COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Kelsey Argued at Salem, Virginia

JEFFREY JASON GARDNER, S/K/A JEFFERY JASON GARDNER MEMORANDUM OPINION * BY v. Record No. 2192-02-3 JUDGE LARRY G. ELDER APRIL 6, 2004 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF WASHINGTON COUNTY Charles B. Flannagan, II, Judge Robert Austin Vinyard for appellant. Alice T. Armstrong, Assistant At torney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Jeffrey Jason Gardner (appellant) appeals from his jury trial convicti ons for five counts of forcible sodomy in violation of Code § 18.2-67.1 a nd five counts of object sexual penetration in violation of Code § 18.2-67.2. On appeal, he argue s evidence that he pene trated the complaining witness’ anus with his penis di d not establish animate object pene tration in violation of Code § 18.2-67.2 and that this conduct was punishable only as sodomy under Code § 18.2-67.1. He also contends the evidence was insufficien t to support the convi ctions because the uncorroborated testimony of the complaining witness was inherently incredible. We hold that, to the extent appellant preserved these assignments of error for appeal, the evidence was sufficient to support his convictions. Thus, we affirm.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.I.
A.
PENIS AS ANIMATE OBJECT Appellant argues evidence that he penetrated th e com p laining witness’ an us with his penis did not establish anim ate object penetratio n in violation of Code § 18.2-67.2 and that this conduct was punishable only as sodomy under Code § 18.2-67.1. He candidly concedes that he

m a de no contem poraneous objection to his convictions on this ground at trial as required by Rule 5A:18 but argues that the ends of justice excep tion supports our consideration of it on appeal. We hold the ends of justice exc e ptio n is inapp lic able. Pursuant to Rule 5A:18, this Court will not con s ider allegati ons of trial court erro r as a basis for reversal where appellant failed to register a tim e ly objection, except for good cause shown or to attain the en ds of justice. To invoke the ends of justice exception, the record m u st “affirm atively show[] that a m i scarriage of justic e has occurred, not . . . m e rely . . . that a

m i scarriage [of justice] might h a v e o c c u r r e d

. ” M o u n c e v . C o m m o n w e a lth , 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987). To satisfy this burden, an appellant m u st show “ m ore than that the
Commonwe a lth failed to prove an elem ent of the offense. . . . [T]he appellant m u st demonstrate that he or she was convicted for conduct that wa s not a crim inal offense[,] or the record m u st affir m atively prove that an elem ent of the o f f e n s e d i d n o t o c c u r
. ” R e d m a n v. Comm onwealth , 25 Va. App. 215, 221-22, 487 S.E.2d 269, 272-73 (1997). Appellant contends, in essence, that he was convicted for co nduct that was not a crim inal offense under Code § 18.2-67.2, the object p e netr ation statute, because the Comm onwealth alleged and argued that he penetrat ed the victim ’s anus with his penis. A ppellant contends the

term , “any object,” as used in Code § 18.2-67.2(A )’s proscription against the “penetrat[ion of]

- 2 -the . . . anus of a com p laining witness . . . with an y object,” “does not m ean a penis, in that [that] crim e is covered under the sodom y s t atute.” W e disagree. Code § 18.2-67.2 crim inalizes both “inanim a t e” and “anim ate object sexual penetration” and expressly states th at penetration with “ any object ” violates the s t atu t e if all o t her elem ents have been proved. Code § 18.2-67.2(A) (em phasis added). “The statute thus addresses the universe of objects,” both inanim ate and anim at e, “with which an accused m a y not sex u ally penetr ate a c o m p l a i n i n g w i t n e s s
. ” B e ll v. Commonwealth , 22 Va. App. 93, 99, 468 S.E.2d 114, 117 (1996). Further, as we he l d i n H e r r e l l v . C o m m onwealth , 28 Va. App. 579, 507 S.E.2d 633 (1998), in w h ich we interpreted the phrase “any object” as used in Code § 18.2-67.2:1, “‘[o]bject’ is defined as ‘a discre te visible or tangible thing.’ ‘Any’ is defined as ‘one no m a tter what one: every -- used . . . to indicate one that is selected without restriction or lim itation of choice.’” 28 Va. App. at 585, 507 S.E.2d at 636 ( q u o t i n g W e bster’s Third New International Dictionary 1 5 5 5 , 9 7 ( 1 9 8 1 ) ) ; s e e a l s o A r m s trong v. Commonwealth , 263 V a . 573, 583, 562 S.E.2d 139, 145 (2002) (noting principle of statutor y construction that “rel ated statutes [should be read] in p a ri materia with the statute under co nsideration, in order to give consistent m eaning to the language used by the Genera l Assem b ly”). Manif e stly, ther efore, a penis is an anim ate “object” under Code § 18.2-67.2. The fact that the charged behavior m a y also have violated the forcible sodom y statute does not require a different result. “‘W h ere the circum stances surrounding an offens e perm it prosecution under either of two stat utes, the selection of the statut e under which to proceed is a

m a t t e r o f p r o s e c u t o r i a l e l e c t i o n
. ’ ” B r own v. Commonwealth , 30 Va. App. 243, 250, 516 S.E.2d
6 7 8 , 6 8 2 ( 1 9 9 9 ) ( q u o t i n g S m ith v. Commonwealth , 17 Va. App. 37, 41, 434 S.E.2d 914, 916 (1993)).

- 3 -Because app e llan t has failed to “d emonstrate th at he . . . was convicted for conduct th at was not a crim inal offense” or “that an el em e n t o f t h e o f f e n s e d i d n o t o c c u r , ” R e d m an , 25 Va. App. at 221-22, 487 S.E.2d at 272-73, the ends of justice exception to Rule 5A:18 does not excuse his f a ilu re to m a ke a spec if ic contem poraneous objection at trial.
B. SUFFICIENCY OF THE EVIDENCE Appellant contends next that the eviden ce was insufficient to support any of his convictions because it w a s based so lely on the testim ony of t h e com p laining witness, D.J.S., whose testimony appellant argues was i nherently incredible. W e disagree. On appellate review, we exam ine the evid ence in the ligh t m o st favorable to the
Commonwe a lth, and we m a y not dist urb the jury’s verdict unless it is plainly wrong or without evidence to support it. Traverso v. Commonwe a lth , 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988). The conclusions of the fact finder on issu es of witness credibil ity m a y be disturbed on appeal only when we find that the witness’ te stim ony was “inherently incredible, or so contrary to hum an experien ce as to render it u n wo r t h y o f b e l i e f

. ” F i s h e r v . C o m m o n w e a l t h , 228 Va. 296, 299-300, 321 S.E.2d 202, 204 (1984). In all other cases , we must defer to the conclusions of “the fact finder[,] who has the opportunity of s e e i n g a n d h e a r i n g t h e w i t n e s s e s
. ” S c h n e i d e r v . Commonwe a lth , 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985). These sam e principles apply in cases involving rape, sodom y and other sexual offenses, which m a y be sustained solely upon the testim ony of the victim, even in the a b s e n c e o f c o r r o b o r a t i n g e v i d e n c e
. F i s h e r , 228 Va. at 299, 321 S.E.2d at 203. Here, D.J.S. testified that, on at least five different occas ions, appellant su bjected him to the sam e pattern of abusive sexual co ntact. On each occas ion, that con t act included ap pellan t ’s fellating D.J.S. with penetration or appellant’s pe rsuading D.J.S. to fellate him with penetration,

- 4 -or both, and appellant’s penetrating D. J.S.’s anus with his penis. It is true that D.J.S.’s testim ony was initially som e what confusing regardi ng whether appellant put D.J.S.’s penis on or in appellant’s mouth and vice versa. H o wever, on direct exam ination, D.J.S. clarified this testim ony as to four of the five charges, indicat ing expressly that appellant put D.J.S.’s penis in appellant’s mouth or had D. J.S. put appellant’s penis in D.J.S.’s m outh, or both. Further, on

cross-exam ination, app e llan t elicited testim ony that on each of the occasions of sexual abuse about which D.J.S. had testified on direct ex am ination, “the exact sam e thing happened,” including the sam e oral-genital c ontact. That D.J.S. could not r ecount in what room of the house each inciden t occurred, d e scrib e d each inciden t in alm o st identical fashion , and exhibited no internal physical in juries when exam i n ed by a physician ove r seven m onths later does not render his testim ony inherently incredible. Thus, the Comm onwealth ’s evidence supported the jury’s
f i nding that appellant wa s guilty of a l l charg e d of fenses aga i ns t D

. J

. S

. S e e , e
. g
. , A s h b y v . Commonwe a lth , 33 Va. App. 540, 548-49, 535 S.E.2d 182, 186-87 (2000) (affirm ing convictions for carnal knowledge of a m i nor in violation of Code § 18.2-63, holding “[ t]he m e re fa ct that the victim , a [fourteen-year- old] special education student, to ld no one about the incidents
imm e diately after they happened, willingly slept in a tent with appellant ag ain af ter the [ f i rst encounter] and rem a ined friends with appellant af te r the second encounter . . . did not com p el the conclusion that his testimony wa s inherently incredible”).
II. For these reasons, we hold that, to the exte nt appellant preserved these assignm ents of error for appeal, the evidence was sufficient to support his co nvictions. T hus, we affirm.
Affirm ed.

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