Moulds v. Commonwealth
| Decision Date | 25 October 2016 |
| Docket Number | Record No. 1396-15-4 |
| Court | Virginia Court of Appeals |
| Parties | MARQUES LAVAR MOULDS v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Chief Judge Huff, Judges Decker and O'Brien
Argued at Alexandria, Virginia
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Lauren Whitley, Senior Assistant Public Defender, for appellant.
Katherine Quinlan Adelfio, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Marques Lavar Moulds appeals his convictions for strangulation, rape, and sodomy, in violation of Code §§ 18.2-51.6, -61 and -67.1. At trial, he testified that the victim, his former girlfriend S.E., had consented to the activities. On appeal, he contends that the circuit court, under Virginia's rape shield statute and rule against hearsay, improperly excluded evidence supporting his theory of the case that was admissible both as substantive evidence and for impeachment purposes. We hold that the circuit court improperly prevented the appellant from using the evidence for impeachment purposes and that the error in excluding it was not harmless. Accordingly, we reverse the appellant's convictions and remand the case for a new trial should the Commonwealth be so advised.
The appellant and S.E. dated for about six months, breaking up in early September 2013. The encounter from which the instant charges of strangulation, rape, and sodomy stemmed occurred at S.E.'s residence on the evening of September 30 and the morning of October 1, 2013. Although S.E. sustained no genital injuries, she had bruises and abrasions on her neck. Evidence established that the bruises were "a pattern injury . . . consistent with fingerprints" and the abrasions were consistent with fingernails.
The appellant did not deny the sexual acts but defended the charges on the ground that the events were consensual. Prior to trial, the appellant filed a motion to admit evidence of "prior sexual acts" of S.E. The Commonwealth opposed the motion, suggesting that the evidence at issue was inadmissible under both the rape shield statute and the rule against hearsay. At a pre-trial hearing, the court ruled that the appellant's testimony that, during his relationship with S.E., they had engaged in "rough sex" and "choke play" at S.E.'s request was admissible under the rape shield statute and related rule of court. At the same hearing, the appellant argued that he should be permitted to introduce testimony about related statements that S.E. had made to a third party, Nicole Settles, while at a barbeque at Settles' home late in the summer of 2013. The appellant proffered that during the conversation, S.E. told Settles that she had had rough sex with the appellant in the past and liked it and that the rough sex had included choking. S.E. allegedly said that she wanted to "make [the appellant] a drink" so that he would "get . . . drunk" and be "more aggressive" duringsex. S.E. also allegedly said she "liked it rough" and "liked [the appellant] to be more aggressive." The court ruled that the proffered third-party testimony was inadmissible hearsay and was collateral to the issues at trial. Accordingly, it concluded that the testimony could not be admitted at trial as substantive evidence or for impeachment purposes.
At trial, the evidence established that although S.E. and the appellant broke up in early September 2013, they continued to communicate by telephone and text messages. They contemplated reconciling and made plans to have dinner at her apartment on September 30. During that day, they exchanged more than seventy-five texts. Some of those messages mentioned what they planned to do that night when they were together, including holding one another and not being able to keep their "hands off" each other.
S.E. was late getting home that evening, and the appellant accused her of stopping to see another man. S.E. testified that, as a result, she "was turned off," "didn't really want to talk anymore," and "went to take a shower." While S.E. was in the shower, the appellant entered the bathroom. S.E. testified that the two argued and the appellant "punched [her] in the chest," causing her to fall onto her back in the shower. He then choked her for fifteen to thirty seconds, saying she "need[ed] to learn [her] place as a woman." S.E. told the appellant that she could not breathe and tried to remove his hand from her neck. The appellant stopped choking her but refused to help her get up and hit the shower head, breaking it off.
S.E. managed to get out of the shower and got dressed. She told the appellant that she "was in a lot of pain." S.E. testified that she also told him not to touch her and to leave but that he ignored her, took off her clothes, and "pretty much overpowered" her. The appellant then performed oral sex on S.E. despite her repeated requests for him "to stop." Afterward, he forced her to perform oral sex on him and raped her, despite her physical resistance and pleas for him to "get off of" her. The appellant then took her to her bedroom and raped her again.
S.E. testified that throughout the assaults, she did not scream or call 911 because she was "trying to stay alive" and "protect [her two young] children," who were asleep in another room. She admitted that although she telephoned maintenance about the broken shower head while the appellant was present, she did not attempt to report the appellant's assaults on her.
The appellant and S.E. later fell asleep on the couch. The next morning, the appellant "acted like nothing [had] happened." However, he drove S.E. and her children to their daycare facility, which he had never done before. The appellant told S.E. that the children could go inside by themselves, but she accompanied them into the facility. S.E. testified that she thought about asking the daycare provider to call the police but was afraid that doing so might endanger the provider and the children in the provider's care.
After leaving daycare, S.E. returned to her apartment with the appellant, who again performed forcible oral sex on her, forced her to perform oral sex on him, and raped her. She kept telling the appellant to stop and trying to push him off, but he did not listen to her pleas. He left the apartment at about 7:30 a.m.
S.E. locked her front door and telephoned a friend. That friend and two others came to her apartment. When they arrived, S.E. appeared "shocked," "distraught," "hurt, [and] confused." She was moving and talking "very slowly." Around 9:30 a.m., S.E. telephoned 911. Responding emergency personnel noted that S.E. was "visibly upset and shaken up" and "looked like she was making an effort to walk." They saw abrasions on her neck. She complained of pain and tenderness in her head, neck, back, and abdomen. S.E. was transported to the hospital, where she was examined by an emergency physician and a nurse trained to treat sexual assault victims, and interviewed by a police detective.
Over the next two days, S.E. and the appellant exchanged several text messages and phone calls. S.E. made various statements about the appellant's behavior, including his hitting her,choking her, and forcing her to have sexual intercourse. The appellant admitted choking her, saying that she never told him that she could not breathe. He did not respond to her claims that he forced her to have sex.
S.E. testified that she and the appellant had a sexual relationship while they were dating but that they did not "engage in . . . rough sex." When asked if she "like[d] to be choked or physically assaulted during . . . intercourse," she replied, "No." Finally, when questioned about whether she had ever asked the appellant to choke her, she again replied, "No." During cross-examination, the appellant elicited testimony from S.E. that she "never told anybody else" that she wanted the appellant to engage in rough sex with her or choke her. Counsel for the appellant then asked the judge if he could explore the issue further. The judge again ruled that the evidence that S.E. told Settles she liked rough sex was hearsay and could not be used to impeach S.E.
The Commonwealth and the appellant presented conflicting expert testimony regarding whether the physical evidence proved that the encounter was forcible. The sexual assault nurse who examined S.E. opined that the abrasions and bruises on her neck, which were consistent with two fingers and a thumb, were significant because only ten to twenty percent of strangulation victims show any sign of external injury. The nurse testified that she did not detect any visible genital injuries despite a thorough exam but that both her experience and the medical literature indicate that only ten to fifty percent of adult patients who report being sexually assaulted have such injuries. The appellant presented testimony from a medical doctor, who had forty years of experience in the fields of obstetrics, gynecology, and emergency medicine. He questioned the conclusions drawn by the sexual assault nurse, opining that if the events occurred as S.E. reported them, she should have sustained injuries to her head, mouth, legs, and genitals.
The appellant testified in his own behalf. He said that during his relationship with S.E., she encouraged him to be aggressive and engage in "rough sex" and "choke play." He further testifiedthat she put his hand around her throat during intercourse and that he choked her "a lot of times" while having sex. The appellant claimed that on one occasion prior to September 30, 2013, he had left marks on S.E.'s neck during "choke play." He later admitted, however, that at the pre-trial hearing, he had testified that he did not recall ever leaving a mark on her.
Regarding the events of September 30 and October 1, 2013, the appellant admitted accusing S.E. of having been with another man and grabbing her by the shoulders, causing her to fall. The appellant testified, however,...
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