COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Haley and Senior Judge Annunziata
Argued at Alexandria, Virginia
JAIME SALVADOR MOLINA, S/K/A
JAMIE SALVADOR MOLINA
OPINION BY
v. Record No. 0630-04-4 JUDGE ROSEMARIE ANNUNZIATA
JANUARY 10, 2006
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jonathan C. Thacher, Judge
S. Jane Chittom, Appellate Defender (Virginia Indigent Defense
Commission, on brief), for appellant.
Eugene Murphy, Senior Assistant Attorney General (Jerry W.
Kilgore, Attorney General, on brief), for appellee.
Jaime Salvador Molina appeals his convictions of rape and forcible sodomy on the
grounds that: (1) the trial court erred in granting Instruction 14; (2) the trial court erred in
limiting the testimony of an expert; and (3) the evidence was insufficient to support the jury’s
verdicts. For the reasons that follow, we affirm.
BACKGROUND
On appeal, we review the evidence in the light most favorable to the Commonwealth, the
party prevailing below, together with all reasonable inferences that may be drawn. Garcia v.
Commonwealth, 40 Va. App. 184, 189, 578 S.E.2d 97, 99 (2003). So viewed, the evidence
established that, around 10:00 a.m. on September 28, 2002, Stephanie Moroffko left her
residence and walked to a convenience store where she bought milk and wine. She then sat on a
brick wall nearby and started drinking the wine. Molina, whom Moroffko did not know,
approached and spoke to her. She and Molina engaged in conversation about Moroffko’s family
problems, and Moroffko remembered engaging in some hugging and kissing with Molina before
she was struck on the head with something hard and lost consciousness. Moroffko awoke in the
hospital, suffering facial lacerations, broken facial bones, and a head injury.
Officer Michael Koltz was patrolling the area around the convenience store on September
28, 2002. As he drove his police car to the rear of a laundromat located in the area, he saw
Molina standing behind a bush looking toward the ground. Molina was fully dressed and
appeared to be talking to someone. Koltz noted another individual lying on the ground; the
individual was later identified as Jose Membrano. Within twenty seconds of Koltz’s arrival,
Molina “leaned over at the waist and looked in [the police officer’s] direction.” He then “stood
up and began to walk away from the bush, across the parking lot in a northeasterly direction.”
Koltz approached Molina and engaged him in conversation, at which time he saw Membrano
exit from behind the bush. Subsequently, he found Moroffko lying on the ground behind the
bush where Molina and Membrano had been when Koltz arrived. Moroffko was unconscious
and partially nude. Koltz’s efforts to revive her were unsuccessful. Based on Molina’s conduct,
flushed face, reddened eyes, and an odor of alcohol that he emitted, Koltz arrested Molina for
being drunk in public.
Emergency Medical Services (EMS) worker Lieutenant Linda Arnold responded to
Koltz’s call for assistance. Arnold testified that she found Moroffko unconscious and
unresponsive, lying face up on the ground in the midst of debris, behind a tree. She was
unclothed from the waist down, and swelling on her face and eyes was observable.
Nancy Susco, a registered nurse in the emergency room at INOVA Fairfax Hospital
where EMS personnel transported Moroffko, collected evidence from her using a physical
evidence recovery kit (PERK). Susco described Moroffko as disheveled, her hair matted, and
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covered in blood and debris. Using a special dye and a medscope, Susco found that Moroffko
had some “scattered uptake” injuries to her vaginal area.1
Detective John Kelly, the lead detective in the investigation, interviewed Molina on
September 29, 2002. Molina admitted having consensual sexual intercourse with Moroffko, but
denied having anal intercourse. In his statement to Kelly, Molina described what occurred
during his encounter with Moroffko. According to Molina, after Moroffko told him about her
family problems, she said she wanted to lie down and have sexual intercourse. Molina further
recounted that Moroffko “pulled him down on top of her” after he helped her lie down, “and they
had sex.” Afterwards, Molina left the area to speak with some friends. When he realized that
Membrano was not among the group, he returned to the area behind the bush and saw Membrano
on top of Moroffko. Molina said he told Membrano to leave Moroffko alone. Membrano
refused and turned Moroffko over, instead. According to Molina, Moroffko was less clothed
than she had been when he had sex with her and, in contrast with her earlier appearance, she
looked sick and drunk.
Jennifer Gombos, a forensic scientist for the Department of Forensic Science, was
qualified as an expert in DNA analysis. Molina stipulated to the admission of the certificate of
analysis, which showed that his DNA was found in vaginal and anal swabs taken from Moroffko.
Molina could not be eliminated as a possible contributor of the material on either swab; the test
eliminated Membrano. On cross-examination, Gombos testified that it is “possible in certain
circumstances” that seminal fluid can be transferred to another part of the body, with the caveat
that “it’s highly unlikely that it gets transferred from an external portion of the body to an
1
Susco explained that she applies a dye called “teludine blue” to determine if there is an
injury. According to Susco, “[t]hat dye adheres to any skin that’s been torn away.”
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internal area of the body naturally, without being manually done or some physical force being
used in order to take something from the external part of the body and insert it vaginally.”
At trial, Moroffko testified that she took prescribed doses of Xanax, Zanaflex, Lithium,
Zoloft, Zethacoat, and Nexium the night before the incident. However, she denied taking
cocaine or any other illicit drugs and could not explain the presence of cocaine in her system.
Addressing her drug intake on September 28th, Moroffko stated:
I hadn’t taken anything. I don’t know if I had taken my
medication or not, but if I had it was what was prescribed.
And I drank just the wine that I said I drank and had a
seizure, so it was not just because of my pills or the alcohol.
Moroffko could not recall the interview she had with the police at the hospital on the day
of the incident, despite being shown a transcript of the interview. She was able to recall a second
interview conducted by the police at the hospital the next day. When confronted with
inconsistencies or certain responses elicited in the second interview, Moroffko either could not
recall having made the statements or denied the accuracy of the information. Moroffko
conceded she experienced past episodes of losing consciousness and “black outs” in which she
suffered a loss of memory. She further acknowledged a history of abusing alcohol and
prescribed drugs, as well as a history of seizures and bipolar disease. She attributed the blackout
episodes she experienced to an excessive use of prescribed medication or alcohol or both. She
denied the occurrence of either circumstance in this case, and she consistently denied ingesting
illegal dugs or giving consent to any sexual activity.
After the Commonwealth rested its case-in-chief, Molina moved to strike the evidence.
The trial court granted the motions as to abduction and malicious wounding charges.
In his defense, Molina introduced testimony from five experts: Dr. Kamal Jajoda, a
psychiatrist; Patrick Slifka, a licensed clinical social worker; Dr. Cynthia Gauss, a psychiatrist;
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Dr. Magnus Ikhinmwin, an emergency room physician; and Dr. William Morton, Jr., a
psychopharmacologist.
Dr. Jajoda was Moroffko’s treating physician. She began treating her in July or August
2002, one to two months before the incident. Based on the history that Morrofko reported which
included “mood changes, depression - - occasionally with hypomania,” Dr. Jajoda thought she
“probably had a bipolar disorder and that she was in what we call a mixed state,” meaning she
manifested “symptoms of both moods.” Moroffko did not report symptoms consistent with
mania when she began treatment with Dr. Jajoda, and symptoms of mania were not observed
during the period she treated her, ending in September 2002. She noted, however, that Moroffko
appeared to suffer from manic “episodes,” namely, irritability, sleeplessness, and anxiety.
Dr. Jajoda indicated in her progress notes that Moroffko was “cycling,” which meant her “mood
is not stabilized.” Moroffko was “still going between depression and up moods, which are mild
hypomania,” according to this physician. She further testified that a bipolar patient who fails to
take the lithium as prescribed could “go into depression or into hypomania, depending on
individual response.” Dr. Jajoda described hypomania as “a state when there is decreased need
for sleep and increased energy and physical energy and impulsive behavior.” She prescribed 900
mg of lithium per day, as well as Depakote and Tegretol, all of which “are used as mood
stabilizers,” in order to control Moroffko’s symptoms.
Patrick Slifka, a consultant and certified substance abuse counselor for Northern Virginia
Counseling Group, testified that he first met with Moroffko in March 2003 following
Dr. Jajoda’s referral to him. Moroffko told Slifka she drank alcohol on a daily basis. Slifka
recommended she be detoxified and undergo long-term residential treatment.
Cynthia Gauss, an in-patient psychiatric physician at Fairfax Hospital, first encountered
Moroffko on July 13th or 14th, 2002, when she was admitted to the psychiatric unit from the
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medical unit. Moroffko entered the medical unit on July 10, 2002, after swallowing a large
amount of prescription drugs, which she had received on July 9, 2002. Gauss was treating
Moroffko for a depressive disorder, although she had related a history of bipolar disease.
Moroffko left the psychiatric unit on July 15, 2002, against medical advice. Gauss believed
Moroffko needed more extensive hospitalization in order to stabilize her moods and assure her
safety.
Dr. Magnus Ikhinmwin is a physician at INOVA Fairfax Hospital who treated Moroffko
in the emergency room for the multiple drug overdose on July 10, 2002, described earlier. “In
addition to the diagnosis of multi drug overdose,” Dr. Ikhinmwin made “a secondary diagnosis
of bipolar disorder.” Moroffko also tested positive for opiates at that time. Dr. Ikhinmwin
subsequently cared for Moroffko when she was brought to the hospital on September 28, 2002.
On that date, Moroffko could not relate any information about her medical condition.
Moroffko’s lab tests revealed the presence of benzodiazepine, an opiate, cocaine, a blood alcohol
level “more than two times normal,” and a very low lithium level. Dr. Ikhinmwin noted that the
laboratory results showed the drug levels at the time the blood sample was taken in the hospital,
however, he could draw no conclusions from the reports regarding Moroffko’s drug levels at the
time of the incident.
Dr. William Alexander Morton, Jr., Molina’s fifth expert witness, is a
psychopharmacologist, having earned a PhD in pharmacy and completed a residency in clinical
pharmacy. He is not a medical doctor, however. Defense counsel asked Dr. Morton how an
individual would behave or appear after consuming a bottle of wine and having present in their
system an “indefinite quantity of cocaine, the presence of opiates, the presence of
benzodiazepines, as well as a lithium level of 0.2.” Morton explained that the alcohol “would be
additive to the drugs that were already in the system and it follows an unpredictable type of
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synergistic effect where one and one makes three or one and one makes four.” Dr. Morton noted
that Moroffko’s blood alcohol content (BAC) of 292 milligrams per deciliters was “significantly
high.” He stated Moroffko’s BAC could have been as high as 300 or 350 one to three hours
earlier. Dr. Morton also explained that people who consume alcohol on a regular basis can
acquire a “behavioral tolerance where [one] learn[s] to walk and stand up longer than [he or she]
would have initially” and “may not look as intoxicated.” According to Dr. Morton, such
individuals can require greater quantities to achieve the same effect.
Describing “[w]hat effect . . . these factors have on memory,” Dr. Morton responded:
[A]lcohol has a significant [e]ffect on memory and it
correlates with levels, higher levels. You can have memory effects
in the hundreds, but certainly they’re of typically [sic] blackout in
the 200s and 300-milligram percent level.
So one would not be able to recall events as they may have
happened. If you add those with other substances,
benzodiazepines such as Xanax, they’re all in the same class.
There is that additive phenomena where you actually - - that
combination can be quite deadly, so we try not to have that
combination present because it can cause excessive response, like I
was saying earlier, synergistic effect where one equals four.
Valium, Ativan and Xanax in themselves cause problems
with memory, cause a similar blackout problem, and then the other
sedative, hypnotic drug you mentioned, the opiate, that causes
some sedation. So that would have some effects with memory.
Cocaine would not necessarily diminish memory, but the
alcohol and the benzodiazepine and opiate would have a dramatic
effect on it.
Dr. Morton further explained that, because alcohol can significantly affect psychiatric
disorders, “we would always caution against the mixing of the benzodiazepines, such as Ativan,
Xanax, Valium, those type drugs, with alcohol. It should not be used,” because “it can be
deadly, it can cause problems with control, impulse problems with driving.” Morton concluded
his testimony by observing that a 0.2 level of lithium is low.
The jury found Molina guilty of rape and forcible sodomy. This appeal followed.
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ISSUE I: JURY INSTRUCTION 14
Background
At trial, the Commonwealth proffered Jury Instruction 14.2 The instruction reads as
follows:
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 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.
In addition, the trial court granted Instruction V, which defined “mentally incapacitated”
as a “condition which prevented [the victim] from understanding the nature or consequences of
the sexual act involved,” and Instruction W, which defined “physical helplessness” as
2
The Commonwealth initially proffered Jury Instruction 7, the standard instruction on
rape. Instruction 7 tracked Virginia Model Jury Instruction G44.100, which requires the
Commonwealth to prove that the defendant had sexual intercourse with the victim; and “[t]hat it
was against her will and without her consent; and [t]hat it was by force, threat or intimidation.”
2 Virginia Model Jury Instructions, Criminal G44.100 (2004 repl. ed.). However, after advising
the trial judge that, for the rape indictment, she had “added on clause 3 that it was by force, threat
or intimidation or by the use of her mental incapacity or physical helplessness,” the
Commonwealth’s Attorney withdrew Instruction 7 and proffered Instruction 14.
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“unconsciousness or any other condition existing at the time of the offense which otherwise
rendered the complaining witness physically unable to communicate an unwillingness to act.”
Relying on Adkins v. Commonwealth, 20 Va. App. 332, 457 S.E.2d 382 (1995), Molina
argued that “mental incapacity simply would not apply at this time.” He contended that the
legislative purpose underlying the offense based on mental incapacity “is to protect persons who
are mentally impaired or retarded from being sexual[ly] exploited due to their mental
incapacity.” The following colloquy took place:
MR. KENSKY [Appellant’s Attorney]: The A[d]kins case dealt
with mental retardation and said that when we’re looking at
evidence of whether the victim in the case is able to appreciate the
consequences of the sexual act and they said although she has
mental retardation, she understands pregnancy, she had some sex
ed in school, she used the words penis and vagina properly to
describe intercourse.
So it deals with her capacity to appreciate the sex act as it
applies to her mental retardation. So under A[d]kins v.
Commonwealth, mental incapacitation isn’t just anything that may
have - - from her memory of consenting. It’s limited.
THE COURT: It’s not limited. Supposing a victim were so
intoxicated as to not be able to say yes or no and totally
incapacitated due to voluntary intoxication and a criminal
defendant took advantage of it and raped that individual, wouldn’t
that come under this? Wouldn’t that be mental incapacity?
It doesn’t say mental incapacity of a particular nature, does
it? You intend to argue that this individual has some mental
difficulties, do you not?
MR. KENSKY: Yes. We’ll be arguing that, Judge, but certainly
under the way you presented it, if someone is so inebriated that
they’re not able to consent, you could say the exact same thing.
Physical helplessness also means that and you’re rendering
physical helplessness to be a synonym to mental incapacitation.
They mean two different things.
THE COURT: The criteria, is there some scintilla of evidence
which would indicate mental incapacity and there is in this case
and you intend to argue it. I grant 14. I’ll note your exception.
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During deliberations, the jury submitted written questions to the trial judge. In Question
4, the jury asked whether “the defendant and the victim could be in the same mentally
incapacitated state at the time of the incident.” In response, the trial court read the voluntary
intoxication instruction to the jury, apparently construing the question as one prompted by
evidence in the case that Molina appeared intoxicated at the scene and that he was arrested on a
drunk in public charge. In that instruction, the jury was told that “voluntary intoxication is not a
defense to either the crime of rape or sodomy.”
In Question 8, the jury noted that Instruction U defined consent, but that no instruction
defined “against her will.” The trial court instructed the jury to “give the words in the
instructions their plain meaning.” In Question 9, the jury asked for clarification of Instruction R,
which defined the elements of sodomy. Specifically, the jury asked if the element “against her
will” meant “that the victim was or could be in a mental state that could prevent her from
rendering a rational decision as to her will.” It also asked if the act of exercising one’s will
involves or implies “a process of decision making.”
The trial judge instructed the jury, “You have in your possession all instructions of the
court. You should use all of these instructions as they apply to the evidence in this case.”
On October 24, 2003, Molina’s attorney moved for a mistrial, contending that the
questions the jury propounded evidenced jury confusion. Specifically, defense counsel argued:
[B]ecause their question necessarily assumes that you can be
mentally incapacitated through intoxication. That’s simply not
what the law allows.
So my fear is the jury’s going to decide this case applying
mental incapacity. I know they have the definition of mental
incapacity but I think that just underscores my earlier argument
that mental incapacity is not appropriate to instruct the jury in
Instruction 14, the Commonwealth’s - - in arguing in the
alternative, force, threat or intimidation or by mental incapacity or
by physical helplessness.
Now we have clear evidence from the jury that they’re
confusing it.
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The trial judge found the motion untimely and refused to “revisit those issues which I
have already addressed during the process of deliberations.”
A. GRANTING INSTRUCTION 14 AS WRITTEN DID NOT
CONSTITUTE REVERSIBLE ERROR
Discussion
Molina contends the trial court erred in granting Jury Instruction 14 because it combines
two alternative bases upon which the Commonwealth sought to convict Molina on the rape
charge.3 In rejecting Molina’s claim of reversible error on this ground, we begin with a review
of the statute defining the crime.
In pertinent part, Code § 18.2-61(A) defines the following alternative elements of proof
upon which the conviction for rape can rest:
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, . . . .
Two separate Virginia Model Jury Instructions define the alternative elements of proof
set forth in Code § 18.2-61(A)(i) and 18.2-61(A)(ii). Virginia Model Jury Instruction G44.100
tracks the language in Code § 18.2-61(A)(i) and requires the Commonwealth to prove that the
defendant had sexual intercourse with the victim, “[t]hat it was against her will and without her
3
We note that Molina did not initially object to Jury Instruction 14 on the ground that it
erroneously combined several concepts and misled the jury. Instead, he contended the theory of
mental incapacity was not an issue and should not have been presented to the jury. During
deliberations on October 24, 2003, two days after the instruction was granted, Molina first
complained that the instruction was not a model instruction, erroneously combined the theories,
and was misleading. At that time, he moved for a mistrial.
The trial court asked the prosecutor if its instruction “was also a model,” and the
prosecutor replied, “I think – yes,” to which the trial court responded, “Yes, it was the model.”
We note, however, that Jury Instruction 14 is not a model instruction.
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consent” and “[t]hat it was by force, threat or intimidation.” 2 Virginia Model Jury Instructions,
Criminal G44.100.
Virginia Model Jury Instruction G44.300 defines the elements required to prove rape
under Code § 18.2-61(A)(ii). It requires the Commonwealth to prove that the defendant had
sexual intercourse with the complaining witness and further prove:
(2) That at the time [the complaining witness] was (mentally
incapacitated; physically helpless); and
(3) That at the time of the offense the defendant knew or should
have known [the complainant] was (mentally incapacitated;
physically helpless); and
(4) That the sexual intercourse was accomplished through the use
of the complaining witness’s (mental incapacity; physical
helplessness).
2 Virginia Model Jury Instructions, Criminal G44.300. To establish rape under Code
§ 18.2-61(A)(ii), the Commonwealth need not prove force, threat or intimidation.
Molina contends that the instruction erroneously combines the two alternative theories of
conviction and that it confused and misled the jury about the elements to be proved. Molina
specifically asserts that Instruction 14, with its “blending” of two theories of conviction “lightens
the Commonwealth’s burden because it allowed the Commonwealth to prove that the act was
non-consensual (‘against her will’) without proving force, threat or intimidation . . . .” He
further argues that the instruction permitted the jury to “infer, wrongly, that one who has a
‘mental incapacity’ may not be able to manifest consent, that the accused is not entitled to rely
on her manifestation of consent,” or that the instruction permitted the jury to convict him
“without proving that the complaining witness did not understand the nature and consequences
of the sexual act.” Finally, he contends that the instruction based on the victim’s mental
impairment was not supported by the evidence. We disagree with these contentions.
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Analysis
“A reviewing court’s 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.’” Darnell v. Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988) (quoting
Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)). Code § 18.2-61(A) lists
alternative theories by which the Commonwealth may prove rape. Each theory rests on different
elements of required proof. We assume without deciding that combining the elements set forth
in Code § 18.2-61(A)(i) and 18.2-61(A)(ii) into one instruction constitutes trial court error and
turn to the question whether such error was harmless.
The standard for non-constitutional error is established in
Virginia’s harmless error statute, Code § 8.01-678, which provides,
in pertinent part:
“When it plainly appears from the record and the evidence given at
the trial that the parties have had a fair trial on the merits and
substantial justice has been reached, no judgment shall be arrested
or reversed . . . [f]or any . . . defect, imperfection, or omission in
the record, or for any error committed on the trial.”
Gonzales v. Commonwealth, 45 Va. App. 375, 384, 611 S.E.2d 616, 620 (2005) (en banc).
In Clay v. Commonwealth, 262 Va. 253, 546 S.E.2d 728 (2001), our Supreme Court
adopted the following standard applied in Kotteakos v. United States, 328 U.S. 750 (1946), to
non-constitutional error:
“If, when all is said and done, the conviction is sure that the error
did not influence the jury, or had but very slight effect, the verdict
and the judgment should stand . . . . But if one cannot say, with
fair assurance, after pondering all that happened without stripping
the erroneous action from the whole, that the judgment was not
substantially swayed by the error, it is impossible to conclude that
substantial rights were not affected . . . . If so, or if one is left in
grave doubt, the conviction cannot stand.”
Clay, 262 Va. at 260, 546 S.E.2d at 731-32 (quoting Kotteakos, 328 U.S. at 764-65).
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Applying the standard of review articulated in Clay, we find the error to be harmless.
Although the instruction combined two theories of conviction, the theories are stated in the
disjunctive. Under that disjunctive formulation, the instruction directs the jury to consider either
the “force” theory set forth in Code § 18.2-61(A)(i) or the “incapacity” theory set forth in Code
§ 18.2-61(A)(ii) as a basis for conviction, but not both at once. Although certain elements were
common to both theories, (viz., that Molina had sexual intercourse with the victim who was not
then his spouse and that the sexual intercourse was against her will and without consent), in
order to proceed to conviction under one or the other theory of conviction, the jury had to make
distinctive evidentiary findings and apply distinctive legal principles as instructed. Stated
differently, depending on the facts the jury found proved by the Commonwealth’s evidence, the
instruction directed the jury to either apply the law regarding “force, threat or intimidation,” or
the law regarding the “use of mental incapacity or physical helplessness.” Thus, Molina’s
argument that the instruction allowed the jury to convict him of rape pursuant to Code
§ 18.2-61(A)(i) without proving “force, threat or intimidation” is belied by the language of the
instruction itself which the jury is presumed to follow. Green v. Young, 264 Va. 604, 611, 571
S.E.2d 135, 139 (2002) (citing Zafiro v. United States, 506 U.S. 534, 540 (1993)).
Molina’s contention that the instruction was improper and erroneously misled the jury
with respect to the elements of the crime under Code § 18.2-61(A)(ii) is likewise without merit.
Molina contends that the instruction improperly required the jury to find that the sexual
intercourse in which he engaged with Moroffko was against her will and without consent in
addition to finding that she was mentally or physically incapacitated. To be sure, the model
instruction based on this theory of conviction does not require an express finding that the sexual
intercourse was against the will and without the consent of the victim. However, we conclude
that Molina was not prejudiced by the inclusion of this additional element of proof. First, we
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note that the crime of rape is, at core, an offense against the will and consent of the victim,
irrespective of the manner and means by which the rape is accomplished. See Mings v.
Commonwealth, 85 Va. 638, 640, 8 S.E. 474, 475 (1889) (the essence of the crime of rape
“consists in the ravishment of a [victim] without her consent;” therefore, the issue is whether the
victim was willing or not); Bailey v. Commonwealth, 82 Va. 107, 111 (1886) (whenever there is
a carnal connection without consent, the wrongful act itself supplies the requisite force that the
law demands as an element of the crime).
Second, we note that the inability to freely exercise will and give consent is not solely a
function of force, threat or intimidation by the perpetrator. When the offense involves a victim
who is mentally incapacitated or physically helpless, the inability to consent or willingly engage
in the sexual act is inherent in the very condition from which the victim suffers, as the definitions
make manifest. Mental incapacity is a “condition” that “prevents the [victim] from
understanding the nature or consequences of the sexual act involved.” Code § 18.2-67.10(3).
Consent without understanding is no consent at all. Similarly, physical helplessness rests on
definitional elements, which in themselves signify the absence of consent or an unwillingness to
engage in the sexual act. Code § 18.2-67.10(4). Physical helplessness is defined as
“unconsciousness or any other condition” which physically prevents the victim from
communicating unwillingness to act. Id. If the victim is unconscious or physically unable to
communicate an unwillingness to act, consent surely cannot be established. In short, Molina’s
argument misapprehends the implicit relationship between mental or physical incapacitation and
consent in the context of a rape charge. In such cases, proof of mental or physical incapacitation,
in itself and without more, establishes the absence of consent or willing participation in the
context of a rape charge. As such, when seeking a conviction under Code § 18.2-61(A)(ii), the
Commonwealth need not independently prove either the absence of consent or an unwillingness
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to engage in the sexual act. Nor need there be an express finding by the trier of fact that the
sexual act was against the will and without the consent of the victim when the charge is brought
under Code § 18.2-61(A)(ii). But, to the extent the Commonwealth was required by the
instruction in this case to expressly prove those elements and the jury was required to expressly
make such a finding, it does not follow that reversible error occurred as Molina contends. The
instruction did nothing more than impose on the Commonwealth a heavier burden of proof in
order to convict under Code § 18.2-61(A)(ii). If that be error at all, it favored Molina and was
harmless. Pettus v. Commonwealth, 123 Va. 806, 808, 96 S.E. 161, 162 (1918) (instruction
erroneously defined crime of storing ardent spirits as storing spirits in any other place than in
defendant’s bona fide home, although storage in the home was also unlawful; finding error
harmless where “error is favorable to the defendant and not against his interest”); see also State
v. Duell, 332 S.E.2d 246, 255 (W. Va. 1985) (holding that erroneous instruction was harmless
where it “effectively greatened and not lessened” the government’s burden of proof).
In summary, we find the trial court’s presumed error in combining what should have been
given as separate instructions to be harmless.
B. GRANTING INSTRUCTION 14 AS TO MENTAL INCAPACITY WAS SUPPORTED
BY MORE THAN A SCINTILLA OF EVIDENCE
Finally, Molina claims that Instruction 14 was improperly given on the ground that “no
evidence whatsoever [establishes] that Moroffko suffered from a mental impairment such that
she was unable to understand the nature and consequences of sexual intercourse.”4 Relying on
4
In his initial objection to Instruction 14, Molina argued that “mental incapacity simply
would not apply at this time.” He contended that the definition “deals with a mental retardation
and matters like that.” The following took place:
THE COURT: Isn’t your argument that this individual with her
bipolar problem and use or misuse of controlled substances
rendered her in a condition that she can’t - - so she consented and
now can’t remember?
- 16 -
Adkins, he reasons that the evidence only established impaired judgment due to “mood swing
and/or drugs and alcohol,” and he further argues such impairment does not constitute “mental
incapacity” under Virginia law. Molina’s claim is without merit.
As noted supra, “mental incapacity” is defined by Code § 18.2-67.10(3) as “that
condition of the complaining witness existing at the time of an offense under this article which
prevents the complaining witness from understanding the nature and consequences of the sexual
act involved in such offense and about which the accused knew or should have known.” The
victim must also be “[in]capable of making a volitional choice to engage or not engage in such
conduct.” Adkins, 20 Va. App. at 345, 457 S.E.2d at 388.
The evidence shows that, on the day in question, Molina approached Moroffko while she
sat on a brick wall drinking wine, and engaged her in conversation. Moroffko recalled that they
kissed and that she was then hit on the head with something hard causing her to lose
consciousness. She next remembered awakening in the hospital, suffering facial lacerations,
broken bones in her face, and a head injury. Koltz found Moroffko behind a bush, nude from the
waist down, lying on the ground, unconscious. Koltz tried to revive Moroffko, but she was not
responsive. Moroffko was not revived until after she was admitted to a hospital. At trial,
Moroffko denied consenting to any sexual activity. Tests disclosed that Moroffko had over
twice the normal amount of alcohol in her system and that the level was even higher at the time
[DEFENSE COUNSEL]: Yes. That’s our theory, that she
consented and then - -
THE COURT: And that she can’t remember because of mental
incapacity.
[DEFENSE COUNSEL]: Yes. That’s our theory, that she
consented and then - -
Molina’s attorney reiterated that mental incapacity is limited to one’s “capacity to
appreciate the sex act as it applies to [one’s] mental retardation.”
- 17 -
Molina had intercourse with her. She also tested positive for the presence of cocaine and
benzodiazepines. The prescribed medications Moroffko had taken, in combination with her
alcohol intake, were described as “deadly” by Molina’s expert. The evidence is in sharp contrast
to Molina’s statement that Moroffko was able to consent to sexual intercourse a short time before
the police arrived and provides a sufficient basis from which the jury could conclude that
Moroffko had either lost consciousness or was too disoriented to give valid consent before
Molina had sexual intercourse with her and remained in that incapacitated state until she awoke
in the hospital. The evidence is clearly sufficient to support an instruction on mental incapacity
at the time of the alleged rape. See 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).
Molina’s argument that the mental incapacity contemplated by the statute is confined to
permanent mental conditions such as retardation ignores the fundamental, operative principle in
rape convictions and is unpersuasive. The touchstone of the legal concept is whether the victim
has “the capacity to make a volitional choice to engage or not engage in [a sexual] act.” Adkins,
20 Va. App. at 346, 457 S.E.2d at 389. The cause underlying the victim’s impaired capacity to
give consent is not determinative. 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 or
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low-functioning victims, it may be applied to a seriously intoxicated victim); Al-Hamdani, 36
P.3d at 1107.5
Molina’s reliance on Adkins to support his position is misplaced. Adkins does not limit
the protections afforded under Code § 18.2-61(A)(ii) to individuals afflicted with mental
retardation. Rather, Adkins identifies two classes of individuals who come within the protection
of the statute. “The legislative purpose of Code § 18.2-61(A)(ii) is to protect persons who are
mentally impaired or retarded from being sexually exploited due to their mental incapacity.”
Adkins, 20 Va. App. at 342-43, 457 S.E.2d at 387 (emphasis added). Furthermore, the term
“mentally impaired” is broadly general in nature; no cause of the impairment is identified or
allied to the term in Adkins. That one is “impaired,” that is one is suffering from a “condition
. . . at the time of an offense . . . which [precludes an] understanding [of] the nature and
consequences of the sexual act involved,” is the crux of the Court’s choice of words, not the
reason for the impairment. By contrast, impairment by mental retardation is separately
identified, distinguishing its more narrow import from the broad import of the term “mentally
impaired.”
On these grounds, we find that “mental incapacity” includes conditions other than those
in which a victim is unable to understand the sex act due to mental retardation and that the phrase
“mentally impaired,” as used in Adkins, includes mental incapacity induced by voluntary
intoxication. We, therefore, cannot say the trial court erred in rejecting the limitation on the
statute’s reach urged by Molina and in finding the Commonwealth’s instruction was supported
by more than a scintilla of evidence of mental incapacity based on the victim’s intoxication. See
5
For a thorough and expansive examination and discussion of statutes around the country
defining victim incapacity and evolving issues in that area, see Patricia J. Falk, Rape by Drugs:
A Statutory Overview and Proposals for Reform, 44 Ariz. L. Rev. 131 (2002).
- 19 -
Commonwealth v. Sands, 262 Va. 724, 729, 553 S.E.2d 733, 736 (2001) (an instruction is proper
when it is supported by more than a scintilla of evidence).
ISSUE II: LIMITING DR. MORTON’S TESTIMONY
Background
Molina asserts the trial court erred in limiting the testimony from his final witness,
Dr. Morton. Dr. Morton is a psychopharmacologist, not a medical doctor. During his direct
examination, Molina’s attorney attempted to have him testify about the symptoms of bipolar
disease.
Counsel stated:
[Dr. Morton would be] combining information and basing his
opinion on information that we’ve gotten into evidence and he’s
going to give the jury his opinion about how Ms. Moroffko would
appear to someone - - would appear lucid, impulsive, gregarious
and at the same time not remember anything [on the day in
question].
Defense counsel further proffered a power point presentation prepared by Dr. Morton
defining Bipolar Disorder, listing Bipolar and Psychotic Symptoms, Manic Symptoms,
Hypomanic Episode Signs and Symptoms, Psychotic Symptoms, Presentation and Perception of
Manic Episode Symptoms, Manic Episodes, Bipolar Responses and Treatment of Bipolar
Disorder. According to Molina’s attorney, Dr. Morton would use the power point presentation to
discuss “why, based on her bipolar disorder [and] medications and various other factors, why her
memory would be impaired and that explains to the jury why she’s on the one hand saying I was
knocked unconscious, but also at the same time has these vague memories, these inconsistent
statements.”
The trial court concluded that the evidence was cumulative, and furthermore questioned
whether Dr. Morton was qualified to testify about bipolar disorder, in general, and manic
episodes, specifically, since he was not a medical doctor or Moroffko’s treating physician. The
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trial court required defense counsel to lay a proper evidentiary foundation for such testimony and
pointed out that defense counsel had “had four witnesses . . . capable of testifying to that [issue]
and . . . [he] chose not to elicit [the] testimony.” The trial court also noted that, although
Dr. Morton had training in bipolar disorder, he did not make diagnoses but rather he “work[ed]
with doctors that make diagnoses.” Finding that Dr. Morton qualified only as an expert in
psychopharmacology, the trial court ruled:
He may not testify that she has bipolar disorder. He may
not testify as to any medical disorder of the brain, which is what is
supposed to be medical disorder of the brain. He may not testify to
that. If he is properly qualified, he may testify as a
pharmacologist. If you want to ask him questions of what the
effect of these medications might be, you may ask it.
You may not present this manic episode power point
presentation because I think it’s clearly outside his expertise. If
you want to qualify him you’re welcome to do that, but I’m not
going to allow you to ask him all kinds of medical questions when
he’s not a medical doctor, he’s not a psychiatrist and you’ve done
that four times with four witnesses and it’s cumulative.
Subsequently, defense counsel made further attempts to have Dr. Morton qualified as an
expert who could address the symptoms and treatment of bipolar disorder. He explained that
such testimony was necessary and relevant “[b]ecause the doctors that we put on can’t say how
Stephanie Moroffko is [at] times they were not able to see her.” Defense counsel argued that
Dr. Morton “can testify about the general characteristics of a bipolar person.”
THE COURT: My understanding is that it’s your intention to ask
this witness what do other bipolar people act like and therefore this
witness must have acted that way; correct?
MR. KENSKY: What are the general characteristics - - I want to
educate the jury on what are the general characteristics of bipolar
and I also want to use Dr. Morton to - - and to ask him about based
on if a person has consumed a lot of alcohol, who has cocaine,
opiates, other drugs in her blood, based on someone who was
taking prescription drugs, how would she appear to another person.
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THE COURT: That, I think you may ask because there’s a factual
foundation. You may not ask the other question of what his
medical opinion is about bipolar.
The trial court ruled that Dr. Morton’s medical opinion about bipolar disorder “is . . .
outside [his area of] expertise . . . and it’s too cumulative.” We find the trial court did not err in
limiting Dr. Morton’s testimony on the following grounds: his testimony was 1) beyond the
scope of his expertise; 2) cumulative; and 3) speculative. Furthermore Molina failed to proffer
Dr. Morton’s expected testimony on bipolar disorder generally, or on the disorder as it
specifically related to Moroffko at the time of the alleged rape. Finally, contrary to Molina’s
contention, Dr. Morton was permitted to address how the prescribed drugs and alcohol Moroffko
had ingested affected her memory.6
Analysis
“[W]hether a witness is qualified to render an expert opinion is a
question submitted to the sound discretion of the trial court.”
Combs v. Norfolk and Western Ry. Co., 256 Va. 490, 496, 507
S.E.2d 355, 358 (1998). Nevertheless, “[t]he record must show
that the proffered expert witness has sufficient knowledge, skill, or
experience to render [him] competent to testify as an expert on the
subject matter of the inquiry.” Id.
Mohajer v. Commonwealth, 40 Va. App. 312, 320, 579 S.E.2d 359, 363 (en banc) (2003); see
also John v. Im, 263 Va. 315, 319-20, 559 S.E.2d 694, 696 (2002) (admissibility of expert
testimony is submitted to the trial court’s sound discretion upon application of fundamental
principles, including the requirement that the evidence be based on an adequate foundation; we
review trial court’s ruling for an abuse of discretion). “The fact that a witness is an expert in one
field does not make him an expert in another field, even though the two fields are closely
related.” Combs, 256 Va. at 496, 507 S.E.2d at 358.
6
Among other things, the trial court expressly ruled: “To the extent you want to ask him
about the reaction of lithium in those who have been previously diagnosed as bipolar, you’re
within the range of expertise.”
- 22 -
Molina relies upon the Supreme Court’s decision in Velazquez v. Commonwealth, 263
Va. 95, 557 S.E.2d 213 (2002), for the proposition that an expert need not be a medical doctor to
testify about a medical condition. In Velazquez, the defendant objected to a sexual assault nurse
examiner (SANE) testifying “as an expert in the field of sexual assault diagnosis because such
diagnosis constitutes the practice of medicine and [the SANE] is not a licensed physician.” Id. at
102, 557 S.E.2d at 217. The Supreme Court held that
a SANE nurse need not be licensed to practice medicine to express
an expert opinion on the causation of injuries in the context of an
alleged sexual assault, nor does the expression of such an opinion
by a SANE in a trial constitute the unlawful practice of medicine.
Id. at 104, 557 S.E.2d at 218 (noting that whether a witness is qualified as expert will not be
disturbed “unless it plainly appears that the witness was not qualified”). In Velazquez, the Court
reasoned that, although the SANE was not a medical doctor, she was qualified under the facts
presented to render an expert opinion concerning the “causation of injuries in the context of an
alleged sexual assault.” Id. (record showed the SANE had been a nurse for twenty-six years, she
underwent special training on sexual assaults and had examined about 500 sexual assault
victims).
The Supreme Court later clarified that its
holding in Velazquez is limited to the unique context of a SANE’s
expert opinion concerning the causation of injuries in a sexual
assault case, [and] that holding does not change the general rule
stated above that only a medical doctor may give an expert opinion
about the cause of a physical human injury.
John, 263 Va. at 321 n.2, 559 S.E.2d at 697 n.2 (citing Combs, 256 Va. at 496, 507 S.E.2d at
358).
To the extent Molina sought to elicit Dr. Morton’s testimony that Moroffko’s conduct at
the time of the incident was consistent with or caused by bipolar disease or any of its phases,
particularly, the manic or hypomanic phase, we find such testimony was properly excluded on
- 23 -
the ground that it sought to elicit from Dr. Morton a diagnosis of Moroffko’s medical condition
at the time of the incident. Such testimony was beyond the scope of Dr. Morton’s expertise.
Dr. Morton was qualified as an expert in psychopharmacology. As such, he was competent to
render an opinion on the effects of drugs in general and the effects of certain drugs on someone
diagnosed as having bipolar disorder. In fact, the record shows that Dr. Morton was allowed to
testify about the effects of the drugs Moroffko was found to have ingested. Indeed, contrary to
Molina’s assertions, he was specifically permitted to testify about the effects of certain drugs on
Moroffko’s ability to remember the events of that evening, particularly in light of the high level
of alcohol found in her blood.7 However, Dr. Morton was not a medical doctor and did not
observe or treat Moroffko. Therefore, he was not qualified to testify that Moroffko suffered
from bipolar disease or that she exhibited behavior consistent with mania or hypomania at the
time of the incident. Such testimony is in the nature of a medical diagnosis that Dr. Morton was
not qualified to give.
Molina also asserts that, based on his experience, Dr. Morton was qualified to give
testimony generally describing bipolar disease and its various phases. The purpose of such
testimony was, in part, to establish that Moroffko’s conduct during the incident in question was
consistent with the disorder. We find that the testimony Molina sought to elicit was properly
excluded. First, testimony about the general characteristics of bipolar disease and its manic or
hypomanic phases was cumulative.8 Second, Molina failed to proffer the details of Dr. Morton’s
7
When Molina’s attorney advised the trial court he would like to ask Dr. Morton how
someone who consumed a large amount of alcohol, has cocaine in his or her blood and takes
prescription drugs would appear to another person, the trial court stated, “That, I think, you may
ask because there’s a factual foundation.”
8
Dr. Jagoda described the symptoms generally exhibited by an individual in the
hypomanic phase of bipolar disease, and they included the very characteristics that Molina
sought to elicit from Dr. Morton’s testimony. Dr. Jajoda described hypomania as “a state when
- 24 -
intended testimony about the general nature of bipolar disease or the characteristics of the
disease in its manic or hypomanic phase and he failed to proffer on what basis Dr. Morton would
apply the general characteristics of bipolar disease to Moroffko’s conduct at the time of the
incident in question. The failure to proffer the expected testimony is fatal to his claim on appeal.
“Without such a proffer, [the appellate court] cannot determine the admissibility of the proposed
testimony, and, if admissible, whether the court’s exclusion of the evidence prejudiced [the
party].” Holles v. Sunrise Terrace, 257 Va. 131, 135, 509 S.E.2d 494, 497 (1999); see also
Evans v. Commonwealth, 39 Va. App. 229, 236, 572 S.E.2d 481, 484 (2002) (citations omitted).
Third, Molina’s intended use of Dr. Morton’s testimony about the general characteristics of
bipolar disease was improper. As he explained to the trial court, Molina sought such testimony
from Dr. Morton “[b]ecause the doctors that we put on [earlier] can’t say how Stephanie
Moroffko is [at] times they were not able to see her.” In other words, Molina sought to use
Dr. Morton’s general description of bipolar disease to establish that Moroffko’s conduct at the
time of the incident was consistent with the disease and with its manic or hypomanic phase, in
particular. As such, it called for speculation and surmise on the part of the trier of fact and was
improper. Finally, Molina failed to proffer what evidence regarding the nature and character of
Moroffko’s behavior during the incident that was to be explained by Dr. Morton’s testimony
about bipolar disorder and its manic phases. As noted earlier, the failure to proffer the evidence
excluded by the trial court’s ruling precludes our consideration of the issue. Id.
We cannot say that the trial court abused its discretion in limiting Dr. Morton’s testimony
to those areas about which he was proficient and competent and in excluding his testimony
regarding bipolar disease in general and about Moroffko’s medical condition, specifically.
there is decreased need for sleep and increased energy and physical energy and impulsive
behavior.”
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ISSUES III & IV: SUFFICIENCY OF THE EVIDENCE
Molina contends there was insufficient evidence to support the jury’s verdicts finding
him guilty of forcible sodomy and rape.
Standard of Review
When the sufficiency of the evidence is challenged on appeal, the appellate court reviews
the evidence that tends to support the conviction and upholds the conviction unless it is plainly
wrong or lacks evidentiary support. Code § 8.01-680; Commonwealth v. Jenkins, 255 Va. 516,
520, 499 S.E.2d 263, 265 (1998). “If there is evidence to support the convictions, the reviewing
court is not permitted to substitute its own judgment, even if its opinion might differ from the
conclusions reached by the finder of fact at the trial.” Jenkins, 255 Va. at 520, 499 S.E.2d at
265. Conflicts in the evidence are resolved by the fact finder, and such conflicts are not revisited
on appeal unless “‘the evidence is such that reasonable [persons], after weighing the evidence
and drawing all just inferences therefrom, could reach but one conclusion.’” City of Bedford v.
Zimmerman, 262 Va. 81, 86, 547 S.E.2d 211, 214 (2001) (quoting J & E Express, Inc. v.
Hancock Peanut Co., 220 Va. 57, 62, 255 S.E.2d 481, 485 (1979)).
To justify conviction of a crime, it is insufficient to create a
suspicion or probability of guilt. Rather, the burden is upon the
Commonwealth to prove every essential element of the offense
beyond a reasonable doubt. “The evidence must exclude every
reasonable hypothesis of innocence and be consistent only with the
guilt of the accused.”
Moore v. Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740 (1997) (quoting Powers v.
Commonwealth, 211 Va. 386, 388, 177 S.E.2d 628, 629 (1970)) (citations omitted). “Whether
an alternative hypothesis of innocence is reasonable is a question of fact and, therefore, is
binding on appeal unless plainly wrong.” Archer v. Commonwealth, 26 Va. App. 1, 12-13, 492
S.E.2d 826, 832 (1997).
- 26 -
Rape
Moroffko was rendered unconscious while speaking with Molina. When emergency
personnel arrived, Moroffko was unconscious and nonresponsive and Moroffko did not regain
consciousness until she was in the hospital. Molina’s DNA was found in Moroffko’s vaginal
cavity, and she denied consenting to have sexual intercourse. The jury, as fact finder, believed
Moroffko and rejected appellant’s self-serving statement to Detective Kelly that he and
Moroffko had consensual intercourse. “The weight which should be given to evidence and
whether the testimony of a witness is credible are questions which the fact finder must decide.”
Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601-02 (1986). The jury
had competent, credible evidence with which to find appellant guilty of rape. Under these facts,
we cannot say the jury’s verdict is plainly wrong or lacked evidentiary support. Accordingly, we
find that the trial court did not err in refusing to strike the evidence relating to the rape.
Forcible Sodomy
Molina argues that, because Moroffko “does not know what happened to her,” the
forcible sodomy verdict rested entirely on speculation. Moroffko testified that “something” or
“someone” hit her while she was talking with Molina, causing her to lose consciousness. Test
results disclosed that Molina’s DNA was found inside Moroffko’s anal/rectal cavity, and
Moroffko denied consenting to having any sexual relations. DNA evidence excluded
Membrano, the only other person on the scene, as a contributor. Molina’s claim that his seminal
fluid was transferred to Moroffko’s anal/rectal cavity by Membrano was ostensibly rejected by
the trier of fact who is charged with crediting and weighing the evidence. Williams v.
Commonwealth, 24 Va. App. 577, 582, 484 S.E.2d 153, 155 (1997) (noting that jury’s function
is to weigh the evidence and resolve all factual issues). Finally, the jury believed Moroffko and
rejected the self-serving denials and explanations that Molina gave to Detective Kelly. See id.
- 27 -
(jury also charged with judging witness credibility). We find that sufficient evidence in the
record supports the jury’s verdict, and we cannot say the trial court erred in refusing to strike the
evidence on forcible sodomy.
For the reasons stated, we affirm the trial court.
Affirmed.
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Benton, J., dissenting.
I would reverse the jury’s convictions of Jaime Salvador Molina for rape and sodomy and
dismiss the indictment because the evidence was insufficient to prove the offenses. I also believe
that the convictions were improperly rendered because the trial judge erred by limiting the
testimony of an expert witness on an issue of critical significance to Molina’s defense and by
improperly instructing the jury on three disjunctive theories of rape.
I.
At trial, the Commonwealth contended that Molina rendered the complaining witness
unconscious by hitting her with some object, abducted her, and raped her. A jury instruction
allowed the jury to convict Molina of rape under Code § 18.2-61(A) if he had sexual intercourse
with the complaining witness “against her will and without her consent; and . . . by force, threat
or intimidation; or by the use of her mental incapacity or physical helplessness.” At the
conclusion of the evidence, the trial judge found the evidence was insufficient to prove malicious
wounding and abduction, and he struck those charges. I would hold that the evidence was also
insufficient to support a conviction for rape. Even if we disregard Molina’s statement that the
two had consensual sexual intercourse, what occurred after Molina and the complaining witness
kissed, hugged, talked about sexual things, and went behind the store was mere conjecture and
speculation based on inconclusive evidence.
Our review of the sufficiency of the evidence in this case is guided by a well-settled
principle.
“[I]f the proof relied upon by the Commonwealth is wholly
circumstantial, as it here is, then to establish guilt beyond a
reasonable doubt all necessary circumstances proved must be
consistent with guilt and inconsistent with innocence. They must
overcome the presumption of innocence and exclude all reasonable
conclusions inconsistent with that of guilt. To accomplish that, the
chain of necessary circumstances must be unbroken and the
evidence as a whole must satisfy the guarded judgment that both
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the corpus delicti and the criminal agency of the accused have been
proved to the exclusion of any other rational hypothesis and to a
moral certainty. . . .”
But, circumstances of suspicion, no matter how grave or strong,
are not proof of guilt sufficient to support a verdict of guilty. The
actual commission of the crime by the accused must be shown by
evidence beyond a reasonable doubt to sustain his conviction.
Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820, 822 (1977) (quoting LaPrade v.
Commonwealth, 191 Va. 410, 418, 61 S.E.2d 313, 316 (1950)). This is so because, as a matter
of constitutional law, the Due Process Clause protects an accused from conviction “except upon
proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is
charged.” In re Winship, 397 U.S. 358, 364 (1970). In other words, the evidence must exclude
every reasonable hypothesis of innocence and, therefore, it is insufficient to support a conviction
when it creates merely a suspicion or probability of guilt. Yarborough v. Commonwealth, 247
Va. 215, 218, 441 S.E.2d 342, 344 (1994); Burrows v. Commonwealth, 224 Va. 317, 320, 295
S.E.2d 893, 895 (1982); Hyde v. Commonwealth, 217 Va. 950, 954-55, 234 S.E.2d 74, 77-78
(1977).
The Commonwealth failed to prove an unbroken “chain of necessary circumstances” to
establish Molina’s guilt to the exclusion of other hypotheses. According to the prosecutor’s
theory, Molina hit the complaining witness on the head with some object, rendering her
unconscious, then moved her behind a convenience store, raped her, and forcibly sodomized her.
Yet, the complaining witness never testified that Molina did any of those things. The record
contains ample evidence, including the complaining witness’ admissions, that she did not recall
all the events that occurred after she met Molina. She has a bipolar disorder and could only
recall that at some point she was unconscious from a seizure. She had a history of mixing
prescription drugs, illegal drugs, and alcohol, and a history of similar seizures. Simply put, the
- 30 -
evidence was insufficient to prove beyond a reasonable doubt the Commonwealth’s theories of
forcible rape and sodomy.
Significantly, the complaining witness gave conflicting testimony that was vague,
malleable, and not specific as to the events that transpired. The complaining witness testified
that she sat on a wall beside a convenience store at ten o’clock in the morning and drank the
entire bottle of wine she had just purchased. A “brick column [was] right behind” her perch on
the wall. After drinking the wine, the complaining witness drank milk and talked with Molina
about her life. During this conversation, she and Molina engaged in mutual hugging and kissing.
The following events are the extent of her direct testimony regarding what happened as she sat
on the wall:
A: A gentleman approached me . . . . He sat down next to me and
started talking to me.
Q: Did you know who that person was?
A: No.
Q: Did you speak with him?
A: Yes.
Q: What happened after you spoke with him?
A: We spoke for awhile. The next thing I remember is my head
being hit by something hard.
Q: Where were you when your head was hit by something hard?
A: Sitting on the bricks.
Q: Do you know who hit you in the head?
A: No.
On cross-examination, the complaining witness disclosed she was speculating about what
actually occurred.
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Q: . . . You’re telling us that you don’t know how it was that you
lost consciousness. Correct?
A: I was hit with something --
Q: But you never saw --
A: -- or hit against something.
Q: You never saw anything hit you. Is that fair to say?
A: No.
Q: And you never saw any person with anything that hit you.
Right?
A: No.
She testified that she did not remember anything from that point until she awoke in the hospital.
She also told the jury she does not know where she was when she lost consciousness. She
acknowledged, however, that in the hospital shortly after the incident she gave another version.
Q: But you told the detectives at least once during one of your
tape recorded statements that you remember banging your hand or
your head while one person was there and then that person left.
Then another person came, and it was after that person came
that you lost consciousness. Remember that?
A: That’s how it happened.
The complaining witness and her physician testified she has a bipolar disorder with both
depressive and manic episodes. The complaining witness also admitted she was prone to
seizures after using drugs and alcohol. These seizures resulted in periods when she would
blackout, that is, when she had no memory of events. During a period in July (two months
before the incident), the complaining witness was admitted to a psychiatric hospital for
overdosing on Xanax, Oxycodone, Doxepine, Thorazine, and alcohol. Abundant evidence
proved she had been misusing her prescription medications in the months prior to the morning
she met Molina.
- 32 -
The complaining witness’ treating physician testified that she had a history of
hypomania -- “a state when there is decreased need for sleep and increased energy and physical
energy.” She also testified that the complaining witness reported times when she had not slept
over a period of several days. Although the complaining witness testified at trial that she was at
home the night before the incident, she admitted to the officers who questioned her at the
hospital that she had been in Washington, D.C., all night before the morning she went to the
convenience store. That night, the complaining witness had ingested undisclosed quantities of
“Xanax, Zanaflex, . . . Lithium, Zoloft, Zethacoat(ph), and Nexium.”9 She made these
admissions only after the officers learned from her father that she had not returned home at night.
The evidence proved that in addition to those drugs she drank alcohol the day of this
incident and suffered a seizure. Although her doctors had instructed her not to combine her
prescription medications with alcohol, she testified that the morning after ingesting the drugs she
purchased a bottle of wine at the store and drank all of it. Indeed, at different points in her
testimony, she admits that she drank beer, a bottle of wine and/or a wine cooler. A blood test at
the hospital revealed that the alcohol content in her blood was 292 mg/dL when measured. A
textual footnote on the blood test report indicates a depression of the central nervous system
when a reading is “greater than 100 mg/dL” and “fatalities reported: greater than 400 mg/dL.”
The complaining witness could not recall which drugs she took that morning before
consuming the alcohol. She testified as follows:
The day of September 28th, I hadn’t taken anything. I don’t
know if I had taken my regular medication or not, but if I had it
was what was prescribed.
And I drank just the wine that I said I drank and had a seizure,
so it was not just because of my pills or the alcohol.
9
It is likely that “Zethacoat(ph)” refers to Depakote, a drug used to treat mania associated
with bipolar disorder and to treat seizure disorders.
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The blood tests showed, however, that she tested positive for benzodiazepines, an opiate, and
cocaine and that she had a much lower level of lithium in her body than normally prescribed for
her diagnosis of bipolar disorder. In addition, the para-medical technician who examined her at
the convenience store reported foam around her mouth, which was evidence of a seizure.
The complaining witness claimed to have suffered facial lacerations, broken bones in her
face, and “some type of injury” to her head that bled profusely. However, the para-medical
technician, who testified that she is trained to accurately record any injuries and that she attended
the complaining witness for a substantial length of time, told the jury she did not notice any
injury other than some puffiness in the complaining witness’ face. The complaining witness also
testified she told the police she may have sustained those injuries before going to the store that
morning.
Moreover, the Commonwealth’s witnesses contradicted the complaining witness’
testimony in other significant aspects. A police officer who interviewed the complaining witness
after she was examined in the hospital testified that the complaining witness was conscious and
responsive and that she gave a different version of the events in the hospital. She told the officer
that while she was sitting on the wall, she and the man talked “about sexual things.” She also
said she walked away from the wall and struck her face on a tree. In addition, she told the officer
she was conscious when she was having sexual intercourse.
The officer who interviewed the complaining witness also interviewed Molina. Molina
said the complaining witness talked to him about her family and her life before saying she
wanted to have sexual intercourse with him. They went to the rear of the store where “she laid
down” and pulled him down upon her. He denied having anal intercourse with her. According
to Molina, when they finished having sexual intercourse she said she wanted to stay there and
sleep. He also said he left her, later returned, and then saw another man atop her.
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A repetition of the complaining witness’ testimony graphically demonstrates that she told
the detectives at the hospital a version of events that was consistent with Molina’s statement.
Q: But you told the detectives at least once during one of your
tape recorded statements that you remember banging your hand or
your head while one person was there and then that person left.
Then another person came, and it was after that person came
that you lost consciousness. Remember that?
A: That’s how it happened.
Indeed, when the police arrived behind the store, Molina was standing, fully clothed and another
man was on the ground beside the complaining witness.
The evidence does not exclude the hypothesis that the complaining witness voluntarily
went behind the store after hugging and kissing Molina and engaging in conversation about
sexual activity. She consented to sexual intercourse with Molina, then had a seizure and lost
consciousness after Molina left and before the other man arrived. Indeed, the trial judge found
that the evidence was insufficient to prove Molina either wounded her or abducted her.
Simply put, the evidence, including the complaining witness’ own testimony, established
she did not accurately remember the events that led to her having sexual intercourse because of
her drug and alcohol abuse and the effects of those substances on her bipolar disorder.
Q: You’ve just told us that you have a history of having seizures.
Right?
A: It happens.
Q: You’ve told us that you have a history of when you drink, you
don’t remember things sometimes.
A: Yes.
Q: And you told us that when you take pills you don’t remember
things some times?
A: Yes.
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Q: You told us you have a history of taking too many drugs.
Right?
A: Yes.
Q: Too much alcohol?
A: Yes.
Q: The detectives were asking you questions [the same day of the
incident] and you were having trouble remembering some of the
things that supposedly happened that day. Right?
A: At the time they were asking me questions, yes.
* * * * * * *
Q: . . . [W]ould it be fair to say that when you were speaking with
the detectives there were various points where they would ask you
questions about what happened and you would have a problem
recalling what had happened, and you couldn’t answer.
A: Yes.
Q: The same problem you’ve had today?
A: Yes.
Q: The same problem you had at the preliminary hearing?
A: Yes.
At the close of the evidence, the Commonwealth argued to the jury that the complaining
witness “was beaten that day, that she was beaten to the point where she was unconscious and
that she was raped and sodomized.” Yet, the Commonwealth failed to disprove the reasonable
hypothesis, supported by the evidence, that the complaining witness consented to sexual
intercourse with Molina and that, as a result of later “blacking out” from the effect of drugs and
alcohol on her bipolar disorder, she had no accurate memory of the events. The complaining
witness did not testify that Molina hit her on the head or otherwise used force, threat or
intimidation when interacting with her; she specifically testified that Molina never made any
threats toward her. Indeed, at trial she said she “was hit with something . . . or hit against
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something,” but did not attribute this to Molina. The jury was left to speculate about what
occurred because the Commonwealth presented no physical evidence showing forcible
penetration and provided no coherent chain of events showing that Molina raped the complaining
witness. The complaining witness kissed and hugged Molina and talked “about sexual things”
before having sexual intercourse with him. The evidence left the jury to speculate when, during
the events behind the store, the complaining witness became unconscious. Though she testified
at trial that she did not remember having sexual intercourse, she told the officers in the hospital
the day of the event that she was conscious while having sexual intercourse. Thus, I would hold
that no evidence proved Molina acted against her will and no evidence proved forcible
penetration.
I believe the jury was misled by an instruction that the Commonwealth offered which
provided in the disjunctive two additional theories under Code § 18.2-61 to convict of rape: that
the rape was accomplished through the complaining witness’ physical helplessness or that the
rape was accomplished through the complaining witness’ mental incapacity. No evidence
proved the complaining witness suffered from physical helplessness or from mental incapacity
when she engaged in sexual intercourse with Molina.
With regard to proof of physical helplessness in a rape charge, we have made an
important distinction between being physically unable to communicate at the time of the
intercourse and physically unable to communicate afterward. Howard v. Commonwealth, 21
Va. App. 473, 465 S.E.2d 142 (1995). In Howard, the complaining witness lost consciousness
shortly after having intercourse. Id. at 476, 465 S.E.2d at 143. We explained as follows:
The Commonwealth asserts that the trial court reasonably could
have inferred physical helplessness from the fact the victim went to
a neighbor’s apartment shortly after the alleged incident, partially
clothed, before vomiting and collapsing. The Commonwealth
highlights the fact that the victim could not recognize her parents
for a period of hours and passed in and out of consciousness after
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being taken to the hospital, where doctors determined she was
intoxicated. However, assuming the victim was intoxicated to the
point of being physically unable to communicate at the time she
exited the apartment, this does not prove she was intoxicated to the
same degree when she engaged in sexual intercourse with
appellant. Even in conjunction with other evidence, the
Commonwealth’s case was not strong enough to prove appellant’s
guilt beyond a reasonable doubt. In so holding, we find the
following admonition appropriate: “[t]he conduct of [appellant]
cannot be condoned. It was disgraceful. It was enough to shame
one steeped in moral infamy. But he was not tried for that. Rape
was the charge laid at his door and the Commonwealth’s evidence
fail[ed] to sustain it.”
Id. at 480-81, 465 S.E.2d at 145-46 (citations omitted).
In this case, the Commonwealth argued to the jury that the complaining witness “was
beaten to the point where she was unconscious and [then] . . . raped and . . . sodomized.” No
evidence proved Molina beat her or assisted in beating her. Significantly, the trial judge found
that the evidence failed to prove malicious wounding and struck that charge. In the absence of
evidence, the jury had to speculate to conclude that the complaining witness was physically
helpless when she was having intercourse. She admitted to the detectives that she was conscious
while having sexual intercourse. By her own admission, when she mixed alcohol and her
prescribed medication, she was prone to seizures and to blackouts that caused her to be unable to
remember events. She testified that on the day at issue, she drank wine, took drugs whose names
she could not recall, and had a seizure. The evidence failed to disprove that her use of drugs and
alcohol caused her failure to remember and that her lapse into unconsciousness occurred after
she had sexual intercourse with Molina.
The Commonwealth never argued at trial that the complaining witness was mentally
incapacitated. “Mental incapacity” is a statutory term that does not connote the ordinary
meaning; it is defined as “that condition of the complaining witness existing at the time of an
offense under this article which prevents the complaining witness from understanding the nature
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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). As we explained, in Adkins v. Commonwealth, 20
Va. App. 332, 342-43, 457 S.E.2d 382, 387 (1995), the statute exists “to protect persons who are
mentally impaired or retarded from being sexually exploited due to their mental incapacity.” A
person is mentally incapacitated only when “he or she has a mental ‘condition’ that ‘prevents’
the person from being able to ‘understand’ either the ‘nature’ or ‘consequences’ of engaging in
sexual intercourse.” Id. at 344-45, 452 S.E.2d at 387. Thus, we explained as follows:
To “know, apprehend, or appreciate” the “nature and
consequences” of sexual intercourse can range from a simple
understanding of how the act of coitus is physically accomplished
together with an understanding that a sensation of pleasure may
accompany the act, to a thorough and comprehensive
understanding of the complex psychological and physiological
“nature” of “the sexual act involved” and that, aside from
immediate gratification, the act may have dire familial, social,
medical, physical, economic, or spiritual consequences.
Id. In other words, to obtain a conviction under the statute, “the Commonwealth must prove . . .
that the person does not understand ‘the nature and consequences of the sexual act involved.’”
Id. at 343, 457 S.E.2d at 387. See also White v. Commonwealth, 23 Va. App. 593, 597, 478
S.E.2d 713, 715 (1996).
The Commonwealth’s argument to the jury during opening and closing arguments is
devoid of any suggestion that Molina accomplished the rape or sodomy through the use of the
complaining witness’ mental incapacity. Indeed, the Commonwealth never offered evidence to
establish that the complaining witness was not able to understand the nature and consequences of
sexual intercourse within the meaning of Code § 18.2-61(A). The Commonwealth’s own
witness testified that the complaining witness said she was kissing and hugging Molina and
discussing “sexual things.” Furthermore, no evidence proved Molina knew or should have
known the complaining witness was not comprehending the nature of the sexual acts. Thus, the
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jury could not find beyond a reasonable doubt mental incapacity because no evidence in the
record supported such a finding.
Simply, the complaining witness testified she was unable to recall what occurred.
Beyond the presence of Molina’s semen, which equally supported the hypothesis that the sex
was consensual, there was no physical evidence of rape. If one disregards Molina’s testimony
that the two had consensual sex, what occurred when Molina and the complaining witness went
behind the store could only be discerned by conjecture and speculation. Conviction on this
circumstantial evidence that raises only suspicion and speculation is precisely what Clodfelter
prohibits. 218 Va. at 623-24, 238 S.E.2d at 822. “‘Suspicion . . . no matter how strong is
insufficient to sustain a criminal conviction.’” Commonwealth v. Smith, 259 Va. 780, 784, 529
S.E.2d 78, 79 (2000) (quoting Stover v. Commonwealth, 222 Va. 618, 624, 283 S.E.2d 194, 197
(1981)).
II.
For these same reasons, I would reverse the conviction for sodomy. The indictment
alleged that anal intercourse occurred and was committed “by force, threat or intimidation.”
However, no evidence proved penetration of the anal cavity occurred. A nurse who interviewed
and examined the complaining witness at the hospital found only minor abrasions in the genital
rectal area that were not visible to the naked eye. The nurse’s written report required her “to
check off a box under anal contact” and listed the options “yes, no, attempt, or unknown.” The
nurse checked “no.” In contrast, she checked “yes” for “vaginal contact” and notes “penis.”
This report is consistent with Molina’s admission that they engaged in vaginal intercourse but
not anal intercourse.
The evidence merely established that a rectal anal swab revealed the presence of
Molina’s DNA; however, the evidence also established that semen can be transferred to various
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body parts during the act of sexual intercourse. The jury had to speculate that anal intercourse
occurred between Molina and the complaining witness. A verdict “based only upon speculation
and conjecture . . . cannot be permitted to stand.” Dunn v. Commonwealth, 222 Va. 704, 706,
284 S.E.2d 792, 793 (1981).
III.
I would hold that the trial judge’s limitation on Dr. William Alexander Morton’s
testimony was reversible error. Molina’s defense was that the complaining witness had
consented to the sexual intercourse. He was prepared to offer the testimony of an expert
concerning the behavioral effects of prescription drugs, illegal drugs, and alcohol on a person
with a bipolar disorder. Molina’s attorney proffered that Dr. Morton has a PhD in pharmacy, is a
professor of pharmacy, and is an assistant professor of psychiatry in behavioral science.
Dr. Morton would have explained how the complaining witness “could appear to be lucid,
impulsive, and gregarious,” yet be unable to remember her behavior.
The trial judge limited Dr. Morton’s testimony to the effects of alcohol and drugs without
reference to bipolar disorder, ruling that Dr. Morton is not a “medical doctor” and, thus, could
not refer to the complaining witness’ bipolar disorder. This was reversible error. The record
proved that Dr. Morton is an expert in the field of “psychopharmacology, which is [the study of]
how drugs affect the brain.”
The sole purpose of permitting expert testimony is to assist the
trier of fact to understand the evidence presented or to determine a
fact in issue. Generally, a witness is qualified to testify as an
expert when the witness possesses sufficient knowledge, skill, or
experience to make the witness competent to testify as an expert on
the subject matter at issue. Sami v. Varn, 260 Va. 280, 284, 535
S.E.2d 172, 174 (2000); Noll v. Rahal, 219 Va. 795, 800, 250
S.E.2d 741, 744 (1979). “An expert’s testimony is admissible not
only when scientific knowledge is required, but when experience
and observation . . . give the expert knowledge of a subject beyond
that of persons of common intelligence and ordinary experience.
The scope of such evidence extends to any subject in respect of
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which one may derive special knowledge by experience, when [the
witness’s] knowledge of the matter in relation to which [the
witness’s] opinion is asked is such, or is so great, that it will
probably aid the trier [of fact] in the search for the truth.” Neblett
v. Hunter, 207 Va. 335, 339-40, 150 S.E.2d 115, 118 (1966); cf.
Code § 8.01-401.3. In essence, all that is necessary for a witness
to qualify as an expert is that the witness have sufficient
knowledge of the subject to give value to the witness’s opinion.
Norfolk & Western Railway Co. v. Anderson, 207 Va. 567, 571,
151 S.E.2d 628, 631 (1966).
Velazquez v. Commonwealth, 263 Va. 95, 103, 557 S.E.2d 213, 218 (2002).
The record proved that Dr. Morton’s specialized field is psychopharmacology, and he
studies the effects of prescription and illegal drugs, as well as alcohol, on thinking and behavior.
He is not, as the trial judge seemed to insist, merely “a pharmacist.” He has extensive experience
in treating, evaluating, and studying the effects of drugs and alcohol on behavior. He is a
professor of pharmacy and assistant professor of psychiatry in behavioral science at the
University of South Carolina. In that setting, he “work[s] with psychiatrists and other pharmacy
students, medical students, instructing them what to expect from various drug therapies.” He is
board certified in the “fairly specialized” area of psychiatric pharmacy practice. At the time of
the trial, he was working in a general and psychiatric clinical practice where patients undergo
drug and alcohol treatment in an “in patient unit.” In addition to his extensive experience in the
field generally, Dr. Morton has studied and dealt specifically with the effects of lithium on
persons diagnosed with bipolar disorder. He has written numerous publications (forty-six) in the
field of lithium and bipolar disorder, “looking at how to monitor and utilize lithium and . . . in
the area of treatment of bipolar disorder, as well as . . . other areas of psychopharmacology.” He
has established several lithium clinics, one of which was specifically for persons with bipolar
disorder, and, for eighteen years, he worked in clinics where he saw from 200 to 280 patients on
a regular basis. He worked as a consultant on a regular basis for drug and alcohol programs, and
he was a regular faculty member in a setting where he saw patients and made recommendations
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on their drug therapies. In his practice, he consulted with physicians who needed to ascertain if
and what kind and dosage of drugs a patient should take. In certain cases, he was the primary
care practitioner for patients who had been diagnosed with bipolar disorder.
The Supreme Court has unequivocally held, “we will reverse a holding that a witness is
not qualified to testify as an expert when it appears clearly from the record that the witness
possesses sufficient knowledge, skill, or experience to make him competent to testify as an
expert on the subject matter at issue.” Sami, 260 Va. at 284, 535 S.E.2d at 174. The record
proves that Dr. Morton was qualified to give an opinion about the effects of drugs and alcohol on
a bipolar person who combined alcohol with drugs. Other experts and the complaining witness’
own testimony established that she suffered from a bipolar disorder and that she had taken
lithium, other prescription drugs in unprescribed overdoses, illegal substances, and alcohol.
Dr. Morton’s breadth of experience, which included lengthy and extensive clinical experience,
treatment of patients, and knowledge of the effects of prescription and illegal drugs on the
behavior of individuals diagnosed with bipolar disorder, satisfied the requirements for expert
testimony.
The trial judge erred by requiring that Dr. Morton be a medical doctor to testify as to the
effect of drugs and alcohol on persons with a bipolar disorder. As Molina correctly notes, the
Supreme Court has allowed a nurse to testify about the causation of physical injuries of rape
victims, even though a nurse is not a licensed physician, because “it has long been accepted that
nurses and other healthcare professionals with the proper training, expertise, and experience are
qualified to give expert opinions on medical causation in appropriate circumstances.”
Velazquez, 263 Va. at 103-04, 557 S.E.2d at 218. Dr. Morton is an expert in the field in which
he was called to testify, psychopharmacology.
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This error was not harmless. Dr. Morton’s expertise included evaluating the effects of a
number of illicit and prescribed drugs, in varying amounts, and alcohol on the behavior of
persons with bipolar disorder. His testimony was critical to Molina’s defense. Dr. Morton’s
testimony about the effects of alcohol, cocaine, and other substances on the complaining witness’
bipolar disorder would have allowed the jury to infer that she could have appeared quite normal
(and consenting) to Molina, yet have no memory of engaging in sexual intercourse. The
exclusion of his testimony left the jury uninformed about the effect of the combination of the
drugs and alcohol on the behavioral pattern and memory of a bipolar person whose lithium level
was abnormally low. This was a matter beyond the understanding of lay persons. By excluding
the testimony, the trial judge deprived Molina of evidence of a factual basis upon which the jury
could have decided in Molina’s favor.
IV.
I would also hold that the trial judge erred in granting Instruction 14, which reads as
follows:
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 [the victim]
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
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 . . . .
This instruction erroneously combined the elements of “against her will and without her
consent” with the elements of “mental incapacity or physical helplessness” in a way not
contemplated by the rape statute. In pertinent part, Code § 18.2-61(A) provides as follows:
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If any person has sexual intercourse with a complaining witness
. . . and such act is accomplished (i) against the complaining
witness’s will, by force, threat or intimidation of or against the
complaining witness . . . or (ii) through the use of the complaining
witness’s mental incapacity or physical helplessness . . . he or she
shall be guilty of rape.
Thus, the statute defines three distinct circumstances of sexual intercourse: (i) against a person’s
will by force (or threat or intimidation), (ii) through the use of the person’s mental incapacity,
and (iii) through the use of the person’s physical helplessness.
The jury asked questions that reasonably suggested that the melding of these elements in
one instruction created confusion. For example, the jury wrote to the judge the following
inquiry:
Assumption: The defendant and the victim could be in the same
mentally incapacitated state at the time of the incident.
Issue:
(1) Based on the assumption, does Virginia Law specify whether a
defendant would be expected to render a rational decision as to the
state of mental capacitation and incapacitation of the woman
whom he desires to engage in a sexual act?
(2) Per se, are two adults, one male and one female, that are
mentally incapacitated at the time of the sexual encounter engaged
in an act of “rape”?
These inquiries are significant because the instructions the trial judge gave to the jury did
not require the jury to find that the complaining witness was either mentally incapacitated or
physically incapacitated. The Commonwealth offered, and the judge gave, an instruction that
permitted the jury to convict Molina upon a finding of Molina’s “use of mental incapacity.”
Significantly, the Commonwealth never argued that the complaining witness was mentally
incapacitated. In other words, the jury could have found that the complaining witness was
intoxicated and that Molina, who was also intoxicated, was guilty of rape because he engaged in
sexual relations with her without the use of force, threat, or intimidation, but at a time when he
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was mentally unable to comprehend her intentions. The jury gave an indication it was
considering this when it inquired whether “the defendant and the victim could be in the same
mentally incapacitated state at the time of the incident.” It is certain that “the same . . . state” the
jury addressed was intoxication because it is undisputed that the evidence proved both Molina
and the complaining witness were similar in this respect -- they both consumed alcohol at “the
time of the incident.”
We have held that a complaining witness is not rendered physically helpless or mentally
incapacitated solely because “she was ‘drunk’ . . . [and] was taking ‘antidepressant’ medication
that day.” Howard, 21 Va. App. at 476, 465 S.E.2d at 143. Yet, the instruction in this case
permitted the jury to substitute for the “force, threat or intimidation” element its belief that the
complaining witness’ will was overcome merely because she was voluntarily intoxicated.
Indeed, the jury, which specifically had indicated to the trial judge its lack of unanimity, asked:
“Can you define ‘against her will?’ Consent is defined . . . but ‘will’ is not.” The jury’s focus on
the issue of complainant’s “will” is also evident by its further inquiry:
Element (8): “That it was against her will; and”
Issue:
(1) Under Virginia law, does Element (8) mean that the victim was
or could be in a mental state that could prevent her from rendering
a rational decision as to her will?
(2) Under Virginia law, does the act of exercising one’s “will”
directly involves or implies a process of decision making?
The jury’s focus on the complaining witness’ consent and will was compromised by the
instruction’s disjunctive use of three distinct circumstances of sexual intercourse. I disagree with
the majority opinion’s conclusion that the instruction, which intertwined the three theories of
rape, was harmless. The Commonwealth never argued that the complaining witness was
mentally incapacitated. Yet, the instruction placed before the jury a basis upon which to
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impermissibly use the complaining witness’ intoxication. Furthermore, as the instruction is
crafted, it is impossible to determine whether the jury was unanimous on any one of the
instruction’s theories of the event. Fewer than twelve jurors could have believed the
complaining witness was raped by threat, force, or intimidation (a theory that was submitted to
the jury even though the trial judge struck the wounding and abduction charges). Others could
have believed that the complaining witness was conscious during intercourse (as she told the
officers) and that the rape was accomplished while she was intoxicated (that is, according to the
jurors’ inquiry, “in the same mentally incapacitated state” as Molina). Others could have found
that the complaining witness’ intoxication equated with mental incapacity or physical
helplessness. It is not possible to tell which set of facts the jury agreed on.
“Under established Virginia law, the verdict in all criminal prosecutions must be
unanimous.” Evans v. Commonwealth, 228 Va. 468, 481, 323 S.E.2d 114, 121 (1984) (citing
Rule 3A:17(a)). The requirement of unanimity means that the jury must unanimously find each
element exists. See Richardson v. United States, 526 U.S. 813, 817-18 (1999).
The Supreme Court explained in Richardson that, for example, the
jury must unanimously find force as an element of the crime of
robbery, but whether the force is created by the use of a gun or a
knife is not an element of the crime and therefore does not require
jury unanimity.
Jackson v. Commonwealth, 266 Va. 423, 434-35, 587 S.E.2d 532, 541 (2003) (citing
Richardson, 526 U.S. at 817). In this case, however, the question is not “which of several
possible sets of underlying brute facts make up a particular element.” Richardson, 526 U.S. at
817. Rather, this is a case where the elements of “against [a person’s] will” or “through . . .
mental incapacity” or “through . . . physical helplessness” are three conceptually distinguishable
concepts that are independent elements of the same crime. Because the jury had a menu of
permissible ways to convict, the verdict failed to show that the jury reached unanimity on one set
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of facts. Thus, the Commonwealth failed to prove “every fact necessary to constitute the crime
with which he is charged.” In re Winship, 397 U.S. at 364 (emphasis added). We have no basis
to know from the record what essential element the jury found. Therefore, I would hold that the
instruction was erroneous, failed to properly inform the jury of the law, and was not harmless.
For all of these reasons, I would reverse the convictions.
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