*1
v. Virginia. COMMONWEALTH No. Record 0630-04-4. of Appeals Virginia, Court Alexandria. Jan. 2006. *5 Chittom, Indigent (Virginia Defender Appellate S. Jane Commission, brief), appellant. on for Defense Attorney (Jerry General Assistant Eugene Murphy, Senior brief), General, appellee. for Attorney Kilgore, W. ANNUNZIATA, HALEY, JJ., Present: BENTON Judge. Senior
ROSEMARIE ANNUNZIATA, Judge. Jaime Salvador Molina appeals his convictions of rape and (1) forcible sodomy on the grounds that: the trial court erred (2) 14; in granting Instruction the trial court erred limiting *6 testimony of an expert; and the evidence was insuffi- cient to support jury’s verdicts. For the reasons that follow, we affirm.
BACKGROUND appeal, On we review the evidence the light most Commonwealth, favorable below, the party prevailing together with all reasonable inferences that be may drawn. Commonwealth, Garcia v. 184, 189, 40 Va.App. 578 S.E.2d (2003). viewed, So that, the evidence established around 10:00 28, 2002, a.m. on September Stephanie Moroffko left her residence and walked to a convenience store where bought she milk and wine. She then sat on a brick wall nearby and started drinking Molina, the wine. whom Moroffko did not know, approached spoke and to her. She and Molina engaged in conversation about Moroffko’s family problems, and Moroff ko remembered engaging some hugging and kissing with Molina before she was struck on the head with hard something and lost consciousness. Moroffko awoke in hospital, suf fering lacerations, facial bones, broken facial and a head injury.
Officer Michael Koltz was patrolling the area around the convenience store on September 2002. As he drove his police car area, to the rear of a laundromat located in the he saw Molina standing behind a bush looking ground. toward the fully Molina was appeared dressed and talking be someone. Koltz noted another individual lying ground; on the the individual was later identified as Jose Membrano. Within arrival, twenty seconds of Koltz’s Molina “leaned over at the waist and looked in police direction.” [the officer’s] He then up bush, “stood and to walk began away from the across the parking lot in a northeasterly direction.” Koltz approached conversation, engaged Molina and him in at which time he saw he Subsequently, exit from behind the bush. Membrano the bush where ground on the behind lying found Moroffko been Koltz arrived. Moroff- and had when Molina Membrano Koltz’s nude. efforts partially ko was unconscious conduct, on Molina’s her were unsuccessful. Based revive face, of alcohol that he eyes, an odor flushed reddened emitted, being public. drunk in Koltz arrested Molina for (EMS) worker Services Lieutenant
Emergency Medical Arnold for assistance. Linda Arnold to Koltz’s call responded and unrespon- found Moroffko unconscious testified she debris, sive, midst of behind ground face on the in the lying up down, swelling from tree. She unclothed the waist a eyes on her face and was observable.
Nancy Susco, emergency nurse in the room at registered personnel transported Fairfax where Hospital INOVA EMS Moroffko, using physical evidence from her evi- collected (PERK). recovery dence kit Susco described Moroffko as matted, *7 disheveled, and in blood her hair covered and debris. a a found that Moroff- Using special dye medscope, Susco to area.1 uptake” injuries vaginal ko had some “scattered her the lead in the Kelly, investigation, Detective John detective September on 2002. Molina admitted interviewed Molina Moroffko, but de- having consensual sexual intercourse with Kelly, having nied anal intercourse. In his statement to during what his encounter with Molina described occurred Molina, him to Moroffko told about According Moroffko. after to down have family problems, her she said she wanted lie sexual intercourse. Molina further recounted that Moroffko down, him her” her “pulled top helped down on of after he lie Afterwards, speak “and had left the to they sex.” Molina area not with some friends. he realized that Membrano was When among the he returned to area behind the bush and group, the of Molina said he told top saw Membrano on Moroffko. to Membrano leave Moroffko alone. Membrano refused explained applies dye 1. Susco that she called "teludine blue” to Susco, "[tjhat injury. According dye adheres determine if there is an any away." skin tom that's been over, Molina, According turned Moroffko Moroff- instead. ko was less clothed than she had when sex with been he had and, in contrast her her earlier she looked appearance, sick and drunk. Gombos, a
Jennifer forensic scientist for the of Department Science, in qualified Forensic was as an expert analysis. DNA stipulated Molina to the of of analy- admission the certificate sis, which DNA showed his was found and anal vaginal swabs taken from Moroffko. Molina could not be eliminated possible swab; as the on contributor of material either cross-examination, test eliminated Membrano. On Gombos “possible it is testified certain circumstances” that seminal fluid can be part transferred another of the body, highly unlikely with the caveat that “it’s that it trans- gets ferred from an portion body external to an area internal body naturally, manually of the without or being done some physical being force used in order to take from something part body vaginally.” external and insert it trial, At Moroffko prescribed testified she took doses of Xanax, Zanaflex, Lithium, Zoloft, Zethacoat, and Nexium However, before incident. night taking she denied cocaine any other illicit drugs explain and could not presence system. cocaine her on Addressing drug Sep- intake 28th, tember Moroffko stated: I hadn’t I if I taken don’t know taken anything. my had not, medication or but if I had it was what was prescribed. just I I And drank the wine that I said drank and had a seizure, just my pills so it the alcohol. because Moroffko could not recall the interview she had with the incident, police hospital day being of the despite *8 transcript a of shown the interview. She was able to recall a police hospital second interview conducted at the day. next with inconsistencies or certain When confronted interview, responses elicited the second Moroffko either not or having could recall made the statements denied experi- accuracy of the information. Moroffko conceded she past and outs” in episodes losing enced consciousness “black further acknowl- memory. a loss of She which she suffered drugs, as prescribed alcohol and history abusing a edged attrib- and disease. She history bipolar a of seizures well as an use excessive she episodes experienced the blackout uted denied or alcohol or both. She medication prescribed case, she consis- circumstance in this and of either occurrence any giving consent ingesting illegal dugs denied tently activity. sexual case-in-chief, Molina its the Commonwealth rested
After trial court granted to strike evidence. The moved charges. wounding as to and malicious motions abduction defense, testimony from five ex- In his introduced Molina Slifka, a a Patrick Jajoda, Dr. Kamal perts: psychiatrist; worker; Gauss, Cynthia psychia- clinical Dr. licensed social Ikhinmwin, room trist; Magnus emergency physician; Dr. an Morton, Jr., a psychopharmacologist. Dr. William and began Jajoda treating physician. Dr. was Moroffko’s She one to two months before treating July August history reported that Morrofko the incident. Based on changes, depression occasionally which included “mood — bipolar Dr. had a Jajoda thought “probably she hypomania,” state,” was in what we call mixed disorder and that she Moroff- “symptoms she manifested of both moods.” meaning she report not consistent with mania when symptoms ko did mania Jajoda, symptoms Dr. began treatment with her, period ending treated during she were observed noted, however, ap- 2002. She Moroffko September namely, irritability, to suffer from manic peared “episodes,” Dr. anxiety. Jajoda prog- indicated in her sleeplessness, and which meant her “cycling,” that Moroffko was ress notes “still between going is not Moroffko was “mood stabilized.” moods, accord- hypomania,” which are mild depression up bipolar that a physician. to this She further testified ing prescribed “go could who fails to take the lithium as patient individual hypomania, depending into or into depression Dr. as “a state when Jajoda hypomania described response.” energy need for and increased sleep there decreased *9 physical energy impulsive prescribed and behavior.” She mg per as day, Depakote Tegretol, lithium well as all of stabilizers,” which used mood “are as in order to control symptoms. Moroffko’s Slifka,
Patrick a consultant and certified substance abuse counselor for Virginia Counseling Group, Northern testified following he first met with Moroffko in March 2003 Dr. Jajoda’s to him. referral Moroffko told she drank Slifka alcohol a daily on basis. Slifka she recommended be detoxi- fied undergo long-term residential treatment. Gauss,
Cynthia in-patient an psychiatric at Fair- physician 14th, fax first Hospital, July encountered Moroffko on 13th or 2002, she when was admitted to the unit psychiatric from the 10, medical unit. Moroffko July entered medical unit on 2002, after a swallowing large prescription drugs, amount of which had on July treating she received 2002. Gauss was disorder, a depressive Moroffko for she had a although related bipolar history psychiatric disease. Moroffko left the unit 15, 2002, on July against medical advice. Gauss believed hospitalization Moroffko needed more in extensive order to safety. stabilize her moods and assure her Dr. Ikhinmwin is Magnus physician a at INOVA Fairfax Hospital who treated emergency Moroffko room for the multiple drug 10, 2002, on July overdose described earlier. “In diagnosis overdose,” addition of multi Dr. drug secondary diagnosis bipolar Ikhinmwin made “a disorder.” Moroffko positive opiates also tested for at that Dr. time. subsequently Ikhinmwin cared for Moroffko when she was date, brought to the hospital September 2002. On that any Moroffko could not information her medical relate about lab presence condition. Moroffko’s tests revealed the of ben- cocaine, zodiazepine, an a blood alcohol level “more opiate, normal,” very than and a Dr. two times low lithium level. laboratory noted drug Ikhinmwin results showed the levels sample hospital, at the time the blood taken however, reports he could no conclusions from the draw regarding drug Moroffko’s levels the time the incident. fifth Morton, Jr., expert Molina’s Alexander Dr. William a PhD having earned witness, ais psychopharmacologist, pharmacy. in clinical residency completed pharmacy doctor, counsel asked Defense however. He is not medical after appear an would behave Dr. how individual Morton *10 their having system in present a of and consuming wine bottle cocaine, opiates, of presence of quantity an “indefinite level of 0.2.” well as a lithium benzodiazepines, of as presence additive that the alcohol “would be explained Morton an system it follows drugs already that and were one where one and type synergistic of effect unpredictable Dr. Morton noted one and one makes four.” makes three or (BAC) milligrams of 292 alcohol content Moroffko’s blood Moroffko’s He stated high.” per “significantly deciliters was hours high as as 300 or 350 one three BAC could have been who consume explained people Dr. Morton also earlier. tolerance a can a “behavioral regular acquire alcohol on basis up stand than longer [he where to walk and [one] learn[s] initially” “may not look as intoxicated.” she] would have and Morton, can According require greater to Dr. such individuals to achieve the same effect. quantities on ... these factors have memo- Describing effect “[w]hat ry,” responded: Dr. Morton [ejffect it memory and significant has
[A]lcohol levels, memory You have higher levels. can correlates with hundreds, certainly they’re typically but effects 300-milligram percent 200s level. [sic] blackout may they to recall events as one would not be able So substances, those other happened. you have If add with Xanax, they’re all in class. such as the same benzodiazepines you phenomena actually is that additive where There —that try so not to deadly, can be we have quite combination re- it can cause excessive present because combination earlier, effect where sponse, saying synergistic like I was four. equals one
Valium, problems Xanax in themselves cause Ativan and then problem,1 a similar blackout memory, with cause mentioned, sedative, drug you opiate, hypnotic the other that causes some sedation. So that would have some effects memory. with
Cocaine would not necessarily diminish but the memory, benzodiazepine alcohol and the opiate would have dramatic effect on it. that,
Dr. Morton further explained because alcohol can disorders, significantly affect psychiatric “we would always against caution mixing benzodiazepines, such as Ativan, Xanax, Valium, type drugs, those with It alcohol. used,” should not be “it deadly, because can be it can cause control, problems with impulse problems driving.” Mor- ton concluded his testimony observing that a 0.2 level lithium low. found guilty rape Molina sodomy. and forcible
This appeal followed. I:
ISSUE JURY INSTRUCTION
Background trial, At proffered Jury Commonwealth Instruction 14.2 The as instruction reads follows: court
The instructs the that the defendant is charged rape. with the crime of The Commonwealth must prove beyond a each reasonable doubt of the following elements of that crime:
(1) That the defendant had sexual intercourse with Ste- phanie Moroffko who was not spouse; then defendant’s initially Jury 2. proffered The Commonwealth Instruction the stan- rape. Virginia Jury dard on instruction Instruction 7 tracked Model G44.100, requires prove Instruction which the Commonwealth to victim; had the defendant sexual intercourse it was "[t]hat consent; force, [tjhat against by her will and without her it was Instructions, Virginia Jury or 2 threat intimidation.” Model Criminal (2004 ed:). However, that, repl. advising judge G44.100 after the trial indictment, rape by for the she had "added on 3 it clause that was force, by incapacity threat or intimidation or of use her mental or physical helplessness,” Attorney the Commonwealth’s withdrew In- proffered struction 7 and Instruction 14. consent; and (2) without her will and against That it was intimidation; force, or or bywas threat That it helplessness. incapacity physical use her mental has the Commonwealth If find from the evidence that you ele- each the above a reasonable doubt beyond proved find the you as then shall charged, of the offense ments your not fix until you punishment shall guilty but defendant further evidence has been returned and verdict has been by you. heard has prove Commonwealth failed you
If find that the offenses, then the above reasonable doubt either beyond not guilty. shall find defendant you V, addition, which granted In the trial court Instruction pre- as “condition which “mentally incapacitated” defined or conse- understanding from nature victim] vented [the involved,” W, quences the sexual act and Instruction which any as “unconsciousness or “physical helplessness” defined at of the offense which existing other condition the time unable physically otherwise rendered the witness unwillingness an to act.” communicate Commonwealth, Relying Va.App. on Adkins v. (1995), incapacity Molina that “mental argued
S.E.2d time.” He contended that simply apply would this the offense based mental legislative purpose underlying mentally impaired who incapacity protect persons “is are exploited from due to their mental being sexual[ly] retarded The took incapacity.” following colloquy place: case [Appellant’s Attorney]: A[d]kins MR. KENSKY said that when we’re dealt with mental retardation and case is able looking of whether the victim the at evidence *12 they the act and appreciate consequences to the sexual retardation, she understands although she has mental said school, the ed in she used she had some sex pregnancy, and to intercourse. penis vagina properly words describe it the sex act as capacity appreciate it deals with her So v. A[d]kins to her mental retardation. So under applies Commonwealth, incapacitation just anything mental isn’t may memory
that have —from her of consenting. It’s limit- ed.
THE It’s COURT: not limited. a victim were Supposing so yes intoxicated as to not able to no say totally be incapacitated to voluntary due intoxication and a criminal defendant took it advantage raped individual, wouldn’t that come under this? Wouldn’t that be mental incapacity?
It say nature, doesn’t mental a incapacity particular it? argue does You intend to that this individual has some difficulties, mental do you not?
MR. that, KENSKY: Yes. arguing We’ll be Judge, but certainly way you it, under the presented if someone is so consent, they’re you inebriated that not say able could the exact thing. Physical same also helplessness means you’re that and rendering physical helplessness to be a synonym incapacitation. They mental mean two different things.
THE criteria, COURT: The is there some scintilla evi- dence which would indicate mental is in incapacity there this you argue case and intend to it. I grant 14. I’ll note exception. your deliberations,
During the jury submitted written questions judge. Question 4, to the trial In jury asked whether “the defendant and the victim could be in the mentally same incapacitated response, state the time of the incident.” In voluntary the trial court read the intoxication instruction to jury, apparently construing question prompted as one by evidence the case that Molina appeared intoxicated at the scene and that he public was arrested on drunk in charge. instruction, In that the jury “voluntary was told that intoxication rape defense to either crime of sodomy.” Question jury
In noted Instruction U defined consent, no “against but instruction defined her will.” jury The trial court “give instructed the words plain meaning.” Question instructions their In R, asked for clarification of Instruction defined which
353 the element jury asked if the sodomy. Specifically, elements or be in could meant “that the victim her will” “against a rational rendering from prevent that could mental state exercising if act of also the to her will.” It asked decision as making.” “a of decision implies process will involves one’s in your “You have judge jury, instructed the The trial use all of the You should possession all instructions of court. in this case.” they apply as evidence these instructions mistrial, 24, 2003, attorney for a Molina’s moved On October evidenced jury propounded contending questions argued: counsel defense jury Specifically, confusion. [Bjecause you can necessarily assumes that question their intoxication. That’s sim- through mentally incapacitated be law allows. what the ply applying this to decide case my jury’s going
So fear is I have the definition they know incapacity. mental just my I think that underscores incapacity mental but appropriate is not incapacity mental argument earlier the Common- jury in Instruction to instruct force, alternative, threat or in the arguing wealth’s —in helpless- incapacity by physical or mental intimidation ness. they’re from
Now have clear evidence we it. confusing untimely found the motion and refused judge
The trial dining I addressed already “revisit those issues which have process deliberations.” DID A. INSTRUCTION AS WRITTEN GRANTING REVERSIBLE ERROR NOT CONSTITUTE
Discussion granting Jury Molina contends the trial court erred upon it two alternative bases Instruction because combines on the sought rape to convict Molina the Commonwealth which on error rejecting In Molina’s claim reversible charge.3 object Jury initially We that Molina did not Instruction 3. note erroneously concepts and misled ground combined several that it ground, begin this we awith review of the defining statute crime. 18.2-61(A) §
In pertinent part, Code defines the following alternative elements of proof upon which the conviction for can rest: rape
If person any has sexual intercourse awith complaining witness who is not his spouse or her or a complaining causes witness, whether or not or her spouse, engage his sexual any person intercourse with other and such act is (i) accomplished against complaining will by witness’s force, threat or intimidation of or against complaining (ii) witness or person, another through use complaining witness’s mental incapacity physical help- ____ lessness,
Two separate Virginia Jury Model Instructions define the 18.2-61(A)(i) § alternative elements of forth proof set in Code 18.2-61(A)(ii). Virginia Jury Model Instruction G44.100 18.2-61(A)(i) § tracks the language Code and requires the prove Commonwealth to that the defendant had sexual inter- victim, course with the it against “[t]hat was her will and force, without her consent” and it was threat or “[t]hat Instructions, 2 Virginia Model Jury intimidation.” Criminal G44.100.
Virginia Jury Model Instruction G44.300 defines the ele- 18.2-61(A)(ii). prove rape § ments required under Code It requires the Commonwealth to prove the defendant had sexual with intercourse the complaining witness and further prove: Instead, jury. theory he incapacity contended the of mental was presented jury. During not an issue and have should not been to the 24, 2003, days deliberations on October two after the instruction was granted, complained Molina first that the was instruction not model instruction, theories, erroneously misleading. combined the and was time, At that he moved for a mistrial. prosecutor The trial court asked the if its instruction "was also a
model,” prosecutor replied, yes,” and the "I the trial to which think — "Yes, note, however, responded, Jury court it was model.” We Instruction is not model instruction. (mental- was (2) complaining witness] at the time [the That physically helpless); ly incapacitated; knew or (3) the defendant the time of the offense That at (mentally incapac- was complainant] [the have known should itated; helpless); and physically accomplished through the sexual intercourse That (mental incapacity; use of the witness’s helplessness). physical Instructions, To Jury G44.300. Virginia Model Criminal 18.2-61(A)(ii), § the Commonwealth Code rape
establish under force, or intimidation. prove threat need erroneously the instruction combines contends that Molina and that it confused theories conviction the two alternative proved. Molina about the elements be and misled its “blending” asserts that Instruction specifically “lightens theories of conviction the Commonwealth’s bur- two prove den it allowed the Commonwealth because *15 will’) proving without (‘against act was non-consensual intimidation____” the force, He further that argues or threat “infer, wrongly, that one who jury instruction permitted consent, not able to manifest incapacity’ may has a ‘mental be rely not on her manifestation that the accused is entitled consent,” jury to convict permitted or that the instruction not witness did proving him “without that of the sexual act.” consequences the nature and understand on the victim’s contends that the instruction based Finally, he the evidence. We supported by was not impairment mental contentions. disagree with these
Analysis reviewing in reviewing responsibility “A court’s clearly ‘to has stated is see that the law been instructions fairly which the evidence that the instructions cover all issues ” Commonwealth, 485, 488, Darnell v. Va.App. 6 370 raises.’ Swisher, v. 223 Va. Swisher 717, 719 (quoting S.E.2d 18.2-61(A) (1982)). 856, § lists 499, 503, Code 290 S.E.2d 858 may prove theories which the Commonwealth alternative 356
rape. theory Each on rests different elements of required proof. deciding We assume without that combining the ele- 18.2-61(A)(i) 18.2-61(A)(ii) § ments set forth in Code into one instruction trial constitutes court error and turn to the question whether such error was harmless.
The standard for error non-constitutional is in established Virginia’s statute, 8.01-678, harmless error § Code which provides, pertinent part: it plainly appears
“When from the record and the evidence given parties at the trial that the have had a fair trial on the justice reached, merits and substantial judg- has been no defect, ment shall be or arrested reversed ... any ... [f]or imperfection, record, any omission or for error committed trial.” Commonwealth,
Gonzales v. 375, 384, 45 611 Va.App. S.E.2d (2005) (en banc). 616, 620 Commonwealth, Clay v.
In 253, Va. S.E.2d 728 (2001), our Supreme adopted Court the following standard States, Kotteakos v. United applied 328 U.S. 66 S.Ct. 1239, 90 (1946), L.Ed. non-constitutional error:
“If,
done,
when
is
all
said and
the conviction is
sure
error did not
jury,
very
influence the
or had
slight
but
stand____But
effect, the
judgment
verdict
should
if
say,
assurance,
one cannot
fair
after
all
pondering
happened without stripping the erroneous action from the
whole, that
judgment
substantially swayed by
was not
error, it
impossible
rights
conclude
substantial
so,
doubt,
if
grave
were
affected----If
one is left in
the conviction cannot stand.”
Kotteakos,
Clay,
Va.
Applying standard of review articulated in we find the error to be Although harmless. the instruction combined conviction, two of theories the theories are in the stated formulation, disjunctive. disjunctive Under that the instruc- tion theory directs the to consider either the “force” jury set 18.2-61(A)(i) § “incapacity” theory forth Code or the set
357 61(A)(ii) conviction, for but as a basis § forth Code 18.2— common to were elements Although certain at once. both (viz., with had intercourse theories, that Molina sexual both sexual that his spouse not then who was the victim consent), in order without her will and against was intercourse theory of other one or the conviction under to proceed find- evidentiary conviction, distinctive jury had make Stat- principles as instructed. ings apply legal distinctive jury proved found on facts differently, depending ed evidence, the instruction directed by the Commonwealth’s “force, or threat either regarding the law apply jury or intimidation,” incapac- of mental regarding the “use law Thus, argument Molina’s ity physical helplessness.” or rape pursu- convict him of jury allowed the the instruction 18.2-61(A)(i) “force, threat proving § ant to without Codé of the instruction itself by language is belied intimidation” Young, v. 264 to follow. Green is jury presumed which the v. (2002) 135, 604, 611, (citing 571 S.E.2d Va. Zafiro States, 938-39, 534, 933, United 506 U.S. 113 S.Ct. (1993)). L.Ed.2d improp
Molina’s contention that the instruction was respect to the ele erroneously jury er and misled the 18.2-61(A)(ii) § is likewise crime under Code ments of the improper merit. Molina contends that the instruction without the sexual intercourse ly required to find that against with Moroffko was will engaged which he mentally was finding consent in addition to she without sure, To the model instruction incapacitated. be physically require express an theory of conviction does not based this the will and finding against sexual intercourse However, conclude that of the we without the consent victim. of prejudiced by the inclusion this additional Molina was not is, First, rape proof. note that the crime element we victim, of the core, the will and consent against an offense rape means which the irrespective of the manner and Commonwealth, 638, 640, Mings accomplished. See v. 85 Va. (the rape essence the crime 8 S.E. consent;” without her in the ravishment of a [victim] “consists *17 358
therefore, not); the issue is whether the victim or willing was Commonwealth, Bailey v. 107, (1886) (whenever 82 Va. is a consent, there carnal connection without wrongful the act itself the supplies requisite force that the law demands as an crime). element the
Second, inability we note that the to freely exercise will give force, consent is not solely function of or threat by intimidation the perpetrator. When offense involves victim mentally who is or incapacitated physically helpless, the inability to consent or in willingly engage the sexual act is very suffers, inherent in the condition from which the victim as the definitions make manifest. Mental is a incapacity “condition” that “prevents understanding from [victim] nature or of the sexual act consequences involved.” Code 18.2-67.10(3). § understanding Consent without is no consent at all. Similarly, physical helplessness rests definitional elements, which in themselves signify the absence of consent or unwillingness an to engage § in the sexual act. Code 18.2- 67.10(4). Physical helplessness is defined as “unconsciousness or any other which physically prevents condition” the victim communicating from Id. unwillingness to act. If the is victim unconscious or physically unwilling unable communicate an act, short, ness to surely consent cannot established. In be argument Molina’s misapprehends implicit relationship between mental or physical incapacitation and consent in the of a In rape charge. cases, context such proof of mental or physical incapacitation, more, itself and without establishes the absence of participation consent context of willing such, a rape As charge. seeking when a conviction under 18.2-61(A)(ii), § Code indepen Commonwealth need not dently prove either the unwillingness absence consent an in the engage express sexual act. Nor need there be an finding against the trier fact that the sexual act was will and without the consent of the the charge victim when 18.2-61(A)(ii). But, brought § under Code to the extent Commonwealth was required by instruction this case to expressly prove those elements and the was required make it expressly finding, such a does not follow that revers- did The instruction contends. as Molina occurred ible error a heavier on the Commonwealth impose than nothing more § 18.2- under Code in order to convict of proof burden all, Molina and 61(A)(ii). it favored If that error be Commonwealth, S.E. Va. Pettus v. harmless. *18 (1918) (instruction of stor- erroneously defined crime 161, 162 in any place other than storing in spirits as ing spirits ardent home, home was although storage in the fide defendant’s bona is favor- unlawful; harmless where “error finding also error interest”); see also his against and not to the defendant able 246, Duett, 233, 332 S.E.2d v. 175 W.Va. State it instruction was harmless where that erroneous (holding the government’s “effectively lessened” greatened proof). burden error presumed find the trial court’s summary,
In we instruc- given separate have as combining what should been tions to harmless. be 14 AS TO MENTAL
B. INSTRUCTION GRANTING BY MORE INCAPACITY WAS SUPPORTED A OF EVIDENCE THAN SCINTILLA improp Instruction 14 was Finally, Molina claims that “no whatsoever erly [estab on the that evidence given ground from a mental such impairment that Moroffko suffered lishes] conse the nature and that she unable to understand Adkins, he on rea- Relying sexual intercourse.”4 quences argued "mental objection Molina that 4. In his initial to Instruction simply apply time.” He contended that the incapacity would not at this like that.” The "deals a mental retardation and matters definition following place: took your with her argument that this individual THE COURT: Isn't controlled substances rendered bipolar problem and use misuse of can’t she can’t —so she consented now her in a condition that remember? theory, she consented Yes. That’s our [DEFENSE COUNSEL]: and then— of mental she can't remember because COURT: And that THE incapacity. theory, she consented our [DEFENSE COUNSEL]: Yes. That's and then— sons that the only evidence impaired established judgment due alcohol,” to “mood swing drugs and and he further and/or argues such impairment does not constitute “mental incapaci- ty” Virginia under law. Molina’s claim is without merit.
As noted supra, “mental incapacity” defined Code 18.2-67.10(3) § as “that condition of the witness existing at the time of an offense under this article which prevents complaining witness from understanding the nature and consequences of the sexual act involved such offense and about which the accused knew or should have known.” victim must also be “[injcapable making a volitional choice to engage or not engage such conduct.” Adkins, 20 Va.App. at S.E.2d 388. that,
The evidence shows day in question, Molina approached Moroffko sat while she on a wall drinking brick wine, and engaged her in conversation. Moroffko recalled they kissed and that she was then hit on the head with *19 something hard causing her to lose consciousness. She next awakening remembered in hospital, suffering facial lacera- tions, face, broken bones in her and a head Koltz injury. found Moroffko bush, behind a down, nude from the waist lying ground, on the Koltz unconscious. tried to revive Mo- roffko, but she was not responsive. Moroffko was not revived until after trial, she was to hospital. admitted a At Moroffko any denied to consenting activity. sexual Tests disclosed that Moroffko had over twice normal amount of in alcohol her system and that the level was even higher at the time Molina had intercourse with her. She also positive tested for the presence of cocaine and benzodiazepines. prescribed taken, medications Moroffko had in combination with intake, alcohol were “deadly” by described as expert. Molina’s The evidence is in sharp to contrast Molina’s statement that Moroffko was able to consent to sexual intercourse a short time police before the provides arrived and sufficient basis attorney incapacity Molina’s reiterated that mental to is limited one’s "capacity appreciate applies to the sex act as it to [one’s] mental
retardation.”
361
either
that Moroffko had
could conclude
from which the
consent
give
to
valid
consciousness or was too disoriented
lost
intercourse with her and remained
Molina had sexual
before
hospital. The
awoke in the
state until she
incapacitated
that
an instruction on
to
clearly
support
is
sufficient
evidence
v.
See State
alleged rape.
the time of the
incapacity
mental
at
Al-Hamdani,
599,
1103,
P.3d
1107
Wash.App.
36
(“It
person’s general
distinguish between
important
is
consequences of sexual
ability to
the nature and
understand
nature
ability to understand the
person’s
intercourse and that
given
given
in a
situation.”
at a
time and
consequences
added)),
60 P.3d
review
(emphasis
Wash.2d
denied
McDowell,
1346, 1350
v.
see also State
(2003);
427 So.2d
(in
is
cases,
rape
question
the fundamental
(La.Ct.App.1983)
so
condition of the victim is
whether or not
the mental
given).
legal
consent cannot be exercised
impaired
contemplated
incapacity
the mental
Molina’s
argument
permanent
mental conditions such
by the statute is confined
fundamental,
principle
ignores
operative
as
retardation
of the
unpersuasive.
and is
The touchstone
rape convictions
has
to make
legal concept
capacity
is whether the victim
“the
act.”
engage
sexual]
a volitional choice to
or not
engage
[a
Adkins,
at
Molina’s reliance *20 under Adkins placed. protections does not limit the afforded 18.2-61(A)(ii) § afflicted with mental retar- Code individuals Adkins identifies two classes Rather, of dation. individuals expansive of thorough 5. examination and discussion statutes For a country evolving defining incapacity and issues in around the victim Falk, area, by Drugs: Statutory Rape see J. A Overview and Patricia (2002). Reform, Proposals 44 L. Rev. 131 Ariz. for 362 protection come of
who
within the
the statute.
“The legisla-
18.2-61(A)(ii)
purpose
§
tive
of
persons
Code
is to
who
protect
are
mentally impaired
being sexually
retarded from
exploit-
Adkins,
ed due to their mental
incapacity.”
Va.App.
342-43,
added). Furthermore,
On grounds, these we find that “mental incapacity” includes conditions other than those which a victim is unable understand the sex act due to mental retardation phrase Adkins, and that “mentally impaired,” as used in includes mental induced incapacity by voluntary intoxication. We, therefore, say cannot trial court erred in rejecting the limitation on the urged by statute’s reach Molina finding the Commonwealth’s instruction was supported by more than a scintilla of evidence mental incapacity based Sands, the victim’s intoxication. See Commonwealth v. (an 724, 729, Va. S.E.2d instruction is proper is supported by when it more than scintilla of evidence).
ISSUE II: LIMITING DR. MORTON’S TESTIMONY
Background Molina asserts the trial testimony court erred in limiting witness, from his final Dr. psycho- Morton. Dr. Morton is a not a medical pharmacologist, During doctor. his direct exam- ination, attorney testify Molina’s to have him attempted about symptoms bipolar disease.
Counsel stated: *21 his basing and combining information would be] Morton [Dr. into evidence and gotten information we’ve opinion on how Ms. opinion his about to going give he’s lucid, appear to appear Moroffko would someone—would remember at the same time not gregarious and impulsive, day anything question]. [on power point presenta- a proffered further Defense counsel Disorder, listing defining Bipolar Dr. Morton tion prepared Hypo- Manic Psychotic Symptoms, Symptoms, Bipolar and Psychotic Symptoms, Episode Signs Symptoms, manic and Episode Symptoms, of Manic Perception Presentation of Bipolar and Treatment Episodes, Bipolar Responses Manic Dr. Morton would attorney, to Molina’s According Disorder. “why, based on power point presentation use the to discuss fac- medications and various other bipolar her disorder [and] tors, and that to why memory impaired explains would be I was knocked jury why saying she’s the one hand unconscious, vague also at same time has these but memories, these inconsistent statements.” cumulative, trial court evidence was concluded Dr. qualified and furthermore Morton was questioned whether disorder, in manic testify bipolar general, epi- to about sodes, he not a medical doctor or specifically, since required The trial court de- treating physician. Moroffko’s evidentiary foundation for such lay fense counsel proper counsel had “had four testimony pointed out that defense and ... testifying ... to that capable [issue] [he] witnesses testimony.” The trial court also noted chose not to elicit [the] disorder, that, training bipolar he although Dr. Morton had with doctors diagnoses did not make but rather he “work[ed] Dr. diagnoses.” qualified only that make Morton Finding court ruled: expert as an the trial psychopharmacology, has disorder. He may testify bipolar He not that she brain, any as medical disorder of the testify not may medical disorder which is what is be supposed If is properly to that. he may testify brain. He not If you want qualified, may testify pharmacologist. he as questions ask him of what the effect of these medications be, might may you ask it. may present
You this episode power manic point presentation I think clearly because it’s outside his exper- *22 If you tise. want to qualify you’re that, him welcome to do but going I’m not to you allow ask him all kinds medical questions doctor, when not a he’s medical he’s not a psychiatrist you’ve done that four times with four witnesses and it’s cumulative.
Subsequently, defense counsel made further attempts have Dr. Morton qualified as an expert who could address the symptoms and of bipolar treatment explained disorder. He that such testimony necessary was and relevant “[b]ecause doctors that we on put say Stephanie can’t how Moroffko is times they were not [at] able see her.” Defense counsel argued that Dr. Morton “can testify about the general charac- bipolar teristics of a person.”
THE My COURT: understanding your that it’s intention to ask this witness what do other bipolar act like and people therefore this witness must have that way; acted correct? MR. KENSKY: general What are the characteristics —I want to the jury educate on what are the general character- istics of bipolar and I also want to use Dr. Morton to—and to ask him about on if a person based has consumed lot alcohol, cocaine, who blood, has opiates, drugs other her based on taking someone who was prescription drugs, how appear person. would she to another That, THE you COURT: I think may ask because there’s factual may foundation. You not ask the other question what his opinion bipolar. medical is about The trial court ruled that Dr. opinion Morton’s medical bipolar about disorder “is ... outside expertise area [his of] ... and it’s too cumulative.” We find the trial court did not err Dr. limiting Morton’s on the testimony following 1) grounds: testimony his beyond scope of his exper- tise; 2) 3) cumulative; speculative. Furthermore Molina proffer failed to Dr. expected testimony bipolar Morton’s
365 related specifically as it or on disorder generally, disorder rape. Finally, contrary alleged of the at the time to Moroffko contention, to address permitted Dr. Morton was to Molina’s ingested had alcohol Moroffko drugs and prescribed how the memory.6 affected
Analysis to render an qualified a witness is “[W]hether the sound discre is a submitted to expert opinion question Ry. court.” Combs v. Western tion the trial Norfolk (1998). 496, 355, Co., 490, 507 S.E.2d 358 Neverthe Va. expert less, proffered must record show “[t]he skill, or knowledge, experience to witness has sufficient expert as an on the competent testify render [him] Id. inquiry.” matter of the subject Commonwealth, 312, 320, v. Mohajer Va.App. 579 S.E.2d (en banc) Im, see also John v. (2003); Va. *23 319-20, 694, expert of (admissibility 696 559 S.E.2d court’s sound discretion testimony is submitted the trial including the upon application principles, of fundamental re- on an quirement adequate that the evidence be based founda- discretion). tion; ruling trial court’s for an abuse of we review in one field expert “The fact that a witness an does field, him the expert though make an in another even two Combs, 496, 256 at closely fields are related.” Va. 507 S.E.2d at 358. Ve- Supreme
Molina relies
Court’s decision
upon
Commonwealth,
v.
95,
(2002),
lazquez
S.E.2d at 217. The Court held that a SANE nurse need not be to practice licensed medicine to express expert opinion an on of injuries the causation in the assault, of an alleged context sexual nor does expression an opinion by such in a trial SANE constitute the practice of unlawful medicine. 104,
Id. at
John,
Combs,
To the sought extent Molina to elicit Dr. Morton’s testimony that Moroffko’s conduct the time of the incident by bipolar was consistent with or caused any disease or of its *24 phases, the particularly, hypomanic phase, manic or we find such testimony properly was on the it ground excluded that sought to elicit from Dr. Morton a diagnosis of Moroffko’s medical condition at the time of testimony the incident. Such beyond was of Dr. Morton’s Dr. scope expertise. Morton such, as an in qualified expert As psychopharmacology. an competent he was to on effects of opinion drugs render general in of drugs diag- and effects certain on someone fact, shows In the record disorder. having bipolar nosed as of the about the effects testify to that Dr. Morton was allowed Indeed, contrary to have ingested. was found drugs Moroffko permitted testify to assertions, specifically he was Molina’s to ability to drugs on Moroffko’s of certain about the effects in of light evening, particularly of that remember events However, Dr. in alcohol found her blood.7 level of high observe or treat doctor and did not Morton was not medical Therefore, testify to qualified he was Moroffko. or that she exhibited bipolar from disease Moroffko suffered of or the time hypomania consistent with mania behavior of a medical is in the nature testimony the incident. Such qualified give. Dr. Morton was not to diagnosis that his that, experience, Molina also asserts based testimony to describ qualified give generally Dr. Morton was of phases. purpose disease and its various ing bipolar was, part, to Moroffko’s testimony such establish was consistent with during question conduct incident testimony sought Molina to the disorder. We find First, about the testimony gen excluded. properly elicit was and bipolar hypo- disease its manic eral characteristics Second, prof to manic Molina failed phases was cumulative.8 testimony about the fer the details of Dr. Morton’s intended of the bipolar or the characteristics general nature disease and failed to hypomanic phase disease in its manic or he general Dr. apply on what basis Morton would proffer at the bipolar Moroffko’s conduct characteristics of disease proffer of the The failure question. time incident attorney like ask the trial court he would 7. When Molina’s advised alcohol, large who consumed a amount Dr. Morton how someone prescription drugs and would has cocaine in his her blood takes stated, "That, think, you may I appear person, the court to another trial ask because there’s factual foundation." generally by an Jagoda symptoms Dr. exhibited individ- 8. described the disease, they bipolar included the hypomanic phase ual in the sought very from Dr. Morton’s that Molina elicit characteristics testimony. Jajoda hypomania as "a state when there Dr. described energy energy physical sleep need for and increased decreased impulsive behavior.” *25 368
expected testimony is fatal to his on claim appeal. “Without proffer, such a appellate cannot [the court] determine the admissibility admissible, testimony, and, the if proposed whether court’s exclusion of the prejudiced evidence [the Terrace, Holles v. Sunrise party].” 131, 135, 257 Va. 509 Commonwealth, 494, (1999); see also v. S.E.2d 497 Evans 39 229, (citations 481, Va.App. 572 S.E.2d omit ted). Third, Molina’s of Dr. intended use Morton’s testimony general about the characteristics of bipolar im disease was court, As proper. he to the trial explained Molina such sought from Dr. testimony Morton the doctors we put “[b]eeause on say can’t how Stephanie [earlier] Moroffko is times [at] were not to they words, able see her.” In other Molina sought Dr. general description use Morton’s of bipolar disease to establish that Moroffko’s conduct at the time the incident was consistent with the disease and with its manic or hypo- such, manic phase, particular. As it called for speculation part and surmise on the of the trier of fact improper. and was Finally, Molina failed proffer what regarding evidence nature and character of Moroffko’s during behavior the inci dent that Dr. explained by was be testimony Morton’s about bipolar earlier, disorder and phases. its manic As noted failure to proffer evidence excluded the trial court’s Id. ruling precludes our consideration of the issue. cannot say We the trial court abused its discretion in limiting Dr. testimony Morton’s to those areas about which he proficient and and in competent his excluding testimony bipolar regarding disease general about Moroffko’s condition, medical specifically.
ISSUES III & IV: SUFFICIENCY THE OF EVIDENCE
Molina contends there was support insufficient evidence to jury’s him finding guilty sodomy verdicts of forcible rape.
Standard Review When the sufficiency the evidence is challenged appeal, court appellate reviews the evidence that tends it conviction unless upholds support conviction § evidentiary lacks Code 8.01- plainly wrong support. Jenkins, 516, 520, v. 680; 499 S.E.2d Commonwealth Va. (1998). support “If there is evidence to convic *26 tions, to its permitted court not substitute reviewing is if from the opinion might its differ judgment, own even Jen of trial.” by the finder fact conclusions reached kins, 520, 499 at 265. Conflicts 255 Va. at S.E.2d finder, such conflicts are are resolved the fact evidence “ on ‘the evidence is such that appeal revisited unless [persons], drawing after the evidence and weighing reasonable ” just therefrom, all but inferences could reach one conclusion.’ Zimmerman, 81, 86, 211, City v. 262 Va. 547 S.E.2d Bedford of E (2001) Inc. v. Hancock Peanut Express, J & 214 (quoting Co., (1979)). 57, 481, 485 62, 255 220 Va. S.E.2d crime,
To it of a is insufficient to create justify conviction Rather, is probability upon burden suspicion guilt. prove every essential element Commonwealth beyond a doubt. “The must offense reasonable evidence every hypothesis exclude reasonable innocence be only with the of the accused.” guilt consistent Commonwealth, 186, Moore v. 184, 739, 491 254 Va. S.E.2d Commonwealth, 386, Powers v. 211 (quoting 740 Va. (citations (1970)) omitted). 388,177 628, 629 “Whether S.E.2d an hypothesis alternative of innocence is reasonable is a and, therefore, binding of fact unless question appeal Commonwealth, v. 1, Archer 12- Va.App. plainly wrong.” (1997). 13, 826, S.E.2d
Rape speak Moroffko was rendered unconscious while arrived, personnel with Molina. Moroff ing emergency When ko and Moroffko did not nonresponsive was unconscious hospital. Molina’s regain until she was in the consciousness denied vaginal cavity, DNA in Moroffko’s and she was found The as fact jury, sexual intercourse. consenting have finder, rejected self-serving appellant’s Moroffko and believed and Moroffko had con- Kelly to Detective that he statement weight sensual intercourse. “The which be given should the testimony evidence and whether of a witness is credible are which fact questions Bridgeman finder must decide.” Commonwealth, 528, v. 3 Va.App. 351 S.E.2d 601-02 (1986). competent, had credible evidence with which facts, to find appellant guilty rape. cannot Under these we say jury’s wrong verdict is or lacked plainly evidentiary we support. Accordingly, find that the trial court not err did to strike refusing relating rape. the evidence to the
Forcible Sodomy that, argues Molina because Moroffko “does not know her,” what happened sodomy forcible verdict rested entirely on speculation. Moroffko testified that “something” hit talking Molina, “someone” her while she was causing her to lose Test consciousness. results disclosed that Molina’s DNA was cavity, found inside Moroffko’s anal/rectal *27 and Moroffko to any denied rela consenting having sexual tions. Membrano, DNA evidence excluded the only other scene, on person the aas contributor. Molina’s claim that his seminal fluid was transferred to Moroffko’s cavity anal/rectal by ostensibly rejected by Membrano was trier of the fact who with charged crediting and weighing the evidence. Commonwealth, v. 24 Va.App. Williams 484 S.E.2d 153, 155 function is to (noting jury’s weigh the issues). evidence and resolve all Finally, jury factual the rejected self-serving believed Moroffko and and denials explanations gave Kelly. Molina to Detective id. See also (jury charged judging credibility). witness findWe that sufficient the record supports jury’s evidence verdict, say and we cannot the trial court to refusing erred strike the sodomy. evidence forcible stated,
For the reasons we affirm the trial court. Affirmed. J.,
BENTON, dissenting. I jury’s would reverse the convictions of Jaime Salvador rape for sodomy Molina and and dismiss the indictment be- I to the offenses. prove was insufficient cause evidence improperly the convictions were rendered also believe that an testimony judge by limiting because the trial erred significance on an of critical Molina’s expert issue witness on three jury by improperly instructing defense and disjunctive rape. theories of
I. trial, that Molina ren- At the Commonwealth contended hitting her with by dered witness unconscious complaining her, A object, raped jury some abducted her. instruction rape § convict Molina of under Code 18.2- allowed 61(A) complaining if he had sexual with the wit- intercourse consent; and ... “against by ness her will and without force, intimidation; threat or the use of her mental incapacity physical At the conclusion of the helplessness.” evidence, judge the trial found the evidence was insufficient abduction, prove wounding malicious and he struck those charges. I hold also would that the evidence was insufficient support rape. disregard a conviction for if we Even Molina’s statement that the two had consensual sexual inter- course, what occurred after Molina and the wit- kissed, ness hugged, things, talked about sexual and went conjecture speculation behind store mere based on inconclusive evidence.
Our of the of the this case is sufficiency review evidence guided by a well-settled principle. relied proof upon by wholly the Commonwealth is
“[I]f circumstantial, is, it guilt as then to beyond here establish *28 necessary proved all circumstances reasonable doubt must guilt be consistent with and inconsistent with innocence. They must overcome the of innocence and presumption exclude all reasonable inconsistent with that of conclusions that, necessary the chain of circum- guilt. accomplish To stances must be and the evidence as a whole must unbroken satisfy corpus that both the delicti guarded judgment the to proved and the criminal of the accused have been agency 372 any
the exclusion of rational a moral hypothesis other and to certainty....”
But, suspicion, of no grave circumstances matter how strong, proof of guilt support are not sufficient a verdict guilty. of The actual the by commission of crime beyond accused must be shown evidence a reasonable doubt to sustain his conviction. Commonwealth, 619, 623, 820, v. 218 Va. 238 S.E.2d Clodfelter Commonwealth, 410,
822 v. (quoting LaPrade 191 Va. (1950)). 313, because, 61 418, S.E.2d 316 This so as a of law, matter constitutional protects Due Process Clause beyond an accused from conviction “except upon proof a necessary of fact every reasonable doubt constitute the charged.” crime with he is re Winship, which In 397 U.S. 364, (1970). 358, 1068, 1073, 90 25 368 In S.Ct. L.Ed.2d other words, every the evidence must exclude hypothesis reasonable and, therefore, of it is support innocence insufficient to a it merely conviction when creates suspicion probability Commonwealth, guilt. Yarborough 215, 218, v. 247 Va. 342, (1994); Commonwealth, S.E.2d Burrows v. 224 Va. 317, 320, (1982); Commonwealth, v. Hyde S.E.2d (1977). 950, 954-55, 234 217 Va. S.E.2d 77-78 to prove Commonwealth failed an “chain of unbroken necessary circumstances” to establish guilt Molina’s exclusion of hypotheses. According prosecutor’s other theory, hit complaining Molina witness head unconscious, object, some then rendering her moved her be- store, raped her, forcibly hind convenience sodomized Yet, complaining her. witness never testified that Molina evidence, any things. ample did those The record contains admissions, including witness’ that she did not all recall the events occurred after she met Molina. She a bipolar only has disorder and could that at point recall some was she unconscious from a seizure. had a history She alcohol, mixing drugs, illegal and a prescription drugs, history of similar seizures. Simply put, evidence doubt prove beyond insufficient to a reasonable the Common- rape sodomy. theories forcible wealth’s *29 Significantly, the complaining gave conflicting witness testi- malleable, mony vague, that was specific and not as to the events that transpired. witness testified that she sat on a wall beside a convenience store at ten o’clock in the morning and drank the entire just bottle wine she had A purchased. “brick column right behind” her perch [was] wine, the wall. After drinking the the complaining witness drank milk and talked with Molina about her life. During this conversation, she and Molina engaged mutual hugging and kissing. The following events are the extent of her direct testimony regarding what happened as she sat on the wall: me____He
A: A gentleman approached sat down next me and started talking to me.
Q: you Did know who that person was?
A: No.
Q: you Did speak with him?
A: Yes.
Q: happened What you after spoke with him? A: spoke We for awhile. The next I thing remember is my head hit being by something hard.
Q: you Where were your when head was hit by something hard?
A: Sitting on the bricks.
Q: Do you know who hit you the head?
A: No. cross-examination,
On the complaining witness disclosed she was speculating about what actually occurred.
Q: ... You’re telling you us that don’t know how it was you lost consciousness. Correct? A: I was hit with something—
Q: you But never saw—
A: —or hit against something.
Q: You never saw hit anything you. Is that fair say? A: No.
Q: you any person And never saw that hit anything you. Right?
A: No. She testified that she did not remember from that anything *30 until in point hospital. she awoke the also told She the she does not know where she was when she lost consciousness. however, in acknowledged, hospital She the shortly after gave the incident she another version.
Q: you But told the detectives at least once one of during your tape you recorded statements that banging remember your hand or head your person while one was there and person then that left. came, person
Then another and it was after that person you came that lost consciousness. Remember that? A: That’s how it happened.
The witness her complaining physician testified she has a bipolar depressive disorder with both and manic episodes. complaining The witness also prone admitted she was seizures after and alcohol. using drugs These seizures result- blackout, is, in periods ed when she would that when she had (two memory no of events. a During period July in months incident), before the the complaining witness was admitted to Xanax, psychiatric hospital a for overdosing Oxycodone, Thorazine, Doxepine, and alcohol. proved Abundant evidence she had been her in misusing prescription medications months prior morning she met Molina. complaining witness’ treating physician testified that
she had a history hypomania state when there is —“a decreased need for sleep energy physical and increased energy.” She also testified that witness complaining reported slept period times when she had not over a of several days. at trial that Although complaining witness testified incident, night she was at home the before the she admitted to questioned hospital the officers who her at the that she had D.C., night morning been all before she Washington, went to the convenience store. That night, “Xanax, witness had undisclosed Zana- ingested quantities flex, Lithium, Zoloft, ... and Nexium.”9 Zethacoat(ph), She only made these admissions after the officers learned from her father that she had not returned home at night.
The evidence proved drugs addition to those she drank day alcohol the of this incident and suffered seizure. Although her doctors had instructed her to combine her alcohol, prescription medications with she testified that morning ingesting after she drugs purchased a bottle of wine at Indeed, the store and drank all of it. at different points testimony, beer, she admits that she drank bottle of wine a wine A cooler. blood test at and/or hospital revealed the alcohol content in her blood was 292 mg/dL when A measured. textual footnote on the blood test report indicates a depression of the system central nervous when a reading “greater mg/dL” than 100 and “fatalities reported: greater than 400 mg/dL.”
The complaining witness could not recall which drugs she *31 took that morning consuming before the alcohol. She testified as follows: 28th, day September
The I hadn’t taken I anything. I don’t know if had my not, taken medication or regular but if I had it was what was prescribed. I just
And drank I the wine that said I drank and had a seizure, just so it was not my pills because of or the alcohol. showed, however, The blood tests positive that she tested for benzodiazepines, opiate, an and cocaine and that she had a much lower level of lithium in body normally her than pre- scribed for diagnosis addition, her In bipolar disorder. para-medical technician who examined her the convenience mouth, reported store foam around her which was evidence a seizure. complaining witness claimed have suffered facial
lacerations, face, broken in bones type “some likely "Zethacoat(ph)” Depakote, drug 9. It is refers to used to bipolar treat mania associated with disorder and to treat seizure disor- ders. injury” to However, her head that bled profusely. para- technician, medical who testified that she is trained to accu- rately injuries record any and that she attended complain- ing time, witness for a substantial length of told she did not any notice injury other than some in puffiness complaining witness’ face. The complaining witness also testi- fied she told police may she have injuries sustained those going before to the that morning. store Moreover, the Commonwealth’s witnesses contradicted the complaining witness’ testimony significant other A aspects. police officer who interviewed the complaining witness after she was examined the hospital testified that the complaining witness was conscious and responsive and that she gave a different version of the events the hospital. She told the officer that wall, while she was sitting she and the man talked things.” “about sexual She also said she away walked from the wall and struck addition, her face on a In tree. she told the officer she was conscious when she having sexual intercourse.
The officer who interviewed the complaining witness also interviewed Molina. Molina said the complaining witness talked to him family about her and her life before saying she wanted to have sexual intercourse with him. They went to the rear of the store pulled where “she laid down” and him down upon her. He having denied anal intercourse Ac- with her. Molina, cording they when having finished sexual inter- course she said stay she wanted to there and sleep. He also her, returned, said he left later and then saw another man atop her.
A repetition of the witness’ testimony graphi- *32 cally demonstrates that she told the detectives at hospital a version of events that was consistent with Molina’s state- ment.
Q: you But told the detectives at during least once one of your tape recorded you statements that remember banging your your hand or person head while one was there and person then that left. came, that person and it was after person another
Then Remember that? lost consciousness. you came it happened. A: That’s how store, Molina
Indeed, arrived behind police when the ground man was clothed and another standing, fully witness. complaining beside hypothesis not
The evidence does exclude the store after complaining voluntarily witness went behind in conversation kissing engaging Molina and hugging consented to sexual intercourse activity. about sexual She Molina, lost consciousness after then had a seizure and Indeed, man arrived. Molina left and before the other prove that the evidence was insufficient to judge trial found her or Molina either wounded abducted her. evidence, including witness’
Simply put, accurately she remember testimony, own established did having the events that led to her sexual intercourse because of and alcohol abuse and the effects of those substances drug bipolar on her disorder.
Q: history just you having You’ve told us have a Right? seizures.
A: It happens.
Q: history you You’ve told us that have a of when you drink, you things don’t remember sometimes.
A: Yes. you pills you us take don’t
Q: you And told that when things remember some times?
A: Yes.
Q: history taking many You told us too you have drugs. Right?
A: Yes. alcohol?
Q: Too much
A: Yes. same
Q: asking you questions The detectives were [the day you having of the were trouble remember- incident]
ing things some that that supposedly happened day. Right?
A: At the me they asking questions, yes. time were Q: say ... it be fair that you when were [W]ould with speaking points the detectives there were various they you ask questions happened where would about what you problem and would have recalling happened, what had you and couldn’t answer.
A: Yes.
Q: The problem you’ve today? same had A: Yes.
Q: problem you same at the preliminary hearing? had A: Yes. evidence,
At the close of argued the Commonwealth jury the complaining witness “was beaten that day, that she was to the point beaten where she was unconscious Yet, and that she was and sodomized.” raped the Common- to disprove hypothesis, supported wealth failed the reasonable evidence, by the that the complaining witness consented to that, sexual intercourse Molina as a with result later out” “blacking drugs from the effect of alcohol disorder, bipolar had no memory she accurate of the events. The complaining testify witness did not that Molina hit her on force, used head otherwise threat intimidation when her; interacting with she specifically testified Molina Indeed, never any made threats toward her. at trial she said hit ... something something,” she “was or hit against this to jury but did attribute Molina. The left to speculate about what occurred because the Commonwealth presented physical showing penetration no evidence forcible no chain provided showing coherent of events Molina raped complaining witness. The witness things” kissed and Molina and talked “about sexual hugged having sexual intercourse with him. The evidence left before when, store, speculate the events behind the during Though became unconscious. she complaining witness sexual having did not remember trial that she testified at of the day in the intercourse, hospital the officers she told intercourse. having sexual she was conscious while event that Molina acted proved that no evidence Thus, I would hold penetration. forcible proved and no evidence against her will *34 an instruction that the jury I the was misled believe in two disjunctive the provided offered which Commonwealth rape: § to convict of theories under Code 18.2-61 additional complaining the wit- rape accomplished through that the was rape accomplished or that the was physical helplessness ness’ incapacity. mental No evi- complaining the witness’ through from physical the witness suffered proved complaining dence in engaged from mental when she helplessness incapacity sexual intercourse with Molina. helplessness rape in a regard proof physical to
With being made an distinction between charge, important we have to communicate at the time of the inter- physically unable to communicate afterward. physically course and unable Commonwealth, Howard v. Va.App. S.E.2d Howard, (1995). complaining In the witness lost conscious- Id. at shortly having ness after intercourse. 465 S.E.2d as follows: explained 143. We the trial court reason- The Commonwealth asserts from the fact ably physical helplessness could have inferred shortly after the neighbor’s apartment the victim went to a incident, clothed, vomiting before and col- alleged partially fact that the highlights The Commonwealth the lapsing. for a of hours recognize parents period victim could not in taken to passed being and out of consciousness after intoxicated. hospital, the where doctors determined she was However, to assuming point the victim was intoxicated she being physically unable to communicate at the time prove this does not she was intoxicat- apartment, exited she sexual inter- degree engaged ed to the same when conjunction with other appellant. course with Even evidence, strong enough case was not the Commonwealth’s In a reasonable doubt. so prove appellant’s guilt beyond holding, following appropriate: we find the admonition conduct cannot [appellant]
“[t]he be condoned. It was disgraceful. It was enough shame one moral steeped infamy. But he was tried for that. Rape was the charge his laid at door and the Commonwealth’s evidence to sustain it.” fail[ed] (citations 480-81, omitted).
Id. at
The at argued Commonwealth never trial that the complain- ing mentally incapacitated. incapacity” witness was “Mental statutory ordinary term does connote the mean- ing; it is as “that condition of complaining defined the witness existing at of the time an offense under this article which prevents the complaining understanding witness from the or the consequences nature of sexual act involved such offense and about which the accused knew or should have 18.2-67.10(8). § As explained, known.” Code we in Adkins v. Commonwealth, 332, 342-43, 382, Va.App. 457 S.E.2d 387 (1995), mentally the statute exists “to who protect persons are or impaired being sexually exploited retarded from due to incapacity.” person their mental A is mentally incapacitated when she has a mental only ‘prevents’ “he or ‘condition’ the ‘nature’ to ‘understand’ either person being the from able Id. at intercourse.” engaging or of sexual ‘consequences’ Thus, as follows: 344-45, explained at we 457 S.E.2d 387. the “nature and “know, or apprehend, appreciate” To from a sim- range of intercourse can sexual consequences” of is physically of how the act coitus ple understanding that a sensa- understanding with an accomplished together may act, thorough to a and pleasure accompany tion of psychological understanding complex comprehensive act involved” and “nature” “the sexual physiological may act have that, gratification, aside from immediate familial, social, medical, economic, spiritual physical, dire consequences. statute,
Id. In other words, to conviction under the obtain person “the ... does not prove Commonwealth must nature and sexual act consequences understand ‘the ” also v. 343, Id. at 387. See White involved.’ 457 S.E.2d Commonwealth, 713, Va.App. 478 S.E.2d (1996). opening to the argument jury during
The Commonwealth’s that Molina closing arguments any suggestion is devoid of of the rape sodomy through use accomplished Indeed, incapacity. witness’ mental the Common- complaining the complain- offered evidence to establish that wealth never nature ing was not to understand the and conse- witness able meaning intercourse of Code quences sexual within 18.2-61(A). § own witness testified that Commonwealth’s kissing hugging witness said she was Furthermore, no evi- discussing things.” Molina and “sexual known the com- Molina knew or should have proved dence *36 comprehending the nature plaining witness was not reason- Thus, beyond not find jury sexual acts. could no evidence incapacity doubt mental because able finding. such a supported record unable to testified she was
Simply,
complaining witness
semen,
presence
recall
occurred.
of Molina’s
Beyond
what
the sex
equally supported
hypothesis
which
consensual,
physical
there was no
rape.
evidence of
If one
testimony
Molina’s
disregards
the two had consensual
sex, what occurred when Molina and
complaining
witness
went
only
behind the store could
by conjecture
be discerned
and speculation. Conviction on this circumstantial evidence
that raises only suspicion and speculation
precisely
what
623-24,
prohibits.
II. reasons, For these same I would reverse the conviction for sodomy. The indictment alleged anal intercourse occurred force, “by and was committed threat intimidation.” Howev- er, no proved evidence penetration of the anal occurred. cavity A nurse who interviewed and examined the complaining wit- only ness at the hospital found minor in the genital abrasions rectal area that were visible to the eye. naked The nurse’s written report required her “to check off a under box no, anal contact” options “yes, and listed the attempt, unknown.” The contrast, nurse checked “no.” Iri she “yes” for “vaginal checked contact” and “penis.”
383 to had consented that the witness complaining defense of testimony to offer the prepared He was sexual intercourse. prescription effects of expert concerning an the behavioral person bipolar a a alcohol on drugs, and drugs, illegal Dr. has a Morton attorney proffered Molina’s disorder. an a of and is pharmacy, in is pharmacy, professor PhD Dr. science. psychiatry of behavioral professor assistant witness explained how Morton would have yet lucid, be impulsive, gregarious,” to “could be appear to remember behavior. unable testimony to the effects Dr. Morton’s judge The trial limited disorder, bipolar to drugs of alcohol and without reference and, thus, not “medical doctor” ruling that Dr. Morton is a disorder. bipolar not refer the complaining could to witness’ Dr. This was error. The record Mor- proved reversible is expert ton is an in the which “psychopharmacology, field study drugs how affect the brain.” [the of] testimony is to purpose permitting expert sole trier fact presented assist the to understand the evidence Generally, is or to determine fact issue. witness testify expert possesses to as when the witness qualified an skill, or to make the wit knowledge, experience sufficient subject as an on the matter competent testify expert ness Varn, 280, 284, 172, at issue. Sami v. 260 535 S.E.2d Va. Rahal, 741, 800, Noll v. (2000); 795, 219 174 Va. 250 S.E.2d (1979). testimony only expert’s 744 “An is admissible experience scientific is but when knowledge required, when give knowledge subject ... of a expert and observation ordinary beyond intelligence that of of common persons any experience. The of such evidence extends scope may special knowl subject respect which one derive knowledge of the edge experience, when [the witness’s] is opinion matter in relation to which asked [the witness’s] such, so it the trier probably [of or is that will aid great, Hunter, 207 v. the truth.” Neblett for in the search fact] 115, (1966); 335, 339-40, 150 118 Code Va. S.E.2d cf. essence, necessary § all that is for a witness 8.01-401.3. In as have sufficient qualify expert an is that witness knowledge subject give of the value to the witness’s Anderson, Railway & Western v. Co. opinion. Norfolk (1966). 567, 571, 151 Va. S.E.2d Commonwealth, v. Velazquez 95, 103, 263 Va. 557 S.E.2d (2002). *38 The record Dr. proved specialized Morton’s is field psychopharmacology, and he studies the effects of prescription illegal alcohol, and as drugs, well as on thinking and behavior. not, insist, He is as the trial judge seemed to merely “a pharmacist.” He has experience extensive in treating, evalu- ating, studying and drugs effects of and alcohol on behav- ior. He a professor is of pharmacy professor and assistant of in psychiatry behavioral at the University science of South In setting, Carolina. he psychiatrists with and “work[s] students, students, other pharmacy medical instructing them what to from expect drug various therapies.” He board specialized” certified in the “fairly area of psychiatric pharma- cy trial, practice. At the of time he was a working in general psychiatric practice and clinical patients where under- drug go and alcohol treatment “in patient an unit.” In addition to his extensive experience in the generally, field Dr. Morton has and specifically studied dealt with the of effects lithium on persons diagnosed with bipolar disorder. He has publications written (forty-six) numerous in the field of lithium disorder, bipolar and to “looking at how monitor and utilize disorder, lithium and ... bipolar the area of treatment of as as ... well other areas of psychopharmacology.” He has climes, established several lithium of specifical- one which was disorder, ly persons and, for with bipolar eighteen years, for he worked in clinics he from to on patients where saw regular a basis. He as a on regular worked consultant a basis drug for regular faculty and alcohol and he was a programs, in a setting member where he saw patients made recom- mendations on drug therapies. practice, their In his he consulted with physicians who needed to ascertain if and what kind and of a dosage drugs patient should take. In certain cases, he was care for primary practitioner patients who had diagnosed been disorder. bipolar held, “we will reverse has Supreme unequivocally Court expert as an testify qualified a witness is not holding that witness from record clearly it appears when make skill, experience possesses knowledge, sufficient at subject on the matter testify expert as an competent him Sami, at The record 535 S.E.2d 174. issue.” Va. opinion an about give Morton was proves qualified that Dr. who bipolar person and alcohol on a drugs the effects of com- experts and the drugs. alcohol with Other combined that she suffered testimony witness’ own plaining established lithium, other disorder and that she had taken bipolar from overdoses, illegal unprescribed sub- prescription drugs stances, experience, Dr. and alcohol. Morton’s breadth experience, clinical lengthy which included and extensive pre- effects of knowledge patients, treatment illegal drugs behavior individuals scription disorder, for bipolar requirements satisfied the diagnosed with testimony. expert *39 a that Dr. Morton judge by requiring
The trial erred be as of and alcohol testify drugs medical doctor to to the effect notes, correctly on a disorder. As Molina persons bipolar with to about the Supreme testify Court has allowed nurse victims, injuries rape though of even physical causation of “it has physician, long nurse is not a licensed because been with professionals and other healthcare accepted nurses training, expertise, qualified and are proper experience in cir- give appropriate causation expert opinions medical 103-04, 218. at Velazquez, cumstances.” 263 Va. S.E.2d Dr. is an in the field in which he was called expert Morton testify, psychopharmacology. expertise in-
This was not harmless. Dr. Morton’s error pre- illicit evaluating effects of a number of and cluded amounts, and alcohol on behavior drugs, varying scribed bipolar testimony was critical persons of with disorder. His of testimony about the effects Molina’s defense. Dr. Morton’s alcohol, cocaine, other on the and substances jury have allowed the to infer witness’ disorder would bipolar (and consenting) have normal appeared quite that she could Molina, yet memory have no engaging sexual intercourse. testimony jury exclusion of his left the uninformed about the effect the combination of drugs and alcohol on the pattern memory a bipolar person behavioral and whose abnormally lithium level was low. This beyond was a matter understanding lay persons. By excluding the testimo- ny, judge the trial deprived Molina of of a evidence factual upon the jury basis which could have decided Molina’s favor.
IV. I also would hold that the trial erred judge in granting Instruction which reads as follows: The Court charged instructs the that the defendant is crime of rape. The Commonwealth must prove beyond a reasonable doubt each of following elements of that crime:
(1) That the defendant had sexual intercourse with [the who was not then the defendant’s spouse;
victim] (2) consent; That it her will against and without her force, threat, it intimidation; That was or by incapacity
use of mental or physical helplessness. you If find from the evidence that the Commonwealth has proved beyond a reasonable each of the doubt above ele- charged, you ments of the offense as then shall find the guilty.... defendant erroneously
This instruction combined the elements of “against her will without her consent” with the elements *40 of “mental or incapacity physical helplessness” way in a not contemplated In by rape pertinent part, the statute. Code 18.2-61(A) provides § as follows:
If any person has sexual with a complaining intercourse (i) witness ... accomplished and such act is the against will, force, of complaining by witness’s threat or intimidation (ii) or against the ... or complaining through witness the or incapacity physi- mental of witness’s complaining use the of guilty rape. or shall be ... he she cal helplessness of sexu- three distinct circumstances Thus, the defines statute (or (i) or force threat person’s will against al intercourse: (ii) person’s of the mental intimidation), the use through (iii) physical of the person’s the use incapacity, through helplessness. reasonably suggested jury questions
The asked created of these in one instruction melding the elements the judge wrote to the example, jury For the confusion. following inquiry: the the could be in The defendant and victim
Assumption: at inci- mentally incapacitated state the time the same dent.
Issue:
(1) Law assumption, Virginia specify on the does Based to render a rational expected a defendant would be whether capacitation incapaci- to decision as the state mental in a engage the whom he sexual tation of woman desires act? adults, female, that se, male and one Per are two one time of the sexual encoun- mentally incapacitated
are “rape”? act of engaged ter an the instructions significant These are because inquiries find jury jury require trial to the did judge gave mentally incapacitated complaining that the witness was either offered, and Commonwealth physically incapacitated. The permitted jury an instruction that judge gave, of mental finding of Molina’s “use upon convict Molina argued never incapacity.” Significantly, Commonwealth In mentally complaining incapacitated. witness was words, found that could have other Molina, was also intoxi- intoxicated and that who witness was rela- cated, he sexual guilty rape engaged because threat, intimidation, force, tions with her without the use mentally comprehend he but at a time when was unable this considering it was jury gave an indication intentions. *41 inquired when it whether “the defendant and victim the could be in the same mentally incapacitated at the time of state the incident.” It is jury certain that “the same ... state” the addressed was intoxication because it is undisputed that the proved evidence both Molina and the complaining witness were similar in this respect they both consumed alcohol at — “the time of the incident.” have held
We that a complaining witness is not rendered physically helpless mentally incapacitated solely because “she was ‘drunk’ ... taking ‘antidepressant’ [and] was medi- Howard, day.” cation that at Va.App. S.E.2d Yet, 143. permitted the instruction in this case jury the “force, for substitute threat or intimidation” element its belief that the complaining merely witness’ will was overcome Indeed, because she voluntarily jury, was intoxicated. specifically which had indicated to the trial lack of judge its unanimity, asked: “Can you ‘against define her will?’ Consent is ... but “will’is jury’s defined not.” The focus on the issue of complainant’s by is also “will” evident its further inquiry: (8): will;
Element against “That it was and” Issue:
(1) (8) law, Virginia Under does Element mean victim was or could be a mental state that could prevent her from rendering rational decision as to her will? law, Virginia Under does the act of exercising one’s directly “will” or implies process involves of decision making? jury’s
The focus witness’ complaining consent and by will was compromised disjunctive the instruction’s use three distinct circumstances of sexual intercourse. I disagree majority opinion’s instruction, with the conclusion that which intertwined the three theories of was harmless. rape, argued Commonwealth never that the complaining wit- Yet, was mentally ness incapacitated. placed instruction before upon a basis which to jury impermissibly use the Furthermore, witness’ intoxication. as the in- crafted, is it impossible struction to determine whether the theories any one of the instruction’s unanimous on jury was jurors could have believed than the event. Fewer twelve threat, force, or intimi- raped complaining witness (a though to the even theory dation that was submitted charges). wounding and abduction struck judge the trial *42 witness was complaining that the Others could have believed officers) (as and that told the intercourse she during conscious (that is, she was intoxicated rape while accomplished mentally inca- “in the same jurors’ inquiry, to the according Molina). found that the as Others could have pacitated state” incapac- mental equated witness’ intoxication possible It is not to tell which set physical helplessness. or ity jury agreed of facts the on. law, criminal the verdict all Virginia
“Under established
Commonwealth,
v.
prosecutions must be unanimous.” Evans
(1984)
468, 481,
114,
(citing
121
Rule
228 Va.
323 S.E.2d
3A:17(a)).
jury
of
means that the
requirement
unanimity
The
Richardson
See
exists.
unanimously
must
find each element
States,
1707, 1710,
813, 817-18,
v. United
526
119
U.S.
S.Ct.
(1999).
ple, jury unanimously robbery, the crime of but whether the force created of a is not an element the crime gun the use knife jury unanimity. not require therefore does Commonwealth, 423, 434-35, v. 587 S.E.2d Jackson 266 Va. Richardson, 817, 119 526 U.S. at S.Ct. (citing 541 1710). however, case, question In is not “which at this up brute facts make possible underlying several sets Richardson, 817, 119 at 526 at S.Ct. particular element.” U.S. Rather, of “against [a this is a case where the elements 1710. incapacity” “through ... “through will” or mental person’s] conceptually distinguish ... are three physical helplessness” independent that are elements the same concepts able ways to jury permissible Because had a menu of crime. convict, jury reached the verdict failed show Thus, failed unanimity one set of facts. the Commonwealth the crime with “every necessary to constitute prove fact In re Winskip, which he is charged.” at U.S. S.Ct. added). (emphasis We have no basis to know from the record what essential element jury Therefore, found. I would hold that erroneous, the instruction was prop- failed to erly inform law, of the and was not harmless. reasons,
For all of these I would reverse the convictions.