COURT OF APPEALS OF VIRGINIA

Present: Judges Beales, Chafin and O’Brien Argued at Fredericksburg, Virginia

MICHAEL ANDREW MALDINI MEMORANDUM OPINION * BY v. Record No . 0477-17-4 JUDGE RANDOLPH A. BEALES JUNE 26, 2018 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF STAFFORD COUNTY Michael E. Levy, Judge Kevin E. Calhoun (Charles C. Cos by, Jr., on brie f), for appel lant. Aaron J. Campbell, Assistant Attorney General (Mark R. Herrin g, Attorney General, on brief), for appellee.

A jury convicted Michael Andrew Maldini (“appellant”) of forci ble rape, attempted forcible sodomy, and aggravated s exual battery of M.L. 1 On appeal, appellant challenges two evidentiary rulings made by the trial judge. 2 In his second assignment of error, appellant argues that the trial judge erred by limiting his cross- examination of M.L. regarding statements she allegedly made to her roommate about flirting with an “older man in her unit” and a sexual encounte r with that man.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.

1 We refer to her by her initials in an attempt to better protec t her privacy.

2 Appellant’s petition for appeal t o this Court raised three ass ignments of error. The Court granted appellant’s second a nd third assignments of error . Appellant’s first assignment of error, which was not granted, states:

The trial court erred when it deni ed the Defendant’s request to admit into evidence by way of direct examination, or cross-examination, certain evide nce set forth by the defense in the rape shield hearing pursuant t o Virginia Code § 18.2-67.7 as sa id evidence was admissible to support a consent defense.UNPUBLISHED- 2 - Appellant argues that these rulings violated “his Due Process r ight to confront his accuser and put forth his consent defense.” In his third assignment of error, appellant argues that the trial judge erred by “refusing to allow the Defendant to impeach the victim through contradiction when she testified in response to questions on cross-examination that sh e did not recall.”

I. B ACKGROUND A. Facts Related to the Sexual Assault On appeal, we are required to view the evidence in the light mo st favorable to the

Commonwealth because the Commonw ealth was the prevailing party in the trial court. Riner v. Commonwealth, 268 Va. 296, 330, 60 1 S.E.2d 555, 5 74 (2004). So viewed, the evidence showed

that appellant and M.L. were both memb ers of the United States Marin e Corps. Appellant was a gunnery sergeant who was far se nior in rank to M.L.; he was als o a member of her chain of

command and had direct oversight of M.L. and the other Marines in her unit. On F ebruary 7, 2016, during a training event in Quantico, Virginia, another female M arine became sick and needed to go to the hospital. Appellant drove the sick individual to Staffo rd Hospital, and he requested that M.L. accompany them. M.L. testified that, while she and appellant waited at the hos pital, appellant asked if she wanted to accompany him to his n earby home because he needed to let his dog out . She agreed. M.L. testified that, when they arrived at appellant’s home, he said, “[O]h, I forgo t, my ex-girlfriend has the puppy.” M.L asked if th ey should return to the hospita l; however, appellant invited her

inside. M.L. testified that appellant ga ve her a guided tour of the ho me. She stated th at, during this tour, “he grabbed two shot glasse s and said, Marine, let’s take a shot.” M.L., who was only nineteen at the time, testified that it was early in the aftern oon and that she did not want to take a shot. However, she understood appellant’s statement to be “a d irect order from a superior,” and- 3 - therefore, she drank a shot of vo dka with him. Appellant then invited M.L. to “check out [his]

basement.” She testified that s he believed that going into the basement was a c ontinuation of his guided tour of the home.

The basement containe d a sitting area with a couch around a te levision, a guest bedroom,

and a bathroom. M.L. testified that appellant put on a movie f or them to watch an d told her to “take your boots off . . . and just r elax.” Appellant poured two mor e shots and said, “Marine, we are going to take another shot.” M.L . attempted to decline the alc ohol, but appellant persisted, saying, “Marine, you are going to take th is shot with me. ” M.L. testif ied that she took the shot without swallowing it. She th en went to the nearby bathroom where she spit out the vodka. M.L. then testified that, while watching the movie, “I felt a touch on the lower side of my back, and that’s when I proceede d to stand up and turn towards him and say, what are you doing.” M.L. stated that appellant “stood up vigorously” and told her t o “just relax,” whil e he restrained her arms. M.L. stated, “[T]he next t hing I remember is being on my back on the bed with my pants unbuttoned and he [appellant] is trying to pull them down.” Sh e testified that app ellant removed her pants and penetrated her with his penis. 3 M.L. recalled for the jury that appellant told her to “just relax” and that they could “make this a regular thing.” In describing her attempt to fight off appellant, M.L. testifi ed that she scratched him on his neck and she used “[e]verything t hat [she] had at that moment,” to push him off. After she scratched him, M.L. stated that he grabbed her by the hair and “tried to force [her] mouth towards his penis,” however, she kept he r mouth closed. At one point, appellant lost his grip on her hair,

which enabled M.L. to stand up, pull up her pants, and lock her self in the bathroom where she

3 Appellant testified in his defe nse at trial and stated that he and M.L. engaged in consensual sexual intercourse i n the basement of his home. App ellant testified, “[W]e kissed for an extended period of time on t he couch, and I asked her if she wanted to move it to the bedroom, and she said yes.” He st ated that, once they were in the bedroom, M.L. “perform[ed] oral sex on me. . . . Then after that we proceeded to have int ercourse.”- 4 - dressed and fixed her hair. She testified that, after leaving the bathroom, she we nt upstairs where appellant indicated that they n eeded to get back to Marine head quarters to “dismiss the Marines.” Appellant then drove them back t o the unit’s headquarters in An acostia, in Washington, D.C. Regarding the assault, M.L. testified, “I was disappointed in myself that I couldn’t stop it,” and she reiterated to the jury th at she did not want to have se xual intercourse with appellant. She also testified about how she had been affected by the assault. Specifically, she noted she had been in therapy for several mont hs, testified she had experienc ed nightmares related to the event, and said she had contemplated committing suicide on multiple oc casions. Another Marine, Amber Steele, t estified that she saw appellant later on Febr uary 7, 2016,

after he returned to Anacostia. She testified, “[A]s I looked at him I saw this huge like gash on his neck . . . it was really red . . . . I don’t normally notice things like that but it was so bad that I was like, wow.” Steele testified that she jokingly asked if appell ant had been “attacked by a cat,” but “he just kind of smirked and like laughed it off . . . .” Appellant’s and M.L.’s commandi ng officer, Captain Taylor Adam s, testified that, in May 2016, he learned that an individu al in his unit had filed an an onymous “restricted report” of a sexual

assault. 4 Captain Adams eventually learned that M.L. filed the restrict ed report. Adams stated that he informed appellant that M.L. had filed the report because “[ h]e was the Staff Noncommissioned Officer in charge . . . essentially . . . the second guy in command.” Adams said, “When I told him

4 Captain Adams explained, A restricted report is an avenue for a sexual assault victim to report their incident, have it documented, the accused is not identifi ed, the details of the incident are not disclosed, generally . . . [it] is a system for the event to be documented, and it also opens up avenues of mental health or m edical services if need be. By contrast, if a victim makes a n unrestricted r eport, then the full details of t he incident are reported to the military chain of command and law enforcement p ersonnel.- 5 - that [M.L.] had filed the report I would say that he got a litt le pale-faced . . . . In my opinion, I would say he was a little nervous.” Adams further testified th at he spoke with M.L . in June 2016, when she decided to make an unrestricted report. Captain Adams described M.L.’s demeanor during that conversation as “very sad and nervous, her eyes wer e very tearful, and she had started crying a few times during the c ourse of our co nversation.” B. Statements Regarding Sexual Conduct (Assignm ent of Error II ) Before trial, appellant filed a notice of intent to present ev idences of prior sexual conduct of the complaining witness. Speci fically, he intended to offer ev idence that M.L. allegedly made statements to appellant about her sexual preferences and previo us sexual relationships with other people . Appellant’s motion did not address any statements about any alleged sexual relationship or activity between appellant and M .L. Following a hearing on the matter, and pursuant to the rape shield statute, Code § 18.2-67.7 , the trial judge denied appell ant’s motion and pre cluded him from offering evidence of statements regarding M.L.’s alleged sexual relationships with other people because it was “not prior sexual or subsequent sexual conduct b etween the complaining witness and the accused, and that’s what would be required in order to fit within that statutory exception.” Subsequently, during defense cou nsel’s cross-examination of M. L. at trial, defense counsel attempted to question M.L. about statements that she allegedly made to her roommate, Mackenzie

Reese. Defense counsel asked M. L., “Now, you had told Mackenzi e Reese prior to that night that you had been flirtin g with an older guy in your unit who was a Sergeant, had you not?” The Commonwealth objected, and defense counsel made the following p roffer during a bench conference to argue that the “old er guy . . . who was a Sergeant” was, in fact, appellant: Your Honor, I have been given discovery from the Commonwealth, including a phone conversation between [Detective] Parsons . . . and Mackenzie Reese and Mackenzie to ld Parsons that prior to this incident that [M.L.] had mentioned that she had been flirting with an older member of the unit, either a Sergeant or something, and that when she came home that night she said, we ha d sex but it didn’t turn- 6 - out the way I wanted it to. Mackenzie Reese was initially subpoenaed for the November tria l, she was not again subpoenaed for this trial. And I submit t hat I can still cr oss examine [M .L.] with respect to whether or not she said anything of that nature to Mackenzie Reese. (Emphasis added). Therefore, appellant’s position at trial was that these statements were actually

in reference to se xual conduct between M.L. and appellant. The trial judge sustained the C ommonwealth’s objection. He st ated for the record that defense counsel’s question would not be permitted because “the subject of sexual conversations between the parties was specifically the subject of a defense m otion,” and because Mackenzie Reese had not been subpoenaed. Thereafter, defense counsel supplemen ted her previous proffer and argued that she was not questioning M.L. with regard to statements about sexual conduc t between

M.L. and other people. Rather, defense counsel was asking M.L. about stateme nts she made regarding her sexual encounter with appellant on February 7, 20 16, which she argued was outside the scope of the trial court’s previous ruling on appellant’s p retrial motion. 5 Nevertheless, the trial judge still sustained the object ion and noted def ense counsel’s exception for the record.

5 Defense counsel stated: Your Honor, I just wanted to make it clear that the proffer of where I was going on that was not anything about the relationship with anyone else . . . . Which I took to be the subject of the denial of the [pretrial motion]. But with respect the relatio nship between my client and [M.L.] as to what happened that night of February 7th on her initial report to her roommate. (Emphasis added).- 7 - C. Attempts to Impeach M.L.’s R ecollection of Events (Assignme nt of Error III) At various points in defense c ounsel’s cross-examination of M.L ., she testified that she could not recall certain facts rega rding the events of February 7, 2016. 6 In an attempt to impeach M.L.’s recollection of events, de fense counsel called Detective Robert Parsons, who had spoken to M.L. during his investigation of the assault. In anticipati on of this testimony, the Commonwealth made the following oral motion to address the scop e of Detective Parsons’s testimony: [I]f counsel has got questions she believed she asked that [M.L .] testified to and then gave a contra ry statement at another poin t in time then that’s classic impeachment, that’s fine. But what I want to guard against, Judge, what the Commonwealth is concerned about is this becoming a wide- open effort and counsel just trie s to get into the entire statement of [M.L.] to Detective Parsons, a nd that’s a clear hearsay violation. Impeachment is very specific and it’s tied to the specific answ er that was given. . . . We just don’t want to see this become this bi g open-ended, well, I’ll just ca ll Detective Parsons and tell me e verything [M.L.] said, because t hat would violate hearsay and it viol ates the very essence of the impeachment rule, Judge. Thank you. After hearing argument from couns el, the trial judge ruled that Detective Parsons’s testimony regarding M.L.’s out-of-court st atements would be admissible fo r the purposes of impeachment (after defense counsel establis hed an appropriate foundation). Thereafter, defense counsel questioned Detective Parsons about M.L.’s statements during the investigation. The Commonwealth objected twice when it claimed that the questions about M.L.’s statements were

6 Appellant’s brief stat es in relevant part: At trial, defense counsel asked t he victim several questions ab out whether she had told other peopl e that she had her cell phone a t the time of the offense, that she had grabbed her boots shortly aft er the time of the offense, and that sh e wanted to file an unrestricte d report because she did not like the way the Defendant was treat ing her, in response to which the victim testified that she did not recall.- 8 - overly broad. However, followi ng each objection, defense couns el rephrased the question, and the entirety of Parsons’s testimony was then admitted.

II. A NALYSIS “[Appellate courts] review a circuit court’s decision to admit or exclude evidence under an

abuse of discretion standard a nd, on appeal, will not disturb a circuit court’s deci sion . . . absent a finding of abuse of that discre tion.” Herndon v. Commonwealth, 280 Va. 138, 143, 694 S.E.2d 618, 620 (2010). “Only when reasonable jurists could not differ can [an appellate court] say an abuse of

discretion has occurred.” Gratta n v. Commonwealth, 278 Va. 602 , 620, 685 S.E.2d 634, 644 (2009) (quoting Thomas v. Commonwealth, 44 Va. App. 741, 753, 607 S.E. 2d 738, 743, adopted upon reh’g en banc, 45 Va. App. 81 1, 613 S.E.2d 870 (2005)). A. Limiting the Cross -Examination of M.L. Code § 18.2-67.7, the rape shie ld statute, states in relevant part: [G]eneral reputation or opinion e vidence of the complaining witness’s unchaste character or prior sexual conduct shall not be admitted. Unless the complaining witness voluntarily agrees otherwise, evidence of specifi c instances of his or her prior s exual conduct shall be admitted only if it is relevant and is:

. . . . Evidence of sexual conduct between the complaining witness and the accused offered to support a contention that the alleged of fense was not accomplished by force, thr eat or intimidation or throug h the use of the complaining witne ss’s mental incapacity or physi cal helplessness, provided that the sexual conduct occurred within a period of time reasonably proxima te to the offense charged unde r the circumstances of this case . . . . Code § 18.2-67.7(A)(2) . “The complaining witness’s ‘prior sexual conduct’ means any sexual conduct on the part of the compl aining witness which took place before the conclusion of the trial, excluding the conduct involved in th e offense alleged under this article .” Code § 1 8.2-67.10(5)- 9 - (emphasis added). Thus, by defi nition, “conduct involved in th e offense” is expressly outside the scope of the rape shield statute. On brief, appellant argues that “flirting” is not “sexual cond uct,” and therefore , this question should not have been precluded b y the trial judge. However, ap pellant did not make this argument before the trial court. See Rule 5A:18. In addition, appellant argues that “he was thwarted in putting forth his def ense of consent” because the trial judge w ould not allow defense counsel to explore “whether the victim had told another person she was fli rting with an older Sergeant prior to the incident” and explore “whether the victim told another pers on that she had sex on the night in question but it did not turn out the way she wanted.” By not p ermitting appella nt, who was an “older Sergeant,” to confront his accuser about the statements she allegedly made to her roommate regarding the incident in questio n, appellant argues on appeal that the trial court violated his constitutional rights under the Confrontation Cl ause and his ri ght to a fair trial. In response, the Commonwealth argues that appellant made no argument on constitu tional grounds in the trial court, and, therefore, no constitutional argument is preserved for app eal. The Commonwealth also argues that any possible error by t he trial court was harmless. On this assignment of error, whi ch is appellant’s second assig nment of error in his petition for appeal, we assume without d eciding that the trial court err ed in prohibiting appellant’s cross-examination of M.L. with regard to statements she alleged ly made to her roommate about “flirting with an older member of the unit” and that “we had se x but it didn’t turn out the way that [M.L.] wanted it to.” See Cair ns v. Commonwealth, 40 Va. App. 271, 285-88, 57 9 S.E.2d 340, 347-48 (2003) (finding harmless error, because of “overwhelming evidence before [the trial court] to support the convictions,” where the trial court omitted stat ements from the comp laining wi tness’ journal that would hav e impeached her tria l testimony). We fin d that appellant did not make an argument regarding the Confront ation Clause or any other consti tutional arguments in the trial court- 10 - regarding this assignment of error. He simply argued that his questions to M.L. were not prevented by the rape shield statute because they were about the incident in question (and the alleged flirtations between M.L. and appe llant), and we, therefore, app ly the standard for non-constitutional

harmless error. 7 See Rule 5A:18; Edwards v. C ommonwealth, 41 Va. App. 752, 760 , 589 S.E.2d 444, 448 (2003) ( en banc ) (“Making one specific argume nt on an issue does not preserve a separate legal point on the same issue for review.”). See also Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 4 84, 488 (1998) (“Rule 5A:18 applies to bar eve n constitutional claims.”). When confronted by a possible er ror in the trial court, we are required by Code § 8.01-678

to conduct a harmless error anal ysis. See Code § 8.01-678; see also Ferguson v. Commonwealth, 240 Va. ix, ix, 396 S.E.2d 675, 675 (1990) (in which the Suprem e Court stated that Code § 8.01-678 makes “harmless-error review required in allcases”). “Absent an error of constitutional magnit ude, ‘no judgment sha ll be arrested or rev ersed’ when ‘it plainly appears from the record and the evidence give n at the trial that the parties have had a fair trial on the merits and substantial justice has been r eached . . . .’” Kirby v. Common wealth, 50 Va. App . 691, 698, 653 S.E.2d 600, 603 (2007) (quoting Code § 8.01-678). An error is harmless if it has not “substantially influenced the jury.” Clay v. Co mmonwealth, 262 Va. 253, 259, 546 S.E.2d 728, 73 1 (2001). The Supreme Court has also stated, “ If other evidence of guilt is s o overwhelming and the error insignificant, by comparison, s upporting a conclusion that the error did not have a substantial effect on the verdict, the error is harmless.” Angel v. Commonwealth, 281 Va. 248, 268, 704 S.E.2d 386, 398 (2011).

7 During oral argument to this C ourt, when asked whether a const itutional harmless error or a non-constitutional harmless error analysis would be approp riate to resolve this assignment of error, appellant’s counsel agree d with the Commonwealth that th is Court should apply a non-constitutional harmless error analysis.- 11 - Here, overwhelming evidence sup ports appellant’s convictions. Appellant invited M.L. to his house to “go let [his] dog o ut” despite the fact that there was no dog at the home when they arrived. Once inside, appellant directed M.L., who was his mil itary subordinate and only nineteen years old, on two occasions to drink shots of vodka with him. After appellant led M.L. to the basement, he told her to sit down on the s ofa and remove her bo ots. He then put his hand on her back. When she stood up and ask ed him, “What are you doing?!” he restrained her arms, forcibly removed her clothing, and forced her to engage in sexual interc ourse. He also then attempted to force her to perform fellatio on him. M.L . testified unequivoc ally that she did not want to have sexual intercourse or any sexual relations with appellant. The Supreme Court has been clear that a sexual assault victim’s testimony by itself is suf ficient to co nvict the accused if the trier of fact

believes the victim. See Fisher v. Commonwealth, 228 Va. 296, 299, 321 S.E.2d 202, 203 (1984) (“A rape conviction ma y be sustained solely upon the testimony of the victim. There is no requirement of corroboration.”). In fact, M.L. testified that she resisted his assault with “[e]verything that [she] had at t hat moment,” and she severely scratched appellant on his neck. Another Marine, Amber Steele, tes tified that, later on the day of the assault, she saw a huge gash on appellant’s neck after he had re turned to Marine headquarters. Appellant’s neck wound was so severe that Steele joked that appellant must have been attacked by a cat. Furthermore, Captain Adams testified that appellant became pale and appeared to be n ervous when Adams informed him

that M.L. had made an anonymous report of s exual assault. Adam s also testified that M.L. eventually reported the assault to him and appeared visibly sha ken when doing so, even though months had elapsed since the day of the assault. B. Detective Parsons’s Testimony On appellant’s third assignment of error, we find that the tri al court did not abuse its

discretion. The trial court deci ded that Detective Parsons cou ld testify – for the purposes of- 12 - impeaching M.L. – about previous s tatements that M.L. had made which may have been inconsistent with her trial testimony. Furthermore, we note th at the Commonwealth objected twice during Detective Parsons’s direct examination, but, after each objection, defense counsel was permitted to rephrase th e question, which was then allo wed and answered. In addition, we note that, at oral argument before this Court, appellant’s counsel agreed that Detective Parsons’s testimony,

which counsel had so ught, was actually a dmitted to th e record – and that his testimony “addressed all the questions” from defense c ounsel at trial and “cured” an y possible error. 8

III. C ONCLUSION Here, assuming without deciding t hat the trial court erred by limiting appellan t’s ability to

cross-examine M.L. about stateme nts she had allegedly made rega rding a supposed sexual

encounter with an older Marine i n her unit, who arguably was ap pellant, we find that any such error was harmless, given the other overwhelming evidence of appellan t’s guilt in this case. Furthermore,

8 At oral argument, appellant’s counsel, who did not represent a ppellant during the trial, stated the following with regard to appellant’s third assignmen t of error:

We went back and reviewed the t ranscripts and the case and we’ve reviewed the Assistant Attorney General’s brief and I think those points are well taken . I think, our argument is t hat the trial court did err. I think the trial couns el did have a right to contrad ict the witness with something other tha n just direct contradictory statements. I think whether it wa s to show that her [M.L.’s] recollection was, or her percepti on was skewed or maybe that sh e had made some other kind of state ment to someone else, I think they could have questioned that. But by putting, I think it was Detective Parsons on the stand, I th ink he kind of addressed all the questions and kind of cured that error – so I think with [the Court’s] permission we wouldn’t really focus on that one, just mostly on this [other] issue [the other assignment of error bef ore this Court]. (Emphasis added). Because the en tirety of Detective Parsons’s testimony was admitted to the record and because counsel for appellant has indicated that any possible error has been “cured,” we need not address this assignment of error further. This Cou rt appreciates counsel’s candor and his faithful adherence to hi s ethical and professional duti es as an attorney in the Commonwealth.- 13 - we find that the tria l court did not err in the way it handled Detective Parsons’s te stimony. For all of these reasons, we affirm appellant’s convictions.

Affirmed.