COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Felton, Judges Elder and McClanahan 

Argued at Alexandria, Virginia 

RUBIO ARGELIO ANGEL 

 MEMORANDUM OPINION*

 BY 

v. Record No. 2044-07-4 JUDGE LARRY G. ELDER 

 MARCH 24, 2009 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

Benjamin N. A. Kendrick, Judge 

 Douglas Wham, Deputy Public Defender (Office of the Public 

Defender, on briefs), for appellant. 

 Susan M. Harris, Assistant Attorney General (Robert F. McDonnell, 

Attorney General, on brief), for appellee. 

 Rubio Argelio Angel (appellant) appeals from his jury trial convictions for malicious 

wounding, abduction with intent to defile, two counts of object sexual penetration, and 

misdemeanor sexual battery, all arising out of attacks on two different women on two different 

dates. On appeal, he contends the court erroneously denied his pretrial motion to suppress his 

statements to police and dismissed his appeal of the district court’s decision to certify him for 

trial as an adult. He also contends the trial court erroneously denied his motions for appointment 

of a DNA expert, for separate trials, for a continuance, and for a mistrial. We hold the trial court 

did not err in denying the motion to suppress and dismissing the appeal of the juvenile court’s 

certification determination. As to the remaining assignments of error, we hold any error was 

harmless. Thus, we affirm appellant’s convictions. 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
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I. 

A. 

MOTION TO SUPPRESS STATEMENTS TO OFFICERS 

 Federal constitutional law 

require[s] that a suspect be informed of his constitutional rights to 

the assistance of counsel and against self-incrimination. Miranda 

v. Arizona, 384 U.S. 436, 471, 86 S. Ct. 1602, [1626,] 16 L. Ed. 2d 

694[, 722] (1966). These rights can be waived by the suspect if the 

waiver is made knowingly and intelligently. Id. at 475, 86 S. Ct. 

[at 1628, 16 L. Ed. 2d at 724]. The Commonwealth bears the 

burden of showing a knowing and intelligent waiver. Id. Whether 

the waiver was made knowingly and intelligently is a question of 

fact that will not be set aside on appeal unless plainly wrong. 

Jackson v. Commonwealth, 266 Va. 423, 432, 587 S.E.2d 532, 540 (2003). In determining 

whether an individual has voluntarily, knowingly, and intelligently waived his Miranda rights, a 

court must conclude 

the relinquishment of the right[s] [was] voluntary in the sense that 

it was the product of a free and deliberate choice rather than 

intimidation, coercion or deception. . . . [T]he waiver must [also] 

have been made with a full awareness of both the nature of the 

right being abandoned and the consequences of the decision to 

abandon it. 

Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1141, 89 L. Ed. 2d 410, 421 (1986). 

Where a juvenile is involved, this inquiry “‘includes evaluation of the juvenile’s age, experience, 

education, background, and intelligence [in order to determine] whether he has the capacity to 

understand the warnings given him, the nature of his Fifth Amendment rights, and the 

consequences of waiving those rights.’” Roberts v. Commonwealth, 18 Va. App. 554, 557, 445 

S.E.2d 709, 711 (1994) (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S. Ct. 2560, 2572, 61 

L. Ed. 2d 197, 212 (1979)); see also Potts v. Commonwealth, 35 Va. App. 485, 495-96, 546 

S.E.2d 229, 234, aff’d on reh’g en banc, 37 Va. App. 64, 553 S.E.2d 560 (2001). “‘[T]he 

presence or absence of a parent, guardian, independent interested adult, or counsel is . . . [but 
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one] factor to be considered in the totality of the circumstances . . . .’” Rodriguez v. 

Commonwealth, 40 Va. App. 144, 158, 578 S.E.2d 78, 84 (2003) (quoting Grogg v. 

Commonwealth, 6 Va. App. 598, 613, 371 S.E.2d 549, 557 (1988)) (upholding waiver by 

fourteen-year-old suspect). 

 Here, appellant was seventeen-and-a-half years old when advised of his Miranda rights. 

He had been in the United States without a parent for five months, during which time he obtained 

false identification and full time employment. He reported he had completed the 9th grade in El 

Salvador and that he was capable of reading and writing in Spanish. The detectives’ entire 

interview with him, including the advisement and waiver of rights, was conducted in Spanish and 

was taped and transcribed. The detectives started their encounter with appellant by inquiring 

whether he wanted something to drink and when he had last eaten, and they spoke with appellant 

for several minutes to obtain background information about him and his family. At no time 

during the encounter did they threaten appellant or raise their voices to him. Detective Ortiz 

observed that appellant’s “Spanish was fairly good” and that he had “a good background in terms 

of his verbal expressions, how he spoke.” The letter of apology appellant later wrote to one of 

the victims provided further evidence of his literacy. 

Detective Ignacio used dual means to advise appellant of his rights. Ignacio showed 

appellant a written waiver of rights form and read the rights to him from the form. He asked 

appellant whether he understood each right as Ignacio read it, and he obtained appellant’s 

positive verbal and written response regarding whether he understood each right. He also asked 

appellant to read aloud the portion of the form stating, “I have read this declaration of my rights 

and I understand my rights. I am willing to testify and answer the questions. I have not been 

threatened or made any promises or offers of compensation.” Ignacio asked appellant whether 

he understood what he had read aloud, to which appellant responded, “Yes,” and Ignacio asked 
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appellant whether he had any questions about the form, to which appellant responded, “No.” 

Appellant then signed the form directly beneath the paragraph he had read aloud. At no time did 

appellant ask to contact a parent, a lawyer, or any other adult. We hold these facts support the 

trial court’s finding that the waiver of rights was voluntary, knowing, and intelligent. 

 Appellant complains that the detectives used an advisement of rights form for adults 

rather than the version of the form ordinarily used when interviewing a juvenile. However, 

appellant failed to elicit from the detectives any information about how the juvenile and adult 

forms differed. Further, as Detective Ortiz testified, the rights themselves were the same, and the 

evidence established appellant was less than six months from his eighteenth birthday. 

Appellant also complains that the detectives “never expressly asked [him]” whether he 

wished to waive any of his Miranda rights and that he never “expressly indicate[d] a desire to do 

so.” We disagree. Although “mere silence is not enough” to meet the Commonwealth’s burden 

of proving a knowing, voluntary, and intelligent waiver of one’s Miranda rights, appellant 

acknowledges that “in at least some cases waiver can be clearly inferred from the actions and 

words of the person interrogated.” North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 

1757, 60 L. Ed. 2d 286, 292 (1979). Here, appellant indicated verbally that he understood each 

of the rights as it was read to him in his native language of Spanish. He had the opportunity to 

see each right in print on an advisement of rights form that was entirely in his native language of 

Spanish, and he wrote an affirmative Spanish response next to each right on the form, again 

indicating his understanding of it. At Detective Ignacio’s request, appellant then read aloud a 

statement on the form, printed in appellant’s native language of Spanish, just like the rest of the 

form, indicating he understood his rights and was “willing to testify and answer questions.” 

Appellant expressly indicated his willingness to speak to the detectives by signing the form, even 
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if he did so using his alias of Carlos Zepeda. The record also contains no evidence of duress or 

coercion on the part of the police. 

Detective Ignacio’s statement to appellant that “your signature here does not mean that 

you are guilty of anything, it just means that you understand this form” does not compel a 

different result. Appellant specifically said he understood his rights as listed on the form and 

understood the language he read aloud before he signed the form, and Detective Ignacio’s 

statement did not negate the language in the form. 

 Thus, we conclude the evidence supports the trial court’s finding that the Commonwealth 

proved by a preponderance of the evidence that appellant’s waiver of rights was knowing, 

voluntary, and intelligent. 

B. 

DUE PROCESS CHALLENGE TO INDICTMENTS BASED ON ALLEGED 

LACK OF COMPLIANCE WITH PARENTAL NOTIFICATION PROVISIONS 

 Appellant contends the juvenile and domestic relations district court’s act of certifying all 

offenses against him for trial in the circuit court pursuant to Code § 16.1-269.1(B) was error 

because the district court failed to comply with the mandatory parental notification provisions of 

Code § 16.1-263. Appellant concedes that, pursuant to Code § 16.1-269.1(E), as interpreted in 

Shackleford v. Commonwealth, 262 Va. 196, 205-06, 547 S.E.2d 899, 904-05 (2001), the 

issuance of indictments for the charged offenses cured any failure to comply with Code 

§ 16.1-269.1(E)’s parental notification provisions. He contends, however, that neither 

Shackleford nor Moore v. Commonwealth, 259 Va. 405, 527 S.E.2d 415 (2000), which also 

considered the statutory notice issue, addressed whether failure to comply with the statutory 
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notice provisions constituted a denial of due process as guaranteed by the Fifth and Fourteenth 

Amendments to the United States Constitution.1

 We conclude appellant’s argument lacks merit. Appellant has cited no controlling legal 

authority providing that a juvenile has a due process right to have his parent or guardian notified 

of the pendency of certification proceedings in juvenile court. Here, as in Rodriguez, 40 

Va. App. 144, 578 S.E.2d 78, “[t]he cases [appellant] cites provide, at most, that juvenile 

proceedings, including transfer proceedings, when provided for by statute, ‘“must measure up to 

the essentials of due process and fair treatment.”’” Id. at 153, 578 S.E.2d at 82 (quoting 

Anderson v. Commonwealth, 15 Va. App. 226, 229, 421 S.E.2d 900, 902 (1992) (quoting Kent 

v. United States, 383 U.S. 541, 562, 86 S. Ct. 1045, 1057, 16 L. Ed. 2d 84, 98 (1966))). In 

appellant’s case, although Code § 16.1-263 provides for juvenile proceedings that include 

notification of the juvenile’s parents, since 1996, “the plain language of [Code § 16.1-269.1(E)]” 

has “provide[d] that an indictment by a grand jury cures any defect or error, except one regarding 

a juvenile’s age, which has occurred in any juvenile court proceeding.” Moore, 259 Va. at 410, 

527 S.E.2d at 418. Because the statute expressly provides for cure, appellant received all the 

process he was due under the statute. 

 Appellant also relies on our holding in Weese v. Commonwealth, 30 Va. App. 484, 517 

S.E.2d 740 (1999), for the proposition that due process “‘does not allow a hearing to be held in 

which a youth’s freedom and his parents’ right to his custody are at stake without giving [the 

 1

 The Commonwealth contends appellant did not preserve this objection for appeal 

because he had full knowledge of all the facts necessary to raise an objection at the outset of the 

July 31, 2006 proceeding but remained silent. However, the record indicates appellant raised the 

issue in a written motion opposing transfer that was filed on September 6, 2006, the same day the 

court found probable cause to certify the charges. He also raised the issue in the circuit court 

prior to indictment by means of an appeal noted on September 7, 2006, although the appeal was 

not heard until December 27, 2006, well after issuance of the indictments on September 18, 

2006. 
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parents] timely notice, in advance of the hearing, of the specific issues that they must meet.’” Id.

at 491, 517 S.E.2d at 744 (quoting In re Gault, 387 U.S. 1, 33-34, 87 S. Ct. 1428, 1447, 18 

L. Ed. 2d 527, 550 (1967)). This reliance is misplaced. The Virginia Supreme Court has 

interpreted In re Gault, upon which Weese relies, to apply only to confinement orders and not to 

certification orders. Cradle v. Peyton, 208 Va. 243, 246-47, 156 S.E.2d 874, 876-77 (1967). The 

Court explained as follows: 

A confinement order imposes a sentence of confinement in an 

institution (“however euphemistic the title, a ‘receiving home’ or 

an ‘industrial school’ for juveniles is an institution of confinement 

in which the child is incarcerated for a greater or lesser time” 

[quoting Gault, 387 U.S.] at 27, 87 S. Ct. at 1443, 18 L. Ed. 2d at 

546). A certification order transfers a case to another court for 

original determination whether the accused shall be confined. 

 The Supreme Court held Gault’s confinement under order 

of the Arizona juvenile court constitutionally invalid because the 

order denied Gault his liberty without due process. [Appellant] 

Cradle is not confined under a juvenile court order. The Virginia 

juvenile court made no finding of [appellant] Cradle’s innocence 

or guilt, only a finding that he should stand trial on the merits in 

another court. It therefore certified [appellant] Cradle for trial as 

an adult in the court having jurisdiction to try the charges against 

him, [the circuit court]. 

Id. at 246, 156 S.E.2d at 876-77. 

 In the instant appeal, appellant complains only that the juvenile court certification 

proceeding was defective and not that any absence of notice in the circuit court violated due 

process. Because any statutory violation occurred in the context of a certification hearing and 

was cured by operation of that same statutory scheme, we conclude no due process violation 

occurred. 
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C. 

ADMISSION OF OTHER CRIMES EVIDENCE 

AND JOINDER OF OFFENSES FOR TRIAL 

 We assume without deciding the trial court erred in joining for trial the June 18 offense 

against S.P. and the July 9 offenses against V.L. Nevertheless, in part because evidence of the 

July 9 offenses against K.G., Ms. A., and Ms. Z. was admissible in relation to the offenses 

against both S.P. and V.L., we hold any error in joining the offenses against S.P. and V.L. for 

trial was harmless. 

1. Admissibility of Other Crimes Evidence

 Evidence of other bad acts or crimes is not admissible merely to show a defendant’s 

predisposition to commit such acts or crimes. See, e.g., Kirkpatrick v. Commonwealth, 211 Va. 

269, 272, 176 S.E.2d 802, 805 (1970). However, “‘if such evidence tends to prove any other 

relevant fact of the offense charged, and is otherwise admissible, it will not be excluded merely 

because it also shows [a defendant] to have been guilty of another crime.’” Williams v. 

Commonwealth, 203 Va. 837, 841, 127 S.E.2d 423, 426 (1962). 

Where a course of criminal conduct is continuous and interwoven, 

consisting of a series of related crimes, the perpetrator has no right 

to have the evidence “sanitized” so as to deny the jury knowledge 

of all but the immediate crime for which he is on trial. The 

fact-finder is entitled to all of the relevant and connected facts, 

including those which followed the commission of the crime on 

trial, as well as those which preceded it; even though they may 

show the defendant guilty of other offenses. Evidence of such 

connected criminal conduct is often relevant to show motive, 

method, and intent. Indeed, it may be the only way in which such 

matters may be shown . . . . Even where another crime is not 

inextricably linked with the offense on trial, it may nevertheless be 

proved if it shows the conduct and feeling of the accused toward 

his victim, his motive, intent, [common scheme or plan], or any 

other relevant element of the offense on trial. 

Scott v. Commonwealth, 228 Va. 519, 526-27, 323 S.E.2d 572, 577 (1984) (citations omitted; 

emphasis added). In addition to intent, another recognized element that other crimes evidence 
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may be admissible to prove is identity, where identity is in dispute. E.g. Turner v. 

Commonwealth, 259 Va. 645, 651, 529 S.E.2d 787, 790-91 (2000). 

 A common plan exists 

when the “relationship among offenses . . . is dependent upon the 

existence of a plan that ties the offenses together and demonstrates 

that the objective of each offense was to contribute to the 

achievement of a goal not attainable by the commission of any of 

the individual offenses.” A conspiracy involving more than one 

offense is a typical example of offenses involving a common plan. 

Offenses using a “common plan,” however, should be 

“distinguished from similar character offenses (where the offenses 

merely duplicate each other).” 

Godwin v. Commonwealth, 6 Va. App. 118, 122-23, 367 S.E.2d 520, 522 (1988) (citations 

omitted); see also Ferrell v. Commonwealth, 11 Va. App. 380, 389-90, 399 S.E.2d 614, 619 

(1990) (in upholding joinder of offenses for trial under Rule 3A:6(b), noting that offenses “‘need 

not bear . . . an exact resemblance’” but must “‘“bear a singular strong resemblance”’ . . . , thus 

tending to establish the probability of a common perpetrator” (quoting United States v. Hudson, 

884 F.2d 1016, 1021 (7th Cir. 1989) (citation omitted))). “The term ‘common scheme’ describes 

crimes that share features idiosyncratic in character, which permit an inference that each 

individual offense was committed by the same person or persons as part of a pattern of criminal 

activity involving certain identified crimes.” Scott v. Commonwealth, 274 Va. 636, 644-45, 651 

S.E.2d 630, 635 (2007) (finding roughly equivalent the terms “common scheme or plan” as used 

in Rule 3A:6(b) and the “common scheme, design, or plan” language employed to evaluate the 

admissibility of other crimes evidence in cases of disputed identity); see Cook v. 

Commonwealth, 7 Va. App. 225, 229, 372 S.E.2d 780, 782 (1988) (holding joinder was 

appropriate for separate offenses of concealment that occurred within thirty minutes of each 

other at three separate 7-Eleven stores in the same area, involving the same modus operandi and 

same people). 
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In Satcher v. Commonwealth, 244 Va. 220, 229, 421 S.E.2d 821, 827 (1992), for 

example, the Court held that two attempted rapes and robberies, which occurred within a few 

yards and one-half hour of each other and involved “forcibl[e] remov[al of] each of the victims 

from a bicycle path at a location concealed behind the ‘sound barrier wall,’” “constituted parts of 

a common scheme or plan.” The Court also noted the facts in Satcher were distinguishable from 

those in Godwin, in which “the two robberies in issue occurred five days and three and one-half 

miles apart and ‘no evidence linked or connected the one robbery with the other.’” Id. at 231 

n.6, 421 S.E.2d at 828 n.6 (quoting Godwin, 6 Va. App. at 122, 367 S.E.2d at 522); see also

Scott, 274 Va. at 646-47, 651 S.E.2d at 636 (unanimously concluding that the evidence of nine 

robberies, of individuals “alone outside their homes during the late evening hours,” that occurred 

over “a period of about four months in the same large city” and were committed by a black male 

who displayed a gun, threatened or struck each victim, and demanded “money, credit cards and, 

in some cases, their PINs,” did not establish a common scheme because “[t]his evidence 

demonstrated only a general similarity of manner . . . and failed to establish that the crimes 

shared idiosyncratic features permitting an inference of a pattern of criminal activity committed 

by the same person”). The Court has listed as “possible” examples of the “very broad” “range of 

idiosyncratic features” (1) the occurrence of the crimes in a “particular neighborhood or area,” 

(2) the use of “a weapon of the same description,” (3) the utterance of “unusual threatening 

remarks,” and (4) the targeting of “victims only of a certain gender or age group.” Scott, 274 Va. 

at 647, 651 S.E.2d at 636. 

 We apply these principles to assessing the admissibility of the offenses against K.G., 

Ms. A., and Ms. Z. at a trial for the July 9 offenses against V.L. Although the Commonwealth 

offered evidence that appellant confessed to perpetrating the attack on V.L. and that blood found 

on appellant’s shoe belonged to V.L., thereby linking appellant to the crimes against V.L., 
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appellant disputed the accuracy of that DNA evidence and implied that his confession to the 

offenses was “[in]accura[te] and [un]truthful[].” Because appellant disputed his identity as the 

perpetrator of the offenses against V.L. on July 9, the Commonwealth was entitled to offer 

evidence of the preceding July 9 crimes for purposes of linking appellant to the battery of K.G., 

the first victim of the July 9 offenses, who was able to make a positive identification of appellant 

as her attacker, if the evidence established the series of crimes committed on July 9 showed a 

common scheme or plan. 

As to the three groupings of offenses that occurred on July 9, we hold the evidence 

supported a finding that they were, in fact, part of a common scheme or plan. Although the July 

9 crimes were not identical in nature or severity, they bore a strong temporal and geographic 

link, and additional evidence tied them to one another, as well. All occurred in the same 

one-hour period within a distance of one-and-one-half to three miles of each other. All also 

appeared to involve the sexual touching of women below the waist in public by a male who fled 

on a green moped or motorbike. Witnesses at the first and third locations identified the 

perpetrator as appearing to be young and Hispanic. Thus, the evidence tended to indicate that the 

same man rode his motorbike in a northeasterly path from Alexandria into Arlington as he 

committed the series of offenses leading up to his attack on V.L. The probative value of this 

evidence, which included K.G.’s positive identification of appellant as the man who sexually 

battered her and fled on the green moped, outweighed any incidental prejudice, for the violent 

felony offenses committed against V.L. were far more severe than the misdemeanor offenses 

committed roughly thirty and sixty minutes earlier in Alexandria. 

We turn now to the question whether the two different incidents of misdemeanor sexual 

battery in Alexandria on July 9 were admissible to prove identity on the charge of misdemeanor 
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sexual battery stemming from the June 18 incident against S.P. We hold that they were because 

the evidence permitted a finding that all three events were part of a common scheme or plan. 

 All three sets of offenses occurred in a public location on a Sunday afternoon within a 

three-week period, at a location within a few miles of the border between the City of Alexandria 

and Arlington County. Each set of offenses involved a sexual battery or batteries committed by 

a man who came up behind his female victims, all of whom were on foot, and focused his 

attention on their buttocks. In the first two instances, the man, who was Hispanic, stooped down 

within view of the woman while pretending to take care of some personal matter—tying his shoe 

in one case and working on his motorbike in another—and waited for the victim to pass by him 

before he came up behind her. In all three instances, the perpetrator said nothing, used his hands 

to make brief contact with the woman’s buttocks or the clothing covering her buttocks, and fled 

quickly after making the contact that constituted sexual battery. See Scott, 274 Va. at 645, 651 

S.E.2d at 635 (defining “[t]he term ‘common scheme’ [as] describ[ing] crimes that share features 

idiosyncratic in character, which permit an inference that each individual offense was committed 

by the same person . . . as part of a pattern of criminal activity involving certain identified 

crimes” (emphasis added)). The fact that the perpetrator fled the scene of the first sexual battery 

on foot whereas the perpetrator of the second and third sets of sexual batteries, committed 

exactly three weeks later, fled on a motorbike does not preclude a finding that the evidence of the 

second and third offenses was admissible to prove a common scheme or plan because it was not 

necessary that the sexual batteries be identical. See id. (noting that “a ‘singular strong 

resemblance to the pattern of the offense charged’” will suffice (quoting Turner, 259 Va. at 651, 

529 S.E.2d at 791)). 
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 Thus, we hold the evidence of the July 9 sexual batteries against K.G., Ms. A., and Ms. Z. 

was admissible in the trial of both the June 18 sexual battery involving S.P. and the July 9 felony 

offenses involving V.L. 

2. Harmless Error Concerning Joinder

Assuming without deciding the court’s refusal to sever the offense against S.P. from the 

offenses against V.L. for trial was error, reversal is not required if any error was harmless. See

Ferguson v. Commonwealth, 240 Va. ix, ix, 396 S.E.2d 675, 675 (1990) (holding pursuant to 

Code § 8.01-678 that “harmless-error review is required in all cases”). Because the challenged 

other crimes evidence—concerning the misdemeanor sexual batteries of July 9 to which 

appellant pleaded guilty—was admissible in the trial of both the June 18 sexual battery involving 

S.P. and the July 9 felony offenses involving V.L., the admission of this evidence at the joint trial 

did not render the joinder harmful. Thus, we examine the impact of the evidence of the offense 

against S.P. in a trial for the crimes against V.L. and vice versa. 

The Supreme Court has held that “misapplication of Rules 3A:10[(c)] and 3A:6(b) 

[governing the joinder of offenses for trial] would not constitute reversible error . . . [if], in a 

separate trial of [one of the joined crimes or sets of crimes], evidence of the [other joined crime 

or set of crimes] would have been admissible,” Satcher, 244 Va. at 230, 421 S.E.2d at 827 

(decided under earlier version of Rule 3A:10, when relevant subdivision was designated (b) 

rather than (c)), but this is not the only acceptable method for assessing the impact of a 

misjoinder of offenses for trial. In determining whether an error is harmless, we review “the 

record and the evidence and evaluate the effect the error may have had on how the finder of fact 

resolved the contested issues.” Lavinder v. Commonwealth, 12 Va. App. 1003, 1007, 407 

S.E.2d 910, 912 (1991) (en banc). Non-constitutional error is harmless “when it plainly appears 

from the record and the evidence given at the trial that the parties have had a fair trial on the 
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merits and substantial justice has been reached.” Code § 8.01-678. “‘If, when all is said and 

done, [it is clear] that the error did not influence the [fact finder], or had but slight effect, . . . the 

judgment should stand . . . .’” Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 

731-32 (2001) (quoting Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S. Ct. 1239, 1248, 

90 L. Ed. 1557, 1566-67 (1946)). Non-constitutional error is harmless if other evidence of guilt 

is so “overwhelming” and the error so insignificant by comparison that we can conclude the error 

“failed to have any ‘substantial influence’ on the verdict.” United States v. Lane, 474 U.S. 438, 

450, 106 S. Ct. 725, 732, 88 L. Ed. 2d 814, 826 (1986) (quoting Kotteakos, 328 U.S. at 765, 66 

S. Ct. at 1248, 90 L. Ed. at 1567). 

Applying these principles here, we conclude that the evidence of appellant’s guilt for the 

crimes against V.L. was overwhelming and that, if the joinder of those offenses for trial with the 

charge of misdemeanor sexual battery against S.P. was error, any such error clearly was harmless 

as to the convictions involving V.L. Appellant confessed in a recorded statement to detectives 

that he beat V.L. and committed most of the other charged crimes against her2 before fleeing on 

a green motorbike, and significant additional evidence corroborated his confession. A witness 

observed a man matching appellant’s description flee the scene of V.L.’s attack on a green 

motorbike. Only an hour earlier a man of similar description committed misdemeanor sexual 

battery by grabbing the buttocks of a different woman, K.G., in a parking lot a few miles away. 

K.G. affirmatively identified appellant as the man who grabbed her and indicated he fled the 

scene on a green motorbike. Finally, DNA evidence obtained from blood on appellant’s shoe 

was determined to have come from V.L. In light of this overwhelming evidence of guilt, we are 

able to conclude that any error resulting from joining the offenses against V.L. for trial with the 

 2

 Appellant denied penetrating her anus with the stick found there when she arrived in the 

emergency room. The presence of the stick served as the basis for one of the object sexual 

penetration convictions. 
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misdemeanor sexual battery offense committed against S.P. three weeks earlier, in which a man 

pulled down the victim’s shorts and fled without touching her, had no more than “‘slight effect’” 

on the verdicts involving V.L. and thus was harmless. Clay, 262 Va. at 260, 546 S.E.2d at 732 

(quoting Kotteakos, 328 U.S. at 764, 66 S. Ct. at 1248, 90 L. Ed. at 1566). 

We reach the same result in analyzing the effect of evidence of the crimes against V.L. on 

appellant’s conviction for misdemeanor sexual battery of S.P. on June 18. We assume without 

deciding that the evidence of the crimes against V.L. would have been inadmissible at a separate 

trial for the offense against S.P. because appellant conceded the evidence proved the perpetrator 

of the offense against S.P. acted with the requisite intent and challenged only the evidence to 

prove his identity as the perpetrator. See Blaylock v. Commonwealth, 26 Va. App. 579, 592, 

496 S.E.2d 97, 103 (1998) (holding that where evidence of other crimes or “independent acts” is 

relevant to prove an element that is “genuinely uncontested, any nominal probative value will be 

easily outweighed by the danger of prejudice”). Nevertheless, the admissible evidence proving 

appellant was the perpetrator of the June 18 misdemeanor near Thomas Jefferson Middle School 

also was overwhelming. Appellant admitted committing the misdemeanor sexual batteries 

against K.G., Ms. A., and Ms. Z. on July 9, which involved methods similar to the method 

employed by the perpetrator of the June 18 misdemeanor sexual battery against S.P., and one of 

the victims of the July 9 offenses identified appellant as the man who grabbed her buttocks on 

that date. S.P. gave a description of her assailant that was consistent with appellant’s 

appearance. She also described her assailant as wearing “a three-buttoned polo shirt that was . . . 

regularly striped yellow and white with probably a thin line of navy blue,” and a shirt matching 

that description was found in appellant’s clothes hamper during a search of his residence about 

six weeks later. Finally, the evidence established appellant resided half a mile from Thomas 

Jefferson Middle School, and when a detective questioned appellant about whether he had 
- 16 - 

committed any offenses similar to the misdemeanor sexual batteries he admitted committing 

against K.G., Ms. A., and Ms. Z. in Alexandria on July 9, specifically one near “T.J.” “school,” 

appellant responded, “Once.” When the detective asked appellant if he committed that offense 

before the July 9 Alexandria offenses, appellant said, “Yes.” This provided overwhelming 

evidence that appellant was the perpetrator of the June 18 misdemeanor sexual battery against 

S.P., and thus, any error in joining for trial that offense with the offenses against V.L. was 

harmless on the issue of guilt or innocence. 

Any error also was harmless as to appellant’s sentence for the June 18 misdemeanor 

sexual battery offense. Pursuant to Code § 16.1-272, the trial court rather than the jury sentenced 

appellant. Where evidence is admissible for only a limited purpose, we presume the trial judge, 

unlike a jury, is able to consider that evidence only for the purpose for which it is admissible. 

E.g. Akers v. Commonwealth, 216 Va. 40, 45, 216 S.E.2d 28, 31 (1975). The trial court is 

presumed to know and properly apply the law absent clear evidence to the contrary in the record. 

Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977). Thus, we 

presume the trial court did not consider the nature and severity of appellant’s crimes against V.L. 

in determining appellant’s sentence for the misdemeanor sexual battery offense. 

D. 

MOTION FOR APPOINTMENT OF A DNA EXPERT 

 Assuming without deciding that the trial court’s denial of appellant’s request for 

appointment of a DNA expert was error, we conclude any error was harmless. See Sanchez v. 

Commonwealth, 41 Va. App. 340, 585 S.E.2d 337 (2003) (holding that a denial of expert 

assistance in violation of Ake v. Oklahoma,, 470 U.S. 68, 76-87, 105 S. Ct. 1087, 1092-98, 84 

L. Ed. 2d 53, 61-68 (1985), which requires a state to provide a defendant with expert assistance 
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where necessary to “assure that the defendant has a fair opportunity to present his defense,” is 

trial error subject to harmless error analysis). 

“‘[B]efore a federal constitutional error can be held harmless, the court must be able to 

declare a belief that it was harmless beyond a reasonable doubt;’ otherwise the conviction under 

review must be set aside.” Lilly v. Commonwealth, 258 Va. 548, 551, 523 S.E.2d 208, 209 

(1999) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 

710-11 (1967)). “An error does not affect the verdict if we can determine, without usurping the 

jury’s fact finding function, that, had the error not occurred, the verdict would have been the 

same.” Cairns v. Commonwealth, 40 Va. App. 271, 286, 579 S.E.2d 340, 347 (2003). 

We applied harmless error principles in Sanchez, in which the Commonwealth obtained 

DNA evidence linking appellant to the driver’s seat of a stolen vehicle for purposes of his 

carjacking trial and Sanchez moved the court for funds to hire his own DNA expert. Sanchez, 41 

Va. App. at 352-53, 585 S.E.2d at 343-44. We concluded the court’s denial of Sanchez’s motion 

for appointment of an expert, although error, was harmless because “Sanchez confessed to the 

carjacking, describing his actions on the date in question in detail, and corroborating [the 

witness’] testimony identifying him as the carjacker.” Id. In addition, the Commonwealth’s 

evidence included a “shoe impression, found on the inside of the driver’s window,” which was 

consistent with a shoe belonging to Sanchez and, thus, also “implicated him as the perpetrator of 

the carjacking.” Id. at 353, 585 S.E.2d at 344. We held “the overwhelming evidence of 

Sanchez’s guilt” rendered “the error . . . harmless beyond a reasonable doubt.” Id.; cf.

Commonwealth v. Sanchez, 268 Va. 161, 164-67, 597 S.E.2d 197, 199-200 (2004) (in a related 

case against the same defendant, reversing the decision by the Court of Appeals but holding the 

trial court’s failure to appoint the requested expert was not error in regard to a charge of felony 
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hit-and-run that occurred while driving the car that had been taken in the carjacking), rev’g 41 

Va. App. 319, 585 S.E.2d 337 (2003). 

Similarly in appellant’s case, appellant confessed to the crimes against V.L., the offenses 

to which the DNA evidence pertained, in a detailed, fully recorded confession, and additional 

circumstantial evidence also linked appellant to those crimes. A witness testified he saw a man 

matching appellant’s description flee the scene of the crimes against V.L. on a green motorbike, 

and a woman, K.G., battered about an hour earlier by an assailant who also fled on a green 

motorbike identified appellant as the perpetrator of the offense against her. Thus, here, as in 

Sanchez, the trial court’s denial of appellant’s motion for funds to hire a DNA expert, if error, 

was harmless beyond a reasonable doubt as to his convictions for the offenses against V.L. and 

also as to the offense against S.P. 

Given that appellant’s motion for a continuance was based solely on the need for 

additional time to review the DNA evidence, we hold that the denial of the continuance motion, 

if error, was harmless for the same reasons that refusal to provide funds for a DNA expert was 

harmless. 

E. 

MISTRIAL MOTION 

 The Commonwealth contends appellant waived his claim that some of its arguments in 

rebuttal were improper because he failed to make a timely motion for a mistrial. We agree. 

 We are bound by the Supreme Court’s repeated holding that if a defendant desires “to 

take advantage on appeal of some incident he regards as objectionable enough to warrant a 

mistrial, he must make his motion timely or else be deemed to have waived his objection. 

Making a timely motion for mistrial means making the motion ‘when the objectionable words 

were spoken.’” Yeatts v. Commonwealth, 242 Va. 121, 137, 410 S.E.2d 254, 264 (1991) 
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(quoting Reid v. Baumgardner, 217 Va. 769, 774, 232 S.E.2d 778, 781 (1977)) (citations 

omitted). 

“If counsel believes that an argument requires or justifies a 

mistrial, he has the duty to move promptly before conclusion of the 

argument so that the trial court may determine what corrective 

action, if any, should be taken.” There appears to be no exception 

in Virginia law to the strict application of this rule. 

Bennett v. Commonwealth, 29 Va. App. 261, 281, 511 S.E.2d 439, 448-49 (1999) (quoting 

Pullen v. Nickens, 226 Va. 342, 346-47, 310 S.E.2d 452, 454-55 (1983)) (emphasis added); see

Beavers v. Commonwealth, 245 Va. 268, 278-79, 427 S.E.2d 411, 419 (1993) (holding that the 

complainant’s failure to object and move for a mistrial until the conclusion of an opening

statement constituted a waiver of its arguments on appeal). This rule applies even where the 

defendant makes an objection to the argument that is overruled by the trial court. Morris v. 

Commonwealth, 14 Va. App. 283, 287, 416 S.E.2d 462, 464 (1992) (en banc). Compare Burns 

v. Commonwealth, 261 Va. 307, 340-42, 541 S.E.2d 872, 894-95 (2001) (where counsel made a 

general objection to the prosecutor’s reference to the defendant as “an ‘animal’” and 

contemporaneously “advised the court that he had a motion that he would make after the 

Commonwealth’s Attorney finished his closing argument,” holding “the better practice would 

have been to move for a mistrial at that very moment” but that the Court “[could not] say under 

the circumstances of this case that [the defendant’s] motion came too late” (emphasis added)). 

 Here, appellant’s only contemporaneous objection to the Commonwealth’s remarks was 

his contention—as the Commonwealth began to recount what the victim did leading up to the 

attack— that the Commonwealth’s argument was “not rebuttal” because “[it was] not answering 

any of the facts that [appellant’s counsel had] raised.” At the very conclusion of the 

Commonwealth’s argument, appellant’s counsel stated, “I have a continuing objection,” but he 

did not articulate any basis for that objection. Only after the trial court had instructed the jury to 
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“retire” for the purpose of deciding whether to begin deliberations that evening or the following 

morning did appellant move for a mistrial and first articulate his claim that the prosecutor’s 

argument constituted an improper attempt “to inflame the passion of the jury and to seek 

sympathy.” Under the principles outlined above, appellant’s motion came too late. 

 Appellant avers in the alternative that we should apply Rule 5A:18’s “good cause” or 

“ends of justice” exception to this issue. However, because it is not apparent from the face of the 

record that an error occurred that was “clear, substantial and material,” Brown v. 

Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8, 11 (1989); see Campbell v. Commonwealth, 

14 Va. App. 988, 997, 421 S.E.2d 652, 657 (1992) (en banc) (Barrow, J., concurring), aff’d in 

part and rev’d in part, 246 Va. 174, 431 S.E.2d 648 (1993), the ends of justice exception does not 

require us to reach the merits in the absence of a proper objection. Although a prosecutor must 

not attempt to inflame the passions and prejudices of the jury, see, e.g., Hutchins v. 

Commonwealth, 220 Va. 17, 20-21, 255 S.E.2d 459, 461 (1979), she may properly review all 

reasonable inferences deducible from the evidence, see, e.g., Duncan v. Commonwealth, 2 

Va. App. 717, 730, 347 S.E.2d 539, 546 (1986). The fact that the Commonwealth asked the jury 

to “take a moment . . . and . . . try to imagine [the victim’s] pain” after it recounted the sequence 

of events the victim experienced before, during, and after the offenses did not compel the 

conclusion that the statement was improper or, even if it was, that a mistrial was required to cure 

any prejudice. Compare McReynolds v. Commonwealth, 177 Va. 933, 945-47, 15 S.E.2d 70, 

74-75 (1941) (reversing a murder conviction because the trial court failed to caution the jury 

following the prosecution’s repeated improper references in closing argument to the murder 

victim’s mother, whom he described as old, “palsied,” unable to attend the trial, living in a 

“decayed” “humble home,” and “griev[ing] for the loss of her boy”). 
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II. 

 For these reasons, we hold the trial court did not err in denying the motion to suppress 

and dismissing the appeal of the juvenile court’s certification determination. As to the remaining 

assignments of error, we hold any error was harmless. Thus, we affirm appellant’s convictions. 

Affirmed.