Molina v. Com.

• Decision Date: 10 January 2006
• Docket Number: Record No. 0630-04-4.
• Citation: 47 Va. App. 338,624 S.E.2d 83
• Court: Virginia Supreme Court
• Parties: Jaime Salvador MOLINA, s/k/a Jamie Salvador Molina v. COMMONWEALTH of Virginia.

Page 83

624 S.E.2d 83

47 Va. App. 338

Jaime Salvador MOLINA, s/k/a Jamie Salvador Molina v. COMMONWEALTH of Virginia.

Record No. 0630-04-4.

Court of Appeals of Virginia, Alexandria.

January 10, 2006.

COPYRIGHT MATERIAL OMITTED

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.

Present: BENTON and HALEY, JJ., and ANNUNZIATA, Senior Judge.

ROSEMARIE ANNUNZIATA, Judge.

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 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 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; 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 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...