COURT OF APPEALS OF VIRGINIA

Present: Judge Clem ents, Senior Judges Willis and Annunziata Argued at Alexandria, Virginia

JAVIEL MEJIA-MARTINEZ MEMORANDUM OPINION * BY v. Record No. 1178-04-4 JUDGE ROSEMARIE ANNUNZIATA MARCH 7, 2006 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Paul F. Sheridan, Judge Designate Heidi Meinzer, Senior Assistan t Public Defender, for appellant. Stephen R. McCullough, Assistant Attorney General (Judith Williams Jagdmann, Attorney General, on brief), for appellee.

The trial court convicted ap pellant, Javiel Mejia-Martinez , of rape. Mejia-Martinez

contends the trial court erred in: (1) admitting selected hearsay statements th e victim made to a police officer and finding those statements did not violate the Confrontation Clause; and (2) finding sufficient evidence to support the conviction. We affirm.

I. 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). The evidence proved that Mejia-Martinez was charged in an indictment with raping Sonia Flores on November 15, 2003. At Mejia-Martinez’s March 4, 2004 be nch trial, the Commonwealth al erted the trial judge that it intended to present its case withou t eliciting details of the crime fr om the victim, Flores. It then called Detective Victor Ignacio as its first witness.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - Detective Ignacio testified about the statements Mejia-Martinez made to him during an interview on November 16, 2003, the day afte r the incident. In Ignacio’s account, Mejia-Martinez acknowledged that he and Flores da ted for about a year and that the relationship

ended several months before the November 15th in cident. Mejia-Martinez said he picked Flores up at her building on the evening of November 15, 2003. He initiall y denied forcing Flores to

have sexual intercourse and said the scratch on his face occurred at work. However, he changed that version as reflected in Ignacio’s testimony: [IGNACIO]: [Mejia-Martinez said t]hey agreed to go behind the Cora Kelley Elementary School located in the City of Alexandria where, according to him, they have been before. Once they were there he began to speak with her and telling her that he loved her and that he wanted to be with her. She told him no. Then somehow they managed to get into the back seat of the vehicle. He doesn’t remember how that happened. Then he said while in the back seat of th e vehicle he started telling her he wanted to make love with her and she said not until they get back together. At which point he said, “C an I touch you and masturbate while I’m doing that?” Then at that point she st arted saying, “I don’t want to do that. Don’t do that .” At one point [s]he tried to leave the vehicle by using the driver’s side door. Q Who tried to leave the vehicle? A The victim, Ms. Flores. He remembers pulling her back into the vehicle at which point he locked the door and took her pants and panties off. Q Did he tell you how he did that? A He had her mouth covered with his left hand and pulled her panties and pants off with his ri ght hand at which point while she was struggling then she managed to scratch him in the face. Continuing, Ignacio testified, “I as ked [Mejia-Martinez] if he penetr ated her. He said yes, he did.” Mejia-Martinez also told Ignacio that Fl ores bit his shoulder durin g the struggle. After sexual intercourse was completed, Flores became upset and left the vehicle. Mejia-Martinez brought her back and drove her home. There, Flores broke the windshield wiper control and “began to tear off the glove compartment.”- 3 - Officer Desiree Maxwell next testified that on November 15, 2003, around 2:45 a.m., she responded to a 911 call reporting an alleged rape. Over Mejia-Ma rtinez’s hearsay objections, Maxwell testified that, when she met with Sonia Flores, the 911 caller, Flores was shaking and began crying. Flores told Maxwell that her ex-boyfriend, Mejia-Martinez , arrived uninvited at her house, picked her up in his car, and drove her to a nearby school where they had sexual

relations. Flores also told the officer she broke the windshield wipers “and stuff” while trying to get out of the car. Maxwell testified that she began a rape charge inve stigation after speaking

with Flores. Mejia-Martinez’s attorney objected on hearsay grounds to any testimony from Maxwell about why Flores had called the po lice. He argued that the statements did not qualify as excited utterances because they were made in response to police questioning and were not spontaneous. He further contended the alleged crime occurre d at a different location and the time lapse between the alleged crime and the statements fo reclosed their admission as spontaneously made statements. Defense counsel challenged the Co mmonwealth’s argument that the statements were admissible as recent complaints on the ground that such statements “cannot come in as independent evidence of the offense, but for the purpose of corroboratin g the testimony of the complaining witness.” The objections were sustained in part and overruled in part. 1

1 Although the trial court init ially felt the statements were admissible as excited utterances, made to Maxwell when she responded to a 911 call, it s ubsequently alte red its earlier stance and found that Flores’s statements cons tituted a recent complaint and admitted them on that ground. In so ruling, the trial court noted th at “[w]e have an officer carefully choosing the words because of the bilingual nature of the communication.” The trial court explained:

We now have an elevated se nse of the direction of the conversation not being spontaneous but being the words selected by a trained investigator. Therefore, the excited utterance quality and, as I said earlier, the objection was overruled because depending on what I heard, I was think[ing] it w ould go to the weight and not admissibility.- 4 - Jane Sonnenberg, a sexual assault nurse exam iner at Fairfax Nursing Center and Fairfax Trauma Center, testified that she examined Fl ores on November 15, 2003, at about 6:30 a.m. During the exam, Flores said her mouth hurt. Sonnenberg found an open area inside Flores’s lip and photographed it. She also pho tographed a scratch lo cated above Flores’s upper left arm. Sonnenberg conducted a toluidine blue procedure, 2 which indicated the presence of two abnormal abrasions, one inside th e vaginal orifice and the other on the labia minora. Sonnenberg considered the abrasions recent injuries. On cross-examination, Sonnenberg conceded it was possible for the dye to adhere and sh ow abrasions with consensual sex. Suzanne Brown, head of the Sexual Assault Nu rse Examiner program at Fairfax Hospital, testified that Flores’s vaginal in jury was “not a conclusive injur y.” She explained, however, that it was “consistent with some type of blunt for ce trauma but we can’t say anything more specific

than that.”

The Commonwealth called Sonia Flores as its last witness. Her testimony was limited to stating her name, the name of Mejia-Martinez , and recounting their prior dating history. Mejia-Martinez asked no questions on cross-examina tion. In response to questions from the trial court, Flores confirmed that she talked to an Alexandria police o fficer around 2:45 a.m. on November 15, 2003, and was taken to Fairfax Hospital on that date and examined.

At the conclusion of the Co mmonwealth’s case-in-chief, Meji a-Martinez moved to strike the evidence; the motion was denied. Mejia-Martin ez then called Flores as a witness. Flores But now the way this conversation fl ows, it is not voluntary. It is not a burst. It’s not so rt of a free flow str eam of consci[ousness] type saying of things. It is cont rolled, discipline d, careful choosing of words between Spanish and E nglish and the words are led by the questioner. That is not an excite d utterance at that point. . . . It comes in as a recent complaint of being with the defendant and sex having occurred. That much is in.

2 Sonnenberg explained that toluidine blue is a dye that adheres to raw, open cells in the genital area. The dye does not adhere to normal skin cells.- 5 - testified that she “agreed to have” sexual intercourse with Mejia-Martinez. She acknowledged they argued after having intercour se after which she contacted the police. She stated she called the police because she was “angry at him” and “r eally jealous.” On cross-examination, Flores

said that she “lied to” Officer Maxwell and to Detective Ignacio. She co nceded telling Ignacio that Mejia-Martinez tried to force her to have sex with him, but testified, “after that I agreed to it.” When asked about several specific statements made to Ignacio, Flores repeatedly answered, “I don’t remember.” Flores denied telling Igna cio that Meja-Martinez admonished her to stop crying because she was not the fi rst woman to have been raped. In rebuttal, Detective Ignacio related Flores’s statement that Mejia-Martinez told her to stop crying because she was not the first woman to have been raped. Ignacio also testified, without objection, that Flores told him she was fo rced to have intercourse with Mejia-Martinez. The trial court denied Mejia-Martinez’s motion to strike at the conclusion of the presentation of evidence and f ound Mejia-Martinez guilty of rape.

II. EVIDENTIARY ARGUMENTS Mejia-Martinez makes two arguments rega rding the admission of certain hearsay

statements Flores made to Maxwell. He conte nds they do not come with in a recognized hearsay exception, and their admission violat ed his Sixth Amendment right to confront witnesses against him pursuant to the holding in Crawford v. Washington , 541 U.S. 36 (2004). Thus, Mejia-Martinez alleges both a non-constitutional a nd constitutional error in admitting selected

statements.- 6 - A. Hearsay Arguments Admissibility Under the A sserted Hearsay Exceptions

Discussion Mejia-Martinez alleges the trial court erred in admitting through Maxwell certain

statements attributed to Flores on the grounds they do not come w ithin the hearsay exceptions for excited utterances or recent complaints. In his brief, Mejia-Martinez conf ined his challenges on hearsay grounds to the admission of the follo wing statements: that Flores was with Mejia-Martinez and sexual intercou rse occurred; that Flores said she broke items in the car; and, when asked, Flores said the incident occurred at a nearby school and point ed toward Cora Kelley School. We limit our analysis to the ad mission of those selected statements.

We first note that defense counsel did not object to Maxwell’s te stimony that Flores identified a nearby school as th e location of the incident and th at she specifically indicated, by gesture, the Cora Kelley School. Thus the tria l court never ruled on th e propriety of admitting the hearsay statements now challenged on appeal. “No ruling of the trial court . . . will be c onsidered as a basis for reversal unless the objection was stated together with the grounds th erefor at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice.” Rule 5A:18. Accordingly, Rule 5A:18 bars our cons ideration of this question on appeal. We assume without deciding that the remain ing hearsay statements to which appellant specifically objected and challenges on appeal do not come within the stated hearsay exceptions. However, we find their admission harmless. In Virginia, non-constitutiona l error is harmless “[w]hen it plainly appears from the record and the evidence given at the trial that th e parties have had a fair trial on the merits and substantial justice has been reached.” Code § 8.01-678.- 7 - “In a criminal case, it is implicit that, in orde r to determine whether there has been ‘a fair trial on the merits’ and whether ‘substantial just ice has been reached,’ a reviewing court must decide whether the alleged error substantially in fluenced the jury. If it did not, the error is harmless.” Clay v. Commonwealth , 262 Va. 253, 259, 546 S.E.2d 728, 731 (2001). In Clay , we adopted the following test for non-constitutional harmless error that was applied by the United States Supreme Court in Kotteakos v. United States , 328 U.S. 750 (1946): “‘If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but slight effect, the ve rdict and the judgment should stand . . . . But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous acti on from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. . . . If so, or if one is left in grave doubt, the conviction cannot stand.’”

Rose v. Commonwealth , 270 Va. 3, 12, 613 S.E.2d 454, 458 (2005) (quoting Clay , 262 Va. at 260, 546 S.E.2d at 731-32 (quoting Kotteakos , 328 U.S. at 764-65)). Applying the stated principles here, we find that competent evidence properly admitted at trial clearly established the facts that Mejia- Martinez claims were established by inadmissible

evidence. Before Flores testified for the Co mmonwealth, Ignacio relate d the contents of an incriminating statement made by Mejia-Martinez. In it, Mejia-Martinez admitted having

intercourse with Flores and said that Flores began to vandalize th e interior of th e car after he drove her home. Furthermore, Ignacio testified without object ion, in rebuttal, that Flores

described the sexual intercourse as forced and against her will and r ecounted Mejia-Martinez’s admonishment to Flores that she wasn’t the first woman to have been raped, an implicit admission of the offense. Thus, we find any error harmless.- 8 - B. Alleged Confronta tion Clause Violation On April 15, 2004, six weeks after the tr ial court found Mejia-Martinez guilty, he appeared for sentencing. Mejia-Martinez moved to set aside the verdict “in light of the . . . [decision in Crawford v. Washington , 541 U.S. 36 (2004),] from the United States [Supreme Court] that came down four days after our trial. ” In moving to set aside the judgment, he asked

the trial court to reconsider its ruling on the hear say and say that was testimonial. At that point in the trial counsel had had no opportunity to cross-examine the declarant which would be a confrontation clause [sic]. The trial court denied the motion, finding that the limited statements by Flores to

Maxwell that were admitted were “not that kind of interrogation which is then used by police later to produce testimony they couldn’t otherw ise have gotten in the trial and the prosecution

itself.”

In Crawford , the United States Supreme Court held: “Where testimonial evidence is at issue, . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross- examination.” Crawford , 541 U.S. at 68. The Court further noted that, when the defendant has not had the oppor tunity to cross-exam ine a witness, that individual’s Sixth Amendment right of confrontation is violated. Id. We assume without deciding th at Flores’s statements in re sponse to Maxwell’s questions

constituted testimonial hear say. However, a Crawford violation does not occur when the hearsay declarant is available and subj ect to cross-examination. See Blackman v. Commonwealth , 45 Va. App. 633, 644-45, 613 S.E.2d 460, 466 (2005) (assu ming codefendant’s hearsay statements to inmate admitted at joint trial was testimonial, its admission did not violate Crawford where the codefendant and inmate testified at trial).- 9 - Here, Flores testified at trial for the Comm onwealth and the defense and was subjected to cross-examination. Accordingly, the trial cour t’s admission of the statements from Flores through Maxwell that Mejia-Martinez challenges on appeal did not implicate or violate the

Confrontation Clause of the Sixth Amendment. See id.

III. SUFFICIENCY OF THE EVIDENCE When considering the sufficiency of the evidence on appeal, we view the evidence in the light most favorable to the Co mmonwealth, granting to it all reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwealth , 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). “In so doing we must ‘“di scard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be draw n therefrom.”’” Norman v. Commonwealth , 2 Va. App. 518, 520, 346 S.E.2d 44, 45 (1986) (quoting Parks v. Commonwealth , 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (quoting Wr ight v. Commonwealth , 196 Va. 132, 137, 82 S.E.2d 603, 606 (1954))). The trial court’s judgment will not be set aside unless plainly wrong or without evidence to support it. Josephs v. Commonwealth , 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) ( en banc ). The evidence showed that Flores made a 911 call for help at 2:15 a.m. Officer Maxwell responded to the scene and found Flores emotiona lly distraught. After speaking with Flores, Maxwell initiated a rape investigation. Scient ific evidence showed ev idence of blunt force trauma in and around Flores’s vaginal area. De scribing the incident, Mejia-Martinez admitted pulling Flores into his vehicle, locking the door, covering her mouth with his left hand, removing her clothing with his right hand, and having intercour se with her. He admitted Flores scratched his face when she tried to flee, after first claimi ng he incurred the scratch at work. After he- 10 - drove her home, he told her she was not the first woman to be raped. In a statement to Detective Ignacio, Flores said the intercou rse was forced and non-consensual. The evidence was sufficient to support the tr ial court’s finding that Mejia-Martinez was guilty of rape. The trial court, as fact fi nder, was under no obligation to believe Flores’s testimony that the reason she contacted the police, went to the hospital, underwent medical tests, and lied about being raped was becaus e she was angry and jealous. See Bridgeman v.

Commonwealth , 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986) ( it is for the trie r of fact to ascertain witnesses’ credibility, a nd it is within the fact finder’s discretion to accept or reject the testimony offered). The Commonwealth’s evidence was competent, was not inherently incredible and was sufficient to prove beyond a reasonable doubt that Mejia-Martinez was guilty of rape. Accordingly, Mejia-Martin ez’s conviction is affirmed.

Affirmed.