THE COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Frank and Humphreys 

Argued at Chesapeake, Virginia 

ADRIAN O'BRIAN MORNING, S/K/A 

 ANDRIEN O'BRIAN MORNING 

 OPINION BY 

v. Record No. 1604-01-1 JUDGE ROBERT J. HUMPHREYS 

 MARCH 19, 2002 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Verbena M. Askew, Judge 

 A. J. Stone, Jr., for appellant. 

 Michael T. Judge, Assistant Attorney General, 

(Randolph A. Beales, Attorney General, on 

brief), for appellee. 

 Adrian O'Brian Morning appeals from his conviction in a 

bench trial of two counts of carnal knowledge of a minor. The 

sole issue on appeal is whether the trial court erred in denying 

his motion to strike the evidence, based upon the failure of the 

Commonwealth to present evidence corroborating his confession. 

For the reasons that follow, we affirm his convictions. 

I. BACKGROUND

 N.J., age thirteen, left her mother's home around midnight 

on October 31, 2000. Her mother subsequently filed a "runaway 

report" with the Newport News Police Department. 

 On November 1, 2000, police officers were dispatched to 

appellant's residence, at 163-B Delmar Lane in Newport News, in 
reference to "a runaway that would be at that location." The 

residence was owned by appellant's grandmother. 

 Upon arrival, the officers explained to appellant and his 

grandmother that the police had received information N.J. was at 

the residence. Appellant told the officers he had not seen 

N.J., and his grandmother responded there was no one in her home 

"that shouldn't be there." Appellant's grandmother gave the 

officers permission to search the home. However, appellant 

objected, stating that "[h]e had not seen [N.J.] and nobody was 

there." The officers responded that the police had "good 

information" that N.J. was there and that she was "a minor." 

Appellant reiterated that N.J. was not at the home and stated 

once again that he had not seen her. Nevertheless, based upon 

the consent of appellant's grandmother, the officers searched 

the residence. They located N.J. in the closet of appellant's 

bedroom. 

 Later that day, Detective T.D. Steverson of the Newport 

News Police Department advised appellant of his Miranda rights.1 

Appellant waived his rights and gave Steverson a statement. In 

his statement, appellant admitted he was twenty years old and 

said he had known N.J. for about one month. He stated that on 

October 31, he was picked up by an individual and that N.J. was 

 1

 Referring to the Fifth Amendment rights to remain silent 

and to have counsel present during questioning by police first 

annunciated in Miranda v. Arizona, 384 U.S. 436 (1966). 

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already in the car. Appellant told Steverson they went to a 

movie - "The Blair Witch Project" - in Hampton and that he and 

N.J. "engaged in kissing while watching the movie." 

 Appellant told Steverson that after the movie the driver 

picked them up and drove N.J. home, before dropping him off at a 

store. A short time later, the driver picked appellant up once 

again, and the two returned to N.J.'s home to pick her up. 

Appellant told Steverson that the driver then took him and N.J to 

a Motel 6 in Newport News, where he and N.J. spent the night 

together. Appellant stated that during their stay in the motel 

room, he and N.J. engaged in both oral sex and intercourse. 

Appellant claimed he thought N.J was seventeen years old. 

Appellant was ultimately charged with two counts of carnal 

knowledge of a minor, in violation of Code § 18.2-63.2

 2

 Code § 18.2-63 provides as follows, in relevant part: 

If any person carnally knows, without the 

use of force, a child thirteen years of age 

or older but under fifteen years of age, 

such person shall be guilty of a Class 4 

felony. 

However, if such child is thirteen years of 

age or older but under fifteen years of age 

and consents to sexual intercourse and the 

accused is a minor and such consenting child 

is three years or more the accused's junior, 

the accused shall be guilty of a Class 6 

felony. If such consenting child is less 

than three years the accused's junior, the 

accused shall be guilty of a Class 4 

misdemeanor. 

* * * * * * * 

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 At trial, N.J. confirmed nearly every point of appellant's 

confession, including the fact that she and appellant had slept in 

the same bed at the Motel 6. However, when the prosecutor asked 

N.J. if "something happened between the two of [them] while [they] 

were in the same bed," N.J. responded that she "did not want to 

talk about it." When reminded by the prosecutor that she was 

under oath, N.J. testified that they just "talked and watched 

[television]." 

 Upon further questioning, N.J. testified that the defendant 

"never asked [her] to have sex with him." Instead, she testified 

that she asked to have sex with him, but stated that he refused 

because "sometimes [her] best friend was around and his cousins 

and friends were around." When N.J. was reminded that there was 

no one else in the motel room, N.J. insisted that "nothing 

happened" and that appellant had tried to convince her to return 

to her mother's home. 

 At the close of the Commonwealth's case, appellant moved the 

trial court to strike the Commonwealth's evidence on the ground 

that the Commonwealth's "evidence cannot rise any higher than 

their witness." The Commonwealth responded that "a confession 

 

For the purposes of this section, (i) a 

child under the age of thirteen years shall 

not be considered a consenting child and 

(ii) "carnal knowledge" includes the acts of 

sexual intercourse, cunnilingus, fellatio, 

anallingus, anal intercourse, and animate 

and inanimate object sexual penetration. 

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requires only a slight corroboration," and argued it had met this 

burden. The trial court then denied the motion to strike, finding 

the Commonwealth's evidence was "sufficient," based upon N.J.'s 

corroboration of the events that had taken place, as well as her 

demeanor on the witness stand. At that point, the appellant 

rested without presenting evidence and renewed his motion to 

strike, arguing that the Commonwealth had failed to prove the 

charges beyond a reasonable doubt because "[the] evidence [could 

not] rise higher than their own witness who [said] nothing 

happened." The trial court again denied the motion to strike and 

convicted appellant. 

II. Analysis

On appeal, appellant argues the Commonwealth failed to prove the 

corpus delicti by its failure to corroborate his confession. We 

disagree.3

 3

 The Commonwealth argues that Morning's appeal on this 

issue is barred pursuant to Rule 5A:18. It contends that 

because Morning argued only that the Commonwealth's evidence 

could not rise "any higher than their witness," any argument 

concerning corroboration was waived for purposes of appeal. We 

disagree. "'The goal of the contemporaneous objection rule is 

to avoid unnecessary appeals, reversals and mistrials by 

allowing the trial judge to intelligently consider an issue and, 

if necessary, to take corrective action.'" Zook v. 

Commonwealth, 31 Va. App. 560, 568, 525 S.E.2d 32, 36 (2000) 

(quoting Campbell v. Commonwealth, 12 Va. App. 476, 480, 405 

S.E.2d 1, 2 (1991)). Here, the Commonwealth raised the 

corroboration issue in its response to Morning's motion to 

strike, and the trial court considered the issue in making its 

ruling. Thus, we find that the issue was properly preserved and 

consider it on the merits. 

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It is well settled that in order to obtain a conviction, in 

every criminal prosecution, the Commonwealth must prove the 

element of corpus delicti - that is, the fact that the crime 

charged has been actually perpetrated.4 However, "[a] conviction 

cannot be based solely on the uncorroborated statement of a 

person that a crime has occurred and that he committed it. The 

corpus delicti cannot be established by a confession of the 

accused uncorroborated by any other evidence."5 Nevertheless, 

"'[w]here "the commission of the crime has been fully confessed 

by the accused, only slight corroborative evidence is necessary 

to establish the corpus delicti."'"6 "The corroborative evidence 

is sufficient if, when taken with the evidence of the 

confession, it proves the commission of a crime beyond a 

reasonable doubt."7

 N.J.'s testimony corroborated Morning's confession on 

nearly every point, with the exception of the sexual activity. 

When asked about the sexual activity, N.J. became visibly upset 

 4 See Maughs v. City of Charlottesville, 181 Va. 117, 120, 

23 S.E.2d 784, 786 (1943). 

5 Hamm v. Commonwealth, 16 Va. App. 150, 157, 428 S.E.2d 

517, 522 (1993). 

6 Id. (quoting Jefferson v. Commonwealth, 6 Va. App. 421, 

424, 369 S.E.2d 212, 214 (1988) (quoting Clozza v. Commonwealth,

228 Va. 124, 133, 321 S.E.2d 273, 279 (1984))). 

7 Claxton v. City of Lynchburg, 15 Va. App. 152, 155, 421 

S.E.2d 891, 893 (1992). 

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and refused at first to answer the question. When pressed, she 

ultimately gave an explanation that the trial judge as fact 

finder disbelieved as to why the two had not engaged in the 

alleged sexual activity. 

 We have long held that where a trial court sitting without 

a jury hears witnesses testify and observes their demeanor on 

the stand, it has the right to believe or disbelieve their 

statements.8 Moreover, the finding of the judge on 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.9 Here, although N.J. denied the sexual 

activity, her testimony corroborated the remaining details of 

appellant's confession. This fact, taken with the evidence of 

appellant's confession, was sufficient evidence upon which the 

trier of fact could reasonably find that N.J. lied about the 

sexual activity and, therefore, could reasonably find that the 

crime occurred beyond a reasonable doubt. Thus, here, the 

"slight corroborative evidence" was sufficient to establish the 

corpus delicti "when taken with the evidence of the 

confession."10

 8 Lane v. Commonwealth, 184 Va. 603, 611, 35 S.E.2d 749, 752 

(1945). 

9 Id.

10 Claxton, 15 Va. App. at 155-56, 421 S.E.2d at 893-94. 

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 In addition to the above, other evidence demonstrated that 

Morning attempted to conceal his relationship with N.J. by lying 

to the police about his knowledge of N.J.'s whereabouts. We have 

held that "[i]n all cases of circumstantial evidence the conduct 

of the accused is always an important factor in the estimate of 

the weight of circumstances which point to his guilt."11 

Appellant's words and deeds following the incident were factors 

equally as important as his earlier conduct in establishing the 

commission of a crime in this case. The testimony of Officer 

Smith established that appellant deliberately lied to the police 

in order to conceal what had happened. Significantly, he 

persisted in that falsehood until the police found N.J. hiding in 

his bedroom closet. 

 The inferences to be drawn from proven facts are within the 

province of the trier of fact so long as the inferences are 

reasonable and justified.12 From this evidence, the trial judge 

could have reasonably concluded that appellant's conduct was not 

that of a man innocently involved with a teenager who had run away 

from home. Thus, we find the evidence sufficient as a matter of 

law to substantiate the truth of Morning's confession. Therefore, 

 11 Dean v. Commonwealth, 73 Va. (32 Gratt.) 912, 923 (1879). 

12 See O'Brien v. Commonwealth, 4 Va. App. 261, 263, 356 

S.E.2d 449, 450 (1987). 

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the trial court did not err in denying appellant's motion to 

strike. 

Affirmed.

 

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