COURT OF APPEALS OF VIRGINIA
Present: Judges Elde r, Frank and Clements Argued by teleconference and at Richmond, Virginia

BRIAN NEIL WOOD MEMORANDUM OPINION * BY v. Record No. 1078-07-2 JUDGE JEAN HARRISON CLEMENTS OCTOBER 7, 2008 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF HENRICO COUNTY Daniel T. Balfour, Judge Craig S. Cooley; Brice E. Lamber t (Lambert & Associ ates, on brief), for appellant. Joanne V. Frye, Assistant Attorn ey General (Rober t F. McDonnell, Attorney General; Craig W. Stallard, Assistant Attorney General, on brief), for appellee.
Brian Neil Wood (appellant) was convicted in a bench trial of two counts of taking indecent liberties with a child under fourteen years of age pur suant to Code § 18.2-370, four counts of forcible sodomy pursuant to Code § 18.2-67.1, and five counts of aggravated sexual battery of a child less than thirteen years of age pursuant to Code § 18.2-67.3. 1 On appeal, appellant contends the trial court erred 1) when it found evidence sufficient to sustain convictions for conduct relating to victim K.P., and 2) finding the evidence sufficient to prove that victim A.G. was under the age of thirteen at the time of appellant’s sexual contact with her. Finding no error, we affirm the trial cour t’s judgment and appellant’s convictions.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 Appellant was also convicted of pro duction and possession of child pornography pursuant to Code § 18.2-374.1 and Code § 18.2-374.1: 1. Although included in the notice of appeal, these convictions are not in cluded in his questions presented.- 2 - As the parties are fully conversant with th e record in this case, and because this memorandum opinion carries no precedential value, this opinion recites only those facts and incidents of the proceedings as are necessary to the parties’ understandin g of the disposition of this appeal.
I. ABUSE OF K.P. A. Background “Under familiar principles of appellate review, we view the evidence and all reasonable inferences fairly deducible from that evidence in the light most favorable to the Commonwealth, the party that prevailed below.” Banks v. Commonwealth , 41 Va. App. 539, 543, 586 S.E.2d 876, 877 (2003). “We are bound by the trial court’s findings of historical fact unless plainly wrong or without evidence to support them.” McGee v. Commonwealth , 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc). Accordingly, the evidence here shows that K.P. was born on July 15, 1996, and that she entered the fifth grade in Se ptember 2006. Fr om August 2002, appellant lived in a hous e owned by his father w ith several other people; including K.P.’s mother, Shannon, Shannon’s boyfriend, L uke, and their infant son. K.P. lived in the same house from August 2002 to August 2004. Shannon testified that, at some point while K.P. lived with them, there had been a suggestion by someone other than K.P. of some “kind of sexual activity” occurring between K.P. and appellant. The Department of Social Services (DSS) investigated, but made no apparent findings. In response to her mother’s questions on “rep eated occasions,” K.P. denied any sexual contact with appellant. Appellant moved out in late 2004 or early 2005 after an argument with Shannon and a subsequent physical altercation with Luke. He moved back approximately nine months later, in October 2005, and two weeks after his return he was confronted re garding his conduct with K.P.- 3 - that is the subject of this appeal . Shannon testified that it was the first time K. P. admitted that appellant had abused her. At trial on October 17, 2006, K.P. testified that appellant asked her into his bedroom to watch pornography on his computer while she ate ice cream. She was able to testify as to what kind of ice cream she was eati ng and what appellant was wearing. Sh e then left his r oom for “maybe a couple of minutes or maybe like half an hour” be fore appellant asked her back into his room. He then disrobed and told her to wa tch while he masturbated to comple tion. K.P. testified that on a later occasion appellant had her pl ace a condom on his peni s and put his penis in to her mouth. She was able to testify as to what they were both wearing at th e time of the incident and that the incident occurred in the morning. On severa l occasions, K.P. testified, appe llant gave her money to “get on top of him or [else] he would get on top of [h er]” as they moved “bac k and forth,” sometimes without clothing. On several occasions appellant su cked her toes. K.P. ma intained that, while she was unsure of the specific date or y ear of the events that were the subject of her testimony, the abuse occurred “last year,” while she was in the fourth grade. She also maintained that appellant was living in the same house with he r at the time of the abuse. K.P. guessed that she had seen appellant’s penis “over ten” times, but did not re member any distinguishing characteristics on or around appellant’s genitalia. K.P. testified that the reas on she had earlier deni ed any sexual contact with appellant was out of fear she might “get in trouble.” She finally deci ded to tell her mother about the pattern of abuse after sh e and her mother watche d a television progra m about “kids getting molested and raped.” K.P. also testified that appellant had sa id “bad things” to Shannon and that Luke had beaten him up as a result. A.G. testified that she had seen appellant’s ge nitalia many times and that he has four easily visible rectangular scars of white, hairless skin, approximately four inches wide by six inches long- 4 - on his upper thighs around his genita lia. A.G. testified th at appellant also sucked her toes when she was eight years old. For his conduct with K.P., appellant was indicted for one count of indecent liberties pursuant to Code § 18.2-370, one count of forcib le sodomy pursuant to Code § 18.2-67.1, and one count of aggravated sexual battery of a child less than thirteen years of age pursuant to Code § 18.2-67.3, each for behavior occurring between August 1, 2002 and August 31, 2004. He was convicted as charged, a nd this appe al followed. B. Analysis The credibility of witnesses and the weight to be accorded their testimony are matters solely for the fact finde r, who has the opportunity to see and h ear the witnesses, to observe their demeanor, and to weigh their explanation of events. Sandoval v. Commonwealth , 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995); Schneider v. Commonwealth , 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985). The determination by the finder of fact that a witness is credible “may only be disturbed on appeal if this Court finds that [the witness’] testimony was ‘inherently incredible, or so contrary to human experi ence as to render it unw orthy of belief.’” Robertson v. Commonwealth , 12 Va. App. 854, 858, 406 S.E.2d 417, 419 (1991) (quoting Fisher v. Commonwealth , 228 Va. 296, 299-300, 321 S.E.2d 202, 204 (1984)). K.P. testified that the abuse occurred while she was in fourth grade, and appellant relies thereon to contend that the abuse she alleges c ould not have occurred during the time period set forth in the indictment. 2 However, K.P. testif ied unequivocally that the abuse occurred while appellant was living in the same house—a period corresponding to the dates alleged in the indictments—and her confusion regarding what grade she was in at that time does not render her

2 Appellant asserts that “none of K.P.’s fourth grade year fe ll inside [the indictment’s] offense dates.” For purposes of this opinion, we accept the accuracy of that assertion.- 5 - testimony inherently incred ible or unworthy of belief. Indeed , human experience suggests that a ten-year-old girl testifying as to events occurring more than a year prior co uld testify truthfully and accurately regarding what happened, even while unable to pinpoint with accuracy the relative time period. Here, K.P.’s unequivocal testimony, along with her recollection of peripheral detail, could lead a rational fact finder to cred it her testimony concerning the ev ents at the time of the abuse while rejecting a portion of the timeline she advanced, see , e.g. Marable v. Commonwealth , 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998) (recognizing that a fact finder may accept or reject a witness’ testimony in whole or in part), and we therefor e cannot say that the trial court plainly erred or was without evidence to do so. Appellant also argues th at K.P.’s testimony was insufficient to prove appell ant’s guilt in the “total absence” of corrob oration. We disagree. [A] conviction for [a] se xual offense[] may be sustained solely upon the uncorroborated test imony of the victim. Garland v. Commonwealth , 8 Va. App. 189, 191- 93, 379 S.E. 2d 146, 147 (1989); see also Willis & Bell v. Commonwealth , 218 Va. 56 0, 563, 238 S.E.2d 811, 812 (1977) (noting that convictions for crimes of a sexual nature may depe nd upon the “uncorro borated testimony of a prosecutrix if her evidence is credible, and the guilt of the accused is believed by the [fact finder] beyo nd a reasonable doubt”). [“B]ecause sexual offe nses are typically clandestine in nature, seldom involving witnesses to the offense except the perpetrator and the victim, a requirement of corrob oration would result in most sex offenses going unpunished.” Garland , 8 Va. App. at 192, 379 S.E.2d at 147. Wilson v. Commonwealth , 46 Va. App. 73, 87 -88, 615 S.E.2d 500, 507 ( 2005). We note initially that A.G.’s testimony is somewhat corroborative insofar as she testified appellant engaged her in the same peculiar lewd conduc t involving the sucking of toes when she was around the same age as K.P. However, even were it not so, a rational finder of fact could determine that K.P. had satisfactorily explained her earlie r denials, and the trial court wa s under no obligation to accept appellant’s theory that his argument with Shannon was a motive for K.P. to prevaricate. Finally, we- 6 - do not find it compelling that a child of eight or nine years was unable to distinguish the peculiar characteristics of appellant’s genitalia that set it apart from the norm, and the trial court was not plainly wrong to give that failure little weight as it evaluated her credibility. See , e.g. , Sandoval , 20 Va. App. at 138, 455 S.E.2d at 732. We therefore affirm the convictions ar ising from appellan t’s acts upon K.P.
II. A.G.’S AGE AT TH E TIME OF THE ABUSE A. Background A.G. was born on November 15 , 1984. Appellant was married to her older sister. A.G. testified that when she wa s eight, appellant put her toe in his mout h during a game of hide and seek. She testified that “right after mom died in 1994” appellant began a “p hysical relationshi p” with her. She testified that appella nt had cunnilingual contac t with her “too many [tim es] to count,” beginning around the time of her first menses, which occurr ed when she was eleven years old, or perhaps when she was thirteen. A.G. testified that when she was twelve she began touching appellant’s penis and that she did so “a lot. ” She admitted that ar ound the same time she was often under the influence of several perception altering substances —including LSD, marijuan a, cocaine, “ecstasy,” and alcohol. And while these substances made it difficult—and sometimes impossible—for her to recall “stuff that happened” to her, the incidents that were th e subject matter of her testimony “stand out.” On cross-examination, A.G. testified concerning appellant’s conduct that she did not “actually remember how old [she] wa s, but [she knew she] was under the age of thirteen.” When asked how she could be certain, she testif ied that she knew the behavior at issue occurred before her three-month deten tion in a juvenile fa cility. A.G.’s detent ion occurred on e month before she turned fourteen, and she went to live with he r aunt immediately after her release.- 7 - B. Analysis On appeal, appellant chal lenges only the sufficiency of the evidence that A.G. was under the age of thirteen at the time of his sexual conduct with her. “We must discard the evidence of the accused in conflict with that of the Commonwealth, and re gard as true all th e credible evidence favorable to the Commonw ealth and all fair inferences that may be drawn therefrom.” Cirios v. Commonwealth , 7 Va. App. 292, 29 5, 373 S.E.2d 164, 16 5 (1988). While A.G. was not certain of the dates involved, she was unequivocal that she had be en under the age of thir teen at the time of the contact, basing her certainty on the relative dates of momentous events in her life. The trial court accepted her testimony, and, in li ght of A.G.’s explanation and und er the standard of review we must apply, we cannot say its decision to do so was plainly wrong. We therefore affirm the judgment of th e trial court and appellant’s convictions. Affirmed.