COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Huff, Judges Decker and O’Brien Argued at Alexandria, Virginia

MARQUES LAVAR MOULDS MEMORANDUM OPINION * BY v. Record No. 1396-15-4 J UDGE MARLA GRAFF DECKER OCTOBER 25, 2016 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Grace Burke Carroll, Judge Lauren Whitley, Senior Assist ant Public Defender, for appellant. Katherine Quinlan Adelfio, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Marques Lavar Moulds appeal s his convictions for strangul ation, rape, and sodomy, in violation of Code §§ 18.2 -51.6, -61 and -6 7.1. At trial, he testifie d 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 an d rule against hearsay, improperlyexcluded evidence supporting his theory of the case that was admissible both as subs tantive evidence and for impeachment purposes. We hold that the circuit court improperly prev ented the appellant from using the evidence for impeachment purposes and that the error in excludi ng it was not harmless. Accordingly, we reverse the appellant’s convicti ons and remand the case for a new trial should the Commonwealth be so advised.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - I. BACKGROUND 1 The appellant and S.E. dated for about six mo nths, breaking up in early September 2013. The encounter from which the inst ant charges of strangulation, ra pe, and sodomy stemmed occurred at S.E.’s residence on th e evening of September 30and the morning of Oct ober 1, 2013. Although S.E. sustained no genital injuries, she had bruise s 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 consensu al. Prior to trial, the appellant filed a mo tion to admit evidence of “prior sexual acts” of S.E. The Commonw ealth opposed the motion, suggesting that the evidence at issue was inadmissible unde r both the rape shield st atute and the rule against hearsay. At a pre-trial hearing, the court ruled that the appellant’s testim ony that, during his relationship with S.E., they had engaged in “rough sex” and “c hoke play” at S.E.’s re quest was admissible un der the rape shield statute and related rule of court. At the same heari ng, the appellant argued that he should be permitted to introduce testim ony 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 conversatio n, S.E. told Settles that she had had rough sex wi th 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” during

1 Factual findings underlying rulings on the admissibility of evidence are subject to deference upon appellate review unless plainl y wrong or without evid ence to support them. Accordingly, appellate review of admissibility issues, like sufficiency issues, requires us to view the evidence in the light most favorable to the party prevailing belo w. See, e.g., Lynch v. Commonwealth, 46 Va. App. 342, 345, 348-50, 617 S.E.2d 399, 400, 402-03 (2005), aff’d, 272 Va. 204, 630 S.E.2d 482 (2006). Additionally, however, this case involves the application of harmless error principles. Consequently, we set out all evidence relevant to the harmless error analysis. See, e.g., Hooker v. Commonwealth, 14 Va. App. 454, 457-58, 418 S.E.2d 343, 345 (1992).- 3 - sex. 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 te stimony was inadmissible hearsay and was collateral to the issues at trial. Accordingly, it concluded th at the testimony could not be admitted at trial as substantive evidence or for impeachment purposes. At trial, the evidence estab lished that although S.E. and the appellant broke up in early September 2013, they continue d to communicate by telephon e and text messages. They contemplated reconciling and made plans to have dinner at her apartment on September 30. During that day, they exchanged more th an seventy-five texts. Some of those messages mentioned what they planned to do that night when they were t ogether, including holding one another and not being able to keep their “h ands off” each other. S.E. was late getting home th at evening, and the appellant ac cused her of stopping to see another man. S.E. testified that , as a result, she “was turned of f,” “didn’t really want to talk anymore,” and “went to take a s hower.” While S.E. was in the shower, the appellant entered the bathroom. S.E. test ified that the two argued and the appellan t “punched [her] in the chest,” causing her to fall onto her back in the s hower. He then choked her for fifteento thirty seco nds, saying she “need[ed] to learn [her] place as a woman.” S.E. told th e 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 appe llant that she “was in a lot of pain.” S.E. testifie d that she also told him not to to uch her and to leave but that he ignored her, took off her clothes, and “pretty much over powered” her. Th e appellant then performed oral sex on S.E. despite her repeated requ ests for him “to stop.” Afterward, he forced her to perform oral sex on him and ra ped her, despite her physical resi stance and pleas for him to “get off of” her. The appellant then took her to her be droom and raped her again.- 4 - 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 maintena nce about the broken s hower 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 th e couch. The next mornin g, the appellant “acted like nothing [had] ha ppened.” However, he dr ove S.E. and her children to their daycare facility, which he had never done before. The appellant to ld S.E. that the children could go inside by themselves, but she a ccompanied them into the facility. S.E. testified th at she thought about asking the daycare provider to call the pol ice 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 tryi ng 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 an d telephoned a friend. That fri end and two others came to her apartment. When they arrived, S. E. appeared “shocked,” “distraught,” “hurt, [and] confused.” She was moving and talking “very sl owly.” 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 nurs e trained to treat sexual assault victims, and interviewed by a pol ice detective. Over the next two days, S.E. and the appell ant exchanged several text messages and phone calls. S.E. made various statements about the appellant’s behavior, including his hitting her,- 5 - choking her, and forcing her to have sexual intercou rse. The appellant admitted choking her, saying that she never told him that she co uld not breathe. He did not respon d to her claims that he forced her to have sex. S.E. testified that sh e 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, “N o.” Finally, when questi oned about whether she had ever asked the appellant to ch oke her, she again replied, “No.” During cross-ex amination, the appellant elicited testimony from S. E. that she “never told anyb ody 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 ju dge again ruled that the ev idence that S.E. told Settles she liked roug h sex was hearsay an d could not be used to impeach S.E. The Commonwealth and the appellant presen ted conflicting expert testimony regarding whether the physical evidence proved that the encoun ter was forcible. The sexual assault nurse who examined S.E. opined th at the abrasions and bruises on her ne ck, which were cons istent with two fingers and a thumb, were signif icant because only ten to twenty percent of strangulation victims show any sign of external injury. The nurse test ified that she did not detect any visible genital injuries despite a thorough exam but that bot h her experience and the medica l literature indicate that only ten to fifty percent of adult patients who report being sexuallyassaulted have such injuries. The appellant presented testimony from a medical doctor, who had fo rty years of experience in the fields of obstetrics, gynecology, and emergency me dicine. He questioned the conclusions drawn by the sexual assault nurse, opining that if the even ts 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 durin g his relationship with S.E., she encouraged him to be aggressive and engage in “r ough sex” and “choke play.” He further testified- 6 - that she put his hand around her throat during intercourse and that he choked her “a lot of times” while having sex. The ap pellant claimed that on one occasion prior to September 30, 2013, he had left marks on S.E.’s neck during “choke play.” He later admitt ed, 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 Sept ember 30 and October 1, 2013, th e appellant adm itted accusing S.E. of having been with anothe r man and grabbing her by the should ers, causing her to fall. The appellant testified, however, that she did not complain of any injury. Finall y, he averre d that the sexual activity and “choke play” th ey engaged in that evening and the next morning was consensual. The appellant also testified regarding the text messages and telephone conversations in which he and S.E. engaged in the days immediately following the incide nts. He admitted continuing to correspond with S.E. after she accused him of forcing her to have sex with him. He claimed, however, that he did not respond to or deny those particul ar allegations because they were so “far fetched” that he di d not know how to respond. The jury convicted the appellant of one count each of strangulation and rape and two counts of sodomy. It acquitted him of an additional rape, alleged to ha ve occurred on October 1, 2013. The court sentenced the appellant to one month for the strangulatio n, five years fo r the rape, and five years for each of the so domy counts, with th e sodomy sentences to run concurrently.
II. ANALYSIS The appellant contends that the trial court im properly excluded the proffered testimony that S.E. made statements to Nicole Settles about enjoyi ng rough sex and choke pl ay with the appellant. He argues that the challenged stat ements were admissible both as substantive evidence and for impeachment purposes and that their improper exclusion was not harmle ss. The Commonwealth responds that the appellant did not properly preservehis assignments of erro r for appeal, that they lack merit, and that even if error occurred, it was harmless.- 7 - A. Admissibilityof S.E.’s Pr ior Statements Determining the admissib ility of evidence is wi thin the sound discreti on of the trial court subject to review for an abuse of that discretio n. E.g., Creamer v. Co mmonwealth, 64 Va. App. 185, 194, 767 S.E. 2d 226, 230 (2015). Only when reasonable jurists could not differ can the Court conclude that an abuse of discretion has occurre d. Thomas v. Commonwealth, 44 Va. App. 741, 753, 607 S.E.2d 738, 743, adopted upon reh’g en banc, 45 Va . App. 811, 613 S. E.2d 870 (2005). A trial court abuses its discretion, however, if it makes an er ror of law. See, e.g., Dean v. Commonwealth, 61 Va. App. 209, 213, 734 S.E.2d 673, 675 (2012). Further, if the issue of admissibility hinges onthe interpretation of a statute or rule of c ourt, that interpre tation is a question of law subject to de novo review. Id. To the extent that the question of admissi bility involves underlying factual findings, we defer to those findings unless they are plainly wrong. E.g., Lynch v. Commonwealth, 46 Va. App. 342, 348-50, 617 S.E.2d 399, 402-03 (2005), aff’d, 272 Va. 204, 630 S.E.2d 482 (2006). 1. Admissibility as S ubstantive Evidence The evidence that the appellant contends shou ld have been admitted comprises both S.E.’s alleged statement that she enjoyed past incidents of rough sex with the a ppellant and her assertion that she hoped to engage in rough sex with the appellant later on the ni ght she made the statement, which occurred several weeks prior to the events upon whic h the appellant’s convictions are based. The appellant contends that this evidence was rele vant to prove his defense of consent and that it complied with the requirements for admissibility under Virginia’s rape shield statute, Code § 18.2-67.7, as well as the rule against hearsay. Code § 18.2-67.7(A) provides, in relevant part, that “[i]n prosecutions under this article, . . . general reputation or opin ion evidence of the comp laining witness’s unchas te character or prior sexual conduct shall not be admitted.” The statute contains an exception for evidence of “specific- 8 - instances” of “prior sexual conduct . . . between the complaining witness and the accused” if the evidence is relevant and is “o ffered to support a contention that the alleged offense was not accomplished by fo rce, threat or intimidation.” 2 Code § 18.2-67.7(A)(2). Prior sexualconduct is defined as “any sexual conduct on the part of the complaining witness which took place before the conclusion of the trial, excluding the conduct involved inthe offense alleged under this article.” Code § 18.2-67.10(5). Additiona lly, for any evidence of prior se xual conduct by the complaining witness to be admissible, it must comply with the usual rules of ev idence, including the rule against hearsay. Winfield v. Co mmonwealth, 225 Va. 211, 221, 301 S.E.2d 15, 21 (1983). The appellant concedes that the testimony of Se ttles that he sought to admit was hearsay, but he suggests that it was admissible as substant ive evidence under the state-of-mind exception contained in Virginia Rule of Evidence 2:803(3). That evidentiary rule provides an exception for a “statement of the declaran t’s then existing state of mind, emotion, sensati on, or physical condition (such as intent [or] plan . . . ), but not includin g a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of the declarant’s will.” Va. R. Evid. 2:803(3). Applyi ng these principles in the appellant’ s case, we conclude that the trial court did not err in excludi ng the two categories of statements as substantive evidence. First, regarding S.E.’s statement to Settles about engaging in rough sex with the appellant in the past , that statement did not qualify for admission under the state-of-m ind exception to the hearsay rule because it did not describe her condition at the time she alle gedly made it and did not

2 The evidence, additionally, must involve conduct that “occurred within a period of time reasonably proximate to the offe nse charged under the circumstance s.” Code § 18.2 -67.7(A)(2). We need not consider whet her the statements at issue met this requirement because we conclude for other reasons that they were inadmissible as substantive evidence. See, e.g., Commonwealth v. Swann, 290 Va. 194, 196, 776 S.E. 2d 265, 267 (2015) (no ting that appellate cour ts decide cases on the “best and narrowest ground[] available” (quoting Mc Ghee v. Commonwealth , 280 Va. 620, 626 n.4, 701 S.E.2d 58, 61 n.4 (2010))).- 9 - fall under the rule’s exception fo r a past memory concerning the ex ecution of the d eclarant’s will. See Kauffmann v. Commonwealth, 8 Va. App. 400, 406-07, 382 S.E.2d 279, 282-83 (1989) (holding the statements of a vi ctim that the defendan t had molested her in the past were not admissible under the st ate-of-mind exception). Second, regarding S.E.’s statement to Settles that she wanted to get the appellant drunk so that he would engage in rough sex later that night (a night at least several weeks prior to the night of the charged crimes), this statement did not qualify fo r admission under the rape shield statute. 3 That statute permits the admission of evidence of “pri or sexual conduct . . . between the complaining witness and the accused.” Code § 18.2-67.7(A)(2). The plain meaning of “conduct” is behavior, not speech. See Conduct, Webster’s Third New International Dict ionary (1981); see also Cairns v. Commonwealth, 40 Va. App. 271, 284, 579 S.E.2d 340, 346 (200 3) (citing with approval the ruling that “the act of writing ab out sexual desires or activities is not itself prior sexual conduct ” under the rape shield statute (emphasis added) (quoting State v. Vonesh, 401 N.W .2d 170, 176-77 (Wis. 1986))); League v. Commonwealth, 9 Va. App. 199, 205, 385 S.E.2d 232, 236 (1989) (expressly disclaiming an “inten[t] to imply[] that . . . a prosecutrix[’s] prosp ectively consent[ing] to have sex would constitute ‘prior sexual conduct ’ for purposes of [the rape shie ld statute]” (emphasis added)), adopted upon reh’g en banc, 10 Va. App. 428, 392 S.E.2d510 (1990). Thus, S.E.’s statement that she hoped to have aggressive sex with the appellant later that ev ening was not sexual conduct and did not occur between the complain ing witness and the accused. Inst ead, the sexualactivity was future activity for which the comp laining witness expressed a desire , and that activity may or may

3 We assume without deciding that this st atement qualified for admission under the state-of-mind hearsay exception. See, e.g., Clay v. Commonwea lth, 262 Va. 253, 257-58, 546 S.E.2d 728, 730 (2001) (upholding admission of the statemen ts of a homicide victim that she intended to move because she feared the defendant).- 10 - not have occurred. Therefore, S.E.’s statement of future intent did not me et the requirements for admissibility under the ra pe shield statute. Accordingly, we hold that the trial court did not err in concluding that the proffered testimony of Settles wa s not admissible as substantive evidence. 2. Admissibility for Im peachment Purposes The appellant also contends that the court e rred in ruling that testimony concerning S.E.’s statements about rough sex and choke play was in admissible for impeachm ent purposes. For the reasons that follo w, we agree. A common method of impeachment is to show that a witness has made a statement on some prior occasion that is inconsistent with the test imony that the witness has given at trial. See McCarter v. Commonwealth, 38 Va. App. 502, 506- 07, 566 S.E.2d 868, 87 0 (2002). Under settled principles, evidence of a complainant’s prior inco nsistent statement need not satisfy a statutory exception under the rape shield statute if it is us ed solely to impeach the complainant, because the statement does not constitute evid ence of prior sexual conduct. See Clinebell v. Commonwealth, 235 Va. 319, 322- 23, 368 S.E.2d 263, 264-65 (1 988); Cairns, 40 Va. App. at 284-86, 57 9 S.E.2d at 346-47. Additiona lly, prior inconsistent stat ements do not run afoul of the rule against hearsay if admitted solely for impeachment. See, e.g., Wells v. Comm onwealth, 32 Va. Ap p. 775, 783, 531 S.E.2d 16, 20 (2000). Cross-examination for purposes of impeachment is limited, however, to matters relevant to the issues on trial. See Simpso n v. Commonwealth, 13 Va. App. 60 4, 606-07, 414 S.E.2d 407, 409 (1992). If the matter is collateral, it is not a proper subject for impeac hment by inconsistent statements. Id. The test regard ing whether a point is material or collateral “is whether or not the cross-examining party would be entitl ed to prove [the point ] in support of his case.” Maynard v.- 11 - Commonwealth, 11 Va. App. 437, 445, 399 S.E.2d 635, 640 (1990) ( en banc ) (quoting Allen v. Commonwealth, 122 Va. 834, 842, 94 S.E. 783, 786 (1918)). Whether the appellant forcib ly strangled, raped, and so domized S.E. or whether she consented to the contact was a material issue at trial. The appellant defended the charges on the ground that S.E. consented to th e activity. Additionally, the court clearly recognized the importance of this defense, ruling prior to trial that the appellan t would be permitted to testify that S.E. had introduced him to rough sex an d choke play and enco uraged him to chok e her during prior consensual sexual activity. Consequently, whether S.E. had previously told a third party that she enjoyed engaging in rough sex an d choke play with the appellant was not collateral, and the trial court erred in ruling to the contrary. The Commonwealth contends th at the trial court did not er r in excluding the proffered testimony because the appe llant failed to lay a prop er foundation for it. In order to establish a proper foundation for impeachment by a prior inconsistent statem ent, the party must call the attention of the witness to the statement and as k her whether she made it . See, e.g., Via v. Commonwealth, 42 Va. App. 164, 184-85, 590 S.E. 2d 583, 593 (2004). If the witness denies making the statement or does no t recall making it, counsel may cr oss-examine the witness regarding the inconsistency. Smith v. Comm onwealth, 15 Va. App. 507, 511, 42 5 S.E.2d 95, 98 (1992). If necessary, counsel may impeach the witness “by introducing other evidence, such as another witness who heard the inconsistent statement.” Edward s v. Commonwealth, 19 Va. App. 568, 572, 454 S.E.2d 1, 3 (1995); se e Va. R. Evid. 2:613(a). Here, the trial court specifically ruled at the pre-trial hearing th at Settles’ proffered testimony was collateral an d was not admissible for any purpose, including im peachment. Based on that ruling, the appellant was not permitted at trial to ask S.E. whether she ma de the statements at issue to Settles.- 12 - In addition, the court ruled mid-trial that the appellant could not ask S.E. specifically whether she made the allege d statements to Settles. S.E. testified on direct examination th at she and the appellant did not engage in rough sex; she did not like to be choked or physically assaulted during intercourse; and she never asked the appellant to choke her. On cross-examination, the appellant renewed his request to explore the issu e, asking the court whether he could further question S.E. on the issu e and call Settles if S.E. denied making the statements. The trial court allowed the appellant to cross-ex amine S.E. about “whether or not she liked rough sex.” The appellant’s counsel also asked S.E. whether she ever “told anybody el se” that she wanted to engage in “rough sex” or “chok[i ng]” with the appellant, and she testified that she did not. The court then denied counsel’s request to ask S.E. specifically ab out the alleged prior inconsistent statements to Settles and to call Se ttles to testify. Following the court’s ruling, counsel for the appellant proffered his legal argument and the remainder of his intended examin ation, including the necessary fo undation, in great detail. He explained his understanding of Virg inia Rules of Evidence 2:607 an d 2:613, concerning impeaching a witness with her prior inco nsistent statements. He asserted the need to call S.E.’s attention to the particular occasion on which the inconsistent statement was made and to ask her “whether the statement was made.” Counsel explained that if the witness denied or di d not recall making the statement, he would then be “permitted to use extrinsic proof” becau se the issue was not collateral. In short, the appellant r ecognized the foundation that he woul d be required to lay before Settles’ testimony could be admitted, but the court expressly prevented th e appellant from laying that foundation during trial. The appellant’s case is distinguishable from Cortez-Hernandez v. Commonwealth, 58 Va. App. 66, 78-80, 706 S.E.2d 893, 899-900, adhered to on reh’g en banc, 59 Va. App. 37, 716 S.E.2d 484 (2011), in which this Court held that the defendant’s assignment of error was barred- 13 - because he failed to make an adequate proffer of his proposed questions for the Commonwealth’s witness and the expected answers. 4 We recognized in Cortez-Hernandez that a proffer, by its very nature, may be “the testimony [that the party] expected to elicit.” Id. at 77, 706 S.E.2d at 899 (emphasis added) (quoting Ray v. Commonwealth, 55 Va. App. 647, 650, 688 S.E.2d 879, 881 (2010)). The “range of content re quired” for a proper proffer “depend[s], in part, on the proffer’s purpose.” Creamer, 64 Va. App. at 195, 767 S.E.2d at 231. It must be “sufficiently detailed” to allow th e trial court “a fair opportunity ‘to resolve the issue at trial.’” Id. at 195, 199 n.7, 767 S.E.2d at 230, 233 n.7 (quo ting Albert v. Albert, 38 Va. App. 284, 290 n.1, 563 S.E.2d 389, 392 n.1 (2002)). Additionally, on app eal, the proffer must be sufficient “to allow the appellate court to dete rmine whether the trial court e rred in excluding the evidence and, if so, whether that error was harmless.” Id. at 195, 767 S.E.2d at 230. “Though sometimes thought of as a mere waiver principle, the pr offer requirement serves the higher purpose of safeguarding our duty under Code § 8.01-678 to reve rse only when the trial court error actually prejudiced the defense.” Cortez-Herna ndez, 58 Va. App. at 76-77, 706 S.E.2d at 898-99 (footnote omitted) (quoting Ray, 55 Va. App. at 650, 688 S.E.2d at 881). In short, making an adequate proffer does not compel a litigant to ex amine a witness under oath outside the presence of the jury as long as the proffer method employed satisfies these various goals. Moreover, waiver principles do not apply if the trial court “prohi bit[s] counsel from proffering the necessary evidence for the record.” Id. at 77-78, 706 S.E.2d at 899; see Maxwell v. Commonwealth, 287 Va. 258, 265-67, 754 S.E.2d 516, 519-20 (2014) (applying Code

4 Error “may not be predicated upon admission or exclusion of evidence, unless . . . [a]s to evidence excluded, the substance of the evidence was made known to the court by proffer.” Va. R. Evid. 2:103(a)(2) (emphasis added) ; see Whittaker v. Commonwealth, 217 Va. 966, 969, 234 S.E.2d 79, 81 (1977) (noting that “a unilateral avowal of counsel, if unchallenged,” may constitute a proper proffer).- 14 - § 8.01-384(A) to hold that a defendant did not waive his right to appeal where he was absent and unable to object). We applied waiver principles in Cortez-Hern andez, ruling that the defendant’s claim of error was barred on appeal because he failed to ma ke an adequate proffer and was not prevented by the trial court from doing so. 58 Va. App. at 78-79, 706 S.E.2d at 899-900. Here, by contrast, the appellant’s proffer was sufficiently detailed to gi ve the circuit court a fair opportunity to resolve the issue at trial. Furt her, it was sufficiently deta iled to permit this Court to determine that error occurred and, as discussed infra in Part II.B., to analyze whether that error was harmless. Therefore, we hold that the trial court’s restriction of the cross-exam ination of S.E. and exclusion of Settles’ testimony was error. B. Harmless Error The law of the Commonwealth re quires this Court to determin e in all cases involving error whether the error was harmless. Ferguson v. Commonwealth, 240 Va . ix, ix, 396 S.E.2d 675, 675 (1990) (citing Code § 8.01-678). Non- constitutional error is harmless “[w]hen it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached.” 5 Code § 8.01-678. This C ourt may uphold a decision on the ground that any error involved is harmless only if it can conclude, without usurping the jury’s fact-finding function, “that the erro r did not influence the jury[] or ha d but slight effect.” Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731 (2001) (quoting Kotteakos v. United States, 328 U.S. 750, 764 (1946 )); see Turner v. Commonwealth, 23 Va. App. 27 0, 275-78, 476 S.E.2d 504, 507-08 (1996) (“usurpi ng” standard), aff’d, 255 Va. 1, 492 S.E.2d 447 (1997). In

5 The appellant conten ds that the more ri gorous constitutional harm less error standard applies. Inasmuch as we find error under the lesser standard, we need not evaluate the case under the greater standard. Cf. Dearing v. Commonwealth, 260 Va. 671, 674, 536 S. E.2d 903, 904 (2000) (holding that where any error was harmless under the constitutional standard, the Court did not need to consider whether that e rror was harmless under the non-constitutional standard).- 15 - determining whether an error in re stricting cross-examination is harmless, the “analysis turns not on the evidence excluded . . . but onthe evidence in the record, viz. , [the witness’] testimony, which was not fully subject to cross- examination.” Scott v. Commonwealth, 25 Va. App. 36, 42, 486 S.E.2d 120, 123 (19 97). Factors for consideration include “t he importance of the . . . testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the te stimony . . . on material points, the extent of cross-examination otherwise permitted, and . . . the overall stre ngth of the prosecution’s case.” Perry v. Commonwealth, 58 Va. App. 655, 672, 712 S.E.2d 765, 774 (2011) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)). The parties agree that because the appellant conceded that he had engaged in se xual activity with S.E. and squeeze d her neck, the only is sue for the jury to decide wa s whether the strangulation, intercourse, and oral sex were forc ible and were against S.E.’s will. The reso lution of this key element hinged largel y on the jury’s assessment of the cr edibility of S.E., the witness whose testimony “was not fully subject tocross-examination,” Scott, 25 Va. App. at 42, 486 S.E.2d at 123. The remaining evidencetending to indicate that the activ ities were forciblerather than consensual was significant but not overwhelming an d presented the classic question of who the jury should believe. Several witnesses saw S.E. shortly after the in cident and could tell based on her physical and mental state that she had been injured and was upset, but it was undisputed that she sustained some of these injuries through a non-sexual event in the shower, and the parties disputed whether she merely slipped or was pushed. See League, 9 Va. App. at 208-09, 385 S. E.2d at 238. Additionally, S.E.’s thorough se xual assault exam revealed no genital injuries, and the parties presented conflicting expert testim ony regarding the likelih ood of such a result in a case of repeated forcible intercourse. Th e Commonwealth’s expert wi tness testified that it is not unusual for victims of rape to sustain no visible injuries, particularly if the rape follows oral sex, as was alleged here.- 16 - However, the appellant’ s expert witness testif ied that the probability that S.E. could have experienced “three forcible [vaginal] penetrations in less than eight hours” with no sign of “any kind of force on her vagina ap proaches impossible.” Further, the appe llant testified that S.E. introduced him to rough sex and choke play, and he said that the bruises on S. E.’s neck at the ti me of the sexual assault exam resulted from what was merely another consensualepisode of su ch activity. The Commonwealth points to the appellant’s failure to deny the accusations made by S.E. in various text messages and teleph one conversations after the even ts at issue. The appellant, however, testified that th e allegations were so “far fetched” th at he did not know how to respond. Further, none of the inconsistencies that the Commonwealth proved in its efforts to impeach the appellant with evidence of his own pr ior statements was so damning as to compel the jury to reject his explanation. Even though ample evidence in the record supports the appellant’s convictions, harmless error analysis “[is not] simply a sufficienc y of the evidence analysis.” See, e.g., Williams v. Commonwealth, 32 Va. App. 395, 400, 528 S.E.2d 166, 169 (2000) ( en banc ) (alteration in original) (quoting Hooker v. Commonwealth, 14 Va. App. 454, 45 8, 418 S.E.2d 343, 345 (1992)). In a general sufficiency analysis that relies primarily on the te stimony of a single witness, the credibility of that witness’ testimony “will be a significant factor in the jury’s determin ation of the accused’s . . . culpability.” Lilly v. Commonwealth, 258 Va. 548, 553, 523 S.E.2d 208, 210 (1999). However, in the context of harmless error analysis, the issue is not th e credibility of th e witness, but rath er the potential for harm caused by the erroneous [e xclusion] of evidence [that] tends to [impact] the jury’s credibility determination. In that context we must presume that [t he excluded] evidence had the potential to influence the jury into [rejecti ng] the properly ad mitted evidence [supporting the Commonwea lth’s version of even ts] and, thus, [that its exclusion may have] taint[ed] the jury’s determination of the facts.- 17 - Id. On the instant record, we simply cannot, without usurping th e jury’s fact finding function, determine what impact the erroneous exclusion of the proffered impeachment evidence had on the jury’s assessment of S. E.’s, and correspondi ngly the appellant’s, credibilit y. See, e.g., Cash v. Commonwealth, 5 Va. App. 506, 511-13, 364 S.E .2d 769, 771-72 (1988) (holding that the improper exclusion of certain exhibits, which would have permitted the defendant “to argue forcefully to the jury that those exhibits corrobor ated [his] version of the facts” as compared to the police officer’s version, was not harmless). Therefore, we are unable to conclude that the error in excluding eviden ce of S.E.’s prior inconsistent stat ements to Settles fo r the purpose of impeaching S.E. on a key issue “did not influence the jury[] or had but slight effect.” Clay, 262 Va. at 260, 546 S.E.2d at 731 (quoting Kotteakos , 328 U.S. at 764).
III. CONCLUSION We hold that the trial court did not err in ruling that evidence of S.E.’s statements to Settles was inadmissible as subs tantive evidence under Vi rginia’s rape shield st atute and rule against hearsay. However, we also conclu de that the court erred in refusi ng to admit evidence of S.E.’s prior inconsistent statements for impeachment purpose s. Finally, we hold that the erroneous exclusion of that evidence was no t harmless. Consequently, we re verse the appellant’s convictions and remand for retrial should th e Commonwealth be so advised. Reversed and remanded.