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on August 26, 1997 is withdrawn and the mandate entered that date is 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. 
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This order shall be published and certified to the trial 

court. 

 A Copy, 

 Teste: 

 Clerk 
 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 
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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.