Victim was incapacitated and helpless in sex crimes case

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The commonwealth’s evidence established that a sexual assault victim was mentally incapacitated and physically helpless when appellant assaulted her at a college fraternity party.

Legal standard

“[E]ach of the offenses in this case – rape, forcible sodomy, and animate object sexual penetration – are committed when a defendant accomplishes the respective sexual acts ‘through the use of the complaining witness’s mental incapacity or physical helplessness.’ …

“The Commonwealth need not prove that the victim was both mentally incapacitated and physically helpless to sustain convictions for those offenses; either is sufficient by itself.”

Mental incapacity

“Appellant maintains that D.A. was not ‘mentally incapacitated’ because the minimal amount of alcohol she consumed, and her ‘graphic testimony’ regarding the details of the assault, demonstrate that she was not so intoxicated that she did not understand the ‘nature or consequences of the sexual act[s].’ …

“‘Mental incapacity’ means that condition of the complaining witness existing at the time of an offense under this article which prevents the complaining witness from understanding the nature or consequences of the sexual act involved in such offense and about which the accused knew or should have known. …

“Accordingly, if the victim has ‘the mental capacity to have a basic understanding of the elementary and rudimentary nature and consequences’ of the sexual act, she is not mentally incapacitated under Code § 18.2-67.10(3). …

“Importantly, nothing in that definition requires the complaining witness’ mental incapacity to arise from ‘a permanent condition.’ …

“In this case, Zorniak [D.A.’s sorority sister] testified that she and D.A. had ‘at least one drink’ before the party. And Lee [the fraternity’s “risk management officer”] stated that D.A. already appeared ‘partially intoxicated’ when she arrived at the fraternity house. Shortly after arriving, D.A. consumed ‘multiple’ shots of hard liquor from the ice luge in the kitchen. She then went to the basement, where she consumed at least a cup of another alcoholic drink.

“D.A. could not remember whether she had more than one drink in the basement or anything else until she ‘came to’ in the bathroom during the sexual assault, as appellant was orally sodomizing her. …

“Despite the above evidence, appellant maintains that D.A.’s ‘graphic testimony’ of the sexual assault demonstrated that she retained a ‘basic understanding of the elementary and rudimentary nature and consequences’ of the sexual acts and was, therefore, not mentally incapacitated. …

“That argument misconceives the nature of appellant’s offenses. The Commonwealth was not charged with proving that D.A. was mentally incapacitated during the entire sexual assault to sustain his convictions. Rather, the statutes only required the Commonwealth to prove that appellant accomplished the sexual acts ‘through the use of the complaining witness’s mental incapacity or physical helplessness.’ … (emphasis added).”

“Finally, citing only D.A.’s testimony that she ‘consumed a few shots and one cup of jungle juice,’ appellant argues that it ‘defies common sense’ that such little alcohol could cause D.A. ‘to become so heavily intoxicated’ that she experienced anything more than reduced inhibition. …

“[T]he jury was not required to disregard the substantial evidence of D.A.’s significant intoxication, paralysis, and ebbing consciousness merely because she testified that she consumed only a few shots and one cup of jungle juice. Indeed, the partygoers who testified universally described D.A. as ‘incoherent,’ unable to speak, unresponsive, and disheveled.”

Physical helplessness

“Appellant contends that D.A. was not ‘physically helpless’ because the evidence failed to prove that she was ‘unable to communicate due to unconsciousness or some other condition.’ …

“‘Physical helplessness’ means unconsciousness or any other condition existing at the time of an offense under this article which otherwise rendered the complaining witness physically unable to communicate an unwillingness to act and about which the accused knew or should have known. …

“[T]he evidence established that D.A. was unconscious and unresponsive before, during, and after the assault due to significant intoxication. Consequently, she had no recollection of the events that happened during those periods of unconsciousness and was, therefore, ‘unable to communicate an unwillingness to act.’”

Closing argument

Dr. Harris, a forensic scientist, testified at trial that she found two spermatozoa cells on D.A.’s anorectal swab. After comparing those with appellant’s DNA sample, Harris concluded that he “could not be eliminated as a contributor” to the foreign DNA found on the swab. …

“Harris did not know how the spermatozoa ‘got to be’ on D.A.’s body and admitted that it ‘possibl[y]’ could have been through ‘transfer.’ …

“Harris testified that it would be ‘possible’ for spermatozoa on a towel to be transferred to a person who used the towel ‘to wipe their genital area.’ She further testified that it would be ‘possible’ for a person to transfer spermatozoa from a towel to their hands or clothing by using the towel. …

“[T]he Commonwealth asked the trial court to prohibit appellant from presenting ‘any argument about transfer DNA occurring … because there are no facts in evidence to that effect and that would just invite jury speculation.’ …

“The trial court ruled that there was no evidence in the record to justify appellant’s argument. It held that appellant could ‘restate precisely what the expert said’ and ‘suggest to the jury that [the testimony] raise[d] [a] reasonable doubt.’

“But the court ruled that appellant could not ‘go further’ and ‘suggest … what has not been in evidence’ because ‘there’s no other evidence of transference.’”

Appellant argues that the court erred by limiting his closing argument.

“To the extent that the trial court prohibited appellant from specifically mentioning a towel or some other item as the source of a transfer, such limitation had, at most, only a ‘slight effect’ on the jury. …

“To be sure, there was no evidence introduced even indicating that a towel was in the bathroom at the time of the offenses. … Although Harris, who was not aware of the facts underlying this case, testified that it was ‘possible’ for the spermatozoa to be transferred via contact, the record demonstrates that such a possibility was hypothetical and speculative, without a basis in the evidence. …

“[T]he record, taken as a whole, compels the conclusion that appellant’s spermatozoa were transferred onto D.A.’s person during the sexual assault, while he was penetrating her from behind, not from a hypothetical towel or other item that may or may not have been in the bathroom.

“Accordingly, given the overwhelming evidence that appellant’s spermatozoa were transferred onto D.A.’s person during the sexual assault, and the fact that appellant was substantially able to make the argument in closing that he contends he could not, any error in the trial court’s ruling limiting his closing argument was harmless.”

Affirmed.

Macias v. Commonwealth, Record No. 0876-20-4, Oct. 5, 2021. CAV (Haley) from Fairfax County Circuit Court (Bernhard). Kathryn C. Donohue for appellant, Katherine Quinlan Adelfio for appellee. VLW 021-7-135, 22 pp. Unpublished.