COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Overton Argued at Richmond, Virginia
TONY CURTIS INGRAM, SR. MEMORANDUM OPINION * BY v. Record No. 2720-96-2 CHIEF JUDGE JOHANNA L. FITZPATRICK MARCH 3, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY John F. Daffron, Jr., Judge
David B. Hargett (Joseph D. Morrissey; Morrissey, Hershner & Jacobs, on brief), for appellant. Jeffrey S. Shapiro, Assistant Attorney General (Richard Cullen, Attorney General; Ruth Ann Morken, Assistant Attorney General, on brief), for appellee.
Tony Curtis Ingram, Sr. (appellant) was convicted in a bench
trial of three counts of taking indecent liberties with a minor
while maintaining a custodial or supervisory relationship in
violation of Code § 18.2-370.1. On appeal, he contends the
evidence was insufficient to prove his guilt beyond a reasonable
doubt. For the following reasons, we affirm the convictions.
I.
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted).
"'The judgment of a trial court sitting without a jury is * Pursuant to Code § 17-116.010 this opinion is not designated for publication. entitled to the same weight as a jury verdict and will not be set
aside unless it appears from the evidence that the judgment is
plainly wrong or without evidence to support it.'" Id.
Appellant and his wife, Tammy, were experienced foster
parents who had cared for between seventeen and twenty foster
children prior to August 1991. In August 1991, pursuant to an
emergency removal procedure, a Richmond city social worker
removed five siblings - three girls and two boys - from the home
of their mother and placed them with Mr. and Mrs. Ingram. At
that time the Ingram household included the Ingrams' son, Tony
Jr., and another foster child. The three sisters were L.P., who
was age twelve in 1991 and seventeen at trial, C.T., who was age
eleven in 1991 and fifteen at trial, and S.D., who was age four
in 1991 and ten at trial. After some time in the Ingrams' home, the five siblings
expressed a desire to be adopted by the Ingrams. The children
had relatives in Philadelphia who opposed the adoption and wanted 1 custody. The relationship between these relatives and the
Ingrams was poor. For approximately a year, the children's
behavior followed a pattern: first they would appear happy and
want the Ingrams to adopt them, then they would speak to their
relatives, become upset and rebellious for a few days, and would
no longer want the adoption. In conversation with their
relatives, the children also accused the Ingrams of using social 1 The children's natural mother died in May 1993.
2 services money intended for the children to buy a new car for
themselves. These accusations and the pattern of fluctuating
behavior caused the Ingrams to cut off telephone communication
between the children and their relatives in Philadelphia. When
the problems did not subside, the Ingrams requested that the
children be removed from their home, with the understanding that
if the children wanted to return, they could. In July 1994, the
children were removed from the Ingram home. Approximately one year after the children left the Ingram
home, S.D., the youngest girl, confided to her foster parents'
daughter that appellant had touched her sexually. Her sisters
also accused appellant of improper sexual conduct, and he was
tried on three counts of knowingly taking indecent liberties with
a child in his custody.
Testimony at trial established that the three girls shared a
room throughout their stay with the Ingrams. They were close to
Tammy Ingram and discussed intimate subjects with her on multiple
occasions. They had contact with their case worker outside the
presence of the Ingrams, and they went to school, socialized, and
visited relatives. The girls testified that none of them told of
the abuse until more than a year after they had left the Ingram
home.
All three girls testified at trial. L.P., the oldest,
testified that "everything just started going wrong" in the
middle of the first year with the Ingrams; she "was being
3 molested and everything and just not being treated . . . fair
between [her] brothers and sisters." She testified that
appellant began touching her over and then under her clothes.
She claimed he would "caress [her] breast or [her] vagina . . .
for . . . punishment." She further testified that appellant "put
his finger in [her] vagina," but she could not say whether this
happened more than once or when it happened. She added "[w]ell
his mouth was on my vagina that once," and claimed that he
propositioned her. She stated that these incidents occurred when
she was alone with appellant in the basement family room or in
her bedroom and that "during the day [she] was punished one time,
that's when he came up to [her] room." L.P. testified that she allowed appellant to do and say
these things because she wanted to protect her sisters from him,
and she was afraid that the children would be split up if she
reported the acts. Additionally, appellant told her that if she
spoke of his behavior, he would go to jail and the children would
be separated.
C.T. testified that appellant began touching her "after
about a year" of residence with the Ingrams. She claimed he
grabbed her breasts almost daily when she hugged him before
bedtime, even when Tammy Ingram was in the same room with them.
In addition, C.T. testified that appellant attempted to place her
hand on his penis on four occasions. She did not tell Tammy
Ingram, with whom she had a close relationship, because she "was
4 afraid that [Mrs. Ingram] would hate me," and she did not tell
the case worker because she did not trust her.
S.D., the youngest, testified that the first time appellant
attempted sexual contact with her was when she and appellant were
lying under a blanket watching television with the rest of the
family. She claimed he attempted to place her hand on his penis,
but that she resisted and moved to sit on the floor. S.D. also
testified that she was grounded "most of the time" and that
appellant would "come up to [her] room and he'd ask [her] to suck
his dick." Additionally, she stated that while she was supposed
to be grounded and in her room, she was sitting on the stairs and
overheard a conversation in the kitchen in which appellant asked
L.P. to "suck his dick." S.D. admitted that she did not tell
anyone because she sometimes lies, and she was afraid no one
would believe her. Tammy Ingram testified that if the sisters were being
sexually mistreated by appellant, she was sure they would have
told her. She further testified that, due to the Ingrams'
extensive experience with foster children, they had a standing
rule that "at no time would either one of us be left alone with
one particular child, there would always be somebody else with
us, and we were never left alone with one particular child at any
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Overton Argued at Richmond, Virginia
TONY CURTIS INGRAM, SR. MEMORANDUM OPINION * BY v. Record No. 2720-96-2 CHIEF JUDGE JOHANNA L. FITZPATRICK MARCH 3, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY John F. Daffron, Jr., Judge
David B. Hargett (Joseph D. Morrissey; Morrissey, Hershner & Jacobs, on brief), for appellant. Jeffrey S. Shapiro, Assistant Attorney General (Richard Cullen, Attorney General; Ruth Ann Morken, Assistant Attorney General, on brief), for appellee.
Tony Curtis Ingram, Sr. (appellant) was convicted in a bench
trial of three counts of taking indecent liberties with a minor
while maintaining a custodial or supervisory relationship in
violation of Code § 18.2-370.1. On appeal, he contends the
evidence was insufficient to prove his guilt beyond a reasonable
doubt. For the following reasons, we affirm the convictions.
I.
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted).
"'The judgment of a trial court sitting without a jury is * Pursuant to Code § 17-116.010 this opinion is not designated for publication. entitled to the same weight as a jury verdict and will not be set
aside unless it appears from the evidence that the judgment is
plainly wrong or without evidence to support it.'" Id.
Appellant and his wife, Tammy, were experienced foster
parents who had cared for between seventeen and twenty foster
children prior to August 1991. In August 1991, pursuant to an
emergency removal procedure, a Richmond city social worker
removed five siblings - three girls and two boys - from the home
of their mother and placed them with Mr. and Mrs. Ingram. At
that time the Ingram household included the Ingrams' son, Tony
Jr., and another foster child. The three sisters were L.P., who
was age twelve in 1991 and seventeen at trial, C.T., who was age
eleven in 1991 and fifteen at trial, and S.D., who was age four
in 1991 and ten at trial. After some time in the Ingrams' home, the five siblings
expressed a desire to be adopted by the Ingrams. The children
had relatives in Philadelphia who opposed the adoption and wanted 1 custody. The relationship between these relatives and the
Ingrams was poor. For approximately a year, the children's
behavior followed a pattern: first they would appear happy and
want the Ingrams to adopt them, then they would speak to their
relatives, become upset and rebellious for a few days, and would
no longer want the adoption. In conversation with their
relatives, the children also accused the Ingrams of using social 1 The children's natural mother died in May 1993.
2 services money intended for the children to buy a new car for
themselves. These accusations and the pattern of fluctuating
behavior caused the Ingrams to cut off telephone communication
between the children and their relatives in Philadelphia. When
the problems did not subside, the Ingrams requested that the
children be removed from their home, with the understanding that
if the children wanted to return, they could. In July 1994, the
children were removed from the Ingram home. Approximately one year after the children left the Ingram
home, S.D., the youngest girl, confided to her foster parents'
daughter that appellant had touched her sexually. Her sisters
also accused appellant of improper sexual conduct, and he was
tried on three counts of knowingly taking indecent liberties with
a child in his custody.
Testimony at trial established that the three girls shared a
room throughout their stay with the Ingrams. They were close to
Tammy Ingram and discussed intimate subjects with her on multiple
occasions. They had contact with their case worker outside the
presence of the Ingrams, and they went to school, socialized, and
visited relatives. The girls testified that none of them told of
the abuse until more than a year after they had left the Ingram
home.
All three girls testified at trial. L.P., the oldest,
testified that "everything just started going wrong" in the
middle of the first year with the Ingrams; she "was being
3 molested and everything and just not being treated . . . fair
between [her] brothers and sisters." She testified that
appellant began touching her over and then under her clothes.
She claimed he would "caress [her] breast or [her] vagina . . .
for . . . punishment." She further testified that appellant "put
his finger in [her] vagina," but she could not say whether this
happened more than once or when it happened. She added "[w]ell
his mouth was on my vagina that once," and claimed that he
propositioned her. She stated that these incidents occurred when
she was alone with appellant in the basement family room or in
her bedroom and that "during the day [she] was punished one time,
that's when he came up to [her] room." L.P. testified that she allowed appellant to do and say
these things because she wanted to protect her sisters from him,
and she was afraid that the children would be split up if she
reported the acts. Additionally, appellant told her that if she
spoke of his behavior, he would go to jail and the children would
be separated.
C.T. testified that appellant began touching her "after
about a year" of residence with the Ingrams. She claimed he
grabbed her breasts almost daily when she hugged him before
bedtime, even when Tammy Ingram was in the same room with them.
In addition, C.T. testified that appellant attempted to place her
hand on his penis on four occasions. She did not tell Tammy
Ingram, with whom she had a close relationship, because she "was
4 afraid that [Mrs. Ingram] would hate me," and she did not tell
the case worker because she did not trust her.
S.D., the youngest, testified that the first time appellant
attempted sexual contact with her was when she and appellant were
lying under a blanket watching television with the rest of the
family. She claimed he attempted to place her hand on his penis,
but that she resisted and moved to sit on the floor. S.D. also
testified that she was grounded "most of the time" and that
appellant would "come up to [her] room and he'd ask [her] to suck
his dick." Additionally, she stated that while she was supposed
to be grounded and in her room, she was sitting on the stairs and
overheard a conversation in the kitchen in which appellant asked
L.P. to "suck his dick." S.D. admitted that she did not tell
anyone because she sometimes lies, and she was afraid no one
would believe her. Tammy Ingram testified that if the sisters were being
sexually mistreated by appellant, she was sure they would have
told her. She further testified that, due to the Ingrams'
extensive experience with foster children, they had a standing
rule that "at no time would either one of us be left alone with
one particular child, there would always be somebody else with
us, and we were never left alone with one particular child at any
time." Additionally, Tammy Ingram testified that, to her
knowledge, her husband was never alone with any of the girls
during the three years they lived together.
5 Appellant denied each allegation of sexual misconduct.
Several additional witnesses who knew appellant and the girls
testified to appellant's character and denied knowledge or
suspicion of sexual abuse.
The trial court acknowledged that the central issue was one
of credibility: I listened closely to the testimony. I took notes in the testimony. I am aware of some things that I feel are just simply inconsistencies in the girls' statements, but the bottom line, as I see, is the children, and I'm convinced after hearing the testimony and evaluating this that the Commonwealth has proved its case beyond a reasonable doubt. So accordingly, I . . . find Mr. Ingram guilty as charged in each of the three indictments.
On October 13, 1996, the trial court denied appellant's
motion to set aside the verdict. I've had the opportunity to go back and read the transcript of the proceedings and read it away from the tension or as lawyers say the heat of trial, and upon review of all the matters, I've concluded that the Commonwealth has proved its case.
The trial court sentenced appellant to five years in prison, four
years suspended, for each count, resulting in a sentence of three
years of active time in prison.
II.
Appellant challenges the girls' uncorroborated testimony of
abuse as vague and inconsistent, and he argues that the alleged
events are contrary to human experience and usual behavior to
such an extent that the testimony was inherently incredible.
6 "'It is within the province of the fact finder to evaluate
the credibility of the witnesses . . . .'" Dicker v.
Commonwealth, 22 Va. App. 658, 662, 472 S.E.2d 655, 657 (1996)
(citation omitted).
"In testing the credibility and weight to be
ascribed [to] the evidence, we must give
trial courts and juries the wide discretion
to which a living record, as distinguished
from a printed record, logically entitles
them. The living record contains many
guideposts to the truth which are not in the
printed record; not having seen them
ourselves, we should give great weight to the
conclusions of those who have seen and heard
them." Nicholas v. Commonwealth, 15 Va. App. 188, 194, 422 S.E.2d 790,
794 (1992) (citation omitted). The conclusion of the fact finder
"may only be disturbed on appeal if this Court finds that [the
supporting] testimony was 'inherently incredible, or so contrary
to human experience as to render it unworthy of belief.'" Robertson v. Commonwealth, 12 Va. App. 854, 858, 406 S.E.2d 417,
419 (1991) (citing Fisher v. Commonwealth, 228 Va. 296, 299-300,
321 S.E.2d 202, 204 (1984)). "Under settled principles of law,
[a] child's testimony alone, if believed by the [fact finder],
[is] sufficient to support appellant's conviction, even in the
7 absence of corroborating physical or testimonial evidence." Love
v. Commonwealth, 18 Va. App. 84, 90, 441 S.E.2d 709, 713 (1994).
See Swanson v. Commonwealth, 8 Va. App. 376, 382 S.E.2d 258
(1989) (a ten year old's uncorroborated, impeached testimony that
her uncle molested her was sufficient to find guilt).
In the instant case, the victims testified they had suffered
abuse from appellant, and appellant denied abusing them. The
trial court acknowledged that "the issue here is . . .
credibility," and stated that "credibility issues are the hardest
issues." After due consideration, the trial court determined
that "the Commonwealth . . . proved its case beyond a reasonable
doubt." Appellant also contends the girls' delay of more than a year
in reporting the abuse casts doubt on the validity of the claims.
"[W]hile the lapse of time between the alleged event and the
report is certainly an issue, it is a question of weight rather
than of admissibility. '[T]he accompanying circumstances must
determine how far the delay has been successfully explained
away.'" Lindsey v. Commonwealth, 22 Va. App. 11, 16, 467 S.E.2d
824, 827 (1996) (citation omitted). A delay of several months
before reporting abuse may be reasonably "explained by and
completely consistent with the all too common circumstances
surrounding sexual assault on minors - fear of disbelief by
others and threat of further harm from the assailant." Woodard v. Commonwealth, 19 Va. App. 24, 28, 448 S.E.2d 328, 330 (1994).
8 In the instant case, evidence was presented that appellant
threatened one child and that all feared separation if his
actions were reported. Credible evidence explained the sisters'
delay in reporting the abuse, and we cannot say that the
evidence, when viewed in its entirety, was inherently incredible
or contrary to human experience. For the foregoing reasons, we
affirm the convictions.
Affirmed.