                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judges Elder and McClanahan
Argued at Alexandria, Virginia


RUBIO ARGELIO ANGEL
                                                             MEMORANDUM OPINION * BY
v.     Record No. 2044-07-4                                    JUDGE LARRY G. ELDER
                                                                  MARCH 24, 2009
COMMONWEALTH OF VIRGINIA


                    FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                              Benjamin N. A. Kendrick, Judge

                 Douglas Wham, Deputy Public Defender (Office of the Public
                 Defender, on briefs), for appellant.

                 Susan M. Harris, Assistant Attorney General (Robert F. McDonnell,
                 Attorney General, on brief), for appellee.


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

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

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

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

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

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

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

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

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

harmless. Thus, we affirm appellant’s convictions.



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

                                                 A.

                   MOTION TO SUPPRESS STATEMENTS TO OFFICERS

       Federal constitutional law

               require[s] that a suspect be informed of his constitutional rights to
               the assistance of counsel and against self-incrimination. Miranda
               v. Arizona, 384 U.S. 436, 471, 86 S. Ct. 1602, [1626,] 16 L. Ed. 2d
               694[, 722] (1966). These rights can be waived by the suspect if the
               waiver is made knowingly and intelligently. Id. at 475, 86 S. Ct.
               [at 1628, 16 L. Ed. 2d at 724]. The Commonwealth bears the
               burden of showing a knowing and intelligent waiver. Id. Whether
               the waiver was made knowingly and intelligently is a question of
               fact that will not be set aside on appeal unless plainly wrong.

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

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

court must conclude

               the relinquishment of the right[s] [was] voluntary in the sense that
               it was the product of a free and deliberate choice rather than
               intimidation, coercion or deception. . . . [T]he waiver must [also]
               have been made with a full awareness of both the nature of the
               right being abandoned and the consequences of the decision to
               abandon it.

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

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

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

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

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

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

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

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

presence or absence of a parent, guardian, independent interested adult, or counsel is . . . [but
                                                -2-
one] factor to be considered in the totality of the circumstances . . . .’” Rodriguez v.

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

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

fourteen-year-old suspect).

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

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

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

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

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

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

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

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

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

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

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

the victims provided further evidence of his literacy.

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

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

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

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

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

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

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

he understood what he had read aloud, to which appellant responded, “Yes,” and Ignacio asked

                                                -3-
appellant whether he had any questions about the form, to which appellant responded, “No.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Appellant expressly indicated his willingness to speak to the detectives by signing the form, even




                                                -4-
if he did so using his alias of Carlos Zepeda. The record also contains no evidence of duress or

coercion on the part of the police.

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

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

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

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

statement did not negate the language in the form.

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

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

voluntary, and intelligent.

                                                 B.

         DUE PROCESS CHALLENGE TO INDICTMENTS BASED ON ALLEGED
        LACK OF COMPLIANCE WITH PARENTAL NOTIFICATION PROVISIONS

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

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

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

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

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

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

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

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

considered the statutory notice issue, addressed whether failure to comply with the statutory




                                                -5-
notice provisions constituted a denial of due process as guaranteed by the Fifth and Fourteenth

Amendments to the United States Constitution.1

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

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

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

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

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

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

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

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

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

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

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

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

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

process he was due under the statute.

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

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

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


       1
          The Commonwealth contends appellant did not preserve this objection for appeal
because he had full knowledge of all the facts necessary to raise an objection at the outset of the
July 31, 2006 proceeding but remained silent. However, the record indicates appellant raised the
issue in a written motion opposing transfer that was filed on September 6, 2006, the same day the
court found probable cause to certify the charges. He also raised the issue in the circuit court
prior to indictment by means of an appeal noted on September 7, 2006, although the appeal was
not heard until December 27, 2006, well after issuance of the indictments on September 18,
2006.

                                               -6-
parents] timely notice, in advance of the hearing, of the specific issues that they must meet.’” Id.

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

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

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

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

Court explained as follows:

               A confinement order imposes a sentence of confinement in an
               institution (“however euphemistic the title, a ‘receiving home’ or
               an ‘industrial school’ for juveniles is an institution of confinement
               in which the child is incarcerated for a greater or lesser time”
               [quoting Gault, 387 U.S.] at 27, 87 S. Ct. at 1443, 18 L. Ed. 2d at
               546). A certification order transfers a case to another court for
               original determination whether the accused shall be confined.
                        The Supreme Court held Gault’s confinement under order
               of the Arizona juvenile court constitutionally invalid because the
               order denied Gault his liberty without due process. [Appellant]
               Cradle is not confined under a juvenile court order. The Virginia
               juvenile court made no finding of [appellant] Cradle’s innocence
               or guilt, only a finding that he should stand trial on the merits in
               another court. It therefore certified [appellant] Cradle for trial as
               an adult in the court having jurisdiction to try the charges against
               him, [the circuit court].

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

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

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

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

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

occurred.




                                                -7-
                                                 C.

                        ADMISSION OF OTHER CRIMES EVIDENCE
                         AND JOINDER OF OFFENSES FOR TRIAL

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

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

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

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

trial was harmless.

                           1. Admissibility of Other Crimes Evidence

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

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

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

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

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

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

               Where a course of criminal conduct is continuous and interwoven,
               consisting of a series of related crimes, the perpetrator has no right
               to have the evidence “sanitized” so as to deny the jury knowledge
               of all but the immediate crime for which he is on trial. The
               fact-finder is entitled to all of the relevant and connected facts,
               including those which followed the commission of the crime on
               trial, as well as those which preceded it; even though they may
               show the defendant guilty of other offenses. Evidence of such
               connected criminal conduct is often relevant to show motive,
               method, and intent. Indeed, it may be the only way in which such
               matters may be shown . . . . Even where another crime is not
               inextricably linked with the offense on trial, it may nevertheless be
               proved if it shows the conduct and feeling of the accused toward
               his victim, his motive, intent, [common scheme or plan], or any
               other relevant element of the offense on trial.

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

emphasis added). In addition to intent, another recognized element that other crimes evidence
                                                -8-
may be admissible to prove is identity, where identity is in dispute. E.g. Turner v.

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

       A common plan exists

                when the “relationship among offenses . . . is dependent upon the
                existence of a plan that ties the offenses together and demonstrates
                that the objective of each offense was to contribute to the
                achievement of a goal not attainable by the commission of any of
                the individual offenses.” A conspiracy involving more than one
                offense is a typical example of offenses involving a common plan.
                Offenses using a “common plan,” however, should be
                “distinguished from similar character offenses (where the offenses
                merely duplicate each other).”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

same people).

                                                -9-
       In Satcher v. Commonwealth, 244 Va. 220, 229, 421 S.E.2d 821, 827 (1992), for

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

on appellant’s shoe belonged to V.L., thereby linking appellant to the crimes against V.L.,

                                               - 10 -
appellant disputed the accuracy of that DNA evidence and implied that his confession to the

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

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

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

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

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

common scheme or plan.

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

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

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

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

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

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

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

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

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

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

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

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

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

committed roughly thirty and sixty minutes earlier in Alexandria.

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

battery in Alexandria on July 9 were admissible to prove identity on the charge of misdemeanor




                                               - 11 -
sexual battery stemming from the June 18 incident against S.P. We hold that they were because

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

529 S.E.2d at 791)).




                                                - 12 -
        Thus, we hold the evidence of the July 9 sexual batteries against K.G., Ms. A., and Ms. Z.

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

offenses involving V.L.

                               2. Harmless Error Concerning Joinder

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

from the record and the evidence given at the trial that the parties have had a fair trial on the

                                                 - 13 -
merits and substantial justice has been reached.” Code § 8.01-678. “‘If, when all is said and

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

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

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

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

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

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

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

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

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

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

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

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

that he beat V.L. and committed most of the other charged crimes against her 2 before fleeing on

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

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

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

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

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

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

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

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


        2
         Appellant denied penetrating her anus with the stick found there when she arrived in the
emergency room. The presence of the stick served as the basis for one of the object sexual
penetration convictions.
                                             - 14 -
misdemeanor sexual battery offense committed against S.P. three weeks earlier, in which a man

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

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

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

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

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

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

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

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

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

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

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

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

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

also was overwhelming. Appellant admitted committing the misdemeanor sexual batteries

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

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

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

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

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

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

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

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

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

                                               - 15 -
committed any offenses similar to the misdemeanor sexual batteries he admitted committing

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

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

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

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

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

harmless on the issue of guilt or innocence.

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

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

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

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

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

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

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

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

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

                                                 D.

                     MOTION FOR APPOINTMENT OF A DNA EXPERT

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

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

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

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

L. Ed. 2d 53, 61-68 (1985), which requires a state to provide a defendant with expert assistance




                                                - 16 -
where necessary to “assure that the defendant has a fair opportunity to present his defense,” is

trial error subject to harmless error analysis).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

trial court’s failure to appoint the requested expert was not error in regard to a charge of felony




                                                   - 17 -
hit-and-run that occurred while driving the car that had been taken in the carjacking), rev’g 41

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

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

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

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

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

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

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

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

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

also as to the offense against S.P.

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

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

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

harmless.

                                                 E.

                                      MISTRIAL MOTION

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

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

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

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

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

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

were spoken.’” Yeatts v. Commonwealth, 242 Va. 121, 137, 410 S.E.2d 254, 264 (1991)

                                               - 18 -
(quoting Reid v. Baumgardner, 217 Va. 769, 774, 232 S.E.2d 778, 781 (1977)) (citations

omitted).

               “If counsel believes that an argument requires or justifies a
               mistrial, he has the duty to move promptly before conclusion of the
               argument so that the trial court may determine what corrective
               action, if any, should be taken.” There appears to be no exception
               in Virginia law to the strict application of this rule.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

did not articulate any basis for that objection. Only after the trial court had instructed the jury to

                                                - 19 -
“retire” for the purpose of deciding whether to begin deliberations that evening or the following

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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




                                                - 20 -
                                               II.

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

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

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

                                                                                        Affirmed.




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