The Supreme Court of Virginia Reverses the Court of Appeals Sitting en banc Due to Appellant’s Failure to Preserve an Issue for Appeal

Patrick Austin Carolino was accused of strangling his former girlfriend, Hannah Ford. At a bench trial, over Carolino’s objection, Carolino was asked whether he had been “physical” with Ford in the past and he testified that he had never been “aggressively physical.” In response, and again over objection, the Commonwealth introduced evidence of a prior incident where Carolino had beaten Ford with a belt, including photographs showing severe bruising. This incident had occurred about a year before the strangulation. Although Carolino testified that it was consensual, Ford testified that it was not, and that she only “allowed” it because she was intimidated by his threats. The trial court convicted Carolino of strangulation, citing the belt-whipping evidence in its credibility determination of Carolino. Carolino appealed.

The Court of Appeals, sitting en banc, reversed the judgment, holding that the trial court erred in admitting collateral propensity evidence for the sole purpose of attacking Carolino’s credibility in violation of McGowan v. Commonwealth, 274 Va. 689 (2007).

But the Supreme Court of Virginia reversed and reinstated Carolino’s conviction because he had failed to preserve the argument based on McGowan. An objection under McGowan goes to the “scope of impeachment.” But Carolino only made three specific objections regarding the belt-whipping evidence: it was beyond the scope of direct examination, irrelevant, and constituted inadmissible evidence of prior bad acts. Neither Carolino’s trial objections nor his appellate assignment of error (which mirrored his objections) addressed impeachment, “much less the scope of impeachment.” Since neither his objections nor assignment of error encompassed the specific argument that the Commonwealth improperly impeached him, his arguments were waived.

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