Molina v. Commonwealth

Present: Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and
Agee, JJ., and Russell, S.J.

JAIME SALVADOR MOLINA

v. Record No. 060267 OPINION BY JUSTICE DONALD W. LEMONS
November 3, 2006
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider two issues: (1) whether the

trial court erred in granting an instruction including use of

the victim's mental incapacity in a rape case; and (2) whether

there was sufficient evidence to convict the defendant of

forcible sodomy.

I. FACTS AND PROCEEDINGS BELOW

A. Prior Proceedings

On October 24, 2003, a jury in the Circuit Court of

Fairfax County found Jaime Salvador Molina (“Molina”) guilty

of rape and forcible sodomy of Stephanie A. Moroffko

(“Moroffko”). Molina was sentenced to ten years imprisonment

on each conviction. The Court of Appeals affirmed the

convictions. Molina v. Commonwealth, 47 Va. App. 338, 624

S.E.2d 83 (2006). We granted Molina's petition for appeal on

four assignments of error: (1) The Circuit Court erred in

granting Instruction 14. (2) The Court of Appeals erred in

holding that there was evidence to support an instruction

(Instruction 14) that the rape was committed through the use
of mental incapacity of the complaining witness. (3) The

Court of Appeals erred in holding that granting Instruction 14

was harmless error. (4) The Court of Appeals erred in holding

that the evidence was sufficient to sustain the conviction of

forcible sodomy.

B. Facts

During the morning on September 28, 2002, Moroffko left

her house and walked to a nearby convenience store. After

buying some milk and wine and leaving the store, she stopped

and sat on a brick wall near the store and began drinking the

wine. Molina approached Moroffko, sat down next to her and

they talked. Moroffko and Molina then began kissing. While

sitting with Molina on the brick wall, Moroffko's head was

either “hit by something hard” on the back of her head or she

fell and “hit against something.”

Later that morning, a police officer noticed Molina

standing behind a bush at the rear of the convenience store

about 130 or 140 feet from the place on the wall where

Moroffko had been sitting. The officer also found Jose

Membrano lying on the ground. Within 20 seconds of the

arrival of the police, Molina looked in the direction of the

officer, then began to walk away. Molina's face was flushed,

his eyes were somewhat "reddish," and the officer smelled

alcohol on his person.

2
 The officer looked behind the bush and saw Moroffko

unconscious and partially naked lying near a dumpster behind

the convenience store. The officer attempted to awaken

Moroffko and, thereafter, called the rescue squad when she was

non-responsive. The emergency medical technician who arrived

at the scene noticed some puffiness in Moroffko's face and

foam around her mouth, which the technician stated is

indicative of a seizure.

The police arrested Molina for being drunk in public.

Upon interrogation, Molina told the police that after engaging

in consensual vaginal sex with Moroffko some distance from the

brick wall, Molina left Moroffko who stayed behind to sleep.

According to Molina, he then spoke to some friends in the

parking lot, bought some lunch, and came back to the area

behind the store. According to Molina, when he returned, Jose

Membrano was on top of Moroffko. Moroffko was screaming and

had "started to foam at the mouth." Police arrived shortly

thereafter.

Upon arrival at the hospital, Moroffko was still non-

responsive. She awoke in the hospital where she spent three

days with facial lacerations, broken bones in her face and a

cut on her head. Moroffko testified that she does not

remember anything from the time she sustained a blow to the

head until waking up in the hospital. She stated that she was

3
unconscious during that period. When Moroffko was examined,

spermatozoa were found on her “thighs, external genitalia,

vaginal cervical, perianal buttocks and anal/rectum smears.”

The Sexual Assault Nurse who examined Moroffko at the hospital

found only minor abrasions in the genital-rectal area, not

visible to the naked eye. There was no blood found on the

anal/rectal swabs. Blood was present “on the vaginal,

cervical and [lips/lip] area swabs, on the dental floss and in

the oral rinse.” After DNA testing, Membrano was eliminated

as a possible contributor of the sperm found, but Molina was

not. The probability that a randomly chosen unrelated

individual would have the same DNA pattern displayed in the

sample as Molina was "1 in greater than 6.0 billion."

Moroffko has a history of bipolar disorder, with both

manic and depressive episodes, drug and alcohol abuse,

depression, and seizures accompanied by blackouts involving

memory loss. She was prescribed lithium for her bipolar

condition. These “blackouts” or losses of memory occur when

Moroffko abuses medication, alcohol, or other drugs.

When Moroffko was examined at the hospital,

benzodiazepines and cocaine were found in her blood. She also

had a blood alcohol level almost three times the legal limit

for the operation of a motor vehicle. Moroffko's lithium

level, however, was lower than that of a person taking the

4
proper dosage for bipolar disorder. Moroffko's psychiatrist

testified that failure to take the lithium as directed could

result in either depression or hypomania, a state

characterized by increased energy and impulsive behavior.

Although Moroffko admitted she kissed Molina, she

maintains that she did not consent to sexual intercourse with

anyone. Additionally, Moroffko does not recall moving from

the wall where she was sitting with Molina to the area where

she was found. In contrast, Molina stated that at Moroffko's

request, they went behind the store and had consensual vaginal

intercourse. Molina denied having anal intercourse with

Moroffko. He told the police he "had no idea that [Moroffko]

was injured or how she was injured."

II. ANALYSIS

A. Standard of Review

Our “sole responsibility in reviewing [jury instructions]

is to see that the law has been clearly stated and that the

instructions cover all issues which the evidence fairly

raises.” Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d

856, 858 (1982). In determining the sufficiency of the

evidence, we review the evidence and “all reasonable

inferences flowing therefrom” in the “light most favorable” to

the Commonwealth, the prevailing party in the trial court.

Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786

5
(2003). Additionally, we must “regard as true all the

credible evidence favorable to the Commonwealth and all fair

inferences to be drawn therefrom.” Parks v. Commonwealth, 221

Va. 492, 498, 270 S.E.2d 755, 759 (1980) (citations omitted).

We “will not disturb the trial court's judgment unless it is

plainly wrong or without evidence to support it.” Hedrick v.

Commonwealth, 257 Va. 328, 340, 513 S.E.2d 634, 641 (1999).

B. Instruction 14

Virginia Code § 18.2-61(A), in effect at the time of this

offense, provided:

If any person has sexual intercourse with a
complaining witness who is not his or her spouse
or causes a complaining witness, whether or not
his or her spouse, to engage in sexual
intercourse with any other person and such act is
accomplished (i) against the complaining
witness's will, by force, threat or intimidation
of or against the complaining witness or another
person, or (ii) through the use of the
complaining witness's mental incapacity or
physical helplessness, or (iii) with a child
under age thirteen as the victim, he or she shall
be guilty of rape.

The statute defined four distinct circumstances of sexual

intercourse: (i) against a victim's will by force, threat or

intimidation, (ii) through the use of the victim's mental

incapacity, (iii) through the use of the victim's physical

helplessness, or (iv) with a victim under age thirteen. The

only issue before us involves whether mental incapacity of the

6
victim was properly included in the jury instruction as a

method of commission of rape under the facts of this case.

Jury Instruction 14 was given to the jury. It

stated:

The Court instructs the jury that the
defendant is charged with the crime of rape.
The Commonwealth must prove beyond a reasonable
doubt each of the following elements of that
crime:
(1) That the defendant had sexual
intercourse with Stephanie Moroffko who was not
then the defendant's spouse; and
(2) That it was against her will and
without her consent; and
(3) That it was by force, threat or
intimidation; or by the use of her mental
incapacity or physical helplessness.
If you find from the evidence that the
Commonwealth has proved beyond a reasonable
doubt each of the above elements of the offense
as charged, then you shall find the defendant
guilty but you shall not fix punishment until
your verdict has been returned and further
evidence has been heard by you.
If you find that the Commonwealth has
failed to prove beyond a reasonable doubt either
of the above offenses, then you shall find the
defendant not guilty.

Among other arguments, Molina maintains that the instruction

is erroneous because it is "confusing" and because its

disjunctive nature permits a less than unanimous finding by

the jury concerning the method employed to commit the crime.

The Court of Appeals assumed without deciding that the

instruction was erroneous and held that, if erroneous, it was

harmless error. However, our review of the record reveals

7
that these two arguments were waived because Molina did not

make those arguments to the trial court. In oral argument

before this Court, counsel for Molina conceded that no

argument was made at trial based upon "confusion" or potential

non-unanimous verdict prior to submission of the instruction

to the jury. Accordingly, these objections will not be

considered for the first time on appeal. Rule 5:25; see

Muhammad v. Commonwealth, 269 Va. 451, 523, 619 S.E.2d 16, 57

(2005); Wackwitz v. Roy, 244 Va. 60, 63, 418 S.E.2d 861, 863

(1992).

Molina did argue at trial that there was insufficient

evidence of mental incapacity of the victim to include that

condition in Instruction 14. "Mental incapacity," a statutory

term that applies to rape and other sex crimes, in Chapter 4,

Article 7 of Title 18.2 of the Code of Virginia, is defined as

"that condition of the complaining witness existing at the

time of an offense . . . which prevents the complaining

witness from understanding the nature or consequences of the

sexual act involved in such offense and about which the

accused knew or should have known." Code § 18.2-67.10(3).

Molina argues that the statutory term "mental incapacity" is

limited to a permanent mental condition such as retardation

rather than a transitory condition such as voluntary

intoxication. Accordingly, Molina maintains that there was no

8
evidence of a permanent mental condition suffered by Moroffko

such that she did not understand "the nature and consequences

of the sexual act involved."

We disagree with Molina's narrow construction of the

statute. Nothing in the statutory definition itself limits

the definition of "mental incapacity" to a permanent

condition. Instead, the meaning is found in the incapacity

described: "which prevents the complaining witness from

understanding the nature or consequences of the sexual act."

Further, the definition refers to a condition existing "at the

time of an offense" and does not limit its scope to non-

transitory conditions. We hold that the term "mental

incapacity" may extend to a transitory circumstance such as

intoxication if the nature and degree of the intoxication has

gone beyond the stage of merely reduced inhibition and has

reached a point where the victim does not understand "the

nature or consequences of the sexual act." Code § 18.2-

67.10(3).

Other states that have considered the issue,

understandably, focus upon the inability to give consent to

the act itself. The cause of the victim's lack of ability to

give consent is not dispositive. See State v. Farnum, 554

N.W.2d 716, 721 (Iowa Ct. App. 1996) (recognizing that

although incapacity "is generally applied in cases of retarded

9
or low-functioning victims," it may be applied to a seriously

intoxicated victim); State v. Al-Hamdani, 36 P.3d 1103, 1107

(Wash. Ct. App. 2001) ("It is important to distinguish between

a person's general ability to understand the nature and

consequences of sexual intercourse and that person's ability

to understand the nature and consequences at a given time and

in a given situation." (emphasis added)), review denied, 60

P.3d 1211 (Wash. 2003); see also State v. McDowell, 427 So. 2d

1346, 1350 (La. Ct. App. 1983) (in rape cases, the fundamental

question is whether or not the mental condition of the victim

is so impaired that legal consent cannot be exercised or

given.)

Considering the definition of "mental incapacity," we

must review the record to determine whether there was prima

facie evidence presented to support inclusion of "mental

incapacity" as a method of committing the crime of rape. The

evidence viewed in the light most favorable to the

Commonwealth includes the fact that, at the time of the sexual

acts, Moroffko was under the influence of benzodiazepines and

cocaine, an opiate. Her lithium blood levels were below

therapeutic dosage. Her blood alcohol levels were almost

three times the legal limit for the lawful operation of an

automobile in Virginia. Even Molina's expert witness

described Moroffko's combination of medication, drugs, and

10
alcohol as "deadly." This evidence was sufficient to enable a

jury to conclude that Moroffko was mentally incapable of

understanding "the nature or consequences of the sexual act

involved" at the time of the assault. Additionally, Moroffko

had been struck on the head and evidence was presented in

support of the conclusion that she suffered a seizure. We

hold that there was sufficient evidence to instruct the jury

that they could find Molina guilty of rape based upon

Moroffko's mental incapacity of which he "knew or should have

known" at the time of the sexual acts. Code § 18.2-67.10(3).

C. Forcible Sodomy

Molina argues that the evidence was insufficient to show

force in the commission of sodomy. We disagree. Code § 18.2-

67.1(A) provides:

An accused shall be guilty of forcible sodomy if
he or she engages in . . . anal intercourse with
a complaining witness . . . and . . . [t]he act
is accomplished against the will of the
complaining witness, by force, threat or
intimidation of or against the complaining
witness or another person. . . .

Molina denies that he had anal intercourse with Moroffko.

However, spermatozoa were found approximately one to two

inches inside Moroffko's anal cavity. DNA analysis of the

spermatozoa revealed that the probability that a randomly

chosen unrelated individual would have the same DNA pattern

displayed in the sample as Molina was "1 in greater than 6.0

11
billion." Therefore, viewing the evidence in the light most

favorable to the Commonwealth, there was sufficient evidence

that a jury could reasonably conclude that Molina and Moroffko

engaged in anal intercourse.

Additionally, there is sufficient evidence that a jury

could reasonably conclude that Molina used force to sodomize

Moroffko. First, there is evidence that as Molina sat with

Moroffko on the brick wall Moroffko was either “hit by

something hard” on the back of her head or she fell and “hit

against something.” Moroffko, however, does not know who or

what hit her and she did not see who or what hit her. Second,

Moroffko lost consciousness after being hit or hitting her

head and suffered facial lacerations, broken bones in her face

and a cut on her head. Third, the evidence reasonably

suggests that Moroffko was dragged from the brick wall to the

area near the bush and dumpster behind the convenience store.

After being hit or hitting her head, Moroffko does not recall

getting up from the brick wall or moving to the bush behind

the convenience store where she was found unconscious.

Furthermore, Molina concedes that he had sex with Moroffko

some distance from the brick wall. Finally, although Moroffko

admitted to kissing Molina, she maintains that she did not

consent to any form of sexual intercourse with anyone on that

day.

12
 When a defendant challenges the sufficiency of
the evidence on appeal, we must view the
evidence and all reasonable inferences fairly
deducible therefrom in the light most favorable
to the Commonwealth. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975). We will not disturb the fact
finder's verdict unless it is plainly wrong or
without evidence to support it. Stockton v.
Commonwealth, 227 Va. 124, 145, 314 S.E.2d 371,
385, cert. denied, 469 U.S. 873 (1984).

Ward v. Commonwealth, 264 Va. 648, 654, 570 S.E.2d 827, 831

(2002).

III. CONCLUSION

The judgment of the Court of Appeals will be affirmed.

Affirmed.

13