COURT OF APPEALS OF VIRGINIA 

Present: Judges Bumgardner, Humphreys and Clements 

Argued at Salem, Virginia 

SHAWN WAYNE BREEDEN 

 MEMORANDUM OPINION* BY 

v. Record No. 0404-02-3 JUDGE RUDOLPH BUMGARDNER, III 

 JANUARY 28, 2003 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY 

John J. McGrath, Jr., Judge 

 Aaron L. Cook (Aaron L. Cook, PC, on brief), 

for appellant. 

 Donald E. Jeffrey, III, Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief) for appellee. 

A jury convicted Shawn Wayne Breeden of forcible sodomy and 

object sexual penetration in violation of Code §§ 18.2-67.1 and 

18.2-67.2. He contends the evidence was insufficient to prove 

penetration for either offense and the Commonwealth failed to 

prove the chain of custody for evidence analyzed by the state 

laboratory. We reverse the conviction of sodomy and affirm the 

conviction of object sexual penetration. 

On appeal, we view the evidence and all reasonable 

inferences therefrom in the light most favorable to the 

Commonwealth. Commonwealth v. Taylor, 256 Va. 514, 516, 506 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
S.E.2d 312, 313 (1998). The nine-year-old victim was spending 

the night at the home of the defendant's sister. The victim 

testified the defendant kneeled beside the bed where she was 

sleeping and touched her vagina with his fingers and tongue. 

She told the investigator and the nurse that the defendant was 

licking her "between her legs," but she did not know whether his 

tongue went inside her vagina.1 His fingers touched her "around 

the outside," but she could not recall whether his finger went 

inside. 

Penetration is an element of forcible sodomy. Code 

§ 18.2-67.1; Hudson v. Commonwealth, 141 Va. 525, 527, 127 S.E. 

89, 89 (1925). It is also an element of object sexual 

penetration. Code § 18.2-67.2. In both cases the defendant 

must penetrate the external part of the female genitalia. 

 1

 At trial, the Commonwealth's attorney questioned the 

victim: 

Q: What body part was he touching? 

A: I call it the vagina. 

Q: And what part of his body was touching your 

vagina? 

A: His fingers and his tongue. 

 The Court then questioned the victim: 

 

COURT: . . . [Y]ou also indicated that he was licking 

your vagina? 

A: Yes. 

 COURT: And did his tongue go inside of you? Could 

you feel it going in a short distance? 

A: I don't know. 

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Horton v. Commonwealth, 255 Va. 606, 612-13, 499 S.E.2d 258, 261 

(1998); Code § 18.2-67.2. 

The victim's testimony established contact, but did not 

establish penetration from either act. The nine-year-old victim 

used the term "vagina" and responded affirmatively when asked, 

"Do you know your body parts?" However, the record gives no 

indication that she used the term "vagina" as a precise 

anatomical term. As stated in Moore v. Commonwealth, 254 Va. 

184, 190, 491 S.E.2d 739, 742 (1997), "there is no indication 

whatever in the record that the young victim here was aware of 

the intricate structure of her sexual organ." As further 

explained in Horton, she "used the term 'vagina' generally to 

describe the external portion of her genitalia." 255 Va. at 

615, 499 S.E.2d at 262. 

While the victim's testimony did not establish penetration, 

the medical evidence proved digital penetration. The sexual 

assault nurse examiner examined the victim a few hours after the 

assault. She described the victim's genital area as very 

swollen and reddened. The nurse observed a slight tear in the 

vaginal vault just beyond the hymen, which was swollen. She 

described it as "a significant tear in a child" because it was 

visible with the naked eye. The tear was "a typical injury from 

something either rubbing against or touching that would have 

stretched that area." Something was either "inserted" into the 

vagina or "some kind of pressure" caused stretching of the area. 

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The injury could not have been self-inflicted, but a finger 

could have caused it. 

The nurse testified the victim had a tear in the "vaginal 

vault" beyond her hymen. Insertion or pressure to the area 

caused the tear. The nurse used the anatomical terms precisely. 

Even the act of applying pressure to that area required that the 

defendant had penetrated the labia majora. Code § 18.2-67.2 

provides, "an accused is guilty of inanimate . . . object sexual 

penetration if he . . . penetrates the labia majora . . . of a 

complaining witness . . . ." 

The victim's testimony was insufficient to prove 

penetration, but when coupled with the medical testimony, the 

evidence proved the defendant penetrated the victim with his 

finger. "Given the circumstantial evidence of [digital] 

penetration adduced by the Commonwealth in this case, the [fact 

finder] could rationally discount the uncertainty reflected in 

the prosecutrix's testimony . . . ." Elam v. Commonwealth, 229 

Va. 113, 115, 326 S.E.2d 685, 687 (1985) (although victim's 

testimony did not prove penetration, when coupled with medical 

and forensic evidence, the evidence was sufficient). However, 

the medical evidence that proved digital penetration negated 

penetration during sodomy. The nurse stated a tongue could not 

have created the tear she observed. Accordingly, the 

Commonwealth failed to prove penetration for sodomy. 

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The defendant contends the trial court erred in admitting 

the certificate of analysis of the DNA evidence. He maintains 

there was a break in the chain of custody because the 

Commonwealth failed to call the evidence clerk who placed the 

package in the mail. The Commonwealth proved all steps in the 

chain of evidence from the time it was obtained by the nurse 

until it was wrapped and sealed, and placed intact for the clerk 

to mail. It also proved the laboratory received the package 

unaltered. When returned to the police department, the only 

alteration to the package and its seal was that made by the 

forensic scientist during testing. 

The evidence proved the evidence was sealed before being 

left for the evidence clerk to mail. The laboratory received it 

in the same condition, and returned it to the police department. 

The police received it in the same condition as it left the 

laboratory. "A chain of custody is properly established when 

the Commonwealth's evidence provides reasonable assurance that 

the sample to be admitted at trial is the same sample, and in 

the same condition, as when it was first obtained." Johnson v. 

Commonwealth, 259 Va. 654, 678, 529 S.E.2d 769, 783, cert. 

denied, 531 U.S. 981 (2000). The evidence permits the finding 

that the evidence was in the same condition as when obtained. 

"[T]he Commonwealth is not required to eliminate every 

conceivable possibility of substitution, alteration, or 

tampering." Id. 

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"Where there is mere speculation that contamination or 

tampering could have occurred, it is not an abuse of discretion 

to admit the evidence and let what doubt there may be go to the 

weight to be given the evidence." Reedy v. Commonwealth, 9 

Va. App. 386, 391, 388 S.E.2d 650, 651-52 (1990). The 

Commonwealth proved the chain of custody, and the trial court 

did not abuse its discretion in admitting the evidence. 

Accordingly, we affirm the conviction of object sexual 

penetration, and we reverse the conviction of sodomy. 

 Affirmed in part, and 

reversed in part.

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