Earl E. Jarrett v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Willis and Bray
Argued at Richmond, Virginia
EARL E. JARRETT MEMORANDUM OPINION* BY
v. 	Record No. 0134-95-3 	JUDGE JAMES W. BENTON, JR.
FEBRUARY 20, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
B. A. Davis, III, Judge
W. Clarke Whitfield, Jr. (Turner, Haskins &
Whitfield, on brief), for appellant.
Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
A jury convicted Earl E. Jarrett of aggravated sexual
battery of a child who was less than thirteen years of age in
violation of Code § 18.2-67.3. 	Jarrett contends that the
evidence was insufficient to support the conviction. 	For the
reasons that follow, we affirm the conviction.
The evidence proved that in May 1989 the child and her
parents moved into a house with Jarrett, the child's father's
half-brother. 	The child was born in October 1985 and began
kindergarten during the 1990-91 school year. 	The child's mother
testified that the child and Jarrett, who is the child's uncle,
had a good, normal relationship. 	Jarrett often took the child
shopping and frequently bought her presents.
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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From April to July 1991, the child's mother was employed and
left for work with her husband at 6:15 a.m. 	Most of the time, a
neighbor came to prepare the child for school. 	On occasion
Jarrett watched the child in the morning when the mother went to
work. 	However, the mother also testified that Jarrett only
watched the child once "to go to school." 	She testified also
that the child often went places with Jarrett "because . . . he
was the only one we had to watch her."
The mother testified that although the child had a bedroom
in the house, the child began to sleep in the bed with her mother
and father. 	However, the mother could not identify the time when
this change in the child's behavior occurred. 	The mother also
testified that at some time in 1991 the child began to fear
Jarrett.
The child testified that Jarrett would get her ready for
kindergarten when her parents were at work. 	She testified that
on three or four occasions Jarrett rubbed her "privates" between
her legs and inserted his finger in her "privates." 	She
testified that she was at home when those incidents occurred but
she did not remember the rooms in which they occurred. 	She
testified that the events occurred four or five years before the
trial and that it was hard for her to remember everything. 	She
recalled that the events occurred in the daytime.
The child also testified that during Easter of 1991 she went
to West Virginia with Jarrett to visit her grandmother, his

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mother. 	While Jarrett drove his automobile and she sat in the
passenger seat, he "would rub [her] privates." 	She also
testified that later he molested her in West Virginia at his
mother's house.
She also stated that on another occasion Jarrett was
standing naked beside her bed when she woke from a nap. 	Jarrett
told her to touch his "private." 	She testified that she did not
touch him and that she could not recall whose bed she was in.
She did not testify whether that event occurred in Virginia or
West Virginia. 	She claimed that Jarrett threatened to "do it
again" and "kill everybody" if she told anyone.
The child and her mother testified that the child told her
mother of these events approximately six months to a year after
they occurred. 	The child's mother did not pursue the matter.
The child reported these incidents to her third grade teacher in
1993 after discussing them with a classmate. 	The child was eight
years old when she reported the incidents to her teacher. 	The
teacher notified the authorities of the complaint.
Jarrett testified that he never sexually touched the child.
He testified that he helped the child get ready for school only
once. 	On that morning, when her parents were working, he was
watching a pornographic video when the child entered the room.
He testified that when he noticed the child was in the room, he
turned off the television and told her to return to her bedroom.
He also testified that he told the child that only older people

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who care about each do the things that she saw on the video. 	He
further testified that several months after that event he told
the child to tell her parents or him if anyone ever touched her
improperly.
When an appellant challenges the sufficiency of the
evidence, the appellate court "must consider the evidence and all
reasonable inferences fairly deducible therefrom in the light
most favorable to the Commonwealth." 	Derr v. Commonwealth, 242
Va. 413, 424, 410 S.E.2d 662, 668 (1991). 	"[T]he factors that
elevate the [sexual abuse] from the misdemeanor to the felony are
the specific age of the victim, serious bodily or mental injury,
or the use or threat of use of a dangerous weapon." 	Johnson v.
Commonwealth, 5 Va. App. 529, 533, 365 S.E.2d 237, 239 (1988).
In this case the victim's age is sufficient to elevate the
offense to aggravated sexual battery. 	Id.
Jarrett argues that the child's testimony was not
corroborated. 	However, corroboration is not necessary in sexual
battery cases. 	Garland v. Commonwealth, 8 Va. App. 189, 192, 379
S.E.2d 146, 147 (1989). 	The child testified to the events
surrounding the incidents and her mother's testimony established
the relevant time periods. 	Contrary to Jarrett's assertion, the
evidence established several occasions when he was alone with the
child.
Jarrett also argues that the child's testimony was not
believable because she could not identify the room in the house

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where she claimed the events occurred. 	He contends that her
testimony was suspect because in other aspects of her testimony
she demonstrated rather precise knowledge of events and
occurrences. 	We find no basis to conclude on a reading of the
record that the child's testimony was so flawed as to be
incredible.
"The weight which should be given to evidence and whether
the testimony of a witness is credible are questions which the
fact finder must decide." 	Bridgeman v. Commonwealth, 3 Va. App.
523, 528, 351 S.E.2d 598, 601 (1986). 	The child's testimony was
neither incompetent nor inherently incredible. 	The jury believed
the child's testimony and rejected Jarrett's testimony.
Accordingly, we hold that the evidence was sufficient to prove
beyond a reasonable doubt that Jarrett was guilty of aggravated
sexual battery.
Affirmed.