COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges O’Brien, Ortiz and Senior Judge Humphreys Argued at Lexington, Virginia
MARCUS ALLEN COOPER MEMORANDUM OPINION* BY v. Record No. 1221-23-3 JUDGE MARY GRACE O’BRIEN OCTOBER 29, 2024 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY Christopher B. Russell, Judge
Blake A. Weiner (Blake Weiner Law, PLLC, on briefs), for appellant.
Sheri H. Kelly, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
A jury convicted Marcus Allen Cooper (appellant) of rape and strangulation, in violation of
Code §§ 18.2-61 and 18.2-51.6. On appeal, he challenges the court’s denial of several motions and
various evidentiary rulings.
BACKGROUND
“Under well-settled principles of appellate review, we consider the evidence presented at
trial in the light most favorable to the Commonwealth, the prevailing party below.” Vay v.
Commonwealth, 67 Va. App. 236, 242 (2017) (quoting Smallwood v. Commonwealth, 278 Va. 625,
629 (2009)). In doing so, we “discard 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 to be drawn therefrom.” Id. (quoting Parks v. Commonwealth, 221 Va. 492, 498
(1980)).
* This opinion is not designated for publication. See Code § 17.1-413(A). I. The Offenses
Appellant and S.M.1 were involved in a multi-year relationship that was marred by physical
violence, including assaults, strangulations, and rape. Fearing for her life and her children’s safety,
S.M. remained with appellant until 2021, when she left him and reported the abuse to law
enforcement in both Buena Vista and Rockbridge County. As a result, appellant was charged with
rape and strangulation alleged to have occurred in Rockbridge County between November 1, 2018
and April 20, 2019, and subsequent offenses of rape and strangulation, alleged to have occurred in
Buena Vista on January 6, 2021.
Appellant was tried first for the Buena Vista offenses on December 7, 2022. During that
trial, the court declared a mistrial and the Commonwealth nolle prossed the cases.2
On January 26, 2023, a jury heard evidence in the Rockbridge County cases. S.M. testified
that in April 2019, when she was “very pregnant,” she and appellant were arguing. S.M. was sitting
on a bed when appellant “kicked [her] repeatedly” and “ripped [her] off the bed by [her] hair.” He
hit S.M. in the face, “choked” her, and threatened that he would “have [her] children raped in front
of [her] if [S.M.] didn’t do what he said.” Appellant then raped S.M.
II. Pre-trial Motions
A. Joint Motion to Continue to Investigate Facebook Messages and Appellant’s Motion to Reconsider
Approximately one week before trial in Rockbridge County, appellant and the
Commonwealth jointly moved to continue the trial to investigate the authenticity of threatening
Facebook messages purportedly sent by appellant. In October 2022, S.M. gave the Commonwealth
1 We use the victim’s initials to protect her privacy. 2 Although the Commonwealth represented that the parties agreed that the record from the Buena Vista trial would be made part of the record in the Rockbridge County trial, that was not done. Accordingly, the record from that trial, including the transcripts, is not before us. -2- images of Facebook messages that she claimed were forwarded to her from an unknown person.
The messages reflected appellant attempting to solicit others to murder S.M. to prevent her from
testifying at trial. After appellant raised concerns about the authenticity of the messages, the parties
discovered that the messages were fabricated and were likely generated from websites called
“fakedetail.com/fake-facebook-chat-generator” and “fakeinfo.net/fake-facebook-chat-generator.”
At a hearing on the motion, the Commonwealth represented that it was “trying to determine
where those fake messenger statements originated from” and Investigator Ryan McCullough “was
able to determine that the website that creates these fake messages may be able to provide the
information.” The Commonwealth further noted that there “could be credibility issues that would
be very discoverable exculpatory [evidence] for the defense” if an investigation revealed that S.M.
had created the fake messages. The defense argued that the evidence would be probative of S.M.’s
motive to lie and relevant for “general impeachment of a complaining witness for . . . motive to
fabricate.”
The court denied the motion to continue, ruling that evidence that S.M. fabricated the
Facebook messages would not be admissible at trial under Virginia Rules of Evidence 2:607 and
2:608 and that the evidence was “far afield” of the issues in the case.
Appellant moved for reconsideration, arguing that an investigation was necessary because
there was “significant evidence . . . that [S.M.] may have created” the fake messages, and the
evidence would be admissible to show that S.M. had a motive to fabricate. He disputed that the
issue was collateral because it was connected to the “main fact”: whether S.M.’s allegations were
true or false.
The court denied the motion to reconsider. The court again reasoned that, even if an
investigation revealed that S.M. was responsible for fabricating the messages, the evidence was
-3- inadmissible, “disconnected to the events that led to [the] indictments,” and “would tend to confuse
or mislead the trier of fact.”
B. Motion to Continue for Expert
On the morning of trial, appellant filed another motion to continue. He sought to obtain a
digital forensic expert “to identify the date and times that photographs” related to the Buena Vista
attack were taken. Appellant proffered that S.M. testified at the Buena Vista trial that she
photographed her injuries, and those photographs were admitted into evidence.
Appellant argued that S.M. had lied about when the photographs were taken. He asserted
that the pictures’ file names showed the date they were taken, and those dates were different from
her testimony at the Buena Vista trial. Appellant requested a continuance to obtain a digital forensic
expert who could testify about the file names and show that S.M.’s testimony at the Buena Vista
trial about the photographs was “materially false.” The court denied the motion.
C. Motion to Compel
Also on the morning of trial, appellant argued that a recording of a police investigator’s
interview with S.M. was “completely missing a large section of discussion.” He asked the court to
compel the Commonwealth to provide the complete recording.
The Commonwealth responded that the recording was complete and that a police
investigator was present to testify that the recording device had simply been turned on after S.M.
was already talking. The court denied the motion to compel, noting that appellant could question
the investigator about the completeness of the recording. Neither party called the investigator to
testify at trial.
-4- III. Evidentiary Rulings
A. Appellant’s cross-examination about the fabricated Facebook messages
Appellant sought to cross-examine S.M. about the fabricated Facebook messages with the
evidence that she forwarded the fabricated messages to law enforcement and that the file names
indicated that they were created using websites that generate fake messenger chats. Appellant
argued that the evidence was probative of his theory that she fabricated the messages and did so
to bolster her claim. The court ruled that the cross-examination was designed to elicit
impermissible character evidence, was collateral to the issues at trial, and would “confuse or
mislead the trier of fact.”
B. Appellant’s cross-examination about photographs from the January 2021 Buena Vista attack
During cross-examination, appellant confronted S.M. with the photographs from the Buena
Vista attack. Appellant proffered that in a recorded interview with Investigator McCullough, S.M.
told the investigator that the photographs were taken in February 2020, but testified at the Buena
Vista trial that the photographs were taken on January 6, 2021. Appellant sought to impeach her to
show the inconsistency between her statements in the interview and her testimony at the Buena
Vista trial. The court rejected this line of questioning, cautioning appellant not to re-try the Buena
Vista case and finding that the proffered impeachment did not “relate to her testimony on direct in
this case.” The court also found that it would “distract this jury from the issues to be decided” in the
case.
C. Appellant’s cross-examination about forced methamphetamine use
During cross-examination, appellant asked S.M. if she had testified at the Buena Vista trial
that appellant had not forced her to use methamphetamine. S.M. responded that while appellant did
not physically force her, she felt compelled because he might abuse her if she refused. The
Commonwealth objected, and the court cautioned appellant that S.M.’s testimony at the Buena
-5- Vista trial was outside the scope of the Commonwealth’s direct examination and that nothing he
was asking related to or was inconsistent with her direct testimony in the present case. Appellant
responded that S.M. testified that she delayed reporting the abuse because she was afraid of
appellant, and this line of questioning related to her fear. The court permitted appellant to continue
to question S.M. about forced drug use but denied appellant’s request to play a clip of her testimony
at the Buena Vista trial. The court stated that “the intricacies about her answer to a question about
being forced to use drugs physically or otherwise are collateral to the issues the jury has to decide.”
D. Appellant’s cross-examination about damage to S.M.’s voice
The Commonwealth stated in its opening statement that S.M. suffered vocal damage
because of appellant’s strangulations but did not question S.M. about vocal damage during her
direct examination. Appellant attempted to cross-examine S.M. on this issue, but the court held that
it was beyond the scope of direct and that the Commonwealth’s opening statement did not open the
door because opening statements are not evidence. Appellant proffered that S.M. told investigators
that she couldn’t scream because of the damage to her vocal cords, but later told them that she woke
up screaming from nightmares. The court found that while the statements might be inconsistent
with each other, they were not inconsistent with S.M.’s testimony on direct and therefore not
admissible.
E. S.M.’s volunteered statements
During cross-examination, appellant asked S.M. if “the reason why [she] never reported [the
abuse] is because [she was] encountering these types of extreme abuse almost daily.” S.M.
responded, “Regularly. There would be maybe two or three days that I wouldn’t have my hair
ripped out I wouldn’t be screamed at and threatened but that’s normal with a domestic violence
relationship.” Appellant objected to her response and S.M. interjected, “That is a true statistic.”
Appellant moved to strike her testimony. The court overruled appellant’s motion but cautioned
-6- S.M. to “answer the questions [asked].” S.M. acknowledged she was not an expert on domestic
violence relationships.
F. S.M.’s journal
During the parties’ relationship, S.M. kept a journal as a record of the abuse she suffered.
Citing hearsay, appellant objected to any evidence about the journal being presented to the jury.
The Commonwealth argued that appellant had “opened the door” to questions about the journal
because he challenged her fear of appellant and her memory about when the abuse occurred. The
Commonwealth asserted that the journal showed approximately when the abuse occurred and
contemporaneously documented her fear.
Invoking Virginia Rule of Evidence 2:801(d)(2)(B), the court permitted a limited inquiry
about two journal entries. The court only permitted the Commonwealth to ask why S.M. kept the
journal and whether any entries about abuse were made during the indicted time frame.
S.M. testified that she started keeping a journal in 2018 “in case [she] died somebody would
be able to find that . . . and say oh, she was going through something. She didn’t just leave her kids
behind. She didn’t kill herself. This was done. Look into who this journal is about.” The
Commonwealth directed her attention to “two particular entries” dated November 30 and December
1, 2018. S.M. confirmed that she wrote in her journal on those dates and that the two entries
discussed abuse. S.M. said nothing further about the journal; she did not testify about the contents
of the entries, and the journal was not admitted into evidence or published to the jury. Appellant
was permitted to re-cross S.M. about the dates of the two entries and ask her whether she wrote the
journal after she reported the abuse.
-7- G. Appellant’s cross-examination about unconsciousness after the Buena Vista strangulation
During cross-examination, appellant asked S.M. how long she lost consciousness during
“some of [the] strangulations.” S.M. responded that she didn’t know but agreed that she had told
investigators it had “felt like hours” during the Buena Vista strangulation.
After appellant’s expert, Dr. Paul Trinquero, testified that being unconscious for hours was
inconsistent with science, the Commonwealth asked Dr. Trinquero on cross-examination whether
someone who loses consciousness can lose track of time. Dr. Trinquero “agree[d] that people
would not have an accurate representation . . . of the amount of time always.”
After this testimony, appellant sought to call S.M. to the witness stand again “to demonstrate
that she would have had to know that she was allegedly unconscious for multiple hours.” The court
refused, reasoning that appellant was attempting to impeach S.M.’s testimony about an offense for
which he was not on trial.
H. Evidence about CPR after the January 2021 Buena Vista strangulation
Appellant sought to ask Dr. Trinquero about cardiopulmonary resuscitation (CPR), because
S.M. had allegedly told investigators that appellant had revived her with CPR after he strangled her
during the Buena Vista attack. Neither the Commonwealth nor appellant asked S.M. about CPR
during her testimony. The court excluded Dr. Trinquero’s testimony about CPR, and appellant
merely proffered that if he had been permitted to ask S.M. about CPR, Dr. Trinquero “would testify
regarding CPR.”
IV. Closing Argument
During closing argument, defense counsel remarked that he heard “a quote that [he] thought
was pretty brilliant . . . [:] ‘[A]n accusation such as the one made here today, once made . . . .’” The
Commonwealth objected, arguing that the quote was “an old jury instruction that has been deemed
to be inappropriate in cases of rape,” and the court sustained the objection.
-8- Defense counsel unsuccessfully attempted to rephrase, arguing that he would “just tell [the
jury] a thought to take with [it][:] An individual could easily make [up] these allegations. . . . It’s
very easy to do. And once it’s done[,] it’s very difficult to defend against.” The court again
sustained the Commonwealth’s objection and told the jury to disregard the statement. Appellant did
not object to the court’s rulings.
V. Motion to Set Aside the Verdicts
Appellant moved to set aside the jury’s guilty verdicts, arguing that trial errors and newly
discovered evidence warranted a new trial. Appellant proffered an email he received two weeks
after trial from the Buena Vista Commonwealth’s Attorney. The email confirmed that S.M. sent
“screen shots” of the fabricated Facebook messages to police investigators. The email stated that
S.M.’s statements,
would seem to be inconsistent with the file names assigned to the files as they appear on my copies. I am going to try to discuss this with a digital forensic expert with the state and make sure of my understanding and assumptions today or tomorrow. I will reach out to you as soon as that is done.
The record does not show that appellant and the Buena Vista Commonwealth’s Attorney had any
further communication on this issue. Appellant argued that the email was additional evidence that
S.M. had fabricated the Facebook messages. The court denied the motion without a hearing.
ANALYSIS3
Appellant asserts the court should have granted his pre-trial motions to continue and his
motion to compel. He also assigns error to the court’s evidentiary rulings. Finally, he argues the
3 In addition to the assignments of error we address in this section, appellant also assigns error to the court’s denial of his motion to set aside the verdicts for the errors he alleges the court committed during trial (assignment of error XVI(A)). Given that appellant’s argument for this assignment of error merely incorporates all of his prior arguments, we do not address it separately. -9- court erred by sustaining the Commonwealth’s objection during his closing argument and by
denying his motion to set aside the verdicts.
I. Motion to continue for expert (assignment of error II(B))
Appellant argues the court erred by denying his motion to continue the trial so he could
obtain a digital forensic expert to testify about the photographs S.M. claimed were taken after the
Buena Vista attack. Appellant asserts that an expert’s testimony would have shown that S.M.’s
testimony at the Buena Vista trial was “materially false.”
Whether to grant or deny a motion for a continuance “is within the sound discretion of the
circuit court and must be considered in view of the circumstances unique to each case.” Haugen v.
Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27, 34 (2007). A trial court’s “ruling on a motion
for continuance will be reversed ‘only upon a showing of abuse of discretion and resulting prejudice
to the movant.’” Reyes v. Commonwealth, 297 Va. 133, 139 (2019) (quoting Ortiz v.
Commonwealth, 276 Va. 705, 723 (2008)).
Appellant filed this motion the morning of trial. “When a defendant makes a last minute
request for a continuance, he must demonstrate that exceptional circumstances exist.” Reyes v.
Commonwealth, 68 Va. App. 379, 387 (2018), aff’d, 297 Va. 133 (2019). Appellant cannot do so.
While appellant explains that he delayed in filing the motion because he did not receive the
photographs “in their original digital form” until January 6, 2023—20 days before trial—he does
not argue or explain why he delayed until the morning of trial to request leave to seek an expert to
testify about the photographs. He could have done so within the 20 days leading up to the trial.
Accordingly, the court did not abuse its discretion by denying appellant’s motion to continue to
obtain a digital forensic expert.
- 10 - II. Motion to compel (assignment of error II(C))
Appellant argues that the court erred by denying his motion to compel the Commonwealth
to provide a “full” version of a recording of a police investigator’s interview with S.M. Appellant
alleged that the recording was not complete because it was “missing a large section of discussion.”
The Commonwealth disputed appellant’s allegations and asserted that the recording device had been
turned on while S.M. was already talking. We review a trial court’s denial of a motion to compel
discovery for an abuse of discretion. See Hodges v. Commonwealth, 26 Va. App. 43, 52 (1997).
Appellant failed to demonstrate that he had not been given a “full” version of the recording.
The court provided appellant with the opportunity to call the investigator who took the recording
and he did not do so. His allegation that a more complete version of the recording exists is
unfounded and wholly speculative, especially in light of the Commonwealth’s explanation why the
recording may not have captured part of S.M.’s interview. The court did not abuse its discretion by
denying the motion to compel.
III. Facebook messages (assignments of error I, II(A), III(B), and XVI(B))
Appellant argues that the court erred by not continuing the case to permit the parties an
opportunity to investigate whether S.M. fabricated the Facebook messages showing appellant
attempting to solicit murder. He also argues that even if the court did not err by denying the motion
to continue, he should have been permitted to cross-examine S.M. on this issue with the evidence he
already possessed; mainly, evidence that she forwarded the fabricated messages to law enforcement
and that the messages’ file names indicated that they were created using websites that generate fake
messenger chats. Appellant asserts that the court erred by finding that the evidence was collateral
- 11 - and inadmissible under Rule 2:608 because it was relevant to show bias or a motive to fabricate. He
further argues that the court’s ruling amounted to a violation of his constitutional rights.4
“Appellate courts review evidentiary rulings under an abuse of discretion standard.” Boone
v. Commonwealth, 63 Va. App. 383, 388 (2014). “Under this deferential standard, a ‘trial judge’s
ruling will not be reversed simply because an appellate court disagrees;’ only in those cases where
‘reasonable jurists could not differ’ has an abuse of discretion occurred.” Campos v.
Commonwealth, 67 Va. App. 690, 702 (2017) (quoting Thomas v. Commonwealth, 44 Va. App.
741, 753, adopted upon reh’g en banc, 45 Va. App. 811 (2005)).
Under Rule 2:608(b), “specific instances of the conduct of a witness may not be used to
attack or support credibility” and “may not be proved by extrinsic evidence.” Unless the evidence
“is relevant to show” a witness’s bias or motive to fabricate, Banks v. Commonwealth, 16 Va. App.
959, 963 (1993), “[a] witness cannot be impeached by evidence of a collateral fact which is not
relevant to the issues of the trial, even though to some extent it has a bearing on the issue of
credibility,” Maynard v. Commonwealth, 11 Va. App. 437, 444 (1990) (en banc).
The court did not abuse its discretion in finding that the fabricated Facebook messages were
collateral and inadmissible under Rule 2:608 and that appellant failed to sufficiently demonstrate
that they were relevant to show S.M’s bias or motive to fabricate. There was no direct evidence that
S.M. was responsible for creating the messages, and she denied doing so. The court below correctly
reasoned that the evidence was merely “speculative” that S.M. was responsible. Additionally, as the
court found, the evidence was “tempora[lly] disconnected [from] the events that led to [the]
4 Appellant did not argue to the trial court that his constitutional rights were violated by the court’s decisions on any issue except the Facebook messages, and so, we only review whether appellant’s constitutional rights were violated for this assignment of error. See Rule 5A:18; Cortez-Hernandez v. Commonwealth, 58 Va. App. 66, 79 (If the trial court was not “afforded the opportunity to correct any alleged constitutional error[,] . . . that specific objection is not properly preserved for appeal.”), adopted upon reh’g en banc, 59 Va. App. 37 (2011). - 12 - indictments.” Messages fabricated almost twenty months after the events giving rise to the
indictment are minimally probative of any bias or motive to fabricate an earlier crime. Therefore,
under an abuse of discretion standard of review, we cannot say that no reasonable jurist could differ
as to whether the evidence sufficiently established bias or a motive to fabricate, and accordingly, the
court did not abuse its discretion in refusing the evidence. Campos, 67 Va. App. at 702.
Furthermore, the court did not abuse its discretion in finding that the risk of confusing the
jury substantially outweighed the evidence’s probative value into S.M.’s bias or motive to fabricate.
A litigant may not employ “the right to cross-examine a witness to show bias or motivation to
falsify” as “a device to confuse the issues before the jury.” Lewis v. Commonwealth, 269 Va. 209,
214 (2005). A court may exercise its discretion and exclude relevant evidence if its probative value
is “substantially outweighed” by “its likelihood of confusing or misleading the trier of fact.” Va. R.
Evid. 2:403(a)(ii).
Here, “the danger that the evidence would confuse the jury was high,” and the evidence was
minimally probative of any bias or motive to fabricate. Lambert v. Commonwealth, 70 Va. App.
740, 755 (2019). Appellant would have had to first establish that S.M. created the messages before
the evidence could have been probative of any bias and motive to fabricate. Permitting a
“mini-trial” about whether S.M. had fabricated the incriminating Facebook messages would have
distracted the jury from determining appellant’s guilt or innocence in the case before it. Because the
court did not err in finding that the evidence was inadmissible, it did not err by denying the motion
to continue and the motion to set aside the verdicts.
In the alternative, appellant argues that the exclusion of the evidence violated his due
process and confrontation rights because he did not have a meaningful opportunity to present a
complete defense.
- 13 - “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in
the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution
guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’”
Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479,
485 (1984)); see also Sheng Jie Jin v. Commonwealth, 67 Va. App. 294, 308-09 (2017). “It does
not follow,” however, that the Constitution “prevents a trial judge from imposing any limits on
defense counsel’s inquiry into the potential bias of a prosecution witness.” Sheng Jie Jin, 67
Va. App. at 308 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). “On the contrary,
trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose
reasonable limits on such cross-examination based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive
or only marginally relevant.” Id. at 308-09 (quoting Van Arsdall, 475 U.S. at 679). As discussed,
the evidence here was “simply too attenuated” to amount to a constitutional violation, and the
court’s concerns about “confusion of the issues” was well founded. Id. at 308, 310. Thus, we
find that appellant’s constitutional rights were not violated by the exclusion of this evidence.
IV. Appellant’s cross-examination about photographs S.M. claimed to have taken after the Buena Vista attack (assignment of error III(A))
Appellant argues that the court erred by not permitting him to introduce S.M.’s
“inconsistent testimony given . . . in Buena Vista.” At the Buena Vista trial, S.M. claimed she
took photographs of her injuries after the 2021 attack charged in that case, however, appellant
claimed that S.M. previously told police investigators that she took the photographs in February
2020. At trial, the court denied appellant’s attempt to impeach S.M’s testimony at the Buena
Vista trial. The court did not err by finding that this line of questioning was well beyond the
- 14 - scope of S.M.’s direct examination and would “distract this jury from the issues to be decided” in
the case.
Generally, the cross-examination of a witness is limited to matters elicited on direct
examination. Smith v. Irving, 268 Va. 496, 501 (2004). “[I]f counsel’s attempted
cross-examination of a witness addresses matters exceeding the scope of direct examination, a
court’s refusal to allow this cross-examination will be approved on appeal as a proper exercise of
the court’s discretion.” Id. “A witness cannot be impeached by evidence of a collateral fact which
is not relevant to the issues of the trial, even though to some extent it has a bearing on the issue of
credibility.” Maynard, 11 Va. App. at 444.
Appellant’s questions about whether S.M. had been truthful about the photographs at the
Buena Vista trial were not within the scope of her direct examination and were collateral to the
issues in the case. In her direct testimony, S.M. did not testify specifically about the Buena Vista
attack or any injuries she received as a result.
Additionally, the court did not abuse its discretion in ruling that the probative value of the
proffered evidence was substantially outweighed by its likelihood of confusing the trier of fact.
Va. R. Evid. 2:403(a)(ii); Turner v. Commonwealth, 65 Va. App. 312, 329-30 (2015) (“The
responsibility for balancing the competing considerations of probative value and prejudice rests
in the sound discretion of the trial court. The exercise of that discretion will not be disturbed on
appeal in the absence of a clear abuse.” (quoting Spencer v. Commonwealth, 240 Va. 78, 90
(1990))). This line of questioning would have distracted the jury from determining appellant’s
guilt in this case, and instead would have put it in the position of determining his guilt for the
Buena Vista attack.
- 15 - V. Appellant’s cross-examination about forced methamphetamine use (assignment of error III(C))
Appellant argues that the court erred by limiting his impeachment of S.M. regarding
whether appellant had forced her to use methamphetamine. The court permitted appellant to ask
S.M. about whether appellant had forced her to use drugs but refused to allow appellant to play a
clip of her testimony in the Buena Vista trial.
“[E]xtrinsic evidence of collateral statements is not admissible.” Massey v. Commonwealth,
67 Va. App. 108, 126 (2016) (quoting Va. R. Evid. 2:613(a)(ii)). “[W]hen ‘the circumstances [of
the other event] have no intimate connection with the main fact[,] if they constitute no link in the
chain of evidence[,] . . . they ought to be excluded.’” McGowan v. Commonwealth, 274 Va. 689,
695 (2007) (second and fifth alterations in original) (quoting Guill v. Commonwealth, 255 Va. 134,
139 (1998)).
The Commonwealth correctly argues that “[w]hether [appellant] forced S.M. to use drugs
after a later incident in Buena Vista constitutes no link in the chain of evidence of whether he raped
and strangled her in Rockbridge in April 2019.” The court afforded appellant wide latitude to
question S.M. about whether she had testified inconsistently at the Buena Vista trial about forced
drug use, and only limited appellant when he sought to introduce inadmissible extrinsic evidence.
The court did not abuse its discretion in imposing this reasonable limitation on appellant’s
cross-examination.
VI. S.M.’s vocal damage, volunteered statements, journal, and consciousness after the Buena Vista attack (assignments of error III(E), V, VI, VII, and XI)5
“In analyzing the decision of a lower court,” this Court “looks for ‘the best and narrowest
grounds available’ for its decision, including harmless error.” Commonwealth v. Kilpatrick, 301
5 Although appellant also argues that these issues violated his constitutional rights, we apply a non-constitutional harmless error review because appellant did not argue constitutional error to the trial court, and accordingly did not preserve that argument for appeal. See Rule 5A:18. - 16 - Va. 214, 216 (2022) (quoting Commonwealth v. White, 293 Va. 411, 419 (2017)). “[T]he
Constitution entitles a criminal defendant to a fair trial, not a perfect one.” Van Arsdall, 475 U.S.
at 681. Accordingly, an appellate court “may uphold a decision on the ground that any
evidentiary error involved is harmless if it can conclude ‘that the error did not influence the
jury[] or had but slight effect.’” Kilpatrick, 301 Va. at 216 (alteration in original) (quoting Clay
v. Commonwealth, 262 Va. 253, 260 (2001)); see also Code § 8.01-678 (providing that this Court
may not reverse the trial court’s judgment “[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”). When considering whether an error was harmless, “the court
‘consider[s] the potential effect of the [admitted or] excluded evidence in light of all the evidence
that was presented to the jury.’” Kilpatrick, 301 Va. at 217 (first alteration in original) (quoting
Haas v. Commonwealth, 299 Va. 465, 467 (2021)).
A. Vocal Damage
Appellant argues that the court erred by not permitting him to question S.M. about vocal
damage she sustained from the strangulations after the Commonwealth referenced it in their
opening statement. Even presuming error, the exclusion of this evidence was plainly harmless.
Appellant’s proffer of the testimony he would have elicited on this issue—that S.M. claimed
she could not scream “at all” from the vocal damage she suffered, but then told investigators that
she woke up screaming from nightmares—shows that the impeachment evidence was minimally
probative of her credibility. That testimony would have shown, at most, that she may have
embellished the extent of her injuries to investigators. The introduction of these statements would
not have changed the outcome and would have had “slight effect.” Kilpatrick, 301 Va. at 216
(quoting Clay, 262 Va. at 260).
- 17 - B. S.M.’s Volunteered Statements
Appellant argues that the court erred by failing to strike S.M.’s spontaneous testimony about
what was “normal with a domestic violence relationship” and her volunteered comment that it was
“a true statistic.” Appellant asserts that her comments impermissibly bolstered her testimony.
S.M.’s spontaneous comments constituted a minuscule portion of her overall testimony and
would not have substantially influenced the jury. Additionally, S.M. conceded that she was not an
expert on domestic violence relationships. The jury can reasonably have been expected to have
given S.M.’s comments little weight when considering the breadth and scope of S.M.’s overall
testimony, and the court’s error in not striking these comments, if error, was immaterial. See Van
Arsdall, 475 U.S. at 681 (finding that a harmless error analysis “promotes public respect for the
criminal process by focusing on the underlying fairness of the trial rather than on the virtually
inevitable presence of immaterial error”).
C. S.M.’s Journal
Appellant asserts that the court erred by admitting any evidence about S.M.’s journal
because it was inadmissible hearsay. Appellant contends the court improperly limited his
cross-examination of S.M. about the journal and that he should have been permitted to impeach
S.M. with evidence of the fraudulent Facebook messages and the Buena Vista photographs to
argue to the jury that her testimony about keeping a journal was false.
S.M. gave limited testimony about the journal. S.M. was not questioned about the
specific contents of the entries, they were not read into evidence, and the journal itself was never
introduced. The Commonwealth only inquired why S.M. kept a journal and the dates of two
entries. Further, the jury had already heard testimony about S.M.’s memory of past abuse. See
Commonwealth v. Proffitt, 292 Va. 626, 642 (2016) (noting that an appellate court must
“examin[e] the excluded evidence in light of the entire record”). Accordingly, any testimony
- 18 - about the journal would have had “but slight effect” on the jury. Kilpatrick, 301 Va. at 216
Appellant cross-examined S.M. about the dates of the two entries and even questioned
her directly about whether she wrote the journal after she reported the abuse. Merely because the
court did not permit appellant to use attenuated evidence like the Buena Vista photographs and
the Facebook messages to “demonstrate a motive to falsify the journal dates” does not mean that
appellant was deprived of an opportunity to impeach S.M.
Consequently, any error in permitting this limited testimony was harmless.
D. Unconsciousness
Appellant argues that the court erred by limiting appellant’s impeachment about S.M.’s
statements to police investigators that she had been unconscious for what “felt like hours” after the
Buena Vista strangulation. Appellant argues he should have been permitted to question S.M. again,
after his expert stated that her statement was inconsistent with science.
The jury heard S.M. testify she told investigators that, after the 2021 Buena Vista attack, she
felt like she had been unconscious for hours. The jury also heard appellant’s expert state that being
unconscious for hours was unlikely after a strangulation and such a claim was not supported by
science. Thus, any error in the court’s decision to not permit appellant to call S.M. again to question
her, for a second time, about the length of her unconsciousness in a separate incident that was not
the subject of the trial would not have changed the outcome. See Schmuhl v. Commonwealth, 69
Va. App. 281, 308 (2018) (“Error is harmless when we are able to conclude ‘with fair assurance,
after pondering all that happened without stripping the erroneous action from the whole, that the
judgment was not substantially swayed by the error.’” (quoting Clay, 262 Va. at 260)).
- 19 - VII. Evidence about whether S.M. needed CPR after the Buena Vista attack and appellant’s closing argument (assignments of error XII and XIII)
Appellant argues the court erred by “forbidding” his expert “from testifying about [S.M.’s]
statements regarding CPR.” When the court sustained the Commonwealth’s objection to expert
testimony about CPR, appellant merely proffered for the record that his expert “would testify
regarding CPR.” This proffer is insufficient.
Under Virginia Rule of Evidence 2:103(a)(2), “[e]rror 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.” See also Massey, 67 Va. App. at 132 (“The
failure to proffer the expected testimony is fatal to [a] claim on appeal.” (quoting Molina v.
Commonwealth, 47 Va. App. 338, 367-68 (2006))). “‘[C]ounsel and the trial court must ensure
[that such] proffers contain all of the information necessary’ to achieve two purposes: to allow the
trial court a fair opportunity ‘to resolve the issue at trial’ and ‘to provide a sufficient record for . . .
review [on appeal].’” Creamer v. Commonwealth, 64 Va. App. 185, 195 (2015) (second, third, and
fourth alterations in original) (quoting Albert v. Albert, 38 Va. App. 284, 290 n.1 (2002)).
Appellant failed to proffer any specifics. A mere statement that an expert would have
testified about CPR generally does not provide this Court with a sufficient record for review on
appeal. Id. Additionally, “[v]ague protestations against excluding the evidence [are] insufficient to
assist the trial judge in making a rational determination of its admissibility.” Neal v.
Commonwealth, 15 Va. App. 416, 421 (1992) (quoting Wright v. Hartford Accident & Indem. Co.,
580 F.2d 809, 810 (5th Cir. 1978)).
Additionally, appellant argues that the court erred by sustaining the Commonwealth’s
objection during his closing argument and instructing the jury to disregard the quote, “[A]n
accusation such as the one made here today, once made . . . .” This assignment of error is
procedurally defaulted because appellant did not note an objection to the court’s ruling. - 20 - Under Rule 5A:18, “for an alleged error to be considered on appeal, the appellant must
‘alert the trial judge to possible error so that the judge may consider the issue intelligently and
take any corrective actions necessary to avoid unnecessary appeals, reversals and mistrials.’”
Nelson v. Commonwealth, 71 Va. App. 397, 406 (2020) (quoting Neal, 15 Va. App. at 422).
Appellant did not object to the court’s ruling and continued with his closing after the court
sustained the objection. Therefore, this assignment of error is waived, and we are unpersuaded
by appellant’s argument that the court’s ruling warrants the application of the “ends of justice”
exception to Rule 5A:18.
CONCLUSION
For these reasons, we affirm appellant’s convictions.
Affirmed.
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