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 COURT OF BOTETOURT COUNTY 

Michael S. Irvine, Judge 

 Thomas E. Wray for appellant. 

 Karen Misbach, Assistant Attorney General II (Robert F. 

McDonnell, Attorney General, on brief), for appellee. 

 Following a bench trial, appellant, Chad William Edward Robeson, was convicted of 

sodomy of a child in violation of Code § 18.2-67.1. He challenges this conviction, arguing that the 

trial court abused its discretion when it allowed the Commonwealth to reopen its case-in-chief and 

that the evidence adduced below was insufficient to support his conviction. We disagree and affirm 

Robeson’s conviction. 

I. BACKGROUND

 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) (citation 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 favorable to the Commonwealth 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 opinion is not designated for publication.
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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 since she was six years 

old. He was a friend of her brother, and had lived with her family “off and on” for some time. At 

the time of the offense, H.H. was twelve and Robeson was nineteen. On the victim’s last day of 

school, she and Robeson, whom she considered her boyfriend, were alone together when he began 

kissing her. Eventually, H.H. unbuttoned her pants and “he started 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 did 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 mom 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 infection and my mom 

took me to the doctor. And they gave me medicine and then it just 

kept on and kept on . . . . 

* * * * * * * 

[H.H.]: Later we found out it was Herpes Type I . . . . 
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* * * * * * * 

[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]: The 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 Commonwealth introduced a taped conversation between McFarland and 

Robeson containing the following dialog: 

[McFarland]: [T]he situation between 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 being 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. 
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[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. And 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 Investigator McFarland’s testimony, the Commonwealth rested. 

Robeson moved to strike, arguing that the Commonwealth had not presented evidence on the 

element of penetration. The Commonwealth responded that the victim’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 testified that Robeson’s “mouth 

[was] in [her] vagina” in answer to a question that 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 Commonwealth moved to reopen its case to recall the victim to clarify 

whether there had been penetration. The trial court granted the 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 objected 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 problem the Court has 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 
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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 clarify 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 recalled the victim, who testified as follows: 

[Commonwealth’s attorney]: During 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]: Okay, 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]: Were 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? 
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[H.H.]: He was inside. 

[Trial Court]: And he was inside 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 that 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. ANALYSIS

A. Reopening The Commonwealth’s Case

 Robeson contends that the trial court abused its discretion by allowing the Commonwealth 

to reopen its case and submit further evidence on the element of penetration. Based on our review 

of the record and the application of relevant legal principles, we disagree. 

Standard of Review 

 “We have long followed the rule that the order of proof is a matter within the sound 

discretion of the trial court and [a reviewing court] will not reverse the judgment . . . unless it 

affirmatively appears that this discretion has been abused.” Hargraves v. Commonwealth, 219 Va. 
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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 (1933)). This rule 

includes the principle that the trial court may, in its discretion, determine whether “the 

Commonwealth should be permitted to introduce additional evidence in chief after 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 testimony has been concluded – and all of the witnesses excused – if the 

trial court exercises its discretion and permits the introduction of other testimony, the record must 

affirmatively show that the trial court abused its discretion if the appellate court is to reverse based 

on the trial court’s ruling” allowing the Commonwealth to reopen its case. Id. at 376, 349 S.E.2d at 

902. 

Discussion 

 While the trial court has wide discretion in determining whether to allow a party to reopen 

its case, “such discretion is judicial and not arbitrary.” Fink v. Higgins Gas & 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 determining whether a trial court abuses its discretion in permitting further 

evidence. 

 First, the trial court’s discretion “should be reasonably exercised so as not to injure the 

[non-moving] party through 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 failed to introduce evidence regarding 

causation due to a mere oversight and would have been able 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, 
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501 S.E.2d 427, 436 (1998), this Court affirmed the trial court’s sua sponte decision to allow the 

Commonwealth to reopen its case after the trial court noticed that the 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 should not abandon that role by becoming an advocate, the trial judge is 

not required to sit idly and observe a miscarriage of justice occur because one party inadvertently 

overlooks establishing a routine element of proof[,]” and concluded that the trial court had not 

abused its discretion in allowing further evidence. Id. at 716, 501 S.E.2d at 436. 

 In Chrisman, 3 Va. App. at 375-76, 349 S.E.2d at 902, this Court affirmed a trial court’s 

decision to allow the Commonwealth to reopen its case to present further evidence regarding 

whether a victim in a sodomy case understood the meaning of the term “penetration.” We held that 

the trial court “acted with due regard to conscientious judgment, not arbitrary action” when it 

allowed the Commonwealth to reopen its case for a “stated limited purpose.” Id. 

 We hold that the trial court did not abuse its discretion when it allowed further testimony 

from the victim in this case. The trial court acted conscientiously in making its decision to grant 

leave to the Commonwealth to reopen. The trial 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]: The person, I guess the person who 

performed this act, is he in the courtroom? 

 The compound question posed by the Commonwealth was, without question, confusing. It 

prefaced the in-court identification of Robeson as the assailant with the assumption that the victim 
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had previously testified to the act of penetration. Thus, it is not surprising that the Commonwealth’s 

attorney, the victim, and the trial court were apparently all confused regarding the meaning of the 

victim’s affirmative response. It was entirely appropriate for the trial 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 reopen its case for further limited questioning of the victim in order to clarify 

her answer. 

B. Sufficiency Of The Evidence

In order to convict Robeson of forcible sodomy in this case, the 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 years of age.” In his motion to strike, Robeson 

relied on Welch v. Commonwealth, 271 Va. 558, 563-64, 628 S.E.2d 340, 343 (2006), to argue that 

the Commonwealth had not proven the element of penetration necessary 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 portion 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 Robeson 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 the [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 considering the sufficiency of the evidence 
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presented below, we “presume the judgment of the trial court to be correct” and reverse only if 

the trial court’s decision is “plainly wrong 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 witnesses, 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 judgment 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 the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential 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 Robeson’s taped confession into evidence 

without objection.1 As recounted above, Robeson confirmed that he and the victim had had oral 

sex “over the course of about five times” and that, specifically, his “mouth was on [the victim’s] 

vaginal area.” 

Moreover, the record contains significant evidence 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 contracted 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 admitting or acknowledging all facts necessary for 

conviction of the crimes charged.” Here, Robeson acknowledged that he had oral sex with the 

victim, that his mouth was on her vaginal area, and 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. 
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Robeson. The victim further testified that based on what she felt she concluded that Robeson’s 

tongue was both on and “in the opening” of her vagina. Finally, in response to the 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 supported by ample evidence of each and every 

element of the offense of sodomy of a child. 

III. CONCLUSION

 Based on the foregoing, we do not find error on this record. Accordingly, we affirm. 

 Affirmed.