COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Baker and Bray 

Argued at Norfolk, Virginia 

TIMOTHY WAYNE STARNES 

 MEMORANDUM OPINION* BY 

v. Record No. 0905-97-1 JUDGE RICHARD S. BRAY 

 APRIL 28, 1998 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Verbena M. Askew, Judge 

 Karen M. Vannan (Buxton, Lasris & Vannan, 

P.L.C., on brief), for appellant. 

 Michael T. Judge, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 Timothy Wayne Starnes (defendant) was convicted in a bench 

trial of forcible sodomy of a child less than thirteen years of 

age in violation of Code § 18.2-67.1. On appeal, defendant 

complains that (1) the evidence was insufficient to support a 

conviction for the offense charged in the subject indictment, and 

(2) the trial court erroneously refused to postpone execution of 

sentence during the pendency of this appeal. Finding no error, 

we affirm the conviction. 

 The parties are fully conversant with the record, and this 

memorandum opinion recites only those facts necessary to the 

disposition of the appeal. 

 The victim of the alleged offense (child hereafter), the 

eldest child of defendant and Tamara Starnes Ducy (Ducy), was 

 *

Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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born on July 2, 1987. He suffers from a learning disability and 

Asperger's Syndrome1

 and requires specialized education. Deborah 

Higginbotham, a Licensed Clinical Social Worker and "play 

therapist," testified that "Asperger's children" have 

"difficulty" with "communication," "social skills," and 

"express[ion]," despite "average to high average intelligence" 

and "excellent wrote [sic] memory." 

 The child's parents separated on November 8, 1991. 

Incidental to the attendant divorce proceedings, Ducy alleged 

that defendant had physically abused her and obtained an order 

restricting defendant to supervised visitation with the children. 

 However, the final decree of divorce, entered January 3, 1994, 

while awarding Ducy custody of the children, reserved to 

defendant "reasonable, unsupervised visitation." (Emphasis 

added). Ducy remarried in May, 1994. 

 In February, 1995, Ducy accused defendant of improper sexual 

contact with the child and unilaterally terminated visitation. A 

related investigation by Child Protective Services, which 

included an interview with the child, resulted in a report dated 

March 21, 1995, that the allegations were "unfounded." 

Nevertheless, Ducy continued to deny defendant visitation, and he 

 1

"Asperger's Disorder" is characterized by "severe and 

sustained impairment in social interaction and the development of 

restricted, repetitive patterns of behavior, interests and 

activities," causing "clinically significant impairment in 

social, occupational or other important areas of functioning." 

Diagnostic and Statistical Manual of Mental Disorders § 299.80 

(4th ed., 1994). 
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petitioned the juvenile and domestic relations district court for 

relief in June, 1995. 

 Ducy thereafter notified the child's therapist that the 

child had reported additional prior sexual abuse by defendant. 

The subsequent investigation included a videotaped interview 

between the child, Newport News Detective William Hayes, and a 

representative from Social Services on July 26, 1995. 

Apparently, no action immediately resulted from this inquiry, and 

defendant was granted supervised visitation by the juvenile and 

domestic relations district court. However, following a third, 

audiotaped interview of the child by Detective Hayes on March 16, 

1996, the Commonwealth initiated the instant prosecution.2

 At trial, the child testified repeatedly that defendant 

"suck[ed] on [his] wee wee," demonstrating such conduct by 

touching the head of an adult doll to the genitalia of an 

anatomically correct child doll. The child further testified 

that he was six years old when the "[f]ifty" incidents occurred 

and recalled that "every time [defendant] sucks on my wee wee, he 

tells me not to tell." Despite confused statements to the 

contrary during both the videotaped and audiotaped interviews 

with police, the child denied that defendant had ever placed his 

penis in the child's mouth and remembered no sexual contact with 

or between other members of his family. 

 On appeal, we view the evidence in the light most favorable 

2

Both the video and audiotapes are a part of the record and 

have been reviewed by this Court. 
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to the Commonwealth and grant to it all reasonable inferences 

fairly deducible therefrom. Higginbotham v. Commonwealth, 216 

Va. 349, 352, 218 S.E.2d 534, 537 (1975). "The credibility of 

witnesses is a matter for the [fact finder] to decide, weighing 

such factors as the appearance and manner of the witnesses on the 

stand, their intelligence, their opportunity for knowing the 

truth and observing the things about which they testify, their 

interest in the outcome of the case, their bias, and if any had 

been shown, their prior inconsistent statements . . . ." Mullis 

v. Commonwealth, 3 Va. App. 564, 571, 351 S.E.2d 919, 923 (1987) 

(citing Zirkle v. Commonwealth, 189 Va. 862, 870, 55 S.E.2d 24, 

29 (1949). A finding based "'upon the credibility of the 

witnesses and the weight to be given their evidence, . . . unless 

. . . plainly wrong, or without evidence to support it, . . . 

cannot be disturbed.'" Yates v. Commonwealth, 4 Va. App. 140, 

143, 355 S.E.2d 14, 16 (1987) (quoting Lane v. Commonwealth, 184 

Va. 603, 611, 35 S.E.2d 749, 753 (1945)). 

 This well established principle of appellate review simply 

recognizes the fact finder's unique relationship with the 

"'living record, as distinguished from a printed record.'" See

Swanson v. Commonwealth, 8 Va. App. 376, 379, 382 S.E.2d 258, 259 

(1989) (quoting Bradley v. Commonwealth, 196 Va. 1126, 1136, 86 

S.E.2d 828, 834 (1955)). "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 
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conclusions of those who have seen and heard them." Id. Thus, 

 [s]o long as a witness deposes as to facts 

which, if true, are sufficient to maintain 

[a] 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. If 

the trier of the facts sees fit to base the 

verdict upon that testimony there can be no 

relief in the appellate court. 

Id. (citing Simpson v. Commonwealth, 199 Va. 549, 557-58, 100 

S.E.2d 701, 707 (1957)). 

 Here, defendant did not challenge the child's competency as 

a witness but, rather, the credibility of his trial testimony 

when considered together with his inconsistent and oftentimes 

nonsensical statements to police, the child's particular 

limitations, and defendant's custody dispute with Ducy. However, 

 [t]he trial court had the opportunity, which 

we lack, to observe and weigh [child's] 

biases, [his] intelligence, [his] demeanor, 

and [his] ability to recall and communicate 

facts accurately. The trial court believed 

[his] testimony and found that the evidence 

constituted proof of guilt beyond a 

reasonable doubt. The evidence was neither 

incredible nor so contrary to human 

experience as to render it unworthy of 

belief. We will not, therefore, disturb the 

trial court's findings on appeal. 

Fisher v. Commonwealth, 228 Va. 296, 300, 321 S.E.2d 202, 204 

(1984). Accordingly, we find the evidence sufficiently 

established defendant's violation of Code § 18.2-67.1. 

 Defendant further argues that the evidence failed to prove 

that an offense occurred between January 1, 1994 and July 1, 
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1994, as alleged in the indictment and detailed in the 

Commonwealth's Bill of Particulars. The evidence, viewed in the 

light most favorable to the Commonwealth, establishes that the 

crime occurred during weekend visitations with defendant when the 

child was six years of age. Such visitation commenced in 

January, 1994, and continued through February, 1995. The child 

was seven years old on July 2, 1994. Therefore, the evidence 

sufficiently established that the offense was committed within 

the specified time span. 

 Lastly, defendant complains that the trial court erroneously 

refused to suspend the execution of sentence during the pendency 

of this appeal. Finding this issue moot, we decline to address 

it. 

 Accordingly, we affirm the conviction. 

 Affirmed.