COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Clements and Petty Argued at Salem, Virginia

CHAD WILLIAM EDWARD ROBESON MEMORANDUM OPINION * BY v. Record No. 1795-07-3 JUDGE WILLIAM G. PETTY MAY 27, 2008 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF BOTETOURT COUNTY Michael S. Irvine, Judge Thomas E. Wray for appellant. Karen Misbach, Assistant At torney General II (Robert F. McDonnell, Attorney General, on brief), for appellee.
Following a bench trial, a ppellant, Chad William Edward Robeson, was convicted of sodomy of a child in violation of Code § 18.2-67.1. He challenges this convic tion, arguing that the trial court abused its discretion when it allowed the Commonwealth to reopen its ca se-in-chief and that the evidence adduced below wa s insufficient to support his convic tion. We disagree and affirm Robeson’s conviction.
I. B ACKGROUND On appeal, we review the evidence in the “light most favorable to” the Commonwealth. Commonwealth v. Hudson , 265 Va. 505, 514, 578 S. E.2d 781, 786 (2003) (c itation omitted). This principle requires us to “‘discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence fa vorable to the Co mmonwealth and all fair inferences that may be drawn therefrom.’” Kelly v. Commonwealth , 41 Va. App. 250, 254, 584

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - S.E.2d 444, 446 (2003) ( en banc ) (quoting Watkins v. Commonwealth , 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998)). The record establishes that the victim, H. H., had known Robeson si nce she was six years old. He was a friend of her brother, and had lived with her family “off and on” fo r some time. At the time of the offense, H.H. wa s twelve and Robeson was nineteen. On the victim’s last day of school, she and Robeson, whom sh e considered her boyfri end, were alone together when he began kissing her. Eventually , H.H. unbuttoned her pants and “he st arted kissing [her] there.” H.H. described the crime as follows: [Commonwealth’s attorney]: And you said that you unbuttoned your pants and did he, did he have oral sex with you? [H.H.]: Yes. [Commonwealth’s attorney]: Okay. And do you know how long that lasted? [H.H.]: Right around five minutes, five to ten minutes. [Commonwealth’s attorney]: Okay. And were you, did he say anything to you at the time or di d you say anything to him at the time? [H.H.]: No. [Commonwealth’s attorney]: [W]hat made the act stop? [H.H.]: Well I knew my mo m was coming home in a few minutes . . . . * * * * * * * [Commonwealth’s attorney]: And when did you first tell somebody about this? [H.H.]: Well I, at first I had a urinary tract inf ection and my mom took me to the doctor. And they ga ve me medicine and then it just kept on and kept on . . . . * * * * * * * [H.H.]: Later we found out it was Herpes Type I . . . .- 3 - * * * * * * * [Commonwealth’s attorney]: Okay. And is, I guess, is [Robeson] the only person that you ’ve done this with? [H.H.]: Yes. [Commonwealth’s attorney]: Okay. And the herpes that you had was in your vaginal area? [H.H.]: Yes. [Commonwealth’s attorney]: Okay. The person who, as you indicated, I guess, had his mouth in your vagina, is he in the courtroom? [H.H.]: Yes. [Commonwealth’s attorney]: Could you point him out please? [H.H.]: I’m sorry, what was the question? [Commonwealth’s attorney]: Th e person, I guess the person who performed this act, is he in the courtroom? * * * * * * * [Commonwealth’s attorney]: Okay. The record reflects she identified the defendant, Your Honor. After H.H. was diagnosed with herpes, she told her mother about this incident. Following an investigation, Investigator M.E. McFarland of the Botetourt County Sheriff’s Office arrested Robeson. At trial, the Comm onwealth introduced a taped conversation be tween McFarland and Robeson containing the following dialog: [McFarland]: [T]he situation betw een you and [H.H.] and the oral sodomy of her [sic]. And we call it oral sodomy but it’s oral sex. You know what I’m, do you know what I’m talking about? [Robeson]: Yeah. [McFarland]: Okay, and that bei ng the last situation where your mouth was on her vaginal area and that was um, the end, it happened over the course of about five times, um, over the last year. Um, was it any more than that, or was it just that? [Robeson]: That, that was it.- 4 - [McFarland]: Just the oral part? [Robeson]: Oral, yeah. * * * * * * * [McFarland]: Okay, and there were times that her mouth was on you? [Robeson]: Yeah. [McFarland]: And I mean your penis and times that your mouth was on her vaginal area. A nd it was no more than that? [Robeson]: No more than that. * * * * * * * [McFarland]: And did you know she was twelve when you had oral sex with her? [Robeson]: Yeah. At the conclusion of Inve stigator McFarland’s testimony , the Commonwealth rested. Robeson moved to strike, arguin g that the Commonwealth had not presented evidence on the element of penetration. The Co mmonwealth responded that the vi ctim’s testimony, as well as Robeson’s confession to Investigator McFarland, were sufficient to prove that element of the offense. The Commonwealth’s attorney also argued that the victim testifie d that Robes on’s “mouth [was] in [her] vagin a” in answer to a question th at the Commonwealth’s attorney specifically asked. After some discussion, and after the trial court and the parties listened to the transcript tape of the victim’s testimony, the Commonweal th moved to reopen its case to recall the victim to clarify whether there had been penetratio n. The trial court granted th e Commonwealth’s motion, and made the following statement: When the question was asked to the child witness, the question was a leading question, it was not objecte d to but it was is the person who had his mouth in your vagina in the courtroom today and the answer to that was yes. The pr oblem the Court ha s is that the [victim] really didn’t say that other than the person’s in the courtroom. She had never previously testified that his mouth was- 5 - in her vagina. . . . I mean she said yes, the person is in the courtroom. But she had never said where his mouth was other than he had kissed her. I’m going to grant the Commonwealth’s motion to reopen the case. I’m going to clar ify this to see really where his mouth was. That’s the crux of the case. That’s within the discretion of the Court. The Commonwealth’s attorney then recalle d the victim, who test ified as follows: [Commonwealth’s attorney]: Du ring the five minute period that you described that he was having oral sex with you [sic]. I mean what were you feeling, what did he do? If you remember. [H.H.]: Well I can’t remember exactly, you know, but it kind of felt wet. * * * * * * * [Commonwealth’s attorney]: Oka y, and where did it feel like he was touching? [H.H.]: Well on my vagina. [Commonwealth’s attorney]: Do you know whether it was his mouth or his tongue [touching you]? [H.H.]: [I]t probably was his tongue. * * * * * * * [Commonwealth’s attorney]: We re you watching what he was doing? [H.H.]: No. [Commonwealth’s attorney]: Okay. So this is just based on what you felt? [H.H.]: Yeah. * * * * * * * [Trial Court]: What they’re trying to figure out, [H.H.], and this is probably kind of simple. [The Commonwealth’s attorney] has asked you about the opening at your vagina. [H.H.]: Um-hmm. [Trial Court]: Was he inside or outside?- 6 - [H.H.]: He was inside. [Trial Court]: And he was insi de with what you think was his tongue or something wet? [H.H.] Yes. * * * * * * * [Commonwealth’s attorney]: You also feel like he was on the outside as well? [H.H.]: Yeah. [Commonwealth’s attorney]: Is th at what you’re, I mean is that true? [H.H.]: Yeah. [Commonwealth’s attorney]: Do you feel like he was on the outside as well . . . ? [H.H.]: Yeah. The trial court determined that the Commonwealth met its burden. Accordingly, the trial court denied Robeson’s motion to strike. The trial court ultimately found Robeson guilty, and subsequently sentenced him to twenty-five years in prison with twenty years suspended. This appeal followed.
II. A NALYSIS A. Reopening The Commonwealth’s Case Robeson contends that the trial court abused its discretion by allo wing the Commonwealth to reopen its case and subm it further evidence on the element of penetration. Based on our review of the record and the appl ication of relevant legal principles, we disagree. Standard of Review “We have long followed the rule that the or der of proof is a matt er within the sound discretion of the trial co urt and [a reviewing court] will not reverse the judgment . . . unless it affirmatively appears that this discretion has been abused.” Hargraves v. Commonwealth , 219 Va.- 7 - 604, 608, 248 S. E.2d 817, 817 (1978) (citing Flick v. Commonwealth , 97 Va. 766, 774, 34 S.E. 39, 42 (1899); Mundy v. Commonwealth , 161 Va. 1049, 1064, 171 S.E. 691, 696 (1 933)). This rule includes the principle that th e trial court may, in its disc retion, determine whether “the Commonwealth should be perm itted to introduce additi onal evidence in chief af ter it has rested.” Chrisman v. Commonwealth , 3 Va. App. 371, 375-76, 349 S. E.2d 899, 902 (1986) (citations omitted). “When all of the testim ony has been concluded – and all of the witnesses excused – if the trial court exercises its di scretion and permits the introduction of other testimony, the record must affirmatively show that the trial court abused its di scretion if the appellate court is to reverse based on the trial court’s ruling” allowing th e Commonwealth to re open its case. Id. at 376, 349 S.E.2d at 902. Discussion While the trial court has wide discretion in determining whethe r to allow a party to reopen its case, “such discretion is judicial and not arbitrary.” Fink v. Higgins Ga s & Oil Co., Inc. , 203 Va. 86, 89, 122 S.E.2d 539, 542 (1961). Prior decisions of this Court and our Supreme Court have given us guidance in dete rmining whether a trial court abuses its discretion in permitting further evidence. First, the trial court’s discre tion “should be reasonably exercised so as not to injure the [non-moving] party th rough surprise or otherwise, and so as not to deprive either party of the opportunity to introduce material evidence.” Id. For instance, in Fink , a personal injury case, the Virginia Supreme Court reversed a trial court’s refusal to allow the plaintiff to reopen his case. There, the Court looked to the fact that the plaintiff had fa iled to introduce evidence regarding causation due to a mere oversight and would have been ab le to introduce the evidence in question “without any inconvenience to the defendant and with no appreciable amount of delay.” Id. at 91, 122 S.E.2d at 543 (citation omitted). In Lebedun v. Commonwealth , 27 Va. App. 697, 715-16,- 8 - 501 S.E.2d 427, 436 (1 998), this Court affirm ed the trial court’s sua sponte decision to allow the Commonwealth to reopen its case after the tria l court noticed that th e Commonwealth did not present an in-court identification of the defendant. We stated, “[a]lthough the trial judge is a neutral and impartial arbiter and sh ould not abandon that ro le by becoming an advo cate, the trial judge is not required to sit idly and obse rve a miscarriage of justice occu r because one party inadvertently overlooks establishing a routine element of proof [,]” and concluded that the trial court had not abused its discretion in al lowing further evidence. Id. at 716, 501 S.E.2d at 436.
In Chrisman , 3 Va. App. at 375-76, 3 49 S.E.2d at 902, this Court affirmed a trial court’s decision to allow the Commonwea lth to reopen its case to pres ent further evidence regarding whether a victim in a sodomy case understood the meaning of the te rm “penetration.” We held that the trial court “acted with due re gard to conscientious judgment, not arbitrary action” when it allowed the Commonwealth to reopen its case for a “s tated limited purpose.” Id. We hold that the trial court did not abuse its discretion when it a llowed further testimony from the victim in this case. The trial court acte d conscientiously in making its decision to grant leave to the Commonwealth to reopen. The tria l court had the transcript tape re-wound and reviewed the victim’s testimony, focusing on the following excerpt: [Commonwealth’s attorney]: Okay. The person who, as you indicated, I guess, had his mouth in your vagina, is he in the courtroom? [H.H.]: Yes. [Commonwealth’s attorney]: Could you point him out please? [H.H.]: I’m sorry, what was the question? [Commonwealth’s attorney]: Th e person, I guess the person who performed this act, is he in the courtroom? The compound question posed by the Commonwealth was, wi thout question, confusing. It prefaced the in-court iden tification of Robeson as the assailant with the assumption that the victim- 9 - had previously testified to the act of penetration. Thus, it is not surprisi ng that the Commonwealth’s attorney, the victim, and the trial court were apparently all confus ed regarding the meaning of the victim’s affirmative response. It was entirel y appropriate for the tr ial court to allow the Commonwealth to reopen its case for further limited questioning of the victim in order to clarify her answer. Based on our prior cases, we cannot say that the trial court abused its discretion in allowing the Commonwealth to re open its case for further li mited questioning of the vi ctim in order to clarify her answer.
B. Sufficiency Of The Evidence In order to convict Robeson of forcible so domy in this case, th e Commonwealth had to prove, as pertinent to the allegations in this case that Robeson had “engage[d] in cunnilingus . . . with a complaining witness [who] is less than 13 y ears of age.” In his motion to strike, Robeson relied on Welch v. Commonwealth , 271 Va. 558, 5 63-64, 628 S.E.2d 340, 3 43 (2006), to argue that the Commonwealth had not pr oven the element of penetration ne cessary to show that he committed sodomy on the child. In Welch , our Supreme Court restated its earlier holding that, “to prove cunnilingus, the Commonwealth must prove that there was ‘penetration of any po rtion of the vulva’ by the mouth or tongue.” Id. at 563-64, 628 S.E. 2d at 343 (quoting Horton v. Commonwealth , 255 Va. 606, 613, 499 S.E.2d 258, 261-62 (1998)). While Robeso n correctly stated the law in his motion to strike, we cannot say that the evidence in this case is so scant that the trier of fact erred in finding the element of penetration had been proven. Standard of Review “[O]n appeal, the issue of” the sufficiency of the evidence “to support th e [trier of fact’s] determination is a question of law for determination by [the reviewing] Court.” Reilly v. Shepherd , 273 Va. 728, 733, 643 S.E.2d 216, 219 (2007) (citing Lee v. Southland Corp. , 219 Va. 23, 27, 244 S.E.2d 756, 759 (1978)). When consid ering the sufficiency of the evidence- 10 - presented below, we “presume the judgment of th e trial court to be corr ect” and reverse only if the trial court’s decision is “plainly wr ong or without evidence to support it.” Davis v. Commonwealth , 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002); see also Code § 8.01-680. The credibility of the witnesse s, the weight accorded testimony, and the inferences drawn from proven facts are matters to be determined by the fact finder. Long v. Commonwealth , 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989). We do not, therefore, “substitute our judgmen t for that of the trier of fact.” Wactor v. Commonwealth , 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002). “Instead, the relevant question is whether, after viewing th e evidence in the light most favorable to the prosecution, any rational trier of fact could have found the esse ntial elements of the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979). Evidence Presented At Trial At trial, the Commonwealth introduced R obeson’s taped confession into evidence without objection. 1 As recounted above, Robeson confirme d that he and the victim had had oral sex “over the course of about fi ve times” and that, specifically, his “mouth was on [the victim’s] vaginal area.” Moreover, the record contains significant ev idence that not only corroborated Robeson’s confession, but also constituted sufficient independent evidence of his guilt. The victim testified that she considered Robeson her “boyfriend,” that he “unbuttoned her pants” and had “oral sex” with her for five to ten minutes, and that she co ntracted herpes as a result of her contact with

1 In Claxton v. City of Lynchburg , 15 Va. App. 152, 155, 421 S.E.2d 891, 893 (1992), we defined a confession as “a statement admitti ng or acknowledging all facts necessary for conviction of the crimes charged.” Here, Robeso n acknowledged that he had oral sex with the victim, that his mouth was on her vaginal area, a nd that she was twelve years old at the time-- facts fulfilling the elements of Code § 18.2-67.1 . Thus, Robeson’s statement meets the legal definition of a confession.- 11 - Robeson. The victim further tes tified that based on what she fe lt she concluded that Robeson’s tongue was both on and “in the openi ng” of her vagina. Finally, in response to th e trial court’s questions, the victim testified that Robeson put what she believed to be his tongue inside her vagina. We conclude that the statement by Robeson, combined with the victim’s testimony, sufficiently establishes penetration. See Newby v. Commonwealth , 255 Va. 606, 610-11, 499 S.E.2d 258, 259 (1998) (affirming a conviction for sodomy and holding that the element of penetration was established when the victim testified that Newby “put his mouth on [her] vaginal area . . .”); see also Love v. Commonwealth , 18 Va. App. 84, 88, 441 S.E.2d 709, 712 (1994) (“[I]nsertion of the defendant’s tongue into the victim’s vagina need not be shown to prove cunnilingus.”). Thus, the trial court’s verdict was s upported by ample evidence of each and every element of the offense of sodomy of a child.
III. C ONCLUSION Based on the foregoing, we do not find error on this reco rd. Accordingly, we affirm. Affirmed.