Jett v. Commonwealth 29 Va. App. 190, 510 S.E.2d 747

UPON REHEARING EN BANC

FITZPATRICK, Chief Judge.

Roger Lee Jett (appellant) was convicted in a jury trial of object sexual penetration in violation of Code § 18.2-67.2 and sodomy in violation of Code § 18.2-67.1. On appeal, appellant contends the trial court erred in denying his motion to strike the object sexual penetration charge because the victim’s testimony was legally insufficient to prove penetration. A panel of this Court affirmed the conviction. See Jett v. Commonwealth, 27 Va.App. 759, 501 S.E.2d 457 (1998). We stayed the mandate of that decision and granted a rehearing en banc. Upon rehearing en banc, we affirm the judgment of the trial court.

*193I.

Viewed in the light most favorable to the Commonwealth, see Phillips v. Commonwealth, 25 Va.App. 144, 155, 487 S.E.2d 235, 240-41 (1997), the evidence adduced at trial established that appellant was the nine-year-old victim’s uncle by marriage, and he lived with the victim and her mother. The victim testified that when she was alone with appellant he “taught [her] to use a hairbrush ... to make [herself] feel good.” She further testified as follows:

Q: And how did you ... just describe for the ladies and gentlemen of the jmy what you did with that brush.

A: I would lay it on the outside of my pookie [a term the victim used for her “private parts”], and rub it.

Q: Around, back and forth, or what?

A: Back and forth.

The victim also testified that appellant told her to do the same things with her Barbie doll, and when he tucked her in at night he would sometimes use his finger or his tongue and “rub my pookie back and forth.”

During this time period, the victim complained to her mother that her “pookie kept on hurting.” The victim’s mother took her to the doctor because she had “constant vaginal problems.” The child’s vaginal problems were described as “a nightly routine of screaming and crying, and sitting in sitz baths in the tub because her pookie hurt.” The mother said she examined the area of the “vaginal problems” and “it would be red and rashed. A lot of times, the clitoris would be swollen.”

At trial appellant moved to strike the charges and later renewed this motion on the ground that the Commonwealth adduced insufficient evidence of penetration of the labia majora. The trial court denied the motion, finding that “we’ve got a jury question, and I think we can certainly submit the evidence to the jury, on both charges.” The jury convicted appellant, and he was sentenced to ten years imprisonment for each offense.

*194II.

Appellant contends the evidence of penetration admitted to prove a violation of Code § 18.2-67.2 was in equipoise and therefore legally insufficient to sustain the conviction of object sexual penetration. We disagree.

“On review, this Court does not substitute its judgment for that of the trier of fact. Instead, the jury’s verdict will not be set aside unless it appears that it is plainly wrong or without supporting evidence.” Canipe v. Commonwealth, 25 Va.App. 629, 644, 491 S.E.2d 747, 754 (1997).

Code § 18.2-67.2 provides:

An accused shall be guilty of inanimate or animate object sexual penetration if he or she penetrates the labia majora

or anus of a complaining witness____

“Penetration may be proved by circumstantial evidence and is not dependent on direct testimony from the victim that penetration occurred.” Morrison v. Commonwealth, 10 Va.App. 300, 301, 391 S.E.2d 612, 612 (1990) (although twelve-year-old victim was not asked whether penetration occurred, her testimony regarding circumstances surrounding incident and medical evidence of penetration were sufficient to prove rape). “[C]ireumstantial evidence may be more compelling and persuasive than direct evidence, and when convincing, it is entitled to as much weight as direct evidence.” Bridgeman v. Commonwealth, 3 Va.App. 523, 526, 351 S.E.2d 598, 600 (1986). For the purposes of Code § 18.2-67.2, as well as the statutes prohibiting rape and forcible sodomy, penetration “ ‘need be only slight.’ ” Horton v. Commonwealth, 255 Va. 606, 612, 499 S.E.2d 258, 261 (1998) (citation omitted) (addressing forcible sodomy under Code § 18.2-67.1). See Love v. Commonwealth, 18 Va.App. 84, 89, 441 S.E.2d 709, 712 (1994) (“the legislature intended to mandate the same degree of penetration for all of these offenses”).

The anatomical structure of the female genitalia is significant in relation to the element of penetration of the labia majora at issue in this case.

*195The female external genitalia, starting with the outermost parts, are: “the mons pubis, the labia majora et minora pudendi, the clitoris, vestibule, vestibular bulb and the greater vestibular glands. The term ‘vulva’ ... includes all these parts.”

Horton, 255 Va. at 612, 499 S.E.2d at 261 (citing Henry Gray, Anatomy, Descriptive and Surgical 1446 (Peter L. Williams et al. eds., 37th ed. 1989)). The Supreme Court has held as follows:

“[Pjenetration of any portion of the vulva, which encompasses the external parts of the female sex organs considered as a whole and includes, beginning with the outermost parts, the labia majora, labia minora, hymen, vaginal opening and vagina ... is sufficient to establish the element of penetration.”

Moore v. Commonwealth, 254 Va. 184, 190, 491 S.E.2d 739, 742 (1997) (quoting Love, 18 Va.App. at 88, 441 S.E.2d at 712). “Penetration of the vaginal opening ... clearly [is] not required.” Love, 18 Va.App. at 88, 441 S.E.2d at 712. According to the anatomical description, the clitoris lies within the labia majora; therefore, evidence of penetration or stimulation of the clitoris is sufficient to establish penetration of the labia majora under Code § 18.2-67.2. Cf. Horton, 255 Va. at 613, 499 S.E.2d at 261-62 (evidence of oral stimulation of the vulva or clitoris constituted penetration for the purpose of proving forcible sodomy under Code § 18.2-67.1).

In the instant case, although the victim’s testimony that appellant taught her to rub the hairbrush or the Barbie doll “on the outside of my pookie” did not establish penetration, the Commonwealth also introduced circumstantial evidence from which the jury could reasonably conclude penetration had occurred. The child testified that her “pookie,” described by her mother as her vaginal area, frequently hurt. Her mother testified that the victim’s vaginal area was often red, rashed, and her “clitoris would be very swollen.” On a nightly basis, the child would be “screaming and crying, and sitting in sitz baths in the tub because her pookie hurt.” The *196problem was so severe that the victim and her mother sought medical attention “many times.” The evidence of the victim’s pain and swollen clitoris established by circumstantial evidence the element of penetration. Therefore, we cannot hold that the verdict was unsupported by the evidence or plainly wrong.

Appellant likens the instant facts to those in Moore, where the victim testified that the defendant put his penis “on” her vagina, and the Supreme Court overturned the conviction for insufficient evidence of the essential element of penetration. See Moore, 254 Va. at 189, 491 S.E.2d at 741 (holding proof of penetration is legally insufficient if the evidence is “in a state of equipoise” based on the Commonwealth’s case-in-chief). Appellant contends that in the absence of medical or forensic evidence the mere complaint of vaginal discomfort by the victim is insufficient to sustain his conviction.

Appellant’s reliance on Moore is misplaced, because in Moore the victim, who provided the only evidence of penetration, gave “two different accounts of the essential facts relating to” penetration. Id. at 189, 491 S.E.2d at 742. She testified that the defendant’s penis had been “in” her vagina interchangeably with her testimony that it had been “on” her vagina. Id. at 189, 491 S.E.2d at 741-42. Furthermore, the minor victim in Moore was unaware of the “intricate structure of her sexual organ,” and it was “clear from the evidence that when she referred to her Vagina,’ she was describing the external part of that portion of her anatomy.” Id. at 190, 491 S.E.2d at 742. In light of the victim’s equivocal testimony and in the absence of medical, forensic, or other corroborating evidence to indicate penetration of the victim’s genitalia, the Supreme Court reversed the conviction in Moore.

The instant victim’s testimony resembled that of the victim in Moore, because she described the object as being placed “on the outside of my pookie.” However, here, unlike Moore, the Commonwealth presented additional evidence of penetration, which was uncontradicted within its case-in-chief. The victim’s testimony describing the use of the hairbrush and *197the doll and her mother’s testimony that the victim required repeated treatment and medical attention for her vaginal pain supported the reasonable inference that penetration had occurred. Testimony from the victim that the hairbrush or doll had penetrated her labia majora was unnecessary in light of her mother’s direct and anatomically specific testimony that the victim’s clitoris was swollen. The combination of direct and indirect evidence of penetration presented here is distinguishable from the equivocal testimony of the child victim in Moore, which was the sole evidence of penetration in that case. The evidence in the instant case was not insufficient as a matter of law, and the jury could conclude beyond a reasonable doubt that penetration occurred.

For the foregoing reasons, the conviction is affirmed.

Affirmed.

BENTON, Judge, with whom WILLIS and ELDER, JJ.,

join, dissenting.

The indictment charged that “Roger Lee Jett did unlawfully and feloniously penetrate the labia majora, of a female child under the age of thirteen, with an inanimate object, in violation of [Code §] 18.2-67.2.” I would reverse the conviction because the evidence failed to prove beyond a reasonable doubt that the child was penetrated by an inanimate object.

The child testified that Jett “told [her] how to lay [a hairbrush and a Barbie doll] on the outside of [her] pookie ... and rub it.” She further testified that she “call[ed] ... [her] private parts a pookie.” When the child was asked in court to point to the part of her body to which she referred, the trial judge ruled that “she is pointing to her crotch area.”

“The fact that the ... [object] is placed on, not in, the woman’s sexual organ is insufficient to establish the element of penetration.” Moore v. Commonwealth, 254 Va. 184, 189, 491 S.E.2d 739, 741 (1997). Clearly then, the child’s testimony in this case that she rubbed the objects “on the outside” of her “crotch area” is insufficient to prove the act of penetration as required to sustain a conviction under Code § 18.2-67.2. In*198deed, the majority acknowledges that “the [child’s] testimony that [Jett] taught her to rub the hairbrush or the Barbie doll ‘on the outside of [her] pookie’ did not establish penetration.” However, the majority concludes that the deficiency in the child’s testimony is overcome by other circumstantial evidence. I disagree.

To convict an accused, the Commonwealth must prove each element of the offense beyond a reasonable doubt. See Moore, 254 Va. at 186, 491 S.E.2d at 740. The Commonwealth fails to meet this burden when the Commonwealth’s evidence creates only a suspicion or probability of guilt as to an essential element. Id. Thus, for circumstantial evidence to prove guilt beyond a reasonable doubt, it must be wholly consistent with guilt and wholly inconsistent with innocence. See Bishop v. Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984).

In Moore, where “the prosecution presented [direct] evidence, as part of its case-in-chief, that the defendant placed [the object] both ‘in’ and ‘on’ the victim’s vagina,” the Supreme Court reversed the conviction because “[t]he Commonwealth’s evidence was in a state of equipoise on an essential element of the crime.” 254 Va. at 189, 491 S.E.2d at 741. The Commonwealth’s own evidence in this case likewise is in a state of equipoise. Because the child’s testimony fails to prove an act of penetration, the majority relies upon proof of vaginal irritation as the circumstance that tends to prove penetration. However, the Commonwealth’s evidence also proved other events that explained the vaginal discomfort that the child experienced. The child’s irritated vaginal area is equally explained by Jett’s use of his tongue on the child’s vaginal area. However, Jett was convicted of sodomy at trial for that offense. The reasonable inference that the child’s discomfort was caused by Jett’s tongue or finger raises a reasonable doubt whether the child was penetrated by an inanimate object. “ ‘[W]here a fact is equally susceptible of two interpretations one of which is consistent with the innocence of the accused, [the trier of fact] cannot arbitrarily adopt that interpretation which incriminates [the accused].’ ” Corbett v. Com*199monwealth, 210 Va. 804, 307, 171 S.E.2d 251, 253 (1969) (citation omitted). “[C]ircumstances of suspicion, no matter how grave or strong, are not proof of guilt sufficient to support a verdict of guilty ... [because the] actual commission of the crime by the accused must be shown by evidence beyond a reasonable doubt to sustain ... [a] conviction.” Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820, 822 (1977).

Because the evidence was insufficient to prove beyond a reasonable doubt penetration by an inanimate object, I would reverse the conviction.