Brent David Taylor v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA

Present: Judges Beales, Russell and AtLee
UNPUBLISHED

Argued at Fredericksburg, Virginia

BRENT DAVID TAYLOR
MEMORANDUM OPINION* BY
v. Record No. 1031-14-4 JUDGE RANDOLPH A. BEALES
SEPTEMBER 13, 2016
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Lon E. Farris, Judge

Megan Thomas (King, Campbell, Poretz & Thomas, PLLC, on
briefs), for appellant.

Katherine Quinlan Adelfio, Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.

Following a jury trial, Brent David Taylor (appellant) was convicted of rape in violation of

Code § 18.2-61 and of aggravated sexual battery in violation of Code § 18.2-67.3. Appellant argues

on appeal that the trial court erred in refusing to suppress his non-Mirandized statements to police

because they were not voluntary and were made during a custodial interrogation; erred in refusing

expert testimony on the issue of voluntariness; erred in denying appellant a rape-shield hearing

pursuant to Code § 18.2-67.7; and erred in finding that the evidence presented at trial was sufficient

for conviction.

I. BACKGROUND

We consider the evidence on appeal “in the light most favorable to the Commonwealth as

we must since it was the prevailing party” in the trial court. Beasley v. Commonwealth, 60

*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Va. App. 381, 391, 728 S.E.2d 499, 504 (2012) (quoting Riner v. Commonwealth, 268 Va. 296,

330, 601 S.E.2d 555, 574 (2004)).

On April 25, 2012, the then-eighteen-year-old appellant, Brent David Taylor, met the

alleged victim, Jane Doe,1 who was seventeen years old at the time. That evening, Jane allowed

her friend Kristina, along with Kristina’s friend David and David’s friend (appellant), to come

over to Jane’s house. At some point, David drove Kristina back to her house, leaving Jane and

appellant alone at Jane’s home. The Commonwealth charged that, during this time, appellant

raped and sexually assaulted Jane while she was unconscious.

Police Interview of Appellant

In the afternoon hours of April 26, 2012, Detective David Cho of the Prince William

County Police Department called appellant and asked him to come to the police station to answer

some questions. Appellant testified that he “agree[d] to go down to the station.” When appellant

told Cho that he could be at the station in thirty minutes “because [he] had someone coming to

give [him] a ride,” Cho told appellant that he would instead send someone to pick appellant up.

Another detective (Detective Gary Van Dyke) drove to appellant’s home where appellant was

waiting “[i]n the front yard.” Appellant “walk[ed] through his yard toward [Van Dyke’s] car,”

and Van Dyke, who was dressed in a plainclothes “shirt and tie,” did not arrest appellant or frisk

him. An unidentified woman was also at the residence with appellant. She said to the officer,

“He’s only eighteen.” Appellant got into the front seat of the detective’s unmarked vehicle, and

the two of them rode to the police station. According to Detective Van Dyke, appellant was

“relaxed” and “joking.” Appellant himself testified, “When I first got to the police station,

before entering the station, I did feel like I was only going to be there for a few minutes just to

1
We use “Jane Doe” in an attempt to protect the alleged victim’s privacy.
  ‐ 2 - 
answer a few questions.” The woman who was at appellant’s house followed them in a separate

vehicle to the police station.

The detective drove to the public entrance of the police station and walked with appellant

to the front entrance through “doors open to the public.” The officer testified that the woman

followed appellant and the officer into the police station, but that she sat down and “stayed in the

main part of the waiting room in the front of the police station.” The detective used a security

badge to open a locked and alarmed door leading from the main waiting room into a secure

corridor. The detective then escorted appellant through another door into a windowless

interview room. The detective got appellant “a pen and paper . . . and allowed him to write”

after appellant informed him that “he was having anxiety and that he felt better when he was able

to write.” At that point, Detective Michelle Nemerow, who had met appellant on a previous

occasion, entered the interview room and had a “friendly back and forth” conversation with

appellant while he was waiting. She was not exactly sure how long it took, but estimated no

more than five to ten minutes. Nemerow also allowed appellant to “roll[] his chair between the

doorway” while waiting for the interview to begin, which she testified was not typically allowed

because of concerns for officer safety. However, she stated that the detectives “were trying to

make any concessions possible because he said to [her] that [he had] anxiety in the closed

spaces.”

When Cho arrived to begin the interview, he closed the door “to make sure that this was

private, that nobody else would hear [their] conversation.” Nemerow was not present at this

time. Appellant “was sitting close to the door and [Cho] was sitting across from him.”

Appellant provided Cho with his identification, and Cho returned it immediately after copying

down the information.

  ‐ 3 - 
 Cho began speaking with appellant about the prior evening. Almost an hour into the

recorded portion of the interview, when Cho told appellant that he did not think his story

matched some of the other individuals’ descriptions of the evening, appellant admitted that he

and Jane had kissed and that he had touched her bare breasts, buttocks, and crotch area during

their time alone at the house while David took Kristina home. Appellant told Cho that they were

kissing each other. He still denied “hav[ing] sex” with Jane. Appellant told Cho that David

picked him up around 2:00 a.m. and that David came upstairs and saw Jane passed out and

helped put her into her bed. Appellant acknowledged that David saw Jane with her pants

partially down at that point.

After this statement, Cho told appellant, “Okay. Okay. I’ll be right back, I need to make

this phone call, okay?” Then, Cho left the interview room for almost twenty minutes. Toward

the end of the twenty-minute interval, Officer Scott Lawhead entered the interview room with a

search warrant to take DNA evidence from appellant. Lawhead swabbed appellant’s penis and

the inside of appellant’s mouth. Appellant removed his pants for the penis swab, he was

cooperative with the swabbing, and he even asked Lawhead at one point, “No blood, no

nothing?” Lawhead responded, “No, not at this point, I don’t think.” Appellant also stated to

Lawhead, “I don’t know why they didn’t come and ask me (inaudible), why get a search warrant

when they could have just asked?” Officer Lawhead left the room without answering.

When Cho returned to the interview room he immediately asked appellant, “Hey, Brent,

uh, we think that you’ve been telling us that, uh, you didn’t have sex right? Is that my

understanding? That you guys did not have intercourse?”— As Cho continued to ask questions,

appellant asked, “Can I go home now?” Cho replied, “Just, uh, got some more questions. Uh,

do you know Detective Nemerow?” To which appellant responded, “No.” Cho explained that

Nemerow would be joining them because they “just want to talk to you [appellant] about a few
  ‐ 4 - 
other things, okay?” Appellant responded, “But why? You’ve got all the information, you

got—” Cho interrupted and said, “I don’t, I don’t, that’s why. There’s other things that I need

from you . . . I need to get some clarification.” Appellant interrupted and said, “I can’t be in here

this [sic] longer, I can’t be in here.” Cho insisted, “I need to get some clarification, okay. Um, is

there anything else that I need to know than what you told me? Anything else that, you know,

you want me, you want me to know about what happened?” Appellant then said, “I wanna go

home. I wanna go home, smoke my cigarette and just try to slow my heart rate because right

now, I can’t fucking keep my (inaudible).” Cho said, “All right, man, then I’m gonna just ask

you a few more questions, okay? How’s that?” Appellant responded, “Sure.”2

When appellant continued to get upset over the search warrant, Cho repeatedly told

appellant that the search warrant was “procedure” and “what we do” in every case. At no point

during this interaction did appellant stand or make a motion to leave. Cho continued to question

appellant, and appellant again denied having sexual intercourse with Jane.

About an hour and a half into the interview, Nemerow then re-entered the interview

room. She spoke at length with appellant about her connection to him as the wife of his former

teacher – and how she knew appellant’s mother. She also asked appellant to “tell the truth.”

Eventually, appellant admitted, “I screwed up. . . . It’s pretty bad.”

Appellant said, “We were talking and messing around but then she passed out. And I still

messed around with her. I felt her up while she was still asleep. I was really drunk. I did take

off her pants.” Appellant said that he was not sure whether he penetrated her vagina with his

penis, but if he did, he did it twice (“I literally, probably only got it in if I did, twice.”). At the

2
There are slight variations between the transcripts of appellant’s interview and the
interview itself. Any time this opinion quotes the interview the language is taken directly from
the recording, which was admitted at trial as evidence.
  ‐ 5 - 
conclusion of the interview, appellant wrote an apology note to Jane, which was admitted into

evidence.

At the conclusion of the interview, around 5:30 p.m., Cho walked appellant back into the

waiting room, and appellant “almost immediately” left the police precinct. At no time before,

during, or immediately after the interview was appellant frisked, handcuffed, or told that he was

being placed under arrest. However, an arrest warrant was issued for appellant at 9:08 p.m. that

same evening, and officers arrested appellant at his home around 10:30 p.m.

Evidence at Trial

At trial, the Commonwealth put on evidence that Jane and her friend Kristina went to

appellant’s house to “hang out” with appellant and his friend David. The four ultimately decided

to go to Jane’s house, and they drove there in two separate cars. Jane’s father and stepmother

were out of town, and Jane had the house to herself. Despite all being underage, the four drank

alcohol while at the house. Kristina went into the garage with David for stretches of time.

Appellant and Jane spent time in both the basement and Jane’s bedroom, where they sat looking

at books. When Kristina needed to go home, she went back into the basement where she found

Jane “completely incoherent” and “slumped over” on the couch. Kristina attempted to help Jane

stand up, but Jane stumbled and knocked over a glass of clear liquid onto the table. Appellant

cleaned up the spill, and he carried Jane upstairs to her bedroom and laid her on the floor.

Kristina followed with Jane’s phone and laid it on the floor beside Jane.

Appellant told Kristina to go home because he would take care of Jane. David agreed to

drive Kristina home. David dropped off Kristina at her home and returned to Jane’s house.

According to Kristina, some time after David dropped her off, he texted her, “They’re fucking.”

Kristina responded, “LOL. Really? Oh, God. She’s a virgin.” David said, “No way. This is

  ‐ 6 - 
crazy.” Kristina replied, “What is? Do you miss me?” David said, “Yes, I miss you, and they’re

fucking.”

David and appellant also exchanged a number of text messages on the evening of April

25, 2012 into the early morning hours of April 26, 2012, which were entered into evidence at

trial. Appellant sent David a text message that read, “Dude this blows,” to which David replied,

“I know bro make her drink[.] I’ll try to drive k home while u ‘wait’ here with [Jane.]”

Appellant responded, “I’m trying dude ain’t working,” and David answered, “It will once I drive

k home and ur alone with [Jane] just keep feedin her liquor.” Again appellant responded, “I’m

trying. Ugh wtfffffff,” and David told appellant, “Hit her up.”

The next morning, Jane awoke in her bed without pants or underwear on. She was

confused and struggled to recall what had happened. She threw her clothes into the washing

machine and took a shower. As she showered, she felt “stinging” in her vagina, and she began to

remember fragments of the prior evening. She testified, “I remember laying on the side of the

couch and going to sleep” and later vomiting on the floor in front of the couch. The next thing

she recalled was “Brent carrying [her] upstairs.” She did not recall her clothes coming off, but

she did testify that she remembered feeling “his penis” in her vagina and telling appellant “‘no’

multiple times.” Jane recounted feeling “[s]tretching” and pain. She remembered that appellant

told her to “shh.” Jane testified that she did not remember him touching any other parts of her

body.

When Jane went to school the next morning, she told her school counselor and teacher

that she had been sexually assaulted the previous night although she claimed that an unknown

perpetrator had entered her house through the garage door. After speaking with the police, Jane

went to the hospital for a SANE exam. The medical professional, who examined Jane, testified

  ‐ 7 - 
at trial that the exam revealed a laceration and bruising on her hymen consistent with

nonconsensual sexual intercourse.

II. ANALYSIS

A. Police Interrogation

Appellant argues that the trial court erred in denying appellant’s motion to suppress his

statements to police because appellant was subject to custodial interrogation during the entire

police station interview and was thus entitled to Miranda warnings. See generally Miranda v.

Arizona, 384 U.S. 436 (1966). In addition, appellant argues that his statements should have been

suppressed because they were made involuntarily.

1. Standards of Review

“[O]n appeal of a denial of a motion to suppress, we view the evidence in the light most

favorable to the Commonwealth, the party prevailing below.” Aldridge v. Commonwealth, 44

Va. App. 618, 638, 606 S.E.2d 539, 549 (2004). “Further, ‘in reviewing a trial court’s denial of

a motion to suppress, “the burden is upon [the appellant] to show that the ruling . . . constituted

reversible error.”’” Id. (alterations and omissions in original). On appeal, this Court reviews

“questions of law de novo, including those situations where there is a mixed question of law and

fact.” Perry v. Commonwealth, 280 Va. 572, 578, 701 S.E.2d 431, 435 (2010) (quoting

Westgate at Williamsburg Condo. Ass’n v. Philip Richardson Co., 270 Va. 566, 574, 621 S.E.2d

114, 118 (2005)).

2. Custodial Interrogation

When a suspect is subject to “custodial interrogation” by the police, that suspect is

entitled to Miranda warnings. “Custodial interrogation is ‘questioning initiated by law

enforcement officers after a person has been taken into custody or otherwise deprived of his

freedom of action in any significant way.’” Commonwealth v. Milner, 13 Va. App. 556, 558,
  ‐ 8 - 
413 S.E.2d 352, 353 (1992) (quoting Miranda, 384 U.S. at 444). “The ultimate inquiry [into

whether an individual is subject to custodial interrogation] is simply whether there is a formal

arrest or restraint on freedom of movement of the degree associated with formal arrest.” Harris

v. Commonwealth, 27 Va. App. 554, 564, 500 S.E.2d 257, 262 (1998) (quoting California v.

Beheler, 463 U.S. 1121, 1125 (1983)). Factors to be considered when determining whether the

totality of the circumstances point to the conclusion that a suspect is in custody are: (1) the

manner in which the individual is summoned by the police; (2) the familiarity or neutrality of the

surroundings; (3) the number of officers present; (4) the degree of physical restraint; (5) the

duration and character of the interrogation, and (6) the extent to which the officer’s beliefs

concerning the potential culpability of the individual being questioned were manifested to the

individual. See id.

Because the determination whether a suspect is “in custody”
requires an objective focus, the only relevant inquiry is how a
reasonable person in the suspect’s situation would have understood
his circumstances. Thus, the subjective perspective of either the
suspect or the interrogating police officer has no bearing on the
issue whether the suspect was “in custody” at the time he was
questioned by the police.

Dixon v. Commonwealth, 270 Va. 34, 40, 613 S.E.2d 398, 401 (2005) (internal citations

omitted).

Appellant was ultimately subject to custodial interrogation when Officer Lawhead served

appellant with a search warrant, Detective Cho confronted appellant as the primary suspect, and

Cho kept questioning appellant and did not tell him that he was free to leave after appellant

asked to go home. At the outset, we know that the degree of coercive danger Miranda wished to

guard against “does not exist ‘simply because the questioning takes place in the station house, or

because the questioned person is one whom the police suspect’ as the perpetrator of the crime.”

Tizon v. Commonwealth, 60 Va. App. 1, 18, 723 S.E.2d 260, 268 (2012) (quoting Howes v.
  ‐ 9 - 
Fields, 132 S. Ct. 1181, 1188 (2012)). Here, although the police provided appellant with

transportation to the station, he had already agreed to come to the station. That the police

provided transportation as opposed to waiting for appellant’s ride to pick him up did not alter the

voluntary nature of appellant’s interaction at that point in time. Furthermore, appellant’s female

friend followed in a separate car and appeared to be waiting in the police lobby.

Appellant walked into the police station with a detective, who led him behind a door

which required badge access, where he was placed in a small room that had no windows.

However, the trial court found that the door leading from the lobby to the corridor and the door

to the interview room were both unlocked. Thus, the evidence established that the doors could

open from the inside without a badge even if the alarm would still go off.

Appellant was in a windowless room down a secure corridor, but the officers engaged in

easygoing conversation with him and only Cho stayed in the room to interview appellant. Cho

told appellant that he was shutting the door to the interview room for their own privacy.

Throughout the first fifty minutes of the interview, appellant and Cho discussed appellant’s

whereabouts on April 25 up to the time of the interview on April 26 – as well as appellant’s

relationship with Kristina and Jane. Thus, the totality of the circumstances lead us to conclude

that a reasonable person in appellant’s position would not feel that he was being kept in the

interview room against his will at this point. Accordingly, he was not subject to custodial

interrogation during this portion of his encounter with Cho.

However, neither the encounter nor the analysis ends at that point in time. As Cho

continued to question appellant, Cho began to focus his questions on the possible romantic

interaction between Jane and appellant. Appellant admitted that they had been kissing and

touching and that Jane “passed out” in front of him with her pants part of the way down and that

David returned and saw Jane with her pants partially removed. Cho then immediately told
  ‐ 10 - 
appellant that he had to make a phone call and left appellant in the interrogation room. After

being left alone for some time, another officer whom appellant had not yet met entered the room

unannounced. That officer, Officer Lawhead, served appellant with a search warrant. Lawhead

told appellant that he would be swabbing appellant for DNA in his mouth and on his penis. At

this point, appellant was certainly not free to leave, at least until the swabbing required by the

search warrant had been completed. He was alone in a room with the door shut in the back of a

secure corridor of a police station waiting for Cho to return, and then an unknown officer showed

up with a search warrant with which appellant was legally obligated to comply.

“Not all restraints on freedom of movement amount to custody for purposes of Miranda.

We have ‘decline[d] to accord talismanic power’ to the freedom-of-movement inquiry, and have

instead asked the additional question whether the relevant environment presents the same

inherently coercive pressures as the type of station house questioning at issue in Miranda.”

Fields, 132 S. Ct. at 1189 (quoting Berkemer v. McCarty, 468 U.S. 420, 437 (1984)). The

scenario in this case is different, however, because the location in which the search warrant was

served, the manner in which it was executed, what it sought to obtain, and the limited discussion

explaining the necessity of the search warrant after it was executed would cause a reasonable

person to conclude that appellant was not free to leave the police interview room. However, at

this time, appellant was not being questioned by the police.

Several minutes later, Cho re-entered the room. Cho’s first words to appellant signaled

that the inquiry had now focused on appellant and that Cho believed that appellant had

committed a criminal act: “Hey, Brent, uh, we think that you been telling us that, uh, you didn’t

have sex right? Is that my understanding? That you guys did not have intercourse?” While

“[t]he fact that the investigation had become accusatory and focused upon a suspect is not

  ‐ 11 - 
necessarily determinative of custody[,]” Wass v. Commonwealth, 5 Va. App. 27, 33, 359 S.E.2d

836, 839 (1987), it is a factor to be considered in the totality of the circumstances.

Cho continued to ask appellant about the DNA evidence and about being with Jane. At

that point, appellant asked, “Can I go home?” Cho, instead of answering appellant’s question,

continued with his interrogation and told appellant, “Just, uh, got some more questions.” Thus,

not only did Cho fail to answer appellant’s direct question but he also signaled that he would

continue questioning appellant despite appellant’s request to go home. The clear implication was

that appellant could not leave. In this context, Cho’s deliberate avoidance of answering

appellant’s question, coupled with the previously executed search warrant, would signal to a

reasonable person sitting in appellant’s position that he was not free to leave. Furthermore,

while courts have said that failing to alert a suspect that he is free to leave is not always

dispositive, see Davis v. Allsbrooks, 778 F.2d 168, 171-72 (4th Cir. 1985) (cited with approval

in Wass, 5 Va. App. at 33, 359 S.E.2d at 840), the Court in Davis emphasized that the totality of

the circumstances otherwise pointed to freedom of movement. By this point in the interview,

appellant had effectively been forced to stay in the interrogation room while he was swabbed for

DNA, had been accused of lying to police, and, for all intents and purposes, had not been

allowed to leave. This series of events transformed the encounter.3

The totality of the circumstances leads to the conclusion that appellant was in custody –

and subject to custodial interrogation – once Cho resumed his questioning. The service of the

search warrant and swabbing of appellant’s mouth and penis, Cho’s questions to appellant as

soon as he reentered the room after the swabbing, and Cho’s refusal to answer appellant’s

3
We are not articulating a per se rule that service of a search warrant during police
questioning always transforms an encounter into a custodial interrogation because of the restraint
on movement that comes with a search warrant. There are scenarios in which the service of a
search warrant during an interrogation will not change the nature of the questioning.
  ‐ 12 - 
request to leave combine to tip the scales from routine police questioning to custodial

interrogation. Because appellant was subject to custodial interrogation and had not been given a

Miranda warning, we hold that any of appellant’s statements that were made after Cho resumed

questioning should have been suppressed, including appellant’s “apology note.”

3. Voluntariness of Appellant’s Statement

Appellant also asserts on appeal that the trial court erred in denying appellant’s motion to

suppress his statement to police because it “was involuntary due to his anxiety disorder.” We,

therefore, now examine whether appellant’s testimony was voluntary during the police

questioning before appellant was subject to custodial interrogation.4 “Whether a statement is

voluntary is ultimately a legal rather than a factual question, but subsidiary factual decisions are

entitled to a presumption of correctness.” Robinson v. Commonwealth, 63 Va. App. 302, 310,

756 S.E.2d 924, 927 (2014). “Thus, ‘[this Court is] bound by the trial court’s subsidiary factual

findings unless those findings are plainly wrong.’” Id. at 310, 756 S.E.2d at 927-28 (alterations

in original).

“The test to be applied in determining voluntariness is whether the statement is the

‘product of an essentially free and unconstrained choice by its maker,’ or whether the maker’s

will ‘has been overborne and his capacity for self-determination critically impaired.’” Midkiff v.

Commonwealth, 250 Va. 262, 268, 462 S.E.2d 112, 116 (1995) (quoting Schneckloth v.

Bustamonte, 412 U.S. 218, 225 (1973)). “Evidence of coercive police activity is a necessary

4
 We need not look beyond the point at which appellant was subject to custodial
interrogation to determine whether those statements were made voluntarily because we have
already determined that the unMirandized statements made after custodial interrogation must be
suppressed, and we resolve the case on the narrowest and best grounds available. See
Commonwealth v. Swann, 290 Va. 194, 196, 776 S.E.2d 265, 267 (2015) (“The doctrine of
judicial restraint dictates that we decide cases ‘“on the best and narrowest grounds available.”’”
(quoting McGhee v. Commonwealth, 280 Va. 620, 626 n.4, 701 S.E.2d 58, 61 n.4 (2010))).
However, because appellant also argues that his statements to Cho prior to the encounter
evolving into a custodial interrogation were not voluntary, we address this issue. 
  ‐ 13 - 
predicate to the finding that a confession is not voluntary.” Washington v. Commonwealth, 43

Va. App. 291, 303, 597 S.E.2d 256, 262 (2004) (emphasis added) (internal quotation marks

omitted); see also Colorado v. Connelly, 479 U.S. 157, 167 (1986). However, coercive police

activity is not necessarily sufficient for a finding that a confession is involuntary. United States

v. Braxton, 112 F.3d 777, 780 (4th Cir. 1997) (en banc); see also Hill v. Commonwealth, 52

Va. App. 313, 318-20, 663 S.E.2d 133, 135-36 (2008). This is because “voluntariness is not

equated with the absolute absence of intimidation.” Robinson, 63 Va. App. at 312, 756 S.E.2d at

928 (alteration and internal quotation marks omitted). “[A] court determining whether a

confession was voluntary must consider both ‘the details of the interrogation’ and ‘the

characteristics of the accused.’” Rodriguez v. Commonwealth, 40 Va. App. 144, 157, 578

S.E.2d 78, 84 (2003) (internal quotation marks omitted). “Such factors include ‘the purpose and

flagrancy of any police misconduct,’ ‘the length of the interview,’ and any ‘moral and

psychological pressures to confess emanating from official sources.’” Id. (internal quotation

marks omitted).

Here, the evidence supports the trial court’s decision that appellant’s statements were not

coerced. Appellant’s exchanges with the officers before the interview started were “relaxed” and

“joking.” When appellant stated that he felt uncomfortable in closed spaces, Nemerow left the

door open and provided appellant with a pen and paper so that he could write to relieve his

anxiety. Appellant’s demeanor during the beginning of the interview was calm and

conversational. Appellant was with only Cho for most of the interview and was questioned for

approximately one hour before Cho left for a period of twenty minutes. Appellant argued that

Cho raised his voice at appellant, which contributed to the involuntariness of appellant’s

confession. It is true that approximately fifty-one minutes into the interview, Cho changed his

tone of voice, and appellant asked him, “Can you please lower your voice?” However, the trial
  ‐ 14 - 
court, examining the first portion of the interview including this part (before Detective Cho left

to make his phone call), specifically found, “That’s not a prolonged interview. It’s an hour and

five minutes. It’s not threatening.” The interview bears no markings of a coerced confession.

Cho did not engage in misconduct, the interview was not particularly long, and Cho did not exert

“any moral and psychological pressures” on appellant. Id. Therefore, we hold that – with

respect to the interview before appellant was subject to custodial interrogation – the trial court

did not err in concluding that appellant’s statement was voluntary.

4. Harmless Error

The Commonwealth argued on appeal that, even if this Court finds that appellant’s

statements to police were obtained while appellant was in custody without Miranda warnings in

violation of his Fifth Amendment rights, such error was harmless and the convictions against

appellant should be affirmed. Appellant argues that appellant’s statements to police were not

harmless error.

When a federal constitutional error is involved, a reversal is
required unless the reviewing court determines that the error is
harmless beyond a reasonable doubt. The reviewing court must
determine “‘whether there is a reasonable possibility that the
evidence complained of might have contributed to the
conviction.’” In making that determination, the court must
consider, among other factors, “[1] the importance of the tainted
evidence in the prosecution’s case, [2] whether that evidence was
cumulative, [3] the presence or absence of evidence corroborating
or contradicting the tainted evidence on material points, and [4] the
overall strength of the prosecution’s case.”

Pitt v. Commonwealth, 260 Va. 692, 695, 539 S.E.2d 77, 78 (2000) (numbering added) (first

quoting Chapman v. California, 386 U.S. 18, 23 (1967) (internal citations omitted), and then

quoting Lilly v. Commonwealth, 258 Va. 548, 551, 523 S.E.2d 208, 209 (1999) (internal citation

omitted)).

  ‐ 15 - 
 In Zektaw v. Commonwealth, 278 Va. 127, 677 S.E.2d 49 (2009), Zektaw was charged

with rape, attempted sodomy, abduction, and assault and battery. Id. at 131, 677 S.E.2d at 51.

Zektaw made a motion to the trial court to suppress evidence of his confession that was obtained

after invoking his right to ask for counsel. Id. The trial court denied Zektaw’s motion. At trial,

Zektaw’s girlfriend (the victim) testified, a SANE nurse testified that the injuries on the victim

were consistent with nonconsensual sexual intercourse, the victim’s friend and cousin both

testified on her behalf to corroborate the victim’s version of events, and the Commonwealth

admitted evidence of a voicemail that Zektaw left for the victim on her phone and a transcript of

a phone conversation between Zektaw and the victim in which Zektaw “partially corroborated

[the victim’s] testimony.” The Supreme Court ultimately determined:

We cannot conclude beyond a reasonable doubt that there is no
reasonable possibility that Zektaw’s statements did not contribute
to his convictions or to the severity of the jury’s recommended
punishment. Zektaw’s statements were inculpatory on the assault
and battery conviction and made the Commonwealth’s case much
stronger for the rape and abduction charges.

Id. at 140, 677 S.E.2d at 56 (emphasis added).

Furthermore,

[a] confession is like no other evidence. Indeed, “the defendant’s own
confession is probably the most probative and damaging evidence that
can be admitted against him. . . . The admissions of a defendant come
from the actor himself, the most knowledgeable and unimpeachable
source of information about his past conduct. Certainly, confessions
have profound impact on the jury, so much so that we may justifiably
doubt its ability to put them out of mind even if told to do so.”

Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (quoting Bruton v. United States, 391 U.S.

123, 139-40 (White, J., dissenting)).5

5
While the test for determining whether constitutional error is harmless is indeed
stringent, it is possible that an erroneously admitted confession could be harmless error. Thus,
  ‐ 16 - 
 In this case, while there is significant evidence supporting appellant’s convictions

(without considering appellant’s statements that should be suppressed), the portions of

appellant’s statements made after he was in custody make the Commonwealth’s case much

stronger for the rape and aggravated sexual battery charges. During the time the rape and

aggravated sexual battery were alleged to have happened, Jane and appellant were alone in the

house together. As a result, appellant and Jane are the only two people who have first-hand

knowledge of the events surrounding the alleged rape and aggravated sexual battery. Jane

testified based on her recollection of events after a night of excessive drinking, and

acknowledged that she was not conscious during the entire event. Thus, any statements appellant

made about his actions that evening that corroborate Jane’s account would greatly strengthen the

Commonwealth’s case. Appellant initially insisted that he did not have sexual intercourse with

Jane – and only admitted that he may have put his penis in her vagina after he was subject to

custodial interrogation.

With regard to evidence to support the aggravated sexual battery charge, before appellant

was subject to custodial interrogation he said that he and Jane were kissing each other and

touching each other (“my hands were going everywhere”). He said that “she didn’t mind” him

touching her bottom and that he touched her breasts once or twice; he also said that he reached to

touch her vagina but that she “slammed [his] hand away.” However, it was only after he was

subject to custodial interrogation that he admitted, “[s]he passed out and I still messed around

with her. I felt her up while she was still asleep.” As charged in the indictment, one element of

aggravated sexual battery is that “[t]he act is accomplished through the use of the complaining

witness’s mental incapacity or physical helplessness.” Code § 18.2-67.3(A)(2). Physical

our ruling should not be interpreted as a rule that all erroneous admissions of confessions
constitute reversible error.
  ‐ 17 - 
helplessness “means unconsciousness or any other condition existing at the time of an offense

under this article which otherwise rendered the complaining witness physically unable to

communicate an unwillingness to act and about which the accused knew or should have known.”

Code § 18.2-67.10(4). Sleep can constitute physical helplessness. See Woodward v.

Commonwealth, 12 Va. App. 118, 121, 402 S.E.2d 244, 245-46 (1991). Thus, only after he was

subject to custodial interrogation did appellant clearly admit to touching Jane while she was

physically helpless (an element of the aggravated sexual battery charge). Furthermore,

appellant’s custodial statements about touching Jane after she was unconscious provide the only

direct evidence that he intended to touch her while she was unconscious. See Quinn v.

Commonwealth, 25 Va. App. 702, 720, 492 S.E.2d 470, 479 (1997) (“Based on our review of the

record, we hold that the erroneous admission of appellant’s statements was not harmless.

Appellant’s statements . . . also provided the only direct evidence in the record of appellant’s

knowledge that the tools and equipment loaded onto the truck by his son belonged to ‘another’

and of his intent to ‘permanently deprive’ Messrs. Worley and Truslow of possession of these

items.”).

In addition, the trial court admitted appellant’s apology note to Jane into evidence at trial.

The apology note was written while he was in custody. In the note, appellant asks for

forgiveness and acknowledges, “I screwed up so bad and I’m so sorry.” The Commonwealth

also relied extensively on appellant’s confession during its closing argument (“[N]o stranger

came into the garage and did this. Brent Taylor did this. He told you that he did it.”). In this

case, we cannot conclude beyond a reasonable doubt that appellant’s statements – verbal and

written – that were made after he was subject to custodial interrogation and the Commonwealth’s

reliance on his statements for their closing argument “did not contribute to his convictions or to

the severity of the jury’s recommended punishment.” Zektaw, 278 Va. at 140, 677 S.E.2d at 56.
  ‐ 18 - 
Therefore, because the error of the trial court here was not harmless beyond a reasonable doubt,

we must reverse appellant’s convictions. 6

B. Expert Witness Testimony7

Appellant also argues that the trial court erred when it sustained the Commonwealth’s

objection to appellant’s expert witness testifying at the motion to suppress, because “the

witness’s testimony would have been relevant to the issue of voluntariness.” The

Commonwealth asserts that appellant failed to preserve this issue for appeal. We agree. “The

Court of Appeals will not consider an argument on appeal which was not presented to the trial

court.” Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1988); Rule

5A:18. After the Commonwealth objected at the hearing, appellant’s counsel said,

Judge, with respect to this hearing, the false confession issue is
probably not what we’re planning to go into today. What we are
calling him for today is he is a clinical and forensic psychologist
and we wanted to go into the anxiety disorder, his review of the
medical records, his personal interview with Mr. Taylor and so
forth to give an opinion whether or not he is in the class of persons
that would feel –

(Emphasis added). The court interrupted. After some back and forth between the trial court and

appellant’s counsel, trial counsel said, “I think in terms of whether or not he was suffering from

an anxiety attack will be very relevant to the Court’s consideration of whether or not he would

6
This is not to say that, absent appellant’s confession, the evidence was insufficient to
allow a reasonable factfinder to conclude beyond a reasonable doubt that appellant was guilty of
the charged offenses. The testimony of the victim and other evidence would have been sufficient
to support such convictions. However, “[h]armless error analysis is not simply a sufficiency of
the evidence analysis.” White v. Commonwealth, 66 Va. App. 333, 365, 785 S.E.2d 239, 255
(2016) (internal quotation marks and citations omitted). We only hold that we cannot conclude
to the requisite level of certainty (i.e., beyond a reasonable doubt) that the erroneously admitted
statements did not influence the jury, as factfinder, in reaching its conclusions.
7
Once again, because appellant’s argument that none of his statements were voluntary
applies to the statements he made before the encounter with Cho became a custodial
interrogation, we address this assignment of error.
  ‐ 19 - 
have felt able to leave in this situation. And that’s the purpose for him to testify today.”

(Emphasis added). Whether an individual feels able to leave is part of the custody analysis – not

part of a voluntariness analysis. Most tellingly, appellant’s counsel never even used the word

“voluntary” or “voluntariness” in his argument to the trial court. Appellant argues that the

Commonwealth raised the issue of voluntariness such that it is preserved for appeal. In the

Commonwealth’s final statements to the trial court, the Commonwealth said, “Well, I think that

that is the fact that you are called upon to determine and he’s asking to put in expert opinion

testimony as to the voluntariness of this statement given this person’s disorder.” The trial court

then found:

Absent notice that you are claiming the Defendant was not sane at
the time of the offense or the interview or was not competent to
make a statement at the time o[f] the interview, the doctor’s
opinion is simply not relevant. And again, this is an objective
standard, not a subjective standard. So I sustain the objection.

The trial court, by reminding appellant that the court was applying an objective standard,

was clearly under the impression that he was ruling on the relevance of testimony about

appellant’s anxiety as it related to custodial interrogation. “The laudatory purpose behind Rule

5A:18 . . . is to require that objections be promptly brought to the attention of the trial court with

sufficient specificity that the alleged error can be dealt with and timely addressed and corrected

when necessary.” Brooks v. Commonwealth, 61 Va. App. 576, 581, 739 S.E.2d 224, 226-27

(2013) (en banc) (omission in original) (citation omitted). Therefore, appellant failed to clearly

and specifically raise the issue of expert testimony on voluntariness before the trial court and

certainly failed to obtain a ruling on it. “Under [Rule 5A:18], a specific argument must be made

to the trial court at the appropriate time, or the allegation of error will not be considered on

appeal. A general argument or an abstract reference to the law is not sufficient to preserve an

  ‐ 20 - 
issue.” Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en

banc) (internal citations omitted).

On brief, appellant argues that this Court should nevertheless consider whether the expert

witness should have been allowed to testify at the suppression hearing on the issue of

voluntariness under the ends of justice exception because “relevant evidence as to Appellant’s

state of mind during his interrogation is permitted.” (Emphasis added). Appellant does not

proffer any affirmative proof that denying expert testimony on this issue in this case caused a

miscarriage of justice. “Application of the ends of justice exception requires proof of an error

that was ‘clear, substantial and material.’ The record ‘must affirmatively show that a miscarriage

of justice has occurred, not that a miscarriage might have occurred.’” West v. Commonwealth,

43 Va. App. 327, 338, 597 S.E.2d 274, 279 (2004) (first quoting Brown v. Commonwealth, 8

Va. App. 126, 132, 380 S.E.2d 8, 11 (1989), and then quoting Redman v. Commonwealth, 25

Va. App. 215, 221, 487 S.E.2d 269, 272 (1997)). As a result, we will not consider this

assignment of error on appeal.

C. Rape-Shield Hearing8

Next, appellant argues that the trial court erred in denying his request for a rape shield

hearing pursuant to Code § 18.2-67.7. On appeal, we review the trial court’s denial of

appellant’s motion for a rape shield hearing for an abuse of discretion. See Ortiz v.

Commonwealth, 276 Va. 705, 712, 667 S.E.2d 751, 756 (2008) (reviewing the trial court’s

denial of appellant’s pre-trial motion for abuse of discretion). Before trial, appellant sought a

rape shield hearing in order to cross-examine Jane as to “any prior sex acts that might account

8
Although our decisions regarding custodial interrogation and harmless error necessitate
reversal of the convictions, we address the assignment of error regarding the rape-shield hearing
because of the likelihood that the issue will arise again on remand. See Smith v. McLaughlin,
289 Va. 241, 259, 769 S.E.2d 7, 17 (2015).
  ‐ 21 - 
for the injuries documented in the SANE report and the presence of two Y chromosomes in her

underwear.” At the hearing, the trial court ruled, “I think this is nothing more than a fishing

expedition and I think it lines up specifically with the case cited by Ms. Ashworth [the

prosecutor] both in her reply brief and today and I deny your request.”

This Court has held previously that “[t]he plain and unambiguous language of Code

§ 18.2-67.7 does not require a trial court to hold an evidentiary hearing on every request.”

Blackmon v. Commonwealth, 33 Va. App. 728, 734, 536 S.E.2d 918, 921 (2000). Instead, the

statute requires a trial court to hold a hearing before a trial court can admit at trial “evidence of

specific instances of prior unchaste character or sexual conduct.” Id. In Blackmon, Blackmon

“failed to proffer any testimony or evidence which he intended to elicit from [the victim]

concerning prior sexual conduct. Instead, he merely requested that the trial court allow him to

question [the victim], under oath, in order to discover potential exculpatory evidence pertaining

to the source of the semen on [the victim’s] thigh.” Id.

Similarly in this case, appellant argued to the trial court that Jane might have engaged in

sexual activity with another person and lied about appellant’s involvement. Appellant proffered

the fact that a nurse would testify that Jane suffered physical injury to her vagina and that a

forensic examination of Jane’s underwear revealed the presence of two Y chromosomes on that

pair of underwear. At the hearing, appellant did not allege that Jane had engaged in any specific

conduct, but said that the fact that two Y chromosomes (male chromosomes) were present could

support the theory of another boy or boys “having oral sex” with Jane. Appellant ultimately

argued “that [Jane’s] sexual history should be able to be explored or disclosed to us so that we

can prepare this case adequately.”

  ‐ 22 - 
 The purpose of a rape-shield hearing is found in the language of the statute:

Evidence described in subsections A and B of this section shall
not be admitted and may not be referred to at any preliminary
hearing or trial until the court first determines the admissibility
of that evidence at an evidentiary hearing to be held before the
evidence is introduced at such preliminary hearing or trial.

Code § 18.2-67.7. Thus, it was incumbent on appellant to proffer evidence of specific instances

of conduct that fit into category A of Code § 18.2-67.7.9

However, the pair of underwear that the lab analyzed was not the pair Jane wore on the

night of the alleged criminal activity. Instead, the underwear tested was the pair she put on the

next day after she showered. Appellant conceded that sperm, spermatozoa, and seminal fluid

were not found in the underwear and that it was not clear how the DNA that showed the two Y

chromosomes was deposited in the underwear. However, appellant also conceded that such

DNA evidence could be transferred easily. Therefore, this evidence – without further

explanation from appellant – does not make it more likely that Jane was then engaged in conduct

of a sexual nature with a different male than appellant – much less that Jane was previously

engaged in a specific instance of sexual conduct with an individual other than appellant.

9
Code § 18.2-67.7(B) is not relevant based on appellant’s arguments. Code
§ 18.2-67.7(A), the part of the statute on which appellant relies, states in relevant part:

In prosecutions under this article, . . . general reputation or opinion
evidence of the complaining witness’s unchaste character or prior
sexual conduct shall not be admitted. . . . [E]vidence of specific
instances of his or her prior sexual conduct shall be admitted only
if it is relevant and is:

1. Evidence offered to provide an alternative explanation for
physical evidence of the offense charged which is introduced by
the prosecution, limited to evidence designed to explain the
presence of . . . physical injury to the complaining witness’s
intimate parts; or
....
3. Evidence offered to rebut evidence of the complaining witness’s
prior sexual conduct introduced by the prosecution. 
  ‐ 23 - 
 As this Court has opined, “It logically follows that a trial court can make a threshold

evaluation of a motion to hold a hearing to determine the ‘admissibility’ of the evidence at issue

based upon its relevant and probative value only after ‘specific instances’ of sexual conduct

occurring prior to the charged offense have been alleged and proffered.” Blackmon, 33 Va. App.

at 734, 536 S.E.2d at 921. In conclusion, we find that the trial court did not abuse its discretion

in denying appellant’s request for a rape shield hearing because appellant did not actually allege

or proffer any evidence of specific instances of Jane’s prior sexual conduct.

D. Sufficiency of the Evidence

Appellant argues that the Commonwealth failed to present sufficient evidence to support

the jury’s verdicts convicting him of rape and aggravated sexual battery – specifically that the

Commonwealth could not prove that Jane was mentally incapacitated or physically helpless. In

addition, because we reverse and remand this case for a new trial, “a full sufficiency analysis is

required to satisfy the mandate of the Double Jeopardy Clause of the federal Constitution.”

Parsons v. Commonwealth, 32 Va. App. 576, 581, 529 S.E.2d 810, 812 (2000). “If the evidence

adduced at trial was insufficient to convict [appellant], he is entitled to an acquittal; if he is so

entitled, a remand for retrial would violate the Constitution's prohibition against double

jeopardy.” Id.

1. Standard of Review

When considering the sufficiency of the evidence presented below, “a reviewing court

does not ‘ask itself whether it believes that the evidence at the trial established guilt beyond a

reasonable doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387

(2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “Viewing the evidence in

the light most favorable to the Commonwealth, as we must since it was the prevailing party in

the trial court,” Riner, 268 Va. at 330, 601 S.E.2d at 574, “[w]e must instead ask whether ‘any
  ‐ 24 - 
rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt,’” Crowder, 41 Va. App. at 663, 588 S.E.2d at 387 (quoting Kelly v. Commonwealth, 41

Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)). See also Maxwell v.

Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008). “This familiar standard gives

full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”

Jackson, 443 U.S. at 319.

2. Evidence at Trial

Appellant admitted that he penetrated Jane’s vagina with his penis when Jane was

unresponsive, and he admitted that he also touched Jane’s breasts, buttocks, and vagina while she

was “asleep.”10 When a confession is relied on at trial, only “‘slight corroboration of the

confession is required to establish corpus delicti beyond a reasonable doubt.’ However, such

slight corroboration need not be ‘of all the contents of the confession, or even all the elements of

the crime.’” Allen v. Allen, 287 Va. 68, 74, 752 S.E.2d 856, 860 (2014) (first quoting Cherrix v.

Commonwealth, 257 Va. 292, 305, 513 S.E.2d 642, 651 (1999) (emphasis in original), and then

quoting Watkins v. Commonwealth, 238 Va. 341, 348, 385 S.E.2d 50, 54 (1989)). Appellant

repeatedly explained to Cho that Jane drank a substantial amount of alcohol that evening and that

when they were alone together Jane was not always conscious. In fact, appellant repeatedly

referenced the fact that she “passed out” and that she was “pretty drunk.” Text messages

10
We consider all of the evidence at this stage, even if we ultimately conclude that
appellant’s confession should be suppressed. See Code § 19.2-324.1 and Lockhart v. Nelson,
488 U.S. 33, 40-41 (1988) (“It is quite clear from our opinion in Burks[v. United States, 437 U.S.
1 (1978),] that a reviewing court must consider all of the evidence admitted by the trial court in
deciding whether retrial is permissible under the Double Jeopardy Clause – indeed, that was the
ratio decidendi of Burks – and the overwhelming majority of appellate courts considering the
question have agreed.” (internal citation omitted) (emphasis added)).

  ‐ 25 - 
between appellant and David showed that appellant wanted to have sexual intercourse with Jane,

that Jane was not reciprocating, and that David and appellant thought that plying Jane with

alcoholic drinks would help ensure that Jane would have sexual intercourse with appellant.

Kristina testified that Jane and appellant were alone at Jane’s house while David took Kristina

home. Kristina also testified that David – when he returned to Jane’s house to retrieve appellant

– texted Kristina a message that read, “They’re fucking[.]” Jane testified that she did not give

appellant permission to touch her or engage in sexual intercourse with her. Jane testified that she

remembered appellant carrying her upstairs to her room and that she later felt appellant’s penis

inside of her vagina. 11

In this case, a rational factfinder certainly could have found appellant guilty of rape and

aggravated sexual battery because appellant’s statements of confession to the police were

corroborated by physical evidence, Kristina’s testimony, Jane’s testimony, and various text

messages admitted at trial.

III. CONCLUSION

Appellant was subject to custodial interrogation after he was served with a search warrant

during the interview that required the swabbing of his penis and his mouth, he was accused of

criminal wrongdoing by the detective, and his repeated requests to leave went unanswered in such a

way as to make a reasonable person think that he could not leave. However, until the point of

custodial interrogation, appellant’s statements to police were voluntary. The statements that

11
Appellant asserts that Jane’s testimony was fundamentally incredible. Appellant relies
on the fact that Jane provided multiple accounts of that evening and the fact that Jane testified on
cross-examination that Jane was “pretty sure” that appellant was the perpetrator, but that she was
“not positive.” However, when it comes to a question of the sufficiency of the evidence on
appeal and the credibility of the witnesses, we note that the credibility of the witnesses and the
weight accorded the evidence are matters solely for the fact finder who has the opportunity to see
and hear that evidence as it is presented. Sandoval v. Commonwealth, 20 Va. App. 133, 138,
455 S.E.2d 730, 732 (1995).
  ‐ 26 - 
appellant made and the apology note that appellant wrote after he was subject to custodial

interrogation must be suppressed. It was error for the trial court to admit those non-Mirandized

statements at trial, and we cannot see how that error could be said to be harmless beyond a

reasonable doubt, given appellant’s stunning confession (after repeated denials and changing his

story multiple times), his written apology note to Jane, and the Commonwealth’s emphasis on his

confession in its closing argument to the jury. Given the Supreme Court’s decision in Zektaw, 278

Va. 127, 677 S.E.2d 49, it is clear that such error is not harmless beyond a reasonable doubt.

Appellant did not sufficiently preserve his argument that he was entitled to put on expert testimony

regarding the voluntariness of his confession. In addition, the trial court did not abuse its discretion

in denying appellant a rape shield hearing. Finally, the evidence actually admitted at trial was

sufficient to convict appellant of rape in violation of Code § 18.2-61 and of aggravated sexual

battery in violation of Code § 18.2-67.3. Therefore, there is no double jeopardy prohibition

precluding a new trial for rape and aggravated sexual battery.

For the foregoing reasons, we reverse appellant’s convictions for rape and aggravated sexual

battery and remand for a new trial if the Commonwealth is so inclined.

Affirmed in part, and reversed and remanded in part.

  ‐ 27 -