Com. v. Garrett

Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Goodwyn, JJ., and Russell, S.J.

COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 071654 JUSTICE LAWRENCE L. KOONTZ, JR.
October 31, 2008
MARVIN DARRYL GARRETT

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
William D. Hamblen, Judge

This is an interlocutory appeal from a civil proceeding

brought by the Commonwealth under the Sexually Violent

Predators Act (SVPA), Code § 37.2-900 et seq., seeking to have

Marvin Darryl Garrett committed as a sexually violent

predator. We consider whether the circuit court correctly

ruled that Code § 16.1-306, as applicable to Garrett,

prohibited the Commonwealth’s use in the SVPA proceeding of

records relating to proceedings involving Garrett in a

juvenile and domestic relations district court when he was a

minor. We further consider whether the circuit court erred in

ruling that the Commonwealth’s mental health expert would not

be permitted to express an opinion based, in part, upon her

consideration of criminal conduct of which Garrett had been

accused when he was a minor, but which was not prosecuted on

the Commonwealth’s motion for nolle prosequi.
 BACKGROUND

Because this interlocutory appeal is limited to reviewing

two discrete rulings of the circuit court, we will recite only

those undisputed facts necessary to our resolution of this

appeal. Dagner v. Anderson, 274 Va. 678, 681, 651 S.E.2d 640,

641 (2007). In 1993, Garrett, born on December 5, 1967, was

convicted of rape of an adult and sentenced to twenty years in

prison. Prior to the date of his scheduled release from

prison in December 2006, 1 Garrett was screened by the Virginia

Department of Corrections (VDOC) and was identified, based

upon standardized tests, as a potential sexually violent

predator likely to reoffend upon his release from confinement.

VDOC referred Garrett’s case to the Office of the Attorney

General for consideration of whether to seek his civil

commitment under the SVPA.

Dr. Ilona Gravers, a licensed clinical psychologist, was

designated by the Commonwealth to perform a mental health

examination of Garrett to determine whether he met the

statutory criteria for a sexually violent predator. The

1
In addition to serving his sentence for the rape
conviction, Garrett was serving sentences for other felony
convictions. Although Garrett had completed his sentence for
the rape conviction prior to his scheduled release date, he
remained subject to evaluation for civil commitment under the
SVPA. Code § 37.2-903(B). Cf. Townes v. Commonwealth, 269
Va. 234, 240-41, 609 S.E.2d 1, 4 (2005).

2
Commonwealth made available to Dr. Gravers records detailing

Garrett’s criminal and prison history. Included in these

records were files of proceedings in the Prince William County

Juvenile and Domestic Relations District Court (hereafter,

J&DR court) involving delinquency petitions brought against

Garrett when he was under the age of eighteen.

The J&DR court records revealed that, in addition to

various nonsexual offenses, Garrett, while a teenager, had

been the subject of petitions charging him with three counts

of having carnal knowledge of a minor. These records

indicated that all three of the petitions had been dismissed

without adjudication upon the Commonwealth’s motion for nolle

prosequi. During his interview with Dr. Gravers, Garrett

stated that he did not commit the alleged offenses. Based

upon her interpretation of the records, Dr. Gravers concluded

in her written evaluation that while there was “no official

version of these charges . . . Mr. Garrett was placed in

aftercare as a result” of the allegations having been made.

Dr. Gravers diagnosed Garrett’s mental condition as including

“Paraphilia, Not Otherwise Specified . . . Sexual Abuse of

Child.” Garrett’s adult criminal record did not include any

charges of sexual abuse of a child, and the only adult offense

of a sexual nature was the rape conviction.

3
 Based upon Dr. Gravers’ evaluation and Garrett’s scores

on the standardized tests used by VDOC to determine the

likelihood that a prisoner will commit further violent sexual

crimes upon release, on October 26, 2006, the Commonwealth

filed a petition in the Circuit Court of Prince William County

seeking to have Garrett committed as a sexually violent

predator. Dr. Gravers’ report, which included extensive

details of the non-sexual offenses committed by Garrett as a

juvenile, was appended to the Commonwealth’s petition.

On January 30, 2007, the circuit court conducted a

hearing pursuant to Code § 37.2-906 to determine whether there

was probable cause to find that Garrett was a sexually violent

predator. Dr. Gravers, the Commonwealth’s only witness,

testified that her diagnosis of Garrett and her opinion that

he met the statutory criteria for a sexually violent predator

were based not only on Garrett’s performance on the

standardized tests and his single conviction for rape, but

also on the allegations of the carnal knowledge offenses and

the other nonsexual offenses contained in the J&DR court files

pertaining to Garrett. According to Dr. Gravers, she

considered the petitions charging Garrett with unlawful carnal

knowledge to be significant even though the petitions had been

dismissed because

4
 clinicians know that many charges tend to get pled
down or through the criminal justice system might
get nol prossed, parts of plea bargaining. . . .
[T]he charges frequently are actually representative
of the actual behavior, while the conviction may not
necessarily represent the actual behavior that took
place.

Dr. Gravers further testified that she also considered the

nonsexual offenses in Garrett’s juvenile and adult records,

including offenses that had been dismissed by nolle prosequi,

in reaching her diagnosis that Garrett had an “Antisocial

Personality Disorder,” which in her opinion increased the

likelihood that he would commit further acts of a sexually

violent nature. At the conclusion of the probable cause

hearing, the court ruled that “the evidence adduced by the

Commonwealth is sufficient to carry the burden of proof in

this matter” and subsequently entered an order to that effect.

In anticipation of a subsequent trial on the merits of

its petition to civilly commit Garrett pursuant to Code

§ 37.2-908, the Commonwealth, during the January 30, 2007

hearing, informed the circuit court that it “need[ed] to get

records from the Department of Juvenile Justice regarding Mr.

Garrett’s behavior and treatment” while in the department’s

custody. The Commonwealth requested that the court enter an

order for delivery of those records pursuant to Code § 16.1-

300. The circuit court entered an order directing the

department to provide the Commonwealth with copies of all

5
records in its possession pertaining to Garrett. In response

to that order, the department advised the Commonwealth that

other than a file index card, “[a]ll other files [pertaining

to Garrett] have been destroyed.” The Commonwealth forwarded

a copy of the department’s response to Garrett’s counsel.

Thereafter, pursuant to Code § 37.2-907, the circuit

court appointed Ronald M. Boggio, Ph.D., a licensed clinical

psychologist, to assist Garrett in his defense. In his

subsequent report evaluating Garrett, Dr. Boggio also relied

upon information in Garrett’s juvenile records, which had been

supplied to him by the Commonwealth, including the three

carnal knowledge petitions that had been dismissed on the

Commonwealth’s motion for nolle prosequi. However, Dr. Boggio

disputed Dr. Gravers’ characterization of the available

records as indicating that Garrett had been placed in

aftercare as a condition of the dismissal of the petitions.

Rather, he interpreted the records as indicating that Garrett

had been placed in aftercare on an unrelated petition and the

notation in the file merely indicated that this status

continued following the dismissal of the carnal knowledge

petitions. 2 Dr. Boggio concluded that Garrett did not meet the

2
Ultimately, the circuit court reached a similar
interpretation of these records.

6
statutory criteria for classification as a sexually violent

predator.

On May 3, 2007, Garrett filed a motion in limine seeking

to bar the Commonwealth from introducing documentary evidence

or testimony concerning “any facts, or circumstances of any

charge, or conviction of [Garrett] as a juvenile,” including

Dr. Gravers’ opinion to the extent that it relied upon those

records. Relying on the response to the circuit court’s

January 30, 2007 order by the Department of Juvenile Justice,

Garrett initially contended that the original records had been

“destroyed” and, thus, the records the Commonwealth had

obtained were unauthenticated and should be excluded as

“hearsay.” However, without specifying the source, the

Commonwealth established that it had acquired copies of

“numerous court documents (including Petitions, social

histories authored by probation services, and a letter

regarding a psychological evaluation) and at least one police

report which document Mr. Garrett’s juvenile criminal

history.” Although those documents detailed the nature of the

allegations of unlawful carnal knowledge against Garrett, they

did not contain any information regarding the Commonwealth’s

decision not to prosecute Garrett on those charges. The

Commonwealth provided copies of these records to Dr. Gravers

and Dr. Boggio and advised Garrett that it intended to

7
introduce these records at trial. Dr. Gravers indicated that

the information in these records was consistent with and did

not alter her previous opinion regarding Garrett. Following a

hearing, the circuit court deferred ruling on Garrett’s motion

in limine.

On June 12, 2007, at the outset of the trial on the

Commonwealth’s petition to civilly commit Garrett as a

sexually violent predator, the circuit court again considered

Garrett’s motion in limine. The court ruled that it would

exclude all references to the three carnal knowledge

petitions. The court concluded that “whether offered for

their truth, or for some other purpose related to their

perceived clinical significance, the probative value of the

specifics of the allegations is well outweighed by their

tendency to unduly prejudice the jury in this matter.” The

circuit court further concluded that despite no evidence of a

finding of guilt, Dr. Gravers assumed in her report that

Garrett had committed the carnal knowledge offenses.

Accordingly, the court ruled that Dr. Gravers’ opinion, as

expressed in her report that addressed the excluded evidence,

also would be excluded in its entirety. The Commonwealth

objected to the court’s rulings, contending that the newly

discovered records regarding the charged offenses supported

Dr. Gravers’ assumption that Garrett had committed the

8
offenses, and that her opinion as expressed in her report

should not be wholly excluded as it was based on her full

evaluation of Garrett and was not dependant upon Garrett’s

guilt of the juvenile sexual offenses.

Responding to the Commonwealth’s objection, Garrett

conceded that his prior assumption that the J&DR court records

obtained by the Commonwealth were not original documents was

in error. Garrett contended, however, that those records

should have been expunged and destroyed pursuant to Code

§ 16.1-306 and, therefore, Dr. Gravers should not be permitted

to base her opinion on any of those records.

In support of this position, Garrett proffered to the

court a document from Garrett’s J&DR court records styled

“Notice of Rights to Destruction of Records,” signed by

Garrett on July 29, 1980. As relevant to this appeal, that

notice advised Garrett that records pertaining to J&DR court

proceedings against him “will be destroyed automatically” once

Garrett had reached the age of nineteen and “[f]ive years

ha[d] passed since the last proceeding [involving Garrett] was

disposed of by the Juvenile and Domestic Relations District

Court.” The notice further advised that “such records shall

not be destroyed until twenty years have passed since the last

proceeding was disposed of by the Juvenile and Domestic

Relations District Court if [Garrett] was found not innocent

9
of a delinquent act which would be a felony if committed by an

adult.” 3 A further document proffered by Garrett showed that

the last proceeding involving Garrett in the J&DR court

occurred on December 23, 1985, shortly after Garrett’s

eighteenth birthday, in which the court upon “[r]eview of

[his] Status” directed that Garrett’s file be “closed.”

Upon motion of the Commonwealth, the circuit court

continued the scheduled trial and deferred making a final

ruling on either the admissibility of Garrett’s J&DR court

records or Dr. Gravers’ opinion as expressed in her report.

The parties were directed to submit briefs on both issues.

Following receipt of briefs and numerous supporting

exhibits, the circuit court conducted additional hearings on

the motion in limine. The positions of the parties as

detailed in those briefs and in the argument presented during

the hearings are essentially parallel to the positions they

have taken on brief and in oral argument of this appeal. We

will recount these hereafter in our analysis of the issues

presented in this appeal.

Ultimately, on June 29, 2007, the circuit court entered

an order ruling that “the opinion(s) of Dr. Gravers must be

3
It is not disputed that as a juvenile Garrett was
adjudicated not innocent of an offense that would have been a
felony if committed by an adult.

10
excluded from the trial in this matter.” By reference, the

court adopted as the rationale for this ruling Dr. Gravers’

reliance on the three dismissed carnal knowledge petitions as

stated on the record in the June 12, 2007 hearing. The

Commonwealth filed a motion for reconsideration, contending

that Dr. Gravers’ opinion was not based upon the details of

those offenses, which were not known to her at the time of her

initial diagnosis, but rested primarily on admissible evidence

including the standardized tests, her interview with Garrett,

and his adult criminal history.

On July 27, 2007, the circuit court entered an order

excluding the “admissi[on] and/or utilization of [Garrett’s]

juvenile records.” The court expressly ruled “[t]hat the

version of Virginia Code § 16.1-306 which is controlling to

this issue is that which was in effect during the period of

1980 and 1985,” and that the statute “conferred upon [Garrett]

a Fourteenth Amendment due process right to the scheduled

destruction of his juvenile records.” Determining that this

right could not be altered by any subsequent amendment of Code

§ 16.1-306, the court further ruled that Garrett’s J&DR court

records should have been expunged and destroyed in 2005 and,

thus, were inadmissible for any purpose in any subsequent

proceeding. By separate orders of the same date, the circuit

court denied the Commonwealth’s motion for reconsideration of

11
its ruling excluding Dr. Gravers’ opinion and certified this

interlocutory appeal to this Court to address these rulings. 4

DISCUSSION

The Commonwealth contends that the circuit court erred in

ruling that any use of Garrett’s J&DR court records would

violate a vested right and that, even if Garrett had such

right, the court nonetheless erred in excluding Dr. Gravers’

opinion as expressed in her report in its entirety. The first

of these issues, arising from the court’s interpretation and

application of Code § 16.1-306, presents a question of law

that we will consider under a de novo standard of review.

Shivaee v. Commonwealth, 270 Va. 112, 119, 613 S.E.2d 570, 574

(2005). The second issue, arising from a decision on the

admissibility of an expert opinion, is subject to review only

for an abuse of discretion. Commonwealth v. Miller, 273 Va.

540, 549, 643 S.E.2d 208, 213 (2007).

The principal focus of the parties’ disagreement over the

circuit court’s interpretation and application of Code § 16.1-

306 is whether the court erred in finding that the statute

4
There is no merit to the Commonwealth’s assertion that
Garrett took inconsistent positions in support of his motion
in limine and, therefore, waived the issue of the application
of Code § 16.1-306 on appeal. The record clearly indicates
that the circuit court addressed the Code § 16.1-306 issue in
a manner to specially preserve that issue for appeal.
Accordingly, we take no further notice of the Commonwealth’s
assertion of waiver here.

12
provides a juvenile defendant with a vested right to the

expungement and destruction of records related to proceedings

in the J&DR court at the time of the juvenile’s last contact

with the court and, thus, the timing for the destruction of

Garrett’s juvenile court records was controlled by the statute

as it was in effect in 1985. The Commonwealth contends that

even if the statute is intended to convey a right upon a

juvenile defendant to have his J&DR court records expunged and

destroyed, that right does not vest until the presumptive date

for expungement and, thus, the intervening amendments to Code

§ 16.1-306 could change the conditions under which that right

would vest or eliminate that right entirely. As relevant to

Garrett, the Commonwealth asserts that intervening amendments

to the statute first altered the presumptive date for

expungement and destruction, but ultimately, under the current

version of the statute, eliminated entirely the possibility

that Garrett’s J&DR court records would be subject to

expungement and destruction.

Garrett contends that the circuit court correctly

determined that Code § 16.1-306, as in effect in 1985,

provided him with a vested right to the expungement and

destruction of his J&DR court records. Garrett maintains that

as applicable to him, Code § 16.1-306 “provided for no

possible preservation of [his] record[s] beyond 20 years” from

13
the date of his last J&DR court proceeding and, thus required

the expungement and destruction of his J&DR court records “on

or about December 23, 2005.” 5 Accordingly, Garrett contends

that the circuit court correctly determined that permitting

the Commonwealth to use his J&DR court records in the SVPA

proceeding would constitute a violation of a right afforded by

the statute.

Our analysis in this case necessarily begins with an

examination of Code § 16.1-306 as it was in effect during the

time that Garrett was subject to the jurisdiction of the J&DR

court and the subsequent amendments enacted that altered the

statute. Garrett’s first contact with the J&DR court was on

March 15, 1978 when a petition alleging that he had committed

simple assault was filed. Code § 16.1-306, which had been

enacted in 1977, then provided:

Expungement and sealing of court records.
A. Notwithstanding the provisions of § 16.1-304,
the clerk of the juvenile and domestic relations
district court shall, on January second of each year
or on a date designated by the court, destroy its
files, papers and records connected with any
proceeding in such court, if such proceeding was
with respect to a child, and such child has attained
the age of nineteen years and five years have
elapsed since the last proceeding was disposed of by
the courts; provided, however, such records shall
not be destroyed if the child was found not innocent

5
The parties do not contest that December 23, 1985 is the
relevant date for determining when the “last hearing” occurred
in the J&DR court pertaining to Garrett as contemplated by
Code § 16.1-306 as in effect in 1985.

14
of a delinquent act which would be a felony if
committed by an adult. . . .

B. The remainder of the records held by the court
of juveniles who have attained the age of nineteen
and five years have elapsed since the last
proceeding was disposed of by the courts shall be
sealed. Such records shall be available for
inspection only by a juvenile court, general
district court or circuit court sentencing a person
for conviction of any criminal offense and by the
person on whom the record is kept.

C. A person who has been the subject of a
delinquency petition and whose records fall within
the provisions of subsection B hereof may, after ten
years since the last proceeding was disposed of by
the juvenile court, file a motion requesting the
destruction of all records pertaining to his case.
Notice of such motion shall be given to the
Commonwealth’s attorney. After a hearing on the
matter, if the court grants the motion, copies of
the order shall be sent to offices or agencies that
are repositories of such records, and all such
offices and agencies shall comply with the order.

D. A person found guilty of a charge of delinquency
shall be notified of his rights under subsections A
and C of this section at the time of his or her
dispositional hearing.

E. All records sealed pursuant to subsection B
hereof shall be destroyed twenty years from the date
of the last proceeding in the juvenile court.

F. Upon destruction of the records of a proceeding
as provided for in subsections A and C, the
violation of law shall be treated as if it never
occurred. All index references shall be deleted and
the court and law enforcement officers and agencies
shall reply and the person may reply to any inquiry
that no record exists with respect to such person.

G. The court shall notify all pertinent agencies
and the circuit court of the destruction of records
provided for in subsections A and C. Such agencies

15
 and circuit courts shall also destroy any records
they have in connection with the same proceeding.

Code § 16.1-306 was subsequently amended in 1979 by two

Acts of the General Assembly, and it was this version of the

statute that was in effect when the petitions charging Garrett

with carnal knowledge of a minor were filed in 1981. As

relevant here, the first 1979 amendment altered the

calculation of the five year period designated in subsection A

and the twenty year period designated in subsection D so that

those periods would commence on the “date of the last hearing

in any case of the juvenile” rather than the date the “last

proceeding was disposed of by the courts.” 1979 Acts ch. 736.

The second 1979 amendment to Code § 16.1-306 added a new

provision, subsection C1, which permitted an individual to

petition at any time for the expungement of the records of

offenses which would not be felonies if committed by an adult

and for which the individual was found to be innocent or where

the “petition was otherwise dismissed.” Such petition for

expungement was to be granted “[u]nless good cause [was] shown

why such records should not be destroyed.” 1979 Acts ch. 737.

The same amendment altered subsection D of Code § 16.1-

306 to provide that notice of the “rights” provided for in the

statute was to be given to “[e]ach person,” rather than only

to persons found guilty of a charge. Id. It was under this

16
version of the statute that Garrett first was provided with

the notice of his “Rights to Destruction of Records” on July

29, 1980.

Effective July 1, 1990, 6 approximately four and one-half

years after the entry of the December 23, 1985 order closing

Garrett’s J&DR court records, the twenty year period for

retaining records of cases involving delinquent acts that

constitute felonies if committed by an adult was deleted from

the statute. The amendment instead substituted a provision

that such “records shall be destroyed when the child has

attained the age of twenty-nine.” 1990 Acts ch. 258. Thus,

by this amendment, the General Assembly made the destruction

of J&DR court records dependent solely upon the defendant’s

age without regard to when the last hearing pertaining to him

occurred in the J&DR court.

Code § 16.1-306 was amended again effective July 1, 1996. 7

This amendment deleted the provision for destruction of J&DR

court records of juvenile defendants found to have committed

delinquent acts that would constitute felonies if committed by

6
The statute also was amended in 1989, however, this
amendment only added a provision that the clerk should retain
for a period of ten years J&DR court records that involved an
offense that was required by law to be reported to the
Department of Motor Vehicles. 1989 Acts ch. 183.
7
Amendments to the statute made in 1993, 1994, and 2008
are not germane to this appeal.

17
an adult when the juvenile attained the age of twenty-nine and

instead provided that “[i]f the juvenile was found guilty of a

delinquent act which would be a felony if committed by an

adult, the records shall be retained.” 1996 Acts ch. 463.

Garrett became twenty-nine on December 5, 1996. Thus, if the

Commonwealth is correct that it is the 1996 version of Code

§ 16.1-306 that determines whether Garrett’s J&DR court

records were to be expunged and destroyed, then those records

were properly retained by the Prince William County Juvenile

and Domestic Relations District Court and any other agency or

officer properly possessing copies of those records.

The intention of the General Assembly as expressed in

Code § 16.1-306 since 1978 and the resulting statutory scheme

for the expungement and destruction of the records concerning

delinquency proceedings in a juvenile and domestic relations

district court could not be more clear. The language of the

statute plainly requires the clerks annually to destroy the

“files, papers and records” of those courts concerning prior

juvenile defendants who are no longer subject to the

jurisdiction of those courts when the statutorily established

time periods have expired and the specific statutory

exceptions referenced above are not applicable. The duty

imposed upon the clerks to destroy such records as well as the

18
rights afforded to the individuals are expressly conditioned

upon the passage of specific time periods.

The 1985 version of Code § 16.1-306 did not grant a

substantive right of constitutional dimension to an individual

to have the records of a juvenile and domestic relations

district court pertaining to him expunged and destroyed.

Rather, the statute granted merely an inchoate right until

such time as the statute then mandated that the destruction of

these records would occur. Thus, we agree with the

Commonwealth’s contention that Garrett never had a “vested”

right to have his juvenile records destroyed. This is so

because the 1996 amendment to Code § 16.1-306, providing that

“[i]f the juvenile was found guilty of a delinquent act which

would be a felony if committed by an adult, the records shall

be retained,” came into effect before Garrett’s twenty-ninth

birthday, the date on which, under the version of the statute

in effect for the first time in 1990, the right would

otherwise have vested. Two of our recent decisions provide

support for this conclusion.

In Morency v. Commonwealth, 274 Va. 569, 649 S.E.2d 682

(2007), we considered whether the predecessor statute to Code

§ 9.1-909, which permitted an individual who was required to

register as a sex offender to petition to be relieved of that

requirement and further directed that if such petition were

19
granted the Virginia State Police would remove the

individual’s data from its public Internet database, conveyed

a vested right not to be included in the database once such

petition had been granted. After Morency successfully

petitioned to be relieved of the duty to register, Code § 9.1-

909 was amended to eliminate the directive that the data be

removed from the public database. The State Police

subsequently restored Morency’s data to the database. Morency

then petitioned to have the data removed, contending that the

circuit court’s prior order provided him with a right not to

be included in the database. Id. at 572-73, 649 S.E.2d at

683.

Affirming a judgment denying Morency the requested

relief, we held that Code § 9.1-909 and its predecessor did

not provide Morency with the right to have his data

permanently removed from the database, because “[r]emoval of

such information from the Internet registry was solely an

action directed by statute by virtue of the receipt of the

. . . order” granting his petition to be relieved from the

requirement to register as a sex offender. Id. at 577, 649

S.E.2d at 686. While Morency could not be required to

continue registering as a sex offender, removal of his data

from the database was merely “a procedural remedy which ‘may

be altered, curtailed, or repealed at the will of the

20
legislature’ and therefore did not give rise to any vested

interest.” Id. at 576-77, 649 S.E.2d at 685 (quoting

Commonwealth v. Shaffer, 263 Va. 428, 432-33, 559 S.E.2d 623,

626 (2002)).

Likewise, in McCabe v. Commonwealth, 274 Va. 558, 650

S.E.2d 508 (2007), we held that when the General Assembly

reclassified certain crimes as “sexually violent offenses”

and, thus, altered the sex offender registration requirements

for persons who had previously been convicted of those

offenses, the changes in the law did not affect a vested

right. Id. at 566, 659 S.E.2d at 513. This was so because

the sex offender registration requirements in effect at the

time of McCabe’s conviction gave rise only to a “statutorily-

based expectation” of what would be required of her, not a

vested right to be subject only to those requirements. Id.,

659 S.E.2d at 512.

For these reasons, we hold that the circuit court erred

in ruling that Code § 16.1-306 as in effect in 1985 granted

Garrett a vested right with regard to the destruction of his

J&DR court records. Accordingly, we further hold that the

circuit court erred in finding that version of Code § 16.1-306

21
afforded Garrett the right to have his J&DR court records

destroyed twenty years after December 23, 1985. 8

We now turn to consider the Commonwealth’s remaining

assignment of error. Initially, we note that the circuit

court’s ruling to exclude Dr. Gravers’ opinion was not based

upon its determination that Garrett’s J&DR court records

should have been expunged and destroyed, but upon the court’s

determination that Dr. Gravers improperly relied upon the

three carnal knowledge petitions which were dismissed on the

Commonwealth’s motion for nolle prosequi, concluding that her

opinion that Garrett’s mental condition included “Paraphilia,

Not Otherwise Specified . . . Sexual Abuse of Child” was based

on an improper foundation. As the Commonwealth’s assignment

of error to the court’s ruling is limited to the court having

excluded Dr. Gravers’ opinion in its entirety, we will address

this issue in order to clarify what use, if any, may be made

of Dr. Gravers’ opinion upon remand in light of our holding

that Garrett’s J&DR court records were rightly available to

the Commonwealth.

The Commonwealth contends that the circuit court erred in

excluding Dr. Gravers’ opinion because her reliance upon the

8
In light of this holding, we need not consider the
Commonwealth’s alternate contention regarding the availability
of Garrett’s juvenile court records with regard to his SVPA
proceeding.

22
three carnal knowledge petitions was only incidental to her

overall opinion and diagnosis. Thus, the Commonwealth

contends that the court’s ruling excluding Dr. Gravers’

opinion in its entirety was overbroad.

Garrett responds that the circuit court properly

determined that Dr. Gravers’ reliance on the three carnal

knowledge petitions was not insignificant to her final

diagnosis. He contends that the court’s principal concern was

that Dr. Gravers had assumed that these petitions were

indicative of actual criminal behavior despite the dismissal

by nolle prosequi. Accordingly, Garrett maintains that the

court’s ruling to exclude the opinion entirely was correct,

because Dr. Gravers’ diagnosis of “Paraphilia, Not Otherwise

Specified . . . Sexual Abuse of Child” was the result of

speculation and conjecture.

We agree with the circuit court that Dr. Gravers’

opinion, as proffered, was properly excluded. Code § 8.01-

401.1 clearly allows an expert to express an opinion or draw

an inference from inadmissible sources, such as hearsay.

Nonetheless, to be admissible, an expert opinion must be based

on an adequate factual foundation. Countryside Corp. v.

Taylor, 263 Va. 549, 553, 561 S.E.2d 680, 682 (2002). An

expert must not be permitted to express an opinion that is

speculative and unreliable as a matter of law. Id.; accord

23
Vasquez v. Mabini, 269 Va. 155, 159-61, 606 S.E.2d 809, 811-12

(2005). Thus, we have previously held that “[w]hile Code

§ 37.2-906(C) permits the consideration at a SVP probable

cause hearing of ‘prior convictions or charges,’ there is no

statutory mandate that an unadjudicated charge must be taken

as true for purposes of the hearing.” Commonwealth v.

Jackson, 276 Va. 184, 196, 661 S.E.2d 810, 816 (2008).

The Commonwealth’s decision not to prosecute a specific

charge may be made for any number of reasons, and it is well

established that the granting of a motion for nolle prosequi

generally does not act as an acquittal. See Parker v. McCoy,

212 Va. 808, 810, 188 S.E.2d 222, 224 (1972) (citing Lindsay

v. Commonwealth, 4 Va. (2 Va. Cas.) 264, 265 (1823)). But see

Rosser v. Commonwealth, 159 Va. 1028, 1032 167 S.E. 257, 258

(1933) (holding where the Commonwealth terminated a

prosecution after jeopardy had attached, the nolle prosequi

acted as an acquittal for double jeopardy purposes).

Nonetheless, once the charge is dismissed, no legal

significance can be attached to the fact that the charge was

brought. See Miller v. Commonwealth, 217 Va. 929, 935, 234

S.E.2d 269, 273 (1977) (“Under Virginia procedure a nolle

prosequi is a discontinuance which discharges the accused from

liability on the indictment”).

24
 The Commonwealth asserts that in Ellison v. Commonwealth,

273 Va. 254, 639 S.E.2d 209 (2007), this Court approved the

admission in an SVPA proceeding of evidence of conduct that

resulted in a criminal charge, but which did not result in a

conviction. Our decision in Ellison, however, is readily

distinguishable from the circumstances of the present case.

In Ellison, the Commonwealth was permitted to present the

testimony of a woman who had alleged that Ellison had raped

her. Although Ellison was acquitted in the trial that

resulted from that allegation, we held that the testimony was

nonetheless admissible in the SVPA proceeding because the

standard of proof in such proceedings is different from that

in a criminal trial. Id. at 257-58, 639 S.E.2d at 211-12.

Here, even with the additional records obtained by the

Commonwealth shortly before trial, the record still supports

only a finding that allegations of wrongdoing were made, but

that no prosecution resulted. Unlike in Ellison, the

allegations were never made the subject of sworn testimony

before a trier of fact. And, unlike Ellison, here no

inference can be drawn from the dismissal of the charges that

there was simply a failure of the evidence to establish

Garrett’s guilt under the more stringent standard applicable

in criminal cases because no effort was ever made to produce

evidence in support of those allegations.

25
 We do not challenge Dr. Gravers’ assertion that mental

health professionals will frequently rely upon judicial

records indicating that charged conduct did not result in a

final determination of guilt as nonetheless being indicative

of the subject’s antisocial behavior. As Code § 37.2-906(C)

permits consideration of unajudicated “charges,” there

undoubtedly will be instances in which additional attendant

facts would permit a clinician to make a diagnosis of

“Antisocial Personality Disorder” with confidence. However,

with respect to a diagnosis of “Paraphilia, Not Otherwise

Specified . . . Sexual Abuse of Child” in this case, the three

carnal knowledge petitions standing alone were legally

insufficient to permit Dr. Gravers to draw the inference that

Garrett had in fact committed those offenses in the absence of

any additional evidence concerning the circumstances

surrounding the Commonwealth’s decision to dismiss those

petitions. 9

During the probable cause hearing, Dr. Gravers testified

that her consideration of Garrett’s J&DR court records, and

especially the three dismissed carnal knowledge petitions, was

9
Our examination of the relevant documents also confirms
that Dr. Gravers erred in assuming that Garrett had been
committed to aftercare as a condition of the dismissal of the
petitions. Rather, the records show that Garrett was
“returned to aftercare” at that time because of an unrelated
charge.

26
a significant factor in her opinion that Garrett meets the

statutory criteria for civil commitment under the SVPA.

Indeed, the only factual basis from which Dr. Gravers could

have reached the diagnosis of “Paraphilia, Not Otherwise

Specified . . . Sexual Abuse of Child” was from her reliance

on these petitions. There is simply no merit to the

Commonwealth’s assertion that Dr. Gravers’ reliance upon the

carnal knowledge petitions was only incidental to her overall

opinion and diagnosis.

Accordingly, we hold that the circuit court did not abuse

its discretion in excluding Dr. Gravers’ opinion in its

entirety. We note, however, that the circuit court’s ruling

does not eliminate Dr. Gravers’ qualification to testify as an

expert in this case. Upon remand, therefore, the Commonwealth

may call Dr. Gravers as an expert witness and, to the extent

that she is able to revise her opinion without relying upon

the carnal knowledge petitions and limit her testimony to the

analysis of Garrett’s other juvenile and adult records, her

interview with Garrett, and the standardized tests, the views

expressed here will not serve to bar that expert testimony.

CONCLUSION

For these reasons, the orders of the circuit court will

be affirmed in part and reversed in part, and we will remand

27
the case for further proceedings consistent with the views

expressed in this opinion if the Commonwealth be so advised.

Affirmed in part,
reversed in part,
and remanded.

JUSTICE KINSER, with whom JUSTICE LEMONS joins, concurring.

I agree with the majority opinion but write separately to

clarify reasons why I conclude that the circuit court did not

abuse its discretion by excluding the expert opinion of Ilona

Gravers, Psy.D., in its entirety.

The circuit court excluded Dr. Gravers’ opinion because

the court concluded the opinion was based on the incorrect

assumption that Marvin Darryl Garrett had in fact committed

the three carnal knowledge offenses charged in the juvenile

petitions that were dismissed on the Commonwealth’s motion for

nolle prosequi. The circuit court was correct; Dr. Gravers

did assume that Garrett committed the three carnal knowledge

offenses, but that assumption had no factual basis.

In her written report, Dr. Gravers stated that Garrett

satisfied the “criteria for [the] mental disorder of

Paraphilia, Not Otherwise Specified” because Garrett “offended

against a child and against a non-consenting adult.” Although

Dr. Gravers acknowledged that the carnal knowledge charges

were nolle prossed, she nevertheless believed Garrett received

28
a sanction of aftercare placement for that alleged criminal

conduct. Her belief that he received aftercare placement as a

condition of the dismissal of the petitions apparently led to

her conclusion that he had in fact committed a sexual offense

against a child.

Dr. Gravers was wrong about the connection between the

aftercare placement and the dismissal of the carnal knowledge

petitions. As the majority correctly notes, the aftercare

placement was the result of an unrelated charge. Dr. Gravers’

opinion that Garrett suffers from “Paraphilia, Not Otherwise

Specified” was therefore based on an assumption that had no

basis in fact. “Expert testimony founded upon assumptions

that have no basis in fact is not merely subject to refutation

by cross-examination or by counter-experts; it is

inadmissible.” Vasquez v. Mabini, 269 Va. 155, 160, 606

S.E.2d 809, 811 (2005) (citing Virginia Financial Assoc. v.

ITT Hartford Group, 266 Va. 177, 183, 585 S.E.2d 789, 792

(2003)). Thus, Dr. Gravers’ opinion was inadmissible.

Dr. Gravers’ incorrect conclusion that Garrett actually

offended against a child also affected her diagnosis of

“Antisocial Personality Disorder.” Dr. Gravers wrote in her

report that “[a] hallmark of Antisocial Personality Disorder

is the use of acting [out] as a means of interacting with the

environment and coping with distress. Roots are evident in

29
childhood.” Additionally, Dr. Gravers determined that

“Garrett ha[d] engaged in various forms of acting out since an

early age to include criminal activity, substance abuse and

sexual offending.” Finally, in discussing Garrett’s “sexual

acting out,” Dr. Gravers stated that “[h]e first sexually

offended as an adolescent. While the charges were nolle

prossed, he was given a sanction of aftercare placement.”

Again, Dr. Gravers used her incorrect premise that the

aftercare placement was imposed as a result of the three

dismissed carnal knowledge petitions to conclude that as a

juvenile, Garrett sexually offended against a child. That

conclusion contributed to Dr. Gravers’ diagnosis of

“Antisocial Personality Disorder.” Thus, her diagnosis, like

the diagnosis of “Paraphilia, Not Otherwise Specified,” was

based on an assumption that had no basis in fact, thereby

rendering her opinion inadmissible. See Vasquez, 269 Va. at

160, 606 S.E.2d at 811.

I do not intend for my views to suggest that, in

conducting an evaluation for purposes of a sexually violent

predator proceeding, a mental health professional cannot rely

on unadjudicated criminal conduct. Indeed, the provisions of

Code § 37.2-906(C)(ii) state that, at a hearing to determine

whether there is probable cause to believe a respondent is a

sexually violent predator, “[t]he existence of any prior

30
convictions or charges may be shown with affidavits or

documentary evidence.” But, as I have explained, Dr. Gravers’

incorrect assumption about Garrett’s unadjudicated conduct

formed the basis of her diagnoses of Garrett’s mental

disorders.

Finally, the Static-99, one of the standardized tests

used by mental health professionals to determine the

likelihood of a sex offender to re-offend, allows for

unadjudicated conduct to be included in an offender’s

evaluation. The coding rules for the Static-99 state:

In some instances, the offender has been
arrested for a sexual offense, questioning
takes place but no formal charges are filed.
If the offender is arrested for a sexual
offense and no formal charges are filed, a “1”
is coded under charges, and a “0” is coded
under convictions. If the offender is arrested
and one or more formal charges are filed, the
total number of charges is coded, even when no
conviction ensues.

Both Dr. Gravers and Garrett’s mental health expert used

the Static-99 in this case. On remand, mental health

professionals, in my view, can properly use the three

unadjudicated carnal knowledge petitions to, among other

things, code the Static-99 and other such tests.

For these reasons, I respectfully concur.

31