Patrick Austin Carolino v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
PUBLISHED
Present: Chief Judge Decker, Judges Beales, Huff, O’Brien, AtLee, Malveaux, Athey, Fulton,
Ortiz, Causey, Friedman, Chaney, Raphael, Lorish, Callins and White
Argued at Richmond, Virginia
PATRICK AUSTIN CAROLINO
OPINION BY
v. Record No. 1270-21-1 JUDGE FRANK K. FRIEDMAN
NOVEMBER 28, 2023
COMMONWEALTH OF VIRGINIA
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Leslie L. Lilley, Judge
Richard C. Clark, Senior Assistant Public Defender, for appellant.
Matthew J. Beyrau, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
This case involves an alleged physical attack at the end of a somewhat stormy romantic
relationship. The appeal focuses on whether a prior alleged incident of physical abuse earlier in the
relationship was admissible and relevant to shed light on the later attack.
Patrick Austin Carolino was convicted in the Virginia Beach Circuit Court on one count of
strangulation, in violation of Code § 18.2-51.6. On appeal, Carolino argues that the trial court erred
in admitting evidence pertaining to a prior bad act that occurred between him and the victim, and he
asserts that the evidence was insufficient to prove the offense. A panel majority of this Court
reversed the trial court’s ruling regarding the admissibility of the contested evidence and remanded
Carolino’s conviction. We then granted a petition for rehearing en banc at the Commonwealth’s
request. Upon rehearing en banc, we again reverse the trial court’s evidentiary ruling and remand
the case for retrial, if the Commonwealth be so advised.
BACKGROUND
The Commonwealth’s Evidence
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party at trial.” Gerald v. Commonwealth,
295 Va. 469, 472 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381 (2016)). “That
principle requires us to ‘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 that may be drawn therefrom.’” Clanton v. Commonwealth, 53 Va. App. 561, 564
(2009) (en banc) (quoting Kelly v. Commonwealth, 41 Va. App. 250, 254 (2003) (en banc)).
So viewed, the evidence established that Carolino and Ford were in a romantic relationship
beginning in April 2018 and ending in May 2019. Carolino and Ford lived together from May 2018
until February 2019. On April 15, 2019, the two went out to dinner and began to argue. After
dinner, Ford drove to the condo that Carolino shared with a friend, Robert Mendez, and they both
went to Carolino’s bedroom. Ford was on the bed as they continued to argue, and she told Carolino
she felt hopeless about their relationship. She claims Carolino got onto the bed with her and put his
hand around her neck. With his other hand, Carolino pressed onto the back of her head “pushing it
into the ground.” Ford struggled to breathe and asked Carolino to stop. She thought she might pass
out or die. As Carolino continued to apply pressure to Ford’s neck, he asked, “do you see what it
feels like to die?” Ford could not breathe for approximately fifteen to twenty-five seconds. She felt
pressure in her head and had spotted vision, but she did not lose consciousness.
After the incident, Ford stayed with Carolino overnight and did not end their relationship.
She did not report the incident to the police until a month later. Ford explained that she delayed
reporting the strangulation to police because she still cared for Carolino. But she also “was scared
to report anything.”
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The morning after the incident, Ford noticed that she had popped blood vessels in her eye
and photographed her injuries. These photos were later introduced into evidence at trial. Ford also
noticed that her neck was tender and her throat was sore. She had difficulty swallowing, and her
voice was affected. Ford went to work and discussed the incident with her manager, who testified
that on the day after the incident Ford was “visibly distraught” and her eyes were red “like the blood
vessels had been popped.”
Mendez was Carolino’s roommate between February and April of 2019. Mendez testified
that, at the time of the incident, Ford’s eyes “looked as if they were allergies or bloodshot, maybe a
broken blood vessel.” When he asked her about it, she told him she had allergies. Mendez also
noted that Carolino told him, around this general time frame, that Ford would know how to
respond in self-defense if she were ever placed in a chokehold.1
Ford ultimately disclosed the choking incident to Carolino’s probation officer on May 17,
2019. She had already called the officer several times after the break-up to report Carolino for
violating his probation generally; however, after she met the probation officer in person, Ford
reported the choking incident.
Jennifer Knowlton, a sexual assault nurse examiner with Chesapeake Forensic Specialists,
was qualified as an expert in “the signs and symptoms of strangulation.” Knowlton testified that
some of the typical signs and symptoms of strangulation are soreness in the neck area, pain or
difficulty swallowing, and petechia and subconjunctival hemorrhages in the eyes. On
cross-examination, Knowlton acknowledged that other things could cause such symptoms, such as
reactions to medications, excessive coughing, and rubbing one’s eyes to alleviate allergies.
Knowlton did not personally treat Ford for her injuries.
1
The couple did go to jiu-jitsu classes together where Carolino “showed her things” and
he noted “physical situation[s]” arise during such training.
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Carolino’s Version of Events and Attack on Ford’s Credibility
After the Commonwealth rested its case, Carolino made a motion to strike, arguing that
Ford’s testimony was unreliable. Carolino pointed out that Ford waited a month before she reported
the incident, and he asserted that she was biased because she was upset that he was seeing other
women. He also noted inconsistencies in her testimony. The trial court denied the motion to strike.
Carolino testified that on the night of the offense he and Ford argued about the fact that he
was seeing other women. He explained that when they returned to his condo, she “begged” to come
inside with him. Carolino stated that Ford spent the night, but he said they did not fight. Indeed, he
testified that they had sex in the evening and again in the morning and then did yoga together.
Carolino denied strangling Ford or putting her in a chokehold to teach her self-defense. Carolino
said Ford continued to contact him after that night and repeatedly tried to interfere with his other
relationships. Carolino admitted that he had two prior felony convictions.
The Whipping Incident
Carolino testified in his own defense and denied that the strangulation incident occurred.
On cross-examination, he was asked:
Q Ms. Ford -- have you ever -- you said you didn’t choke her.
Have you ever been physical with her?
A Aggressively physical, no. Sexually, sure. Yes.
Q Okay. Never been aggressively physical with her?
The Commonwealth then cross-examined Carolino about a prior incident between him and Ford.
Carolino explained that on a prior occasion, Ford had asked to be whipped as part of a sexual act.
He stated: “I’ve never aggressively assaulted [Ford]. I’ve never -- I’ve never done anything to [her]
that she didn’t ask me to do or did not want me to do.”
The Commonwealth then called Ford as a rebuttal witness. Over Carolino’s strenuous
objection, Ford testified that Carolino had beaten her with a belt in the summer of 2018 after
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learning that she had slept with someone else. Ford admitted multiple times that she told a detective
that she “allowed” or “gave” “permission” to Carolino to administer the whipping.
Q And didn’t you tell the officer that you sort of gave him
permission [for the whipping]?
A I did tell her that.
....
THE COURT: You have to - you have to speak up.
THE WITNESS: Yes. I told her that I had allowed him to do it.
However, upon questioning from the trial judge, she also testified that she did not, in fact, consent to
the beating in her own mind. Instead, Ford explained that she resigned herself to Carolino’s
insistence that he wanted to hurt her for her infidelity. Ford stated, “I did allow him. I was
intimidated by him because he had expressed to me repeatedly that he wanted to hurt me. And I just
. . . didn’t want to have to wait and see when he was going to do it.” There was no indication that
Ford reported the whipping to anyone when it occurred in 2018.
The Commonwealth argued the extrinsic rebuttal evidence was admissible to impeach
Carolino’s credibility. In admitting the evidence the trial court stated: “He’s just testified that he’s
never -- he’s never been physical with her. . . . I’m going to allow it. I’ll overrule the objection.”
Over Carolino’s objection, the trial court also allowed the Commonwealth to introduce graphic
photographs of injuries Ford sustained in the whipping incident.2
The Trial Judge, as Factfinder, Convicts Carolino of Strangulation and Places Significant Emphasis
on the Disputed Evidence in Reaching His Decision
After the defense rested, Carolino renewed his motion to strike and presented closing
argument, again emphasizing that Ford waited over a month to report the choking incident to police
2
The photographs were admitted as Commonwealth’s Exhibit 2 and show large, dark
bruises on Ford’s buttocks and legs.
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and maintaining that she was not a credible witness. The trial court convicted Carolino of
strangulation. In so ruling, the trial court specifically relied upon the prior bad act evidence as a
central basis for the conviction. The court noted that this evidence “really had an impact on the
court as far as credibility goes.”
Carolino Appeals
Carolino appealed his conviction, and in an unpublished decision, a panel majority of this
Court concluded that the trial court erred in admitting collateral propensity evidence of the prior
whipping incident. The case was reversed and remanded for a potential new trial.
The Commonwealth then sought a rehearing en banc by this Court. That rehearing was
granted, and we now again conclude that the evidence was erroneously admitted.
ANALYSIS
I. The Whipping Evidence was Inadmissible Solely to Impeach Carolino’s Credibility
and This was the Only Basis Upon Which the Collateral Evidence was Offered in
the Trial Court
A. Standard of Review
Carolino asserts on appeal that the trial court erred both in allowing Ford to testify about the
2018 incident and in admitting photographs of her injuries from that beating. He contends that the
evidence was irrelevant and inadmissible and that no exception to the rule against propensity
evidence applied.
“Decisions regarding the admissibility of evidence ‘lie within the trial court’s sound
discretion and will not be disturbed on appeal absent an abuse of discretion.’” Blankenship v.
Commonwealth, 69 Va. App. 692, 697 (2019) (quoting Michels v. Commonwealth, 47 Va. App.
461, 465 (2006)). To the extent an evidentiary ruling involves interpreting a statute or rule of court,
such rulings are reviewed de novo. Brown v. Commonwealth, 68 Va. App. 746, 792 (2018). “Of
course, an error of law, ‘by definition,’ constitutes an abuse of discretion.” Bennett v.
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Commonwealth, 69 Va. App. 475, 485 (2018) (quoting Porter v. Commonwealth, 276 Va. 203, 260
(2008)).
“As a general rule, evidence that shows or tends to show crimes or other bad acts committed
by the accused is incompetent and inadmissible for the purpose of proving that the accused
committed or likely committed the particular crime charged.” Lafon v. Commonwealth, 17
Va. App. 411, 417 (1993); see Va. R. Evid. 2:404(b). “The policy underlying the exclusion of such
evidence protects the accused against unfair prejudice resulting from the consideration of prior
criminal conduct in determining guilt.” Sutphin v. Commonwealth, 1 Va. App. 241, 245 (1985).
This general rule, however, “must sometimes yield to society’s interest in the truth-finding
process, and numerous exceptions allow evidence of prior misconduct whenever the legitimate
probative value outweighs the incidental prejudice to the accused.” Dunbar v. Commonwealth,
29 Va. App. 387, 390 (1999). Notwithstanding the general rule, evidence of prior bad acts is
admissible:
(1) to prove motive to commit the crime charged; (2) to establish
guilty knowledge or to negate good faith; (3) to negate the possibility
of mistake or accident; (4) to show the conduct and feeling of the
accused toward his victim, or to establish their prior relations; (5) to
prove opportunity; (6) to prove identity of the accused as the one
who committed the crime where the prior criminal acts are so
distinctive as to indicate a modus operandi; or (7) to demonstrate a
common scheme or plan where the other crime or crimes constitute a
part of a general scheme of which the crime charged is a part.
Lafon, 17 Va. App. at 417 (quoting Sutphin, 1 Va. App. at 245-46). This list “is not exclusive.”
Lambert v. Commonwealth, 70 Va. App. 740, 750 (2019).
Before prior bad acts evidence is admitted, the proponent of the evidence must show that
“the legitimate probative value” of the evidence “outweighs the incidental prejudice to the
accused.” Pierce v. Commonwealth, 50 Va. App. 609, 615 (2007) (quoting Woodfin v.
Commonwealth, 236 Va. 89, 95 (1988)).
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B. McGowan v. Commonwealth, 274 Va. 689 (2007), and Virginia Precedent
Regarding Impeaching the Accused’s Credibility
Evidence must be relevant to be admissible. Va. R. Evid. 2:402. “‘Relevant evidence’
means evidence having any tendency to make the existence of any fact in issue more probable or
less probable than it would be without the evidence.” Va. R. Evid. 2:401. Here, the
Commonwealth, over Carolino’s objection, introduced evidence of the whipping at trial for the sole
stated purpose of impugning Carolino’s credibility after he stated on cross-examination that he was
never “aggressively physical” toward Ford. The prosecution then called Ford in rebuttal to discuss
the incident. Photos of Ford’s extensive bruising resulting from the beating were also admitted.
On appeal Carolino asserts that, under McGowan, the Commonwealth’s evidence regarding
the whipping was collateral and improperly admitted. The Commonwealth counters that the
evidence was properly accepted, but principally argues that the ruling to admit the evidence was
“right for a different reason” than the reason provided at trial. See Vandyke v. Commonwealth, 71
Va. App. 723, 731 (2020).
McGowan directly addresses whether a circuit court can admit prior bad acts evidence for
the sole purpose of impugning the accused’s credibility in response to an issue raised by the
Commonwealth on cross-examination. In McGowan, a drug offense prosecution, the defendant
testified that at the time of the charged drug sale she “wouldn’t know crack cocaine if [she] saw it.”
274 Va. at 693 (alteration in original). To impeach the defendant’s credibility, the Commonwealth
sought to introduce evidence that she had subsequently been arrested in possession of crack cocaine.
Id. The Supreme Court found that the improper infusion of collateral “other crimes” evidence
required reversal of the conviction. Id. at 696.
The Court reasoned that collateral facts cannot be admitted into evidence and that “[t]he test
as to whether a matter is material or collateral, in the matter of impeachment of a witness, is
whether . . . the cross-examining party would be entitled to prove it in support of his case.” Id. at
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695 (alterations in original) (quoting Stottlemyer v. Ghramm, 268 Va. 7, 12 (2004)). The Court
further cautioned: “Evidence that relates to a separate offense for which the defendant is not
currently standing trial, and which cannot be used for any purpose other than for impeachment of
the defendant, is certainly collateral to the main issue.” Id.The McGowan Court then reiterated that when a defendant is cross-examined on collateral
matters, the prosecution must accept the answer provided and cannot introduce extrinsic evidence to
contradict the accused:
Under our jurisprudence . . . , the cross-examiner is bound by the
answer given, and cannot introduce any extrinsic evidence to
otherwise contradict the witness. Thus, “the answer of the witness
will be conclusive; [she] cannot be asked as to any collateral
independent fact merely with a view to contradict [her] afterwards
by calling another witness.”
Id. (second and third alterations in original) (citations omitted). The Court confirmed that cross-
examination regarding the collateral issue is permissible:
[I]t is well settled that, “[e]very criminal defendant is privileged to
testify in his own defense, or to refuse to do so. But that privilege
cannot be construed to include the right to commit perjury.”
Clearly, a criminal defendant such as McGowan cannot expect to
make a misleading statement to the jury without also “open[ing]
the door to cross-examination for the purpose of attacking [her]
credibility.”
Id. (second, third, and fourth alterations in original) (first quoting Harris v. New York, 401 U.S.
222, 225 (1971); and then quoting Santmier v. Commonwealth, 217 Va. 318, 319-20 (1976)).
Under this governing law, we are left to determine whether the trial court properly
admitted the propensity evidence relating to the 2018 whipping, and, if not, whether introduction
of this evidence requires reversal.
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C. Extrinsic Evidence of the Prior Whipping Incident was Impermissibly
Admitted as a Collateral Matter in the Trial Court
In examining the ruling below, we confront a situation where no basis was provided by the
Commonwealth in the trial court for why the whipping evidence might have been admissible in its
case-in-chief. For example, the trial court did not address or resolve whether Ford’s reportings of
the whipping and alleged strangulation were similar, or whether the 2018 whipping was probative
of the 2019 strangulation in any way.3 The testimony—and the extrinsic photographs—were
offered and admitted purely for impeachment purposes. After the Commonwealth argued
specifically that Carolino’s credibility is “at the very core” of the case, the following colloquy
occurred prior to the court admitting the photographs to discredit his statement on cross-
examination that he was not “aggressively physical” with Ford:
THE COURT: He said he had never been physical with her and I
don’t -- and these pictures apparently --
. . . I haven’t seen them yet. Is it your representation that this
is evidence of him being physical with her?
[THE COMMONWEALTH]: It is, Judge.
THE COURT: Okay. I’ll receive them.
After viewing the photos, the trial court, in convicting Carolino, specifically commented that this
whipping evidence (and particularly the photos) “really had an impact on the court as far as
credibility goes.”4
This case closely mirrors McGowan. We are guided by the Supreme Court’s admonition
that bad acts evidence which relates to a separate incident for which the defendant is not currently
3
To the extent the Commonwealth argues consent is highly relevant, the court did not
resolve whether the whipping was consensual or non-consensual either.
4
See Deville v. Commonwealth, 47 Va. App. 754, 757 (2006) (when a factfinder tells us
its basis for ruling, we “know with certitude” and “need not hypothesize”).
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standing trial and which was not introduced “for any purpose other than for impeachment of the
defendant, is certainly collateral to the main issue.” McGowan, 274 Va. at 695. This category of
evidence is precisely what was admitted in the Commonwealth’s case-in-chief. Simpson v.
Commonwealth, 13 Va. App. 604, 608 (1992). Further, when impeaching on a collateral matter,
“the cross-examiner is bound by the answer given, and cannot introduce any extrinsic evidence to
otherwise contradict the witness.” McGowan, 274 Va. at 695. Here, Carolino’s challenged
testimony was impeached both by testimony from a rebuttal witness and by graphic, extrinsic
photographs. Moreover, the trial court stated that this improper evidence was essentially the tipping
point in reaching its ultimate decision.
Under these circumstances, we find that the trial court ran afoul of McGowan in admitting
this collateral propensity evidence for the sole purpose of attacking Carolino’s credibility. This,
however, does not end our inquiry. We next address the Commonwealth’s contention that we
should uphold the admission of the evidence—and therefore the conviction—on alternate grounds.
II. The Commonwealth’s Reliance on Alternative Grounds
A. The Limits of the “Right for the Wrong Reason” Doctrine
On appeal, the Commonwealth asserts that because the evidence of the whipping could be
deemed relevant under exceptions to the prohibition against propensity evidence, this Court is free
to employ such grounds to uphold the admission of the evidence and affirm the verdict.5 “The
5
The Commonwealth espouses the “right for a different reason” doctrine as a means of
preserving the verdict. This theory is applicable in cases where “the appellate court ‘express[es]
no view on the correctness of the lower court’s rationale.’” Vandyke, 71 Va. App. at 731
(alteration in original) (quoting Rickman v. Commonwealth, 294 Va. 531, 542 (2017)). Here, we
have addressed the lower court’s rationale—specifically, its finding that the propensity evidence
was admissible to impeach Carolino’s credibility on collateral matters. Because this ruling is
inconsistent with McGowan, the sole basis given for admitting the disputed evidence was
erroneous; therefore, we apply the “right for the wrong reason” test, which is closely aligned to
the Commonwealth’s argument. See Perry v. Commonwealth, 280 Va. 572, 580 (2010); Haynes
v. Haggerty, 291 Va. 301, 305 (2016).
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‘right result for the wrong reason’ doctrine has been a part of the law of Virginia for well over a
century.” Spinner v. Commonwealth, 297 Va. 384, 391 (2019) (citing Schultz v. Schultz, 51 Va. (10
Gratt.) 358, 384 (1853)). “We have long said that ‘[w]e do not hesitate, in a proper case, where the
correct conclusion has been reached but the wrong reason given, to sustain the result and assign the
right ground.’” Banks v. Commonwealth, 280 Va. 612, 617 (2010) (alteration in original) (quoting
Eason v. Eason, 204 Va. 347, 352 (1963)).6
There are limits, however, to an appellate court’s ability to apply alternate grounds to
uphold a trial court’s ruling. In Banks, the Supreme Court explained that the right for the wrong
reason doctrine can be applied where the newly-raised grounds were not asserted below—as long
as the record fully supports the alternate ground:
[W]e must clarify what it means to say that the record supports an
alternative ground for affirmance. The record supports an
alternative ground when it reflects that all evidence necessary to
that ground was before the circuit court. And if that evidence was
conflicting, then the record must show how the circuit court
resolved the dispute—for example, it must demonstrate how
contradicting testimony was weighed or credited.
Id. (emphasis added). Additionally,
when considering whether the “right result for the wrong reason”
doctrine should be applied, the standard of review is whether the
record demonstrates that all evidence necessary to the alternative
ground for affirmance was before the circuit court and, if that
evidence was conflicting, how it resolved the dispute, or weighed
or credited contradicting testimony.
Id. at 618; see also Perry v. Commonwealth, 280 Va. 572, 582 (2010) (“An appellate court is not
limited to the grounds offered by the trial court in support of its decision, and it is ‘entitled to
6
Banks focused on whether police officers’ seizure of Banks’ jacket—which contained a
gun—was a Fourth Amendment violation. The answer hinged on whether Banks had consented
to the seizure—a question which was unresolved below. This Court found that there was
sufficient evidence in the record to find consent. The Supreme Court reversed, noting that
appellate courts are “in no position” to make disputed factual findings that were unresolved
below. 280 Va. at 618.
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affirm the court’s judgment on alternate grounds, if such grounds are apparent from the
record.’” (quoting MM v. Sch. Dist. Of Greenville Cnty., 303 F.3d 523, 536 (4th Cir. 2002)));
Vandyke, 71 Va. App. at 731-32 (in order for an appellate court to affirm a lower court’s ruling
on an alternate ground, “the record must show how the trial court resolved any dispute”).7
B. In this Case Unresolved Factual Determinations and Unresolved Rulings
Weigh Against Application of the Right for the Wrong Reason Doctrine
On this factual record, we decline to apply the right for the wrong reason doctrine. There
are factual questions and evidentiary determinations that were unresolved below which make
application of the right for the wrong reason doctrine problematic here.
1. Factual Determinations as to the Probative Value of the Whipping
Incident and the Balancing of the Probative Value and Prejudice of
the Whipping Evidence Remain Unresolved
The Commonwealth tenders a broad array of theories for why the whipping incident might
have been relevant in its case-in-chief if these explanations had been raised in the trial court, ranging
from showing intent, consent, motive, or state of mind, to proving “the dysfunction” of the couple’s
relationship or explaining why Ford “did what she did.” The Commonwealth similarly argues the
whipping evidence demonstrates Carolino’s “conduct or attitude” toward the victim, as well as the
nature of their relationship. See Ortiz v. Commonwealth, 276 Va. 705, 714 (2008); Morse v.
Commonwealth, 17 Va. App. 627, 632 (1994) (evidence of prior acts of sexual violence was
7
The parameters of the right for the wrong reason doctrine have shifted over the years.
In the past, our precedent held that an alternate ground could not be raised on appeal unless it
had specifically been put at issue below. See Whitehead v. Commonwealth, 278 Va. 105, 114
(2009) (limiting application of the doctrine to “cases in which the party seeking affirmance”
argued the “right ground” in the trial court). However, Perry, 280 Va. at 580, and Banks, 280
Va. at 617, limited Whitehead and eliminated this requirement. The current test for affirming
alternate grounds focuses on whether the record fully supports the newly-advanced reason
without additional factual resolution.
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admissible to show “the conduct and feeling of the accused toward the victim and the prior relations
between the parties” in a prosecution for marital sexual assault).8
The bad acts cases relied upon by the Commonwealth differ markedly from the present
scenario in important respects. For example, the propensity cases cited by the Commonwealth
all involve trial courts analyzing the admissibility of prior bad acts evidence under one (or more)
of the delineated exceptions to the rule against propensity evidence. Here, by contrast, the trial
court erroneously ruled that the whipping evidence was admissible solely to impeach Carolino’s
credibility. Simpson, 13 Va. App. at 608. The trial court did not consider any other grounds for
admissibility. Indeed, the trial court did not make any finding that the evidence of the whipping
had any independent relevance other than with respect to credibility.9 Given this posture, the
trial court, when confronted with propensity evidence, never balanced the probative value of the
whipping incident against its prejudicial impact with respect to any of the newly-raised grounds
advocated by the Commonwealth. See Pierce, 50 Va. App. at 615 (noting that to admit bad acts
evidence, the legitimate probative value of the evidence must exceed its incidental prejudice to the
defendant).
The Commonwealth principally relies on two cases in arguing for the admissibility of the
whipping evidence as an exception to the rule against propensity evidence: Kenner v.
8
See also Burnette v. Commonwealth, 60 Va. App. 462, 480 (2012) (evidence of a baby’s
prior injuries was relevant and admissible to show the defendant’s “prior relationship with and
feelings toward” the infant); Conley v. Commonwealth, 74 Va. App. 658, 672 (2022) (video
evidence of prior incidents of sexual abuse was admissible to show the defendant’s “conduct and
attitude” toward the victim). These cases do not, however, suggest that any incident revealing
“dysfunction” in a couple’s long-term relationship automatically becomes admissible as
“background information.”
9
The Commonwealth essentially recognizes this in its brief: “The trial court did not
specifically rule that the prior bad act was admissible for the reasons asserted, but its ruling can
be affirmed under the ‘right result, different reason’ doctrine.” Commonwealth’s En Banc Br. at
13 fn. 4.
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Commonwealth, 299 Va. 414 (2021), and Conley v. Commonwealth, 74 Va. App. 658 (2022).
These cases aptly illustrate the importance of trial court involvement in evidentiary gatekeeping.
Both cases focus on the competing probative value and prejudice factors which a trial court must
consider before admitting propensity evidence. The Kenner defendant was charged with the sexual
abuse of a child. The Commonwealth presented evidence that the defendant watched pornographic
videos while abusing the victim and that the abuse often mirrored what occurred on the videos. 299
Va. at 426-27. The trial court did not allow the prejudicial videos to be played to the jury, but
permitted the Commonwealth to introduce the sexualized titles the defendant had placed on the
tapes to show the defendant’s attitude to the child and to prove motive, method, and elements of the
offense. Id. at 420.
Our Supreme Court affirmed this ruling, finding that the titles were relevant to show the
defendant’s “inappropriate sexualized attitude toward children.” Id. at 426. The trial court
“balanced the probative value of the evidence against its prejudicial effect” and properly concluded
that only the titles, rather than the images themselves, should be admitted into evidence. Id. at 427.
The trial court’s balancing allowed for the introduction of relevant evidence, while ensuring that the
probative value of the evidence outweighed its prejudicial effect on the defendant. Id.
In Conley, the victim discovered multiple videos of her ex-husband performing non-
consensual sexual acts upon her as she slept. 74 Va. App. at 668. The evidence suggested the
victim was drugged during these incidents. She also recalled an occasion when her ex-husband
gave her a “foaming beer,” which she discovered had sediment in the bottom. Id. at 669. The trial
court ruled that the evidence regarding the “foaming beer” constituted a prior bad act and that the
Commonwealth could only refer to “sediment” in the beer, not to a “pill.” Id. This Court found that
the trial court’s ruling—that referring to the sediment as a pill would be overly prejudicial, but that
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the probative value of the presence of “sediment” was not outweighed by its prejudicial effect—
was not an abuse of discretion. Id. at 674.
Thus, both Kenner and Conley aptly illustrate the rigorous analysis and balancing a trial
court must undertake to fulfill its gatekeeper function. No such analysis is present here. The trial
court did not pass judgment on any of the Commonwealth’s newly-minted arguments regarding
grounds for admissibility; nor did it weigh the prejudicial effect of the whipping evidence against its
probative value as to these alternate grounds. Further, it was not given a chance to limit the
prejudice associated with the whipping evidence by restricting how much of the evidence, if any,
was admissible—as occurred in Kenner and Conley.10
a. Probative Value, Prejudice, and Admission of the Graphic
Photos
The record’s failure to show how the probative value/prejudice paradigm was analyzed
below is particularly problematic with respect to admission of the graphic photos depicting the
extensive bruising Ford suffered from the whipping. On appeal, the Commonwealth offers very
little explanation for why the post-whipping photos of Ford’s injuries should have been admissible
on alternate grounds other than to suggest the photos corroborate that the incident occurred. The
“happening” of the beating does not require corroboration, however, as no one disputes that it
occurred.
10
A trial court, of course, is given broad discretion with respect to the admission of
evidence. Campos v. Commonwealth, 67 Va. App. 690, 702 (2017); 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, 67 Va. App. at 702
(quoting Thomas v. Commonwealth, 44 Va. App. 741, 753, adopted upon reh’g en banc, 45
Va. App. 811 (2005)). A trial court, however, has no discretion to admit clearly inadmissible
evidence. See Norfolk & Western Ry. Co. v. Puryear, 250 Va. 559, 563 (1995). An appellate
court cannot uphold discretion that was not exercised; here, the trial court simply made no
analysis of any of the alternate grounds raised on appeal—and the solitary ground utilized by the
trial court for admission was improper.
- 16 -
The photographs depicting Ford’s injuries are disturbing, jarring, and inflammatory.11 The
trial court did not balance the photos’ probative value against their prejudicial effect for any of the
grounds now posited by the Commonwealth. The absence of any balancing analysis or factual
findings resolving the competing versions of the underlying whipping incident makes application of
the right for the wrong reason doctrine problematic here. Banks, 280 Va. at 617-18; Perry, 280 Va.
at 579.
It was the trial court’s responsibility to determine whether the unfair prejudicial impact of
the graphic photos substantially outweighed any probative value the evidence may have had, and
whether the bad acts evidence should have been excluded. See, e.g., Lambert, 70 Va. App. at 756
(affirming the exclusion of evidence where it would have minimal probative value yet significant
potential for confusion and undue prejudice); Pryor v. Commonwealth, 276 Va. 312, 316-17 (2008)
(affirming the exclusion of evidence where its prejudicial impact greatly exceeds its probative
value); Old Chief v. United States, 519 U.S. 172, 191 (1997) (reversing conviction based on
improper admission of bad acts evidence where “the risk of unfair prejudice did substantially
outweigh the discounted probative value” of the evidence).
The “right for the wrong reason” doctrine should only be applied when “all evidence
necessary to” the alternative ground for affirmance was before the trial court, and the record shows
how the trial court resolved any conflicts in that evidence. Banks, 280 Va. at 617; see also Perry,
280 Va. at 579; Vandyke, 71 Va. App. at 732. The record does not reveal any proper grounds on
11
Prior bad acts evidence will often be prejudicial to the defendant, but the test is whether
the evidence is unfairly so. Lee v. Spoden, 290 Va. 235, 251-52 (2015). “‘[U]nfair prejudice’ refers
to the tendency of some proof to inflame the passions of the trier of fact, or to invite decision based
upon a factor unrelated to the elements of the claims and defenses in the pending case.” Id. at 251.
Notably, here, the evidence also was introduced in violation of McGowan in a setting where the
Commonwealth should have been bound to accept Carolino’s answers on cross-examination. 274
Va. at 695 (rejecting tactic of impugning accused’s cross-examination testimony on collateral
matters with extrinsic evidence).
- 17 -
which the photos were deemed to be probative by the trial court. Nor does the record show how the
trial court resolved the probative value/prejudice conflict here with respect to the photos.
b. Probative Value, Prejudice, and Admission of Ford’s
Testimony Regarding the Whipping
The same issues arise with respect to Ford’s rebuttal testimony regarding the whipping. The
trial court, again, did not address the probative value of Ford’s testimony regarding the whipping or
whether such probative value outweighed its prejudice to Carolino with respect to any of the new
grounds advanced by the Commonwealth.
Recognizing that Ford’s credibility was hotly contested, the Commonwealth suggests that
the whipping incident is relevant to show why Ford “did what she did.” The Commonwealth claims
that the whipping evidence showed why Ford willingly spent the night with Carolino following the
alleged strangulation, and why she initially claimed that her eyes were red not from the assault but
from allergies. The Commonwealth asserts that such evidence—explaining “the victim’s state of
mind”—is admissible as an exception to the prohibition of prior bad acts evidence. See Morse, 17
Va. App. at 632. The prosecution similarly argues that the delayed reporting of the whipping sheds
light on Ford’s delayed reporting of the alleged strangulation.
However, before the whipping that occurred in the summer of 2018 can be relevant to the
alleged April 2019 strangulation, some evidentiary links between the events must be established.12
Certainly Ford’s reporting as to the two incidents was quite different in various respects. For
12
Subject to certain exceptions, “evidence implicating an accused in other crimes unrelated
to the charged offense is inadmissible because it may confuse the issues being tried and cause undue
prejudice to the defendant.” Guill v. Commonwealth, 255 Va. 134, 138 (1998). “[I]t is improper to
use evidence that a defendant has committed another crime when it has ‘no connection with the one
under investigation.’” Id. at 140 (quoting Barber v. Commonwealth, 182 Va. 858, 868 (1944)).
However, such evidence may be admissible “when there is ‘a causal relation or logical and natural
connection between the two acts, or they . . . form parts of one transaction.’” Id. (alteration in
original) (quoting Barber, 182 Va. at 868). Thus, the whipping evidence must be relevant to the
charged strangulation in some meaningful or probative manner. See id. at 140-41 (evidence of other
acts must address a matter genuinely in dispute).
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example, Ford immediately reported the alleged strangulation to her employer the following day,
although she delayed reporting it to the police and Carolino’s probation officer. By contrast, there is
no evidence she discussed the whipping with anyone at the time it occurred. She never made claims
that the strangulation was consensual, but she did tell police the whipping was consensual.13 The
two incidents are not particularly similar, except to suggest Carolino’s alleged propensity to
aggression. Did the trial court find the two incidents related for reporting purposes? We do not
know.
The Commonwealth now also argues that the whipping incident was relevant to show
Carolino’s motive and intent. The Commonwealth suggests, for example, that the whipping
occurred over Ford’s past infidelity and that it is reasonable to infer that the alleged strangulation—
occurring approximately one year later—was spurred by the same motive. Nothing in the record,
however, indicates that Carolino continued to harbor anger over the prior infidelity; instead, the
record shows that at the time of the present charged conduct, Carolino was seeing other women and
was not interested in an exclusive relationship.14 Again, the trial court did not resolve these
newly-minted factual contentions raised by the Commonwealth on appeal.
In short, with respect to the newly-raised grounds of consent, state of mind, motive,
reporting, or relationship of the parties, the record fails to reveal how the factual questions
13
Carolino never asserted that Ford consented to the alleged strangulation; he claimed it
never happened at all. And while Ford stated that the whipping was “allowed” and “permitted,”
she also stated that she did not consent to it in her own mind. There is, however, no indication in
the record that she conveyed any reservations about the whipping to Carolino.
14
While there are significant differences in Ford’s general reporting history of the
whipping and alleged strangulation, the Commonwealth suggests that the whipping evidence
explains Ford’s hesitation in reporting the strangulation to the police. Even without the whipping
evidence, Ford explained her delayed reporting of the strangulation to legal authorities as
attributable to her lingering feelings for Carolino and her fear of reprisal. Notably, shortly after the
relationship ended, she did not hesitate to call Carolino’s probation officer multiple times to report
alleged violations and, later, to meet the probation officer in person to report the strangulation.
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underlying these issues were resolved or weighted. See Knight v. Commonwealth, 61 Va. App. 297,
309 (2012) (noting that when trial court confines its ruling to a single, erroneous ground, “further
factual resolution” may be needed before an alternate ground can be applied). Even if the whipping
testimony were found to be marginally probative as to one or more of these alternative grounds, no
balancing of any probative value was made versus its prejudicial effect on the defense. In this case,
such prejudice would be significant. Again, we leave the weighing of these unresolved issues to
the trial court on remand.
2. The Trial Court is the Proper Forum to Make Initial Evidentiary
Rulings in a Disputed Factual Setting
The Commonwealth argues that appellate courts are free, in proper circumstances, to usurp
the trial court’s gatekeeper function with respect to admitting evidence; but, we decline the
invitation here. Our Supreme Court has emphasized on multiple occasions that the trial court is the
preferred forum for weighing and balancing evidence.
In testing the credibility and weight to be ascribed to the evidence,
we must give trial courts and juries the wide discretion to which a
living record, as distinguished from a printed record, logically
entitles them. The living record contains many guideposts to the
truth which are not in the printed record; not having seen [the
witnesses] ourselves, we should give great weight to the conclusions
of those who have seen and heard them.
Dean v. Morris, 287 Va. 531, 537 (2014) (quoting Fred C. Walker Agency, Inc. v. Lucas, 215 Va.
535, 541 (1975)); see also Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008) (the
Court of Appeals should not have engaged in its own balancing of probative value against
prejudicial effect, but should have remanded to the trial court to perform this balancing); Banks, 280
Va. at 617 (noting that appellate courts are “in no position” to make disputed factual findings that
were unresolved below); Meade v. Commonwealth, 74 Va. App. 796, 805 (2022) (deference to the
trial court stems in part from the trial court’s “opportunity to observe the testimony and demeanor of
all witnesses” (quoting Lopez v. Commonwealth, 73 Va. App. 70, 81 (2021))); Harris v. Woodrum,
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3 Va. App. 428, 433 (1986) (We long have recognized that a “trial judge who views the witnesses
as their testimony is given is in the better position to evaluate the evidence than an appellate court
which reviews only a cold record.”).
To be sure, there are routinely instances where appellate courts uphold verdicts on alternate
grounds despite errors below. See Perry, 280 Va. at 580; Freeman v. Commonwealth, 65 Va. App.
407, 426 (2015); Haynes v. Haggerty, 291 Va. 301, 306-07 (2016). Virginia courts have observed
on multiple occasions that the right for the wrong reason doctrine is particularly well-suited to
approving alternate grounds based on legal premises. Miller & Rhoads Bldg., LLC v. City of
Richmond, 292 Va. 537, 542-43 (2016); Rives v. Commonwealth, 284 Va. 1, 3 (2012). Thus,
there are instances where alleged factual uncertainties may not be determinative or “material” in a
setting where a legal basis for the alternate ground trumps any factual consideration. See Rickman
v. Commonwealth, 294 Va. 531, 541-42 (2017) (language of statute resolves matter without analysis
of trial court’s waiver finding). Where the factual record is clear as to an independent basis for
affirming the judgment, appellate courts are also free to resolve the case on that factual basis. See
Peters v. Commonwealth, 72 Va. App. 378, 388-89 (2020) (trial court erroneously found
defendant’s refusal to put his hands behind his back established flight; however, other undisputed
evidence on a clear factual record established “fleeing”); Driscoll v. Commonwealth, 14 Va. App.
449, 452 (1992) (record clearly revealed prior convictions to establish habitual offender status).
Similarly, where propensity evidence is improperly admitted but the evidence in support of the
verdict is overwhelming, we are charged to uphold the verdict. See Rose v. Commonwealth, 270
Va. 3 (2005); Pierce v. Commonwealth, 50 Va. App. 609 (2007); Code § 8.01-678. But this case
simply does not fit any of these criteria.
Here, the factual record is muddled—and a credibility ruling and, ultimately, the verdict
itself turned on evidence which was inadmissible for the collateral purpose for which it was
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considered. McGowan, 274 Va. at 695-96. We know the error affected the verdict because the
factfinder specifically acknowledged it. To affirm the tainted verdict, the Commonwealth asks us to
reconstruct the evidentiary analysis from scratch with respect to alternate grounds—on a record
where the most basic findings as to the probative value and prejudice of the whipping evidence were
never addressed. The right for the wrong reason doctrine should not be applied where “the record
on appeal does not fully support the trial court’s decision.” Obregon v. Commonwealth, 75
Va. App. 582, 590-91 (2022) (emphasis added); Knight, 61 Va. App. at 309 (rejecting right for the
wrong reason analysis where additional factfinding is required).
As the Supreme Court observed in Sateren v. Montgomery Ward and Co., Inc., 234 Va. 303,
306 (1987), where the contested verdict is based on erroneous principles, the appellate court may
decline to utilize the right for the wrong reason doctrine where we believe the victim of the error is
“entitled to another day in court and to have his case tried according to correct principles, win or
lose.” This is such a case. Finding that additional factual resolution is required and that erroneous
legal principles influenced the verdict below, we decline to uphold Carolino’s conviction on
alternate grounds.15
15
The dissent suggests that our ruling improperly expands Banks and Perry and requires
a party to raise alternative grounds in the trial court in order for this Court to consider the
alternate grounds as a basis for upholding the verdict on appeal. Not so. The test is not whether
the alternate grounds were raised or decided below; the test is whether the record is sufficiently
complete to permit the appellate court to address the alternate grounds. See fn. 7, supra. We do
not believe the record is sufficiently complete here. Again, part of that “completeness” analysis
requires that where there is conflicting evidence, and that evidence is material to the alternate
ground, the record must show how the court resolved it. Banks, 280 Va. at 617-18. This does
not mean, on a complete record, that an appellate court is prevented from addressing matters
such as balancing probative value and prejudice. See Egan v. Butler, 290 Va. 62 (2015) (in
reversing judgment, Supreme Court weighed probative value and prejudicial effect of evidence
on appeal, rejecting the alternate grounds offered by the appellee for affirmance under the right
for the wrong reason doctrine).
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III. The Evidentiary Error Was Not Harmless
For many of the same reasons already noted, we reject any notion that the error below was
harmless. We know that the factfinder relied on the improper, collateral evidence and did so for
an impermissible purpose.16 The factfinder specifically indicated that the extrinsic photos tipped
the scales against the accused, stating, “it really had an impact on the court as far as credibility
goes.”17 See, e.g., Commonwealth v. Swann, 290 Va. 194, 201 (2015) (holding that improperly
admitted hearsay evidence was not harmless error because the Supreme Court could not “say
with fair assurance that the jury was not substantially influenced” by the evidence); Jennings v.
Commonwealth, 65 Va. App. 669, 681 (2015) (finding that error was not harmless where the
erroneously admitted testimony established an essential element of the charged offenses). Given
our knowledge that the error directly affected the verdict, we cannot conclude that the error was
harmless. To the contrary, by the factfinder’s own account, it had a significant impact on the
verdict and necessitates a retrial. Thus, we reverse Carolino’s conviction.18
16
The Commonwealth argues that if its alternate grounds are accepted, then the whipping
evidence can be presumed to be admissible for a limited, permissible purpose—but we know this
hypothetical justification does not accurately portray how the evidence actually was used. The
evidence was not introduced by the Commonwealth for the limited purpose of explaining Ford’s
delayed reporting or her state of mind or the relationship of the parties. It was admitted—and
considered—only for credibility. Any suggestion that the collateral evidence was considered for a
proper purpose, accordingly, is flatly rebutted by the record.
17
We are cognizant that in a bench trial we can presume that the court relied upon
challenged evidence for a proper purpose, unless the record provides otherwise. Castillo v.
Commonwealth, 21 Va. App. 482, 491-92 (1995); Wilson v. Commonwealth, 16 Va. App. 213,
223 (1993). Here, the record reveals that the improper evidence was considered improperly
under McGowan and it did affect the verdict.
18
We note that when a reviewing court reverses an appellant’s conviction, it must also
address the appellant’s challenge to the sufficiency of the evidence underlying that conviction
“to ensure that a retrial on remand will not violate double jeopardy principles.” Wilder v.
Commonwealth, 55 Va. App. 579, 594 (2010). Here, appellant has not demonstrated that the
evidence is insufficient to support a conviction on remand. A remand is the appropriate remedy,
and this outcome poses no double jeopardy concerns.
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IV. Waiver Considerations
The dissent raises waiver as a means of preserving the conviction. We find that defense
counsel adequately preserved his objection to the Commonwealth’s improper and prejudicial use
of collateral propensity evidence to rebut Carolino’s testimony. When the Commonwealth first
raised the whipping, defense counsel argued that the incident focused on bad acts and propensity
evidence. The defense further noted that the whipping incident did not have “anything to do
with this,” was remote, irrelevant, and beyond the scope of direct—i.e., collateral. Counsel
argued that a consensual whipping was not relevant to the alleged strangulation and that an
undesired whipping would be propensity evidence. Thus, in context, Carolino argued that,
however the whipping was characterized, it was not admissible. Defense counsel’s objection to
the propensity and bad acts evidence plainly encompassed the prejudicial nature of such
evidence. See Mason v. Commonwealth, 14 Va. App. 609, 614 (1992) (ruling that the character
of the objection was clear in context). The trial court nonetheless admitted the propensity
evidence.
Moreover, defense counsel objected when the whipping incident was first raised—noting
that it was beyond the scope of direct testimony and that the prosecution was “going into prior
bad acts, which he -- he’s not allowed to -- to get into.” The prosecution moved to another line
of inquiry and then sought to introduce the pictures of Ford’s post-whipping injuries. Defense
counsel immediately objected again that the evidence was irrelevant propensity evidence. When
the Commonwealth introduced the photos into evidence as Exhibit 2, defense counsel again
objected and the court admitted the propensity evidence stating, “note [defense counsel’s]
exception.” It merits mention, in this context, that the Commonwealth’s brief en banc does not
contain the word waiver, nor does it mention Rules 5A:18 and 5A:20(c), relied upon by the
dissent. At oral argument, waiver was not embraced by the Commonwealth. (See e.g., Oral
- 24 -
Argument 58:15-20). Nor did a waiver reference arise in the Commonwealth’s brief to the initial
panel. Waiver was not mentioned as a basis for granting a rehearing in the Commonwealth’s
petition either. We conclude that Carolino’s objection was sufficient to put the trial court and the
Commonwealth on notice of Carolino’s argument.
The same is true of Carolino’s assignment of error. Cnty. of Bedford v. City of Bedford,
243 Va. 330, 334 (1992) (An assignment of error is sufficient if the Court can “construe the
essence” of the error assigned.). While the assignment did not expressly reference McGowan, it
raised the propensity, relevance, prejudice, and inadmissibility issues underlying this appeal.
Again, the Commonwealth has not argued otherwise.
The dissent suggests that the Commonwealth is placed in an unfair position by being
asked to establish the admissibility of the propensity evidence in this procedural posture.
However, the proponent of evidence always bears the burden of establishing its relevance.
Canada v. Commonwealth, 75 Va. App. 367, 377 (2022). At trial, the only basis upon which the
Commonwealth offered the propensity evidence was a collateral one. McGowan, 274 Va. at 695
(propensity evidence which relates to a separate incident for which the defendant is not currently
standing trial and which was not introduced “for any purpose other than impeachment of the
defendant, is certainly collateral to the main issue”). Collateral facts analysis presents an issue of
relevancy. See Seilheimer v. Melville, 224 Va. 323, 327 (1982). The lack of relevance and the
collateral nature of the propensity evidence is precisely what defense counsel objected to in
arguing that the whipping incident did not have “anything to do with this,” was irrelevant, and
constituted inadmissible prior bad acts evidence. See Simpson, 13 Va. App. at 608 (“By
definition, collateral evidence is inadmissible over an objection.”) We find that Carolino’s trial
objection and assignment of error appropriately preserved his position.
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CONCLUSION
This case falls squarely within the holding of the Supreme Court’s McGowan decision. The
trial court erred in admitting collateral prior bad acts evidence in rebuttal solely to impeach
Carolino’s credibility regarding issues raised by the Commonwealth on cross-examination of the
accused. We decline to uphold the conviction under the right for the wrong reason doctrine. And
because the record reveals a strong probability that the error below did affect and taint the verdict,
we reject claims that the error could be deemed harmless. Accordingly, we reverse the judgment of
the trial court and remand the case for a new trial, if the Commonwealth be so advised.
Reversed and remanded.
- 26 -
Fulton, J., with whom Decker, C.J., Beales, O’Brien, AtLee, Athey and White, JJ., join, dissenting.
I respectfully dissent from the majority’s conclusion that the trial court erred in admitting
the evidence of the whipping incident. I would hold, first, that the arguments relied upon by the
majority in reversing the trial court were waived pursuant to Rules 5A:18 and 5A:20(c).
Considering the merits of the case, I would hold that the evidence of the 2018 whipping incident
was a prior bad act admissible in the Commonwealth’s case-in-chief as evidence of the nature of the
relationship between Carolino and Ford, to prove lack of consent to the strangulation, and to explain
Ford’s delayed report of the strangulation. Accordingly, it is not “collateral to the main issue,”
McGowan v. Commonwealth, 274 Va. 689, 695 (2007), and was properly admitted into evidence at
trial.19
19
The majority remarks that the question of whether the whipping incident was
consensual is unresolved. I disagree. When considering the evidence on appeal, we must do so
in the “light most favorable to the Commonwealth, the prevailing party at trial.” Gerald v.
Commonwealth, 295 Va. 469, 472 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381
(2016)). “That principle requires us to ‘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 that may be drawn therefrom.’” Clanton v.
Commonwealth, 53 Va. App. 561, 564 (2009) (en banc) (quoting Kelly v. Commonwealth, 41
Va. App. 250, 254 (2003) (en banc)). Viewed in the light most favorable to the Commonwealth,
the evidence showed that the prior whipping incident was not consensual. Moreover, the trial
court stated in pronouncing its verdict:
I have the defendant saying . . . a pretty remarkable statement on
cross-examination that he had never been physical with her. And
then I see Commonwealth’s Exhibit 2, which is not a subtle
antithesis of that. . . . Inexplicable circumstances where they can’t
be disputed. He was physical with her. . . . [I]t really had an
impact on the court as far as credibility goes.
It is clear from the trial court’s own statements that it found the whipping to be
nonconsensual.
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ANALYSIS
I. Waiver under Rule 5A:18
Relying on the Supreme Court’s holding in McGowan, the majority holds that the trial court
erred in admitting evidence of the whipping incident because it was extrinsic evidence of a
collateral matter, which may not be used solely to impeach a witness’s credibility. Although
Carolino argued on brief to this Court that the extrinsic evidence of the whipping incident “was
collateral to the main issue in this case,” and thus barred by McGowan, he did not make that
argument to the trial court and it is not encompassed by his assignments of error. Thus, I would
hold that we are barred from considering this argument on appeal.
Rule 5A:18 provides that “[n]o ruling of the trial court . . . will be considered as a basis for
reversal unless an objection was stated with reasonable certainty at the time of the ruling.” “Not just
any objection will do. It must be both specific and timely—so that the trial judge would know the
particular point being made in time to do something about it.” Bethea v. Commonwealth, 297
Va. 730, 743 (2019) (quoting Dickerson v. Commonwealth, 58 Va. App. 351, 356 (2011)). “The
purpose of the contemporaneous objection rule ‘is to avoid unnecessary appeals by affording the
trial judge an opportunity to rule intelligently on objections.’ For the circuit court to rule
intelligently, the parties must inform the circuit court ‘of the precise points of objection in the
minds of counsel.’” Maxwell v. Commonwealth, 287 Va. 258, 264-65 (2014) (first quoting State
Highway Comm’r v. Easley, 215 Va. 197, 201 (1974); and then quoting Gooch v. City of
Lynchburg, 201 Va. 172, 177 (1959)).
Carolino’s testimony on direct examination was that while he and Ford had argued, they
had “made up” and engaged in voluntary sexual activity but that he “did not choke her” that
night. On cross-examination, Carolino was first asked whether he had previously “been physical
with [Ford].” Without objection, Carolino responded that he had not been physically aggressive
- 28 -
with Ford, but had been sexually aggressive with her. When the Commonwealth clarified,
“[n]ever been aggressively physical with her?,” Carolino objected that “my question on direct
was specific to that night” and the Commonwealth’s question was “outside of the scope of the
direct examination” and that the Commonwealth was “going into prior bad acts, which . . . he’s
not allowed to . . . get into.”
When the Commonwealth attempted to show Carolino photographs of Ford’s injuries
from the whipping incident, Carolino objected, arguing:
This is an incident that occurred a year prior to the date of offense
in this case. . . . Ford, in her . . . statement, addressed this issue
and even said it was consensual, so I don’t think it’s relevant or has
anything to do with this. He’s trying, once again, to bring in prior
bad acts. He’s trying to get in propensity evidence.
After the Commonwealth questioned Carolino about the photographs, Carolino objected to their
introduction “because, once again, it’s a relevancy issue.” The court deferred its ruling at that
point, stating that it did not “know what this is about[.] . . . He needs to answer the question so
that I know what we’re talking about. All I know is that you showed him some pictures that I
haven’t seen.” The Commonwealth further questioned Carolino about the photographs and the
whipping incident and, when it attempted to introduce the photos, Carolino again objected,
stating “my objection would be it’s not relevant. He’s trying to bring in a prior bad act from a
year prior to this incident.” Carolino then explained that “She told me to whip her” and that the
photos depicted the result. He explained that “I’ve never been with a girl like [Ford] before
and . . . she had begged me to do something to her sexually that she . . . she wanted me to do and
I did it, sir.”
Following Carolino’s testimony, Ford was called as a rebuttal witness to testify about the
whipping incident. Ford testified about the whipping incident and identified the photographs,
without objection from Carolino. During Ford’s rebuttal testimony, the trial court stated: “I’m a
- 29 -
little confused by your answer. Was that [whipping incident] part of a consensual act?” Ford
responded: “No, it was not.” Prior to that clarification by Ford, it was not clear from the record,
or to the trial court, that the whipping incident was a prior bad act—a nonconsensual act. Yet
once the act was finally established as “bad,” Carolino never objected to its admission into
evidence.
At no point did Carolino object to evidence pertaining to the whipping incident on the
grounds set forth in McGowan and relied upon by the majority: that the Commonwealth was
improperly using extrinsic evidence of a collateral issue to impeach Carolino’s credibility.
Instead, Carolino’s objections were limited to: beyond the scope of direct examination; lack of
relevance; and that it was propensity evidence. Neither an appellant nor an appellate court
should “put a different twist on a question that is at odds with the question presented to the trial
court.” Commonwealth v. Shifflett, 257 Va. 34, 44 (1999); see Scialdone v. Commonwealth, 279
Va. 422, 437 (2010) (explaining that “a specific, contemporaneous objection gives the opposing
party the opportunity to meet the objection” “at a point in the proceeding when the trial court is
in a position, not only to consider the asserted error, but also to rectify the effect of the asserted
error”); Clifford v. Commonwealth, 274 Va. 23, 25 (2007) (“[A]n appellate court may not
‘recast’ an argument made in a lower court into a different argument upon which to base its
decision.”). Having failed to make the specific objection upon which he now relies in a timely
manner, Carolino deprived the trial court of the opportunity to rule intelligently on the question
of whether the whipping incident evidence was improper extrinsic evidence of a collateral issue
being used for impeachment. Thus, I would conclude that it is waived on appeal.20
20
The majority, stating, “we confront a situation where no basis was provided by the
Commonwealth in the trial court for why the whipping evidence might have been admissible in
its case-in-chief,” improperly places the burden on the Commonwealth to respond to an objection
not raised by Carolino. Although the primary purpose of the contemporaneous objection rule is
to allow the trial court to correct and address error, avoiding unnecessary appeals, “[a] perhaps
- 30 -
II. Waiver under Rule 5A:20(c)
I would further hold that consideration of Carolino’s arguments pertaining to whether the
evidence of the whipping incident was improperly admitted as extrinsic evidence of a collateral
issue used solely for impeachment was waived pursuant to Rule 5A:20(c) as they are not
encompassed by his assignments of error. “Rule[] . . . 5A:20(c) require[s] us to hold that this
issue is waived because it was not part of appellant’s assignment of error . . . on brief.” Simmons
v. Commonwealth, 63 Va. App. 69, 75 n.4 (2014).
Consistent with his argument before the trial court, Carolino assigns error to the
admission of evidence regarding the whipping incident “inasmuch as the prior act was previously
described as consensual, was not relevant to the trial, was prejudicial and was inadmissible as
propensity evidence contrary to the Rules of Evidence.” Because Carolino’s assignment of error
addresses the same objections made to the trial court, and not those argued in his brief and relied
upon by the majority pertaining to the use of extrinsic evidence of a collateral issue to impeach a
defendant, I would hold that this argument was not encompassed by this assignment of error.
“This Court is limited to reviewing the assignments of error presented by the litigant,” and “we
do not consider issues touched upon by the appellant’s argument but not encompassed by his
assignment of error.” Banks v. Commonwealth, 67 Va. App. 273, 289-90 (2017). I would,
therefore, conclude that Carolino’s failure to assign error pertaining to this argument results in a
waiver.
III. Merits
Carolino asserts on appeal that the trial court erred in allowing Ford to testify about the 2018
incident and in admitting photographs of her injuries from that time. He contends that the evidence
more compelling reason for the rule is that it is unfair to the opposing party, who may have been
able to offer an alternative to the objectionable ruling, but did not do so, believing there was no
problem.” Lee v. Lee, 12 Va. App. 512, 514 (1991) (en banc).
- 31 -
was irrelevant and inadmissible to prove a prior bad act and that no exception to the rule against
propensity evidence applied. I disagree; evidence of the prior whipping was relevant to show “the
conduct or attitude of the accused toward his victim,” as well as nature of the “the relationship
between the parties.” Moore v. Commonwealth, 222 Va. 72, 76 (1981). Further, the whipping
evidence helped to explain why Ford was initially reluctant to report the offense at issue. See Morse
v. Commonwealth, 17 Va. App. 627, 632 (1994) (wife’s submission to husband’s sexual demands in
marital rape case could bear upon the defense of consent and, thus, “the prior relations of the couple
showed the victim’s state of mind ‘as to why she did what she did’” (citing Scott v. Commonwealth,
228 Va. 519, 527 (1984))). The whipping evidence, therefore, was not collateral to this case.
“Decisions regarding the admissibility of evidence ‘lie within the trial court’s sound
discretion and will not be disturbed on appeal absent an abuse of discretion.’” Blankenship v.
Commonwealth, 69 Va. App. 692, 697 (2019) (quoting Michels v. Commonwealth, 47 Va. App.
461, 465 (2006)). “Of course, an error of law, ‘by definition,’ constitutes an abuse of discretion.”
Bennett v. Commonwealth, 69 Va. App. 475, 485 (2018) (quoting Porter v. Commonwealth, 276
Va. 203, 260 (2008)). “In conducting de novo review of a legal issue, the appellate court defers to
any factual findings underpinning it, including the credibility of the witnesses, and may reverse
them only if they are plainly wrong.” Id. “Only when reasonable jurists could not differ can we say
an abuse of discretion has occurred.” Nottingham v. Commonwealth, 73 Va. App. 221, 231 (2021)
(quoting Grattan v. Commonwealth, 278 Va. 602, 620 (2009)).
“Generally, evidence of an accused’s other criminal acts is ‘inadmissible to prove guilt of
the crime for which the accused is on trial.’” Kenner v. Commonwealth, 71 Va. App. 279, 289
(2019) (quoting Gonzales v. Commonwealth, 45 Va. App. 375, 380 (2005) (en banc)), aff’d, 299
Va. 414 (2021). “The policy underlying the exclusion of such evidence protects the accused against
unfair prejudice resulting from the consideration of prior criminal conduct in determining guilt.” Id.- 32 -
(quoting Sutphin v. Commonwealth, 1 Va. App. 241, 245 (1985)). Nevertheless, “other crimes
evidence is admissible when it ‘shows the conduct or attitude of the accused toward his victim[;]
establishes the relationship between the parties[;] or negates the possibility of accident or mistake[]’;
or shows motive, method, intent, plan or scheme, or any other relevant element of the offense on
trial.” Ortiz v. Commonwealth, 276 Va. 705, 714 (2008) (alterations in original) (quoting Moore,
222 Va. at 76); see also Va. R. Evid. 2:404(b) (evidence of “other crimes” is admissible when
“relevant to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, accident, or if they are part of a common scheme or plan”). This list “is not exclusive.”
Lambert v. Commonwealth, 70 Va. App. 740, 750 (2019). “Virginia law ‘follows an “inclusionary
approach” to the uncharged misconduct doctrine by admitting such evidence “if relevant, for any
purpose other than to show a mere propensity or disposition on the part of the defendant to commit
the crime.”’” Id. (emphasis added) (quoting Castillo v. Commonwealth, 70 Va. App. 394, 415
(2019)). The test is whether “the legitimate probative value” of the evidence “outweighs the
incidental prejudice to the accused.” Pierce v. Commonwealth, 50 Va. App. 609, 615 (2007)
(quoting Woodfin v. Commonwealth, 236 Va. 89, 95 (1988)).
The evidence that Ford had acquiesced to a beating so severe as to result in the injuries
reflected in the photos, and yet remained in a relationship with Carolino, sheds significant light on
the nature of the relationship between the parties and was relevant to explain Ford’s delay in
reporting the incident to the police and also why she told Mendez the redness in her eyes resulted
from allergies. She was afraid of and intimidated by Carolino due to the nature of their abusive
relationship. This evidence helps explain Ford’s delayed report, her explanation to Mendez about
the petechia in her eyes, her initial complaint to Carolino’s probation officer, and her decision to
spend the night in the company of the man who had just strangled her. See Morse, 17 Va. App. at
632 (wife’s submission to husband’s sexual demands in marital rape case could bear upon the
- 33 -
defense of consent and, thus, “the prior relations of the couple showed the victim’s state of mind ‘as
to why she did what she did’” (citing Scott, 228 Va. at 527)). Thus, both the delayed reporting of
the strangulation and Ford’s equivocation concerning whether she consented to the whipping were
relevant in that they: (1) reflect the nature of the relationship; (2) illustrate Ford’s tendency to
respond to Carolino’s aggression with resigned submission; (3) help explain her actions post
strangulation; and (4) support her credibility. As the trial court surmised, “[i]t was punishment for
some act that she did. I guess that’s where the complexities of the relationships [sic] come in . . . .
Inexplicable circumstances where they can’t be disputed.”
Moreover, Ford’s explanation for why she capitulated to Carolino’s whipping bore upon the
element of consent to the strangulation. See Morse, 17 Va. App. at 632. Carolino admitted that he
was sexually aggressive with Ford and said Ford asked him to whip her. Carolino’s testimony
implied that any strangulation would have been consensual. The prior bad acts evidence was also
relevant as the Commonwealth was required to prove that Carolino, “without consent,” impeded
Ford’s “blood circulation or respiration” by “knowingly, intentionally, and unlawfully applying
pressure to [her] neck.” Code § 18.2-51.6. At trial, Carolino denied strangling Ford and explained
that, although they argued at dinner, they did not fight when they returned to his condo and, instead,
stayed together for “the entirety of the night and up to two to three hours the following morning.”
Carolino’s testimony differed materially from Ford’s testimony, and he called her version of events
into account. Therefore, the Commonwealth’s inquiry as to whether Carolino had ever been
physically aggressive with Ford, along with the photographs of Ford’s injuries from the 2018
incident, were relevant and admissible to prove Carolino’s “conduct or attitude” toward Ford, the
acrimonious nature of their relationship, and the nonconsensual characteristic of the April 2019
encounter.
- 34 -
Furthermore, the 2018 whipping incident was not so remote in time as to negate its
probative value. Ford and Carolino started dating in April 2018 and lived together for less than a
year before finally breaking up in May 2019. The prior incident occurred in the summer of 2018,
near the beginning of their relationship, and the strangulation occurred in April 2019, near the end
of their relationship. Thus, the prior incident was less than a year old at the time of the instant
offense and not so remote in time as to render the evidence nonprobative of Carolino’s conduct and
attitude toward Ford, or the acrimonious nature of their relationship. Further, remoteness alone
would not “render such evidence incompetent,” where the act was accomplished in a
“comparatively recent period” and was “apparently inspired by one purpose.” Ortiz, 276 Va. at
714-15 (quoting Moore, 222 Va. at 77).
Finally, having determined the relevancy of the prior bad acts evidence, we now consider
whether their legitimate probative value outweighs their prejudicial effect. Va. R. Evid. 2:404(b);
Kenner, 299 Va. at 427. “The responsibility for balancing the two considerations rests in the trial
court’s discretion and we will not disturb the court’s determination in the absence of a clear abuse of
discretion.” Kenner, 299 Va. at 427. “[R]elevant evidence will only be excluded if its prejudicial
nature substantially outweighs its probative value.” Conley v. Commonwealth, 74 Va. App. 658,
673 (2022). In order to be considered unfairly prejudicial and subject to exclusion, “the nature of
the evidence must be such that it generates such a strong emotional response that it is unlikely that
the [fact finder] could make a rational evaluation of its proper evidentiary weight.” Fields v.
Commonwealth, 73 Va. App. 652, 673 (2021). The fact finder in this case was the trial judge.
[A] trial judge, sitting as the fact finder in a bench trial, “is uniquely
suited by training, experience and judicial discipline to disregard
potentially prejudicial comments.” As a result, we presume that a
trial judge has “separate[d], during the mental process of
- 35 -
adjudication, the admissible from the inadmissible, even though he
has heard both.”21
Adjei v. Commonwealth, 63 Va. App. 727, 739 (2014) (quoting Lebron v. Commonwealth, 58
Va. App. 540, 551 (2011)). The photographs depicting Ford’s injuries, though disturbing, are
neither gory nor graphic. Particularly whereas they were considered only by a judge sitting as the
fact finder, we do not find them so inflammatory as to outweigh their probative value to the
Commonwealth’s case. Further, to the extent that the injuries depicted in the photographs are
“graphic,” these graphic images actually serve to accurately reflect the severity of the whipping.
See Goins v. Commonwealth, 251 Va. 442, 459 (1996) (“Photographs and videotapes of crime
scenes are admissible to show motive, intent, method, malice, premeditation, and the atrociousness
of the crime. If the photographs accurately depict the crime scene, they are not rendered
inadmissible simply because they are gruesome or shocking.” (citations omitted)).
Ford’s testimony, and the corroborating photographs, of the whipping incident were also
relevant to impeach Carolino’s denial that he had ever been physically aggressive with her.
“Evidence that relates to a separate offense for which the defendant is not currently standing trial,
and which cannot be used22 for any purpose other than for impeachment of the defendant, is . . .
collateral to the main issue” in the case and thus is inadmissible. McGowan, 274 Va. at 695; see
also Bunting v. Commonwealth, 208 Va. 309, 314 (1967) (“Evidence of collateral facts or those
21
The majority appears to ignore this presumption in reaching its conclusion that the trial
court “was not given a chance to limit the prejudice associated with the whipping evidence by
restricting how much of the evidence, if any, was admissible.”
22
The majority states that McGowan prohibits the introduction of other bad acts evidence
“which was not introduced ‘for any purpose other than impeachment of the defendant.’”
(Emphasis added.) However, McGowan’s analysis turns not on the admission of the evidence
for another purpose, but rather the admissibility of the evidence for what would be any
appropriate or legitimate purpose. The majority’s holding inappropriately extends McGowan’s
prohibition against the introduction of other bad acts evidence to include circumstances where
the bad acts evidence would be otherwise admissible for another appropriate or legitimate
purpose.
- 36 -
incapable of affording any reasonable presumption or inference on matters in issue, because too
remote or irrelevant, cannot be accepted i[nto] evidence.”). I disagree with the majority’s
conclusion that the prior bad acts evidence was collateral to the strangulation charge for which
Carolino was on trial. On the contrary, it was admissible in the Commonwealth’s case-in-chief to
prove the nature of the relationship between Ford and Carolino, the lack of consent, and to explain
the one-month delay in reporting the strangulation. “[T]he Commonwealth . . . is entitled to prove
its case by evidence that is relevant, competent and material. [A]n accused cannot . . . require the
Commonwealth to pick and choose among its proofs, to elect which to present and which to
forego.” Boone v. Commonwealth, 285 Va. 597, 600 (2013) (all but first alteration in original)
(quoting Pittman v. Commonwealth, 17 Va. App. 33, 35 (1993)). Because the prior bad acts
evidence was not collateral, it was permissible for the Commonwealth to use extrinsic evidence of
those acts to impeach Carolino’s credibility.
In sum, because both the testimony of Ford and the photographic evidence pertaining to
Carolino’s prior bad act toward Ford was relevant and admissible, and because its probative value
outweighed any prejudice to the accused, the trial court did not abuse its discretion in admitting it at
trial.
IV. Applicability of Right Result Wrong Reason Doctrine
Because I conclude that the whipping evidence is not “collateral,” but material,
McGowan does not preclude its use for impeachment. Thus, the “right-for-the-wrong-reason
doctrine” need not be considered in this case. Nevertheless, because the doctrine is addressed
extensively by the majority, I feel it is necessary to likewise address some concerns about the
majority’s application of the right result for the wrong reason doctrine.
- 37 -
The majority remarks that because
the trial court did not make any finding that the evidence of the
whipping had any independent relevance other than with respect to
credibility . . .[,] the trial court . . . never balanced the probative value
of the whipping incident against its prejudicial impact with respect to
any of the newly-raised grounds advocated by the Commonwealth.
“The absence of any balancing analysis or factual findings resolving the competing versions of the
underlying whipping incident,” the majority continues, “makes application of the right for the
wrong reason doctrine problematic here.”23
As an initial matter, I note that “[t]he trial court is presumed to know and correctly apply the
law ‘absent clear evidence to the contrary in the record.’” Rainey v. Rainey, 74 Va. App. 359, 377
(2022) (quoting Milam v. Milam, 65 Va. App. 439, 466 (2015)). Furthermore, “[i]n Virginia, a trial
court has no common law duty to explain in any detail the reasoning supporting its judgments.
Absent a statutory requirement to do so, ‘a trial court is not required to give findings of fact and
conclusions of law.” 24 Pilati v. Pilati, 59 Va. App. 176, 180 (2011) (quoting Fitzgerald v.
Commonwealth, 223 Va. 615, 627 (1982)). As a general rule, “[a]ll relevant evidence is
admissible.” Va. R. Evid. 2:402. “Relevant evidence may be excluded if . . . the probative value of
the evidence is substantially outweighed by . . . the danger of unfair prejudice.” Va. R. Evid.
2:403(a)(i). Thus, although not articulated on the record, it is simply inaccurate to conclude that the
trial court did not conduct a probative value versus prejudice balancing test. See Juniper v.
23
By disregarding the glaring waiver issues in this case, the majority’s reasoning places
the trial court and the Commonwealth in a no-win situation. Because Carolino did not preserve
his objections to this evidence on the basis which he now asks us to consider, and never once
objected to the admission of the whipping evidence on the ground that its prejudicial nature
substantially outweighs its probative value, the trial court was not asked to conduct, and the
Commonwealth not asked to argue, the balancing test the majority now challenges as both
necessary and absent.
24
This is so even when, as the majority terms it, the trial court must undertake “rigorous
analysis and balancing . . . to fulfill its gatekeeper function.”
- 38 -
Commonwealth, 271 Va. 362, 412 (2006) (“In determining whether relevant evidence should be
admitted, the trial court must apply a balancing test to assess the probative value of the evidence and
any undue prejudicial effect of that evidence. The determination to admit such relevant evidence
rests within the trial court’s sound discretion and will be disturbed on appeal only upon a showing
of an abuse of discretion.”).
Even if the trial court had failed to conduct the prejudice versus probative balancing test
here, I disagree with the majority’s conclusion that such a failure would bar this Court from
considering the right result for the wrong reason and weighing the probative value of the whipping
evidence versus its prejudicial impact ourselves, so long as “the evidence in the record supports the
new argument on appeal, and the development of additional facts is not necessary.” Perry v.
Commonwealth, 280 Va. 572, 579 (2010).25 Because, contrary to the majority’s assertion, the trial
court clearly resolved the question of the nonconsensual nature of the whipping incident in favor of
the Commonwealth, the record is complete. Therefore, if it were necessary to conduct a right for
the wrong reason analysis, such an analysis would be permissible. The facts necessary to weigh
whether the whipping evidence was unfairly prejudicial to Carolino are amply expounded in the
record, permitting us to conduct the balancing test and apply the right result for the wrong reason
doctrine.
The majority appears to assert that by weighing the probative value versus prejudicial
impact ourselves on appeal to consider whether the trial court reached the right result for the wrong
25
The majority cites Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379, 384
(2008), for the proposition that “the Court of Appeals should not have engaged in its own
balancing of probative value against prejudicial effect, but should have remanded to the trial
court to perform this balancing.” However, the Court of Appeals’ error in that case was “in
concluding that the District Court applied a per se rule” to exclude evidence. Id. at 383. Indeed,
the Supreme Court held that the Court of Appeals erred when it “did not accord the District
Court the deference we have described as the ‘hallmark of abuse-of-discretion review.’” Id. at
384 (quoting General Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997)). This observation is equally
applicable to the majority’s review in this case.
- 39 -
reason, we would impermissibly invade the province of the trial court. Yet none of the cases cited
by the majority stand for the proposition that, where the record is complete, we cannot consider
alternate grounds for admissibility of evidence. To the contrary, our caselaw reflects numerous
occasions where this Court and the Supreme Court considered alternate grounds of admissibility in
applying the right result for the wrong reason doctrine. For example, in Egan v. Butler, 290 Va. 62(2015), the Supreme Court reversed the trial court’s ruling excluding evidence of Butler’s past
employment history and quality of his job performance as irrelevant. In declining to affirm the trial
court on the alternative ground that admissibility would be more prejudicial than probative under
the right result for the wrong reason doctrine, the Court weighed the probative value of the excluded
evidence versus the danger of unfair prejudice. Id. at 72. Weighing the evidence, the Court
concluded that “[a]ny prejudice . . . arising from this excluded evidence which tends to more
accurately establish Butler’s future lost income, is not unfair prejudice such that its admission could
properly be barred under Virginia Rule of Evidence 2:403(a).” Id. at 72-73. In Marsh v.
Commonwealth, 32 Va. App. 669 (2000), we examined the record to determine the reliability of
evidence, a role typically left to the trial court. There, we held that “the trial court erred in finding
that the voice exemplar was testimonial in nature requiring appellant to be subjected to cross-
examination under oath,” but, applying the right result for the wrong reason doctrine, concluded that
“the trial court did not abuse its discretion in excluding the voice exemplar” because the record
lacked any evidence “establish[ing] the reliability of the voice exemplar appellant sought to
introduce.” Id. at 681-84. See also Collins v. Commonwealth, 297 Va. 207, 212 n.1, 219 (2019)
(holding that under the “right-result-different-reason doctrine,” the Court could consider for the first
time on appeal whether the good faith exception to the exclusionary rule applied, requiring the
Court to evaluate “what factual circumstances provided either clarity or ambiguity to [the officer] in
his presumed reliance upon that law”). As these cases illustrate, where the record is complete, as it
- 40 -
is here, we need not hesitate to consider alternate grounds for admissibility of evidence in applying
the right result for the wrong reason doctrine.
CONCLUSION
I would hold that Carolino’s arguments pertaining to the use of extrinsic evidence of
allegedly collateral issues to impeach him are waived as he failed to make a timely and specific
objection in accordance with Rule 5A:18 and likewise his arguments are not encompassed by the
assignments of error in accordance with Rule 5A:20(c). I would further hold the trial court did
not abuse its discretion in admitting the evidence of prior bad acts in this case, as that evidence
was relevant to prove Carolino’s attitude and conduct toward Ford, the nature of their
relationship, the nonconsensual nature of the offense, and to explain the delayed report. The
prior bad acts evidence, thus, was not “collateral to the main issue” in this case, and the trial
court did not err in allowing the Commonwealth to introduce evidence of those acts to impeach
Carolino.
- 41 -
VIRGINIA:
In the Court of Appeals of Virginia on Tuesday the 31st day of January, 2023.
Patrick Austin Carolino, Appellant,
against Record No. 1270-21-1
Circuit Court No. CR19-2558
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing En Banc
Before Chief Judge Decker, Judges Beales, Huff, O’Brien, AtLee, Malveaux, Athey, Fulton, Ortiz,
Causey, Friedman, Chaney, Raphael, Lorish, Callins and White
On January 12, 2023 came the appellee, by the Attorney General of Virginia, and filed a petition
requesting that the Court set aside the judgment rendered herein on December 29, 2022, and grant a rehearing
en banc on the issue(s) raised in the petition.
On consideration whereof and pursuant to Rule 5A:35 of the Rules of the Supreme Court of Virginia,
the petition for rehearing en banc is granted and the appeal of those issues is reinstated on the docket of this
Court. The mandate previously entered herein is stayed pending the decision of the Court en banc.
The parties shall file briefs in compliance with the schedule set forth in Rule 5A:35(b). The appellant
shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion previously
rendered by the Court in this matter. An electronic version of each brief shall be filed with the Court and
served on opposing counsel.1
A Copy,
Teste:
A. John Vollino, Clerk
original order signed by a deputy clerk of the
By: Court of Appeals of Virginia at the direction
of the Court
Deputy Clerk
1
The guidelines for filing electronic briefs and appendices can be found at
www.courts.state.va.us/online/vaces/resources/guidelines.pdf.
COURT OF APPEALS OF VIRGINIA
Present: Judges Malveaux, Fulton and Friedman
UNPUBLISHED
Argued at Norfolk, Virginia
PATRICK AUSTIN CAROLINO
MEMORANDUM OPINION* BY
v. Record No. 1270-21-1 JUDGE FRANK K. FRIEDMAN
DECEMBER 29, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Leslie L. Lilley, Judge
Richard C. Clark, Senior Assistant Public Defender, for appellant.
Matthew J. Beyrau, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
This case involves an alleged physical attack at the end of a somewhat stormy romantic
relationship. The appeal focuses on whether a prior alleged incident of physical abuse earlier in the
relationship was admissible and relevant to shed light on the later attack. Patrick Austin Carolino
was convicted in the City of Virginia Beach Circuit Court on one count of strangulation, in violation
of Code § 18.2-51.6. On appeal, Carolino argues that the trial court erred in admitting evidence
pertaining to a prior bad act that occurred between him and the victim, and he asserts that the
evidence was insufficient to prove the offense.
BACKGROUND
The Commonwealth’s Evidence
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party at trial.” Gerald v. Commonwealth,
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
295 Va. 469, 472 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381 (2016)). “That
principle requires us to ‘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 that may be drawn therefrom.’” Clanton v. Commonwealth, 53 Va. App. 561, 564
(2009) (en banc) (quoting Kelly v. Commonwealth, 41 Va. App. 250, 254 (2003) (en banc)).
So viewed, the evidence established that Carolino and Hannah Ford were in a romantic
relationship beginning in April 2018 and ending in May 2019. Carolino and Ford lived together
from May 2018 until February 2019. On April 15, 2019, the two went out to dinner and began to
argue. After dinner, Ford drove to the condo Carolino shared with a friend, Robert Mendez, and
they both went to Carolino’s bedroom. Ford was on the bed as they continued to argue, and she told
Carolino she felt hopeless about their relationship. Carolino angrily got onto the bed with Ford and
put his hand around her neck. With his other hand, Carolino pressed onto the back of her head
“pushing it into the ground.” Ford struggled to breathe and asked Carolino to stop. She thought she
might pass out or die. As Carolino continued to apply pressure to Ford’s neck, he asked, “do you
see what it feels like to die?” Ford could not breathe for approximately fifteen to twenty-five
seconds. She felt pressure in her head and had spotted vision, but she did not lose consciousness.
After the incident, Ford stayed with Carolino overnight and did not end their relationship.
She did not report the incident to the police until a month later. Ford explained that she delayed
reporting the strangulation to police because she still cared for Carolino. But she also “was scared
to report anything.”
The morning after the incident, Ford noticed that she had popped blood vessels in her eye
and photographed her injuries. These photos were later introduced into evidence at trial. Ford also
noticed that her neck was very tender and her throat was sore. She had difficulty swallowing, and
her voice was affected. Ford went to work and discussed the incident with her manager, who
-2-
testified that on the day after the incident Ford was “visibly distraught” and her eyes were red “like
the blood vessels had been popped.” Her manager notified security at their workplace that there
was a possibility someone might come by who could be a danger to them.
Mendez was Carolino’s roommate between February and April of 2019. Mendez testified
that, at the time of the incident, Ford’s eyes “looked as if they were allergies or bloodshot, maybe a
broken blood vessel.” When he asked her about it, she told him she had allergies. Mendez also
noted that Carolino told him, around this time frame, that Ford would know how to respond in
self-defense if she were ever placed in a chokehold.
Ford ultimately reported the choking incident to Carolino’s probation officer on May 17,
2019. She initially called to report him for violating his probation generally; however, after they
met in person, Ford disclosed the choking incident.
Jennifer Knowlton, a sexual assault nurse examiner with Chesapeake Forensic Specialists,
was qualified as an expert in “the signs and symptoms of strangulation.” Knowlton testified that
some of the typical signs and symptoms of strangulation are soreness in the neck area, pain or
difficulty swallowing, and petechia and subconjunctival hemorrhages in the eyes. On
cross-examination, Knowlton acknowledged that other things could cause such symptoms, such as
reactions to medications, excessive coughing, and rubbing one’s eyes to alleviate allergies.
Knowlton did not personally treat Ford for her injuries.
Carolino’s Version of Events and Attack on Ford’s Credibility
After the Commonwealth rested its case, Carolino made a motion to strike, arguing that
Ford’s testimony was unreliable. Carolino pointed out that Ford waited a month before she reported
the incident, and he asserted that she was biased because she was upset that Carolino was seeing
other women. The trial court denied the motion to strike.
-3-
Carolino testified that on the night of the offense he and Ford argued about the fact that he
was seeing other women. He explained that when they returned to his condo, she “begged” to come
inside with him “one last time.” Carolino stated that Ford spent the night, but he said they did not
fight. Indeed, he testified that they had sex in the evening and again in the morning and then did
yoga together. Carolino denied strangling Ford or putting her in a chokehold to teach her
self-defense. Carolino said Ford continued to contact him after that night and tried to interfere with
his other relationships. Carolino admitted that he had two prior felony convictions.
The Whipping Incident
Carolino testified in his own defense and denied that the strangulation incident occurred.
On cross-examination, he was asked:
Q: Ms. Ford—have you ever—you said you didn’t choke her. Have
you ever been physical with her?
A: Aggressively physical, no. Sexually, sure. Yes.
Q: Okay. Never been aggressively physical with her?
The Commonwealth then cross-examined Carolino about a prior incident between him and Ford.
Carolino explained that on a prior occasion, Ford had asked to be whipped as part of a sexual act.
He stated: “I’ve never aggressively assaulted [Ford]. I’ve never—I’ve never done anything to [her]
that she didn’t ask me to do or did not want me to do.”1
The Commonwealth then called Ford as a rebuttal witness. Over Carolino’s objection, Ford
testified that Carolino had beaten her with a belt in the summer of 2018 after learning that she had
slept with someone else. Ford admitted multiple times that she told a detective that she “allowed”
or “gave” “permission” to Carolino to administer the whipping. However, later, she testified that
she did not, in fact, consent to the beating. Instead, Ford explained that she resigned herself to
1
Carolino qualified this statement by noting that Ford sometimes accompanied him to a
jiu-jitsu self-defense class where he showed her tactics in a physical context.
-4-
Carolino’s insistence that he wanted to hurt her for her infidelity. Ford stated, “I did allow him. I
was intimidated by him because he had expressed to me repeatedly that he wanted to hurt me. And
I just . . . didn’t want to have to wait and see when he was going to do it.”
The Commonwealth, at trial and over objection, argued this evidence was admissible to
impeach Carolino’s credibility. In admitting the evidence the trial court stated: “He’s just testified
that he’s never—he’s never been physical with her. . . . I’m going to allow it. I’ll overrule the
objection.” Also, over Carolino’s objection, the trial court allowed the Commonwealth to introduce
graphic photographs of injuries Ford sustained in the prior incident when Carolino whipped her.2
The Trial Judge, as Fact-Finder, Convicts Carolino of Strangulation
After the defense rested, Carolino renewed his motion to strike and presented closing
argument, again emphasizing that Ford waited over a month to report the choking incident to police
and maintaining that she was not a credible witness. The trial court convicted Carolino of
strangulation. In so ruling, the trial court specifically relied upon the prior bad act evidence as a
central basis for the conviction. The court noted that this evidence “really had an impact on the
court as far as credibility goes.” This appeal followed.
ANALYSIS
I. Evidence of Carolino’s Prior Whipping of His Girlfriend was Inadmissible Solely
to Impeach his Credibility
A. Standard of Review
Carolino asserts on appeal that the trial court erred both in allowing Ford to testify about the
2018 incident and in admitting photographs of her injuries from that beating. He contends that the
evidence was irrelevant and inadmissible and that no exception to the rule against propensity
evidence applied.
2
The photographs were admitted as Commonwealth’s Exhibit 2 and show large, dark
bruises on Ford’s buttocks and legs.
-5-
“Decisions regarding the admissibility of evidence ‘lie within the trial court’s sound
discretion and will not be disturbed on appeal absent an abuse of discretion.’” Blankenship v.
Commonwealth, 69 Va. App. 692, 697 (2019) (quoting Michels v. Commonwealth, 47 Va. App.
461, 465 (2006)). To the extent an evidentiary ruling involves interpreting a statute or rule of court,
such rulings are reviewed de novo. Brown v. Commonwealth, 68 Va. App. 746, 792 (2018). “Of
course, an error of law, ‘by definition,’ constitutes an abuse of discretion.” Bennett v.
Commonwealth, 69 Va. App. 475, 485 (2018) (quoting Porter v. Commonwealth, 276 Va. 203, 260
(2008)).
“As a general rule, evidence that shows or tends to show crimes or other bad acts committed
by the accused is incompetent and inadmissible for the purpose of proving that the accused
committed or likely committed the particular crime charged.” Lafon v. Commonwealth, 17
Va. App. 411, 417 (1993); see Va. R. Evid. 2:404(b). “The policy underlying the exclusion of such
evidence protects the accused against unfair prejudice resulting from the consideration of prior
criminal conduct in determining guilt.” Sutphin v. Commonwealth, 1 Va. App. 241, 245 (1985).
This general rule, however, “must sometimes yield to society’s interest in the truth-finding
process, and numerous exceptions allow evidence of prior misconduct whenever the legitimate
probative value outweighs the incidental prejudice to the accused.” Dunbar v. Commonwealth,
29 Va. App. 387, 390 (1999). Notwithstanding the general rule, evidence of prior bad acts is
admissible:
(1) to prove motive to commit the crime charged; (2) to establish
guilty knowledge or to negate good faith; (3) to negate the possibility
of mistake or accident; (4) to show the conduct and feeling of the
accused toward his victim, or to establish their prior relations; (5) to
prove opportunity; (6) to prove identity of the accused as the one
who committed the crime where the prior criminal acts are so
distinctive as to indicate a modus operandi; or (7) to demonstrate a
common scheme or plan where the other crime or crimes constitute a
part of a general scheme of which the crime charged is a part.
-6-
Lafon, 17 Va. App. at 417 (quoting Sutphin, 1 Va. App. at 245-46). This list “is not exclusive.”
Lambert v. Commonwealth, 70 Va. App. 740, 750 (2019).
Before prior bad acts evidence is admitted, the proponent of the evidence must illustrate
that “the legitimate probative value” of the evidence “outweighs the incidental prejudice to the
accused.” Pierce v. Commonwealth, 50 Va. App. 609, 615 (2007) (quoting Woodfin v.
Commonwealth, 236 Va. 89, 95 (1988)).
B. McGowan v. Commonwealth, 274 Va. 689 (2007), and Impeaching the
Accused’s Credibility
Evidence must be relevant to be admissible. Va. R. Evid. 2:402. “‘Relevant evidence’
means evidence having any tendency to make the existence of any fact in issue more probable or
less probable than it would be without the evidence.” Va. R. Evid. 2:401. Here, the
Commonwealth, over Carolino’s objection, introduced evidence of the whipping for the sole stated
purpose of impugning Carolino’s credibility after he stated on cross-examination that he was never
“aggressively physical” toward Ford. The prosecution then called Ford in rebuttal to discuss the
incident. Photos of Ford’s extensive bruising resulting from the beating were also admitted.
On appeal Carolino asserts that, under McGowan, evidence of the whipping could not be
introduced as a prior bad act simply to impugn his credibility. The Commonwealth counters that
the evidence was properly accepted, but principally argues that the ruling to admit the evidence was
“right for a different reason.” Vandyke v. Commonwealth, 71 Va. App. 723, 731 (2020).
McGowan directly addresses whether a circuit court can admit prior bad acts evidence for
the sole purpose of impugning the accused’s credibility in response to an issue raised by the
Commonwealth on cross-examination. In McGowan, a drug offense prosecution, the accused
testified that at the time of the charged drug sale she “wouldn’t know crack cocaine if [she] saw it.”
McGowan, 274 Va. at 693. To impeach the accused’s credibility, the Commonwealth sought to
introduce evidence that the defendant had subsequently been arrested in possession of crack
-7-
cocaine. The Supreme Court found that the improper infusion of collateral “other crimes” evidence
required reversal of the conviction.
The Court reasoned that collateral facts cannot be admitted into evidence and that “[t]he test
as to whether a matter is material or collateral, in the matter of impeachment of a witness, is
whether . . . the cross-examining party would be entitled to prove it in support of his case.” Id. at
695 (alterations in original) (quoting Stottlemyer v. Ghramm, 268 Va. 7, 12 (2004)). The Court
further cautioned: “Evidence that relates to a separate offense for which the defendant is not
currently standing trial, and which cannot be used for any purpose other than for impeachment of
the defendant, is certainly collateral to the main issue.” Id.The McGowan Court then reiterated that when a defendant is cross-examined on collateral
matters, the prosecution must accept the answer provided and cannot introduce extrinsic evidence to
contradict the accused:
Under our jurisprudence . . . the cross-examiner is bound by the
answer given, and cannot introduce any extrinsic evidence to
otherwise contradict the witness. Thus, “the answer of the witness
will be conclusive; [she] cannot be asked as to any collateral
independent fact merely with a view to contradict [her] afterwards
by calling another witness.”
Id. (second and third alterations in original) (citations omitted). The Court confirmed that
cross-examination regarding the collateral issue is permissible:
[I]t is well settled that, “[e]very criminal defendant is privileged to
testify in his own defense, or to refuse to do so. But that privilege
cannot be construed to include the right to commit perjury.”
Clearly, a criminal defendant such as McGowan cannot expect to
make a misleading statement to the jury without also “open[ing]
the door to cross-examination for the purpose of attacking [her]
credibility.”
Id. (second, third, and fourth alterations in original) (first quoting Harris v. New York, 401 U.S.
222, 225 (1971); and then quoting Santmier v. Commonwealth, 217 Va. 318, 319-20 (1976)).
-8-
Under this governing law, we are left to determine whether the trial court properly
admitted the rebuttal and extrinsic evidence relating to the 2018 whipping, and, if not, whether
introduction of this evidence requires reversal.
C. Extrinsic Evidence of the Prior Whipping Incident was Impermissibly
Admitted as a Collateral Matter in the Circuit Court
In examining the ruling below, we confront a situation where no basis was provided by the
Commonwealth in the trial court for why the whipping evidence might have been admissible in its
case-in-chief. The testimony—and the extrinsic photographs—were offered and admitted purely
for impeachment purposes. After the Commonwealth argued that Carolino’s credibility is “at the
very core” of the case, the following colloquy occurred prior to the court admitting the photographs
to discredit his statement, on cross-examination, that he was not “aggressively physical” with Ford:
THE COURT: He said he had never been physical with her and I
don’t—and these pictures apparently—
I haven’t seen them yet. Is it your representation that this is evidence
of him being physical with her?
THE COMMONWEALTH: It is, Judge.
THE COURT: Okay. I’ll receive them.
After viewing the photos, the trial court, in convicting Carolino, specifically commented that
this whipping evidence (and particularly the photos) “really had an impact on the court as far as
credibility goes.”
This case closely mirrors McGowan. We are guided by the Supreme Court’s admonition
that bad acts evidence which relates to a separate incident for which the defendant is not currently
standing trial and which was not introduced “for any purpose other than impeachment of the
defendant, is certainly collateral to the main issue.” McGowan, 274 Va. at 695. Further, when
impeaching on a collateral matter, “the cross-examiner is bound by the answer given, and cannot
introduce any extrinsic evidence to otherwise contradict the witness.” Id. Here, Carolino’s
-9-
challenged testimony was impeached both by testimony from a rebuttal witness and by graphic,
extrinsic photographs. Moreover, the trial court stated that this improper evidence was essentially
the tipping point in reaching its ultimate decision.3
Under these circumstances, we find that the trial court ran afoul of McGowan in admitting
this propensity evidence for the sole purpose of attacking Carolino’s credibility. This, however,
does not end our inquiry. We next address the Commonwealth’s vigorous contention that we
should uphold the admission of the evidence—and therefore the conviction—on alternate grounds.
II. The Commonwealth’s Reliance on Alternative Grounds
The Commonwealth asserts that the disputed evidence could have been admitted—and the
conviction upheld—under different reasoning than the trial court applied.4 “We have long said that
‘[w]e do not hesitate, in a proper case, where the correct conclusion has been reached but the wrong
reason given, to sustain the result and assign the right ground.’” Banks v. Commonwealth, 280 Va.
612, 617 (2010) (alteration in original) (quoting Eason v. Eason, 204 Va. 347, 352 (1963)). On
appeal the Commonwealth offers a broad array of explanations for why the whipping incident could
have been relevant in its case-in-chief had these explanations been raised in the trial court—ranging
from showing intent, consent, or “state of mind,” to proving “the dysfunction” of the couple’s
3
The Commonwealth’s argument on appeal that the whipping incident itself may have
been probative evidence in its case-in-chief will be addressed, infra. The graphic photos,
however, raise different considerations than the testimony regarding the events surrounding the
alleged incident—and the Commonwealth offers little basis for how introduction of the photos
would have been permissible in its case-in-chief.
4
The Commonwealth espouses the “right-for-a-different-reason” doctrine as a means of
preserving the verdict. This theory is applicable in cases “where the appellate court expresses no
view on the correctness of the lower court’s rationale.” Vandyke, 71 Va. App. at 731. We have
addressed the lower court’s rationale—specifically, its finding that the whipping evidence was
admissible to impeach Carolino’s credibility—and therefore instead apply the
“right-for-the-wrong-reason” test, which is closely aligned to the Commonwealth’s argument.
See Perry v. Commonwealth, 280 Va. 572, 580 (2010); Haynes v. Haggerty, 291 Va. 301, 305
(2016).
- 10 -
relationship or explaining why Ford “did what she did.” The Commonwealth similarly argues the
whipping evidence demonstrates the defendant’s “conduct or attitude” toward the victim, as well as
the nature of their relationship. See Ortiz v. Commonwealth, 276 Va. 705, 714 (2008); Morse v.
Commonwealth, 17 Va. App. 627, 632 (1994) (evidence of prior acts of sexual violence was
admissible to show “the conduct and feeling of the accused toward the victim and the prior relations
between the parties” in a prosecution for marital sexual assault).5
The prior acts in the cases relied upon by the Commonwealth, however, were proven to be
relevant to the newly charged acts in some meaningful or probative manner. See Guill v.
Commonwealth, 255 Va. 134, 140-41 (1998) (evidence of other acts must address a matter
genuinely in dispute). The Commonwealth’s contention, here, that the incident reveals
“dysfunction” in the relationship suggests that any incident in the relationship is relevant simply as
background information. The prosecution, however, must establish some evidentiary connection or
legitimate probative value to the whipping evidence before it becomes admissible. Here, the
Commonwealth fails to provide a persuasive probative link. For example, the Commonwealth’s
speculative suggestion that the whipping incident reveals motive or intent—that Carolino was still
angry about Ford’s infidelity the prior summer—is inconsistent with the record which reveals that
Carolino was seeing other women on the date of the alleged choking incident, was not interested in
an “exclusive” relationship, and was not dwelling on past “infidelities.” Further, the
Commonwealth’s argument that the whipping incident was relevant to establish “consent” or state
of mind is also problematic because the issue on this record is not whether the strangulation was
consensual—an argument which no one asserted—but whether a strangulation actually occurred.
5
See also Burnette v. Commonwealth, 60 Va. App. 462, 480 (2012) (evidence of a baby’s
prior injuries was relevant and admissible to show the defendant’s “prior relationship with and
feelings toward” the infant); Conley v. Commonwealth, 74 Va. App. 658, 672 (2022) (video
evidence of prior incidents of sexual abuse was admissible to show the defendant’s “conduct and
attitude” toward the victim).
- 11 -
Ford claimed that she was strangled—and Carolino flatly denied the claim and challenged Ford’s
credibility in multiple respects.6
Recognizing that Ford’s credibility was hotly disputed, the Commonwealth suggests that the
whipping incident is relevant to show why Ford “did what she did.” In essence, the prosecution
argues that the delayed reporting of the whipping sheds light on her delayed reporting of the alleged
choking. Again, the record does not bolster this theory because: (1) two incidents occurring many
months apart do not necessarily establish a “pattern,” and (2) Ford’s reporting as to the two
incidents was inconsistent in various significant respects. For example, Ford immediately reported
the alleged strangulation to her employer the following day, although she delayed reporting it to
Carolino’s probation officer. By contrast, there is no evidence she discussed the whipping with
anyone at the time it occurred. She never made claims that the strangulation was consensual7; but
she did tell police the whipping was consensual:
Q. And didn’t you tell the officer that you sort of gave him permission [for the
whipping]?
A. I did tell her that.
....
THE COURT: You have to – you have to speak up.
THE WITNESS: Yes. I told her that I had allowed him to do it.
Indeed, the two incidents are fairly dissimilar except to suggest Carolino’s alleged propensity to
physical aggression. Notably, even without the whipping evidence, Ford was permitted to explain
6
For example, Carolino argues that Ford contacted his probation officer twice without
mentioning the strangulation and that she waited over a month to report the incident to police.
He points out that Ford spent the night with him after the incident and that she told Mendez that
her eyes were red from allergies the next morning.
The dissent’s suggestion that “Carolino’s testimony implied that any strangulation
7
would have been consensual” is not supported by the record. He denied the incident occurred.
- 12 -
her delayed reporting of the alleged strangulation as attributable to her lingering feelings for
Carolino and her fear of reprisal. The Commonwealth’s theory of relevance as to Ford’s “delayed
reporting” of the whipping or “state of mind” is attenuated and offers negligible probative value, if
any.8
The Commonwealth’s difficulty in establishing an alternate basis for admitting the
testimony regarding the whipping incident only increases with respect to admission of the graphic
photos depicting the extensive bruising Ford suffered from the whipping. The Commonwealth
offers virtually no explanation for why the post-whipping photos of Ford’s injuries should have
been admissible other than to corroborate that the incident occurred. The “happening” of the
beating does not require corroboration, however, as no one disputes that it occurred.
Finally, the test for admissibility of bad acts evidence is tempered by the requirement that
the evidence’s probative value must outweigh any unfair prejudicial impact. See Kenner v.
Commonwealth, 299 Va. 414, 427 (2021) (to admit bad acts evidence, “the legitimate probative
value of the evidence must exceed its incidental prejudice to the defendant”). The photographs
depicting Ford’s injuries are disturbing. Prior bad acts evidence will often be prejudicial to the
defendant, but the test is whether the evidence is unfairly so. Lee v. Spoden, 290 Va. 235, 251-52
(2015). “‘[U]nfair prejudice’ refers to the tendency of some proof to inflame the passions of the
trier of fact, or to invite decision based upon a factor unrelated to the elements of the claims and
defenses in the pending case.” Id. at 251. Here, the photos were jarring and inflammatory, and they
were introduced improperly. See McGowan, 274 Va. at 695 (rejecting tactic of impugning
accused’s cross-examination testimony on collateral matters with extrinsic evidence). Ultimately,
8
Moreover, the Commonwealth relies on the premise that the whipping evidence is
admissible for a limited permissible purpose—but we know this hypothetical justification does not
accurately portray how the evidence was actually used. The evidence was not introduced by the
Commonwealth for the limited purpose of explaining Ford’s delayed reporting or her state of mind.
- 13 -
the unfair prejudicial impact of the bad acts evidence substantially outweighed any remote probative
value the evidence may have had, and the bad acts evidence should have been excluded. See, e.g.,
Lambert, 70 Va. App. at 745 (evidence properly excluded where it would have minimal probative
value yet significant potential for confusion and undue prejudice); Pryor v. Commonwealth, 276 Va.
312, 316-17 (2008) (evidence excluded where its prejudicial impact greatly exceeds its probative
value); Old Chief v. United States, 519 U.S. 172, 191 (1997) (reversing conviction based on
improper admission of bad acts evidence where “the risk of unfair prejudice did substantially
outweigh the discounted probative value” of the evidence).
III. We Cannot Say the Error Was Harmless
For many of the same reasons that we find the extrinsic whipping evidence was improperly
admitted, we reject any notion that the error was harmless. We know that the fact-finder relied on
the collateral evidence. The fact-finder specifically indicated that the extrinsic photos tipped the
scales against the accused, stating, “it really had an impact on the court as far as credibility
goes.”9 See, e.g., Commonwealth v. Swann, 290 Va. 194, 201 (2015) (holding that
improperly-admitted hearsay evidence was not harmless error because the Supreme Court could
not “say with fair assurance that the jury was not substantially influenced” by the evidence);
Jennings v. Commonwealth, 65 Va. App. 669, 681 (2015) (finding that error was not harmless
where the erroneously-admitted testimony established an essential element of the charged
offenses). Given our knowledge that the error directly affected the verdict, we cannot conclude
that the error was harmless. To the contrary, by the fact-finder’s own account, it had a
9
We are cognizant that in a bench trial we can presume that the court relied upon
challenged evidence for a proper purpose, unless the record provides otherwise. Castillo v.
Commonwealth, 21 Va. App. 482, 491-92 (1995); Wilson v. Commonwealth, 16 Va. App. 213,
223 (1993). Here, the record reveals that the improper evidence was considered improperly
under McGowan and it did affect the verdict.
- 14 -
significant impact on the verdict and necessitates a retrial. Thus, we reverse Carolino’s
conviction.10
CONCLUSION
This case falls squarely within the holding of the Supreme Court’s McGowan decision. We
rule that, under McGowan, the trial court erred in admitting prior bad acts evidence in rebuttal solely
to impeach Carolino’s credibility regarding issues raised by the Commonwealth on
cross-examination of the accused. We cannot uphold the conviction under the
right-for-the-wrong-reason doctrine. The Commonwealth has failed to present alternate grounds to
support admission of the whipping incident; moreover, the disputed evidence was substantially
more prejudicial than probative. Finally, the record reveals a strong probability that the error below
did affect and taint the verdict below. Thus, we reject claims that the error could be deemed
harmless. Accordingly, we reverse the judgment of the trial court and remand the case for a new
trial, if the Commonwealth be so advised.
Reversed and remanded.
10
We note that “[w]hen a reviewing court reverses an appellant’s conviction, it must also
address the appellant’s challenge to the sufficiency of the evidence underlying that conviction ‘to
ensure that a retrial on remand will not violate double jeopardy principles.’” Barney v.
Commonwealth, 73 Va. App. 599, 612 (2021) (quoting Wilder v. Commonwealth, 55 Va. App.
579, 594 (2010)). Here, Carolino has not demonstrated that the evidence is insufficient to
support a conviction on remand. A retrial is the appropriate remedy, and this outcome poses no
double jeopardy concerns going forward.
- 15 -
Fulton, J., concurring in part, and dissenting in part.
I respectfully dissent from the majority’s conclusion that the trial court erred in admitting
the evidence of the whipping incident. I would hold that the evidence of the 2018 whipping
incident was a prior bad act admissible in the Commonwealth’s case-in-chief as evidence of the
nature of the relationship between Carolino and Ford, to prove lack of consent to the strangulation,
and to explain Ford’s delayed report of the strangulation. Accordingly, it is not “collateral to the
main issue,” McGowan v. Commonwealth, 274 Va. 689, 695 (2007), and was properly admitted into
evidence at trial.
ANALYSIS
Carolino asserts on appeal that the trial court erred in allowing Ford to testify about the 2018
incident and in admitting photographs of her injuries from that time. He contends that the evidence
was irrelevant and inadmissible to prove a prior bad act and that no exception to the rule against
propensity evidence applied. I disagree; evidence of the prior whipping was relevant to show “the
conduct or attitude of the accused toward his victim,” as well as the nature of the “the relationship
between the parties.” Moore v. Commonwealth, 222 Va. 72, 76 (1981). The whipping evidence,
therefore, was not collateral to this case.
“Decisions regarding the admissibility of evidence ‘lie within the trial court’s sound
discretion and will not be disturbed on appeal absent an abuse of discretion.’” Blankenship v.
Commonwealth, 69 Va. App. 692, 697 (2019) (quoting Michels v. Commonwealth, 47 Va. App.
461, 465 (2006)). “Of course, an error of law, ‘by definition,’ constitutes an abuse of discretion.”
Bennett v. Commonwealth, 69 Va. App. 475, 485 (2018) (quoting Porter v. Commonwealth, 276
Va. 203, 260 (2008)). “In conducting de novo review of a legal issue, the appellate court defers to
any factual findings underpinning it, including the credibility of the witnesses, and may reverse
them only if they are plainly wrong.” Id. “Only when reasonable jurists could not differ can we say
- 16 -
an abuse of discretion has occurred.” Nottingham v. Commonwealth, 73 Va. App. 221, 231 (2021)
(quoting Grattan v. Commonwealth, 278 Va. 602, 620 (2009)).
“Generally, evidence of an accused’s other criminal acts is ‘inadmissible to prove guilt of
the crime for which the accused is on trial.’” Kenner v. Commonwealth, 71 Va. App. 279, 289
(2019) (quoting Gonzales v. Commonwealth, 45 Va. App. 375, 380 (2005) (en banc)), aff’d, 299
Va. 414 (2021). “The policy underlying the exclusion of such evidence protects the accused against
unfair prejudice resulting from the consideration of prior criminal conduct in determining guilt.” Id.(quoting Sutphin v. Commonwealth, 1 Va. App. 241, 245 (1985)). Nevertheless, “other crimes
evidence is admissible when it ‘shows the conduct or attitude of the accused toward his victim[;]
establishes the relationship between the parties[;] or negates the possibility of accident or mistake,’
or shows motive, method, intent, plan or scheme, or any other relevant element of the offense on
trial.” Ortiz v. Commonwealth, 276 Va. 705, 714 (2008) (alterations in original) (quoting Moore v.
Commonwealth, 222 Va. 72, 76 (1981)); see also Va. R. Evid. 2:404(b) (evidence of “other crimes”
is admissible when “relevant to show motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, accident, or if they are part of a common scheme or plan”). This list
“is not exclusive.” Lambert v. Commonwealth, 70 Va. App. 740, 750 (2019). “Virginia law
‘follows an “inclusionary approach” to the uncharged misconduct doctrine by admitting such
evidence “if relevant, for any purpose other than to show a mere propensity or disposition on the
part of the defendant to commit the crime.”’” Id. (emphasis added) (quoting Castillo v.
Commonwealth, 70 Va. App. 394, 415 (2019)). The test is whether “the legitimate probative value”
of the evidence “outweighs the incidental prejudice to the accused.” Pierce v. Commonwealth, 50
Va. App. 609, 615 (2007) (quoting Woodfin v. Commonwealth, 236 Va. 89, 95 (1988)).
The evidence that Ford had acquiesced to a beating so severe as to result in the injuries
reflected in the photos, and yet remained in a relationship with Carolino, sheds significant light on
- 17 -
the nature of the relationship between the parties and was relevant to explain Ford’s delay in
reporting the incident to the police and also why she told Mendez the redness in her eyes resulted
from allergies. She was afraid of and intimidated by Carolino due to the nature of their abusive
relationship. This evidence helps explain Ford’s delayed report, her explanation to Mendez about
the petechia in her eyes, her initial complaint to Carolino’s probation officer, and her decision to
spend the night in the company of the man who had just strangled her. See Scott v. Commonwealth,
228 Va. 519, 527 (1984) (wife’s submission to husband’s sexual demands in marital rape case could
bear upon the defense of consent and, thus, “the prior relations of the couple showed the victim’s
state of mind ‘as to why she did what she did’”). Thus, the evidence was relevant to show the
nature of the relationship and Ford’s tendency to respond to Carolino’s aggression with resigned
submission. As the trial court surmised, “It was punishment for some act that she did. I guess that’s
where the complexities of the relationships [sic] come in . . . . Inexplicable circumstances where
they can’t be disputed.”
Moreover, Ford’s explanation for why she capitulated to Carolino’s whipping bore upon the
element of consent to the strangulation. See Morse v. Commonwealth, 17 Va. App. 627, 632
(1994). Carolino admitted that he was sexually aggressive with Ford and said Ford asked him to
whip her. Carolino’s testimony implied that any strangulation would have been consensual. The
prior bad acts evidence was also relevant as the Commonwealth was required to prove that
Carolino, “without consent,” impeded Ford’s “blood circulation or respiration” by “knowingly,
intentionally, and unlawfully applying pressure to [her] neck.” Code § 18.2-51.6. At trial, Carolino
denied strangling Ford and explained that, although they argued at dinner, they did not fight when
they returned to his condo and, instead, stayed together “for the entirety of the night and up to two to
three hours the following morning.” Carolino’s testimony differed materially from Ford’s
testimony, and he called her version of events into account. Therefore, the Commonwealth’s
- 18 -
inquiry as to whether Carolino had ever been physically aggressive with Ford, along with the
photographs of Ford’s injuries from the 2018 incident, were relevant and admissible to prove
Carolino’s “conduct or attitude” toward Ford, the acrimonious nature of their relationship, and the
non-consensual characteristic of the April 2019 encounter.
Furthermore, the 2018 whipping incident was not so remote in time as to negate its
probative value. Ford and Carolino started dating in April 2018 and lived together for less than a
year before finally breaking up in May 2019. The prior incident occurred in the summer of 2018,
near the beginning of their relationship, and the strangulation occurred in April 2019, near the end
of their relationship. Thus, the prior incident was less than a year old at the time of the instant
offense and not so remote in time as to render the evidence nonprobative of Carolino’s conduct and
attitude toward Ford, or the acrimonious nature of their relationship. Further, remoteness alone
would not “render such evidence incompetent,” where the act was accomplished in a
“comparatively recent period” and was “apparently inspired by one purpose.” Ortiz, 276 Va. at
714-15 (quoting Moore, 222 Va. at 77).
Finally, having determined the relevancy of the prior bad acts evidence, we now consider
whether their legitimate probative value outweighs their prejudicial effect. Va. R. Evid. 2:404(b);
Kenner, 299 Va. at 427. “The responsibility for balancing the two considerations rests in the trial
court’s discretion and we will not disturb the court’s determination in the absence of a clear abuse of
discretion.” Kenner, 299 Va. at 427. “[R]elevant evidence will only be excluded if its prejudicial
nature substantially outweighs its probative value.” Conley v. Commonwealth, 74 Va. App. 658,
673 (2022). In order to be considered unfairly prejudicial and subject to exclusion, “the nature of
the evidence must be such that it creates such a strong emotional response that it is unlikely that the
[fact finder] could make a rational evaluation of its proper evidentiary weight.” Fields v.
Commonwealth, 73 Va. App. 652, 673 (2021). The fact finder in this case was the trial judge.
- 19 -
[A] trial judge, sitting as the fact finder in a bench trial, “is uniquely
suited by training, experience and judicial discipline to disregard
potentially prejudicial comments.” As a result, we presume that a
trial judge has “separate[d], during the mental process of
adjudication, the admissible from the inadmissible, even though he
has heard both.”
Adjei v. Commonwealth, 63 Va. App. 727, 739 (2014) (second alteration in original) (quoting
Lebron v. Commonwealth, 58 Va. App. 540, 551 (2011)). The photographs depicting Ford’s
injuries, though disturbing, are neither gory nor graphic. Particularly whereas they were considered
only by a judge sitting as the fact finder, we do not find them so inflammatory as to outweigh their
probative value to the Commonwealth’s case.
Ford’s testimony, and the corroborating photographs, of the whipping incident were also
relevant to impeach Carolino’s denial that he had ever been physically aggressive with her.
“Evidence that relates to a separate offense for which the defendant is not currently standing trial,
and which cannot be used for any purpose other than for impeachment of the defendant, is . . .
collateral to the main issue” in the case and thus is inadmissible. McGowan, 274 Va. at 695; see
also Bunting v. Commonwealth, 208 Va. 309, 314 (1967) (“Evidence of collateral facts or those
incapable of affording any reasonable presumption or inference on matters in issue, because too
remote or irrelevant, cannot be accepted i[nto] evidence.”). I disagree with the majority’s
conclusion that the prior bad acts evidence was collateral to the strangulation charge for which
Carolino was on trial. On the contrary, it was admissible in the Commonwealth’s case-in-chief to
prove the nature of the relationship between Ford and Carolino, the lack of consent, and to explain
the one-month delay in reporting the strangulation. Because the prior bad acts evidence was not
- 20 -
collateral, it was permissible for the Commonwealth to use extrinsic evidence of those acts to
impeach Carolino’s credibility.11
In sum, because the evidence pertaining to Carolino’s prior bad act toward Ford was
relevant and admissible, and because its probative value outweighed any prejudice to the accused,
the trial court did not abuse its discretion in admitting it at trial.
CONCLUSION
I would hold that the trial court did not abuse its discretion in admitting the evidence of
the prior bad act in this case, as that evidence was relevant to prove Carolino’s attitude and
conduct toward Ford, the nature of their relationship, the nonconsensual nature of the offense,
and to explain the delayed report. I concur with the majority that the evidence presented at trial
was sufficient to support the conviction.
11
Because I conclude that the whipping evidence is not “collateral,” McGowan does not
preclude its use for impeachment. Thus, the “right-for-the-wrong-reason doctrine” need not be
considered.
- 21 -