ testimony was “inherently incredible, or so contrary to 

human experience as to render 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 involving rape, sodomy and 

other sexual offenses, which may be sustained solely upon the testimony of the victim, even in 

the absence of corroborating 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 contradictory statements affects only the 

witness’ credibility; contradictory statements by a witness go not 

to competency but to the weight and sufficiency of the testimony. 
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If the trier of the facts sees fit to base the verdict upon that 

testimony there can be no relief 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 most cases of this nature, it is undisputed that the only people 

present at the time of the incident were Rose and the victim. As their testimony was mutually 

exclusive, it was well within the province of the trial court to determine who was telling the 

truth. It is clear in this case that the trial judge chose to believe the victim’s inconsistent 

testimony over Rose’s self-serving testimony. “In its role of judging witness credibility, the fact 

finder is entitled to disbelieve the self-serving testimony of the accused 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 improperly found that the victim’s prior inconsistent 

statements actually bolstered her credibility. Specifically, 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] testimony nugatory or unworthy of belief.” Swanson, 8 

Va. App. at 378, 382 S.E.2d at 259. Rather, “[i]nconsistent 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 inconsistent statement is 

received into evidence exclusively to attack the credibility of the witness who has given different 
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accounts of the facts at different times.” Id. (emphasis added). Taking the holding in Royal to 

its logical conclusion, a necessary corollary is that prior inconsistent statements cannot be used 

to bolster the credibility 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 responding to defense counsel’s argument on the motion 

to reconsider, the trial court stated: 

The Court . . . has reread the statement, 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 looking at the motion to reconsider, I’ll 

repeat something I probably said the first time around, the 

inconsistencies in [a] case of this nature, in the court’s mind 

support [] the court’s original position 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 Testament, the four Gospels they are 

inconsistent in parts. And that’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 bother 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 inconsistencies the trial court is referring 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 statements to improperly bolster her credibility. 

 The trial court, however, begins by stating, “The Court . . . has reread the statement, 

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.” Thus, it is clear that the 

inconsistencies that the trial court is referring to are the inconsistencies between the victim’s 
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testimony, Dr. Nelson’s report, and the victim impact statement (which was prepared by the 

victim’s mother). The trial court’s subsequent discussion of the four Gospels further indicates 

that it was referring to multiple individuals recounting 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 “testified 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 mother 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 paragraph, the trial court stated 

that “the inconsistencies don’t bother the court,” thus indicating that 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 determining the credibility of a witness, but it does not 

automatically render the witness’ testimony incredible.” Fordham, 13 Va. App. at 240, 409 

S.E.2d at 832. 
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Additionally, when referring to the victim’s inconsistent statements, the trial court stated, 

“even though there’s some differences.” (Emphasis added). The use of the phrase “even 

though” indicates the trial court recognized that the inconsistent statements were an attack on the 

victim’s credibility, but still found her to be credible. 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, although the victim gave several inconsistent 

statements, the record reflects that the trial 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.