Marques Lavar Moulds v. Commonwealth of Virginia
1396154
| Va. Ct. App. | Oct 25, 2016Background
- Appellant Marques Moulds and complaining witness S.E. dated for ~6 months; they broke up but continued communicating and arranged to meet on Sept 30, 2013.
- During that visit and the following morning, S.E. says Moulds punched her, choked her, and forced oral and vaginal sex; she had neck bruises/abrasions but no genital injuries.
- Moulds admitted the sexual contact and that he squeezed S.E.’s neck but defended on consent, testifying that S.E. had previously encouraged “rough sex” and “choke play.”
- Pretrial, the court allowed Moulds to testify about prior consensual rough sex but excluded hearsay testimony from a third party (Nicole Settles) recounting S.E.’s statements that she liked rough sex and choking, ruling it inadmissible both as substantive evidence under the rape‑shield statute and as hearsay, and also collateral for impeachment purposes.
- At trial, Moulds was convicted of strangulation, rape, and two counts of sodomy; he appealed, arguing the court improperly excluded Settles’ testimony as impeachment evidence.
- The Court of Appeals held the exclusion of Settles’ testimony as substantive evidence was correct, but excluding it for impeachment was error and not harmless; convictions were reversed and remanded for new trial.
Issues
| Issue | Appellant's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Admissibility of Settles’ statements as substantive evidence under rape‑shield/hearsay rules | Statements showed S.E.’s prior sexual conduct (enjoying choke play) and her intent, so admissible to prove consent | Statements were hearsay and not "prior sexual conduct" under Code § 18.2‑67.7 (speech ≠ conduct); thus inadmissible | Exclusion affirmed: statements not admissible substantively (state‑of‑mind/hearsay and rape‑shield limits) |
| Admissibility of Settles’ statements as impeachment (prior inconsistent statements) | Statements were prior inconsistent statements relevant to consent and thus admissible solely for impeachment regardless of rape‑shield | Trial court ruled collateral and barred impeachment; Commonwealth also argued lack of proper foundation | Reversed: trial court erred in excluding them for impeachment; the statements were non‑collateral and admissible for impeachment with proper foundation |
| Adequacy of proffer/preservation of error | Moulds proffered detailed content and offered to lay foundation and call Settles if S.E. denied; court prevented him from doing so | Commonwealth argued appellant failed to preserve or adequately proffer the evidence | Held for Moulds: proffer was sufficiently detailed and exclusion prevented necessary foundation, so appellate review not barred |
| Harmless‑error analysis | Error was prejudicial because credibility of S.E. (central issue) was affected; exclusion not harmless | Commonwealth argued any error was harmless given other evidence supporting convictions | Held for Moulds: error was not harmless—could not conclude exclusion had "but slight effect" on jury; convictions reversed and remanded |
Key Cases Cited
- Clay v. Commonwealth, 262 Va. 253 (Virginia Supreme Court) (harmless‑error/usurpation standard in credibility contexts)
- Clinebell v. Commonwealth, 235 Va. 319 (Virginia Supreme Court) (prior inconsistent statements used solely for impeachment not barred by rape‑shield)
- Kauffmann v. Commonwealth, 8 Va. App. 400 (Court of Appeals of Virginia) (state‑of‑mind hearsay exception does not admit past‑conduct assertions)
- Cairns v. Commonwealth, 40 Va. App. 271 (Court of Appeals of Virginia) (writing or speech about sexual desires is not "prior sexual conduct" under rape‑shield)
- Cortez‑Hernandez v. Commonwealth, 58 Va. App. 66 (Court of Appeals of Virginia) (proffer/wavier principles; adequacy of proffer to preserve evidentiary error)