Nobrega v. Com.

Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Compton,∗ S.J.

JOSEPH WALTER NOBREGA
OPINION BY
v. Record No. 051378 JUSTICE LAWRENCE L. KOONTZ, JR.
April 21, 2006
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In an unpublished opinion, the Court of Appeals of Virginia

affirmed the convictions of Joseph Walter Nobrega in the Circuit

Court of the City of Norfolk on two counts of rape of a child

under age thirteen, Code § 18.2-61, and two counts of sexual

abuse of the same child over whom he maintained a custodial or

supervisory relationship, Code § 18.2-370.1. Nobrega v.

Commonwealth, Record No. 0511-04-1 (May 10, 2005). We awarded

Nobrega this appeal from the judgment of the Court of Appeals

pursuant to Code § 17.1-411. Nobrega asserts three assignments

of error. First, Nobrega contends that the trial court erred in

denying his motion for an independent psychiatric or

psychological examination of the complaining witness. Second,

Nobrega contends that the Court of Appeals erred in holding that

the trial court lacked the authority to order the complaining

witness to undergo a psychiatric or psychological examination.

∗
Senior Justice Compton participated in the hearing and
decision of this case before his death on April 9, 2006.
Third, Nobrega contends that the Commonwealth’s evidence was

insufficient to support his convictions.

BACKGROUND

In November 2002, Nobrega’s daughter (“the child”), who was

then eleven years of age, reported to her mother that Nobrega

had sexual intercourse with her on two prior occasions.

Thereafter, on February 5, 2003, a grand jury indicted Nobrega

on two counts of rape and two counts of sexual abuse occurring

on two occasions between March 1, 1998 and September 30, 2000.1

Prior to trial, Nobrega filed a motion in the trial court

seeking an order for an independent psychiatric or psychological

examination of the child. In support of the motion, Nobrega

asserted that the child had “long-standing emotional and mental

health issues” that caused the child to experience “auditory and

visual hallucinations, suicidal ideations, ‘grandiose flight of

ideas,’ and impulsive behavior.” Nobrega further asserted that

1
At the time these indictments were returned by the grand
jury, Code § 18.2-61(A) provided, in relevant part, that “[i]f
any person has sexual intercourse . . . (iii) with a child under
age thirteen as the victim, he or she shall be guilty of rape.”

Code § 18.2-370.1(A) provided, in relevant part, that
“[a]ny person eighteen years of age or older who maintains a
custodial or supervisory relationship over a child under the age
of eighteen . . . who . . . (vi) sexually abuses the child as
defined in § 18.2-67.10(6), shall be guilty of a Class 6
felony.”
2
the child had received treatment from numerous psychiatrists and

psychologists, but that no “current, accurate and independent

psychological and/or psychiatric evaluation” existed. Nobrega

contended that since the “mental health and instability” of the

child would be a “crucial factor” to his defense, due process

required the trial court to grant the motion.

At a pretrial hearing, the Commonwealth argued that the

motion was an attempt by Nobrega to have the examining

psychiatrist testify at trial and comment on the child’s

credibility as a witness. Nobrega argued that his need to test

the child’s “suggestibility” was the basis for the motion. In a

memorandum to the trial court, Nobrega elaborated that an

examination was necessary “to determine [the child’s] capacity

to differentiate reality from imagination and her susceptibility

to outside influences.” According to Nobrega, the examination

was vital to his defense because the Commonwealth’s case hinged

on the child’s uncorroborated testimony.

Nobrega attached to his memorandum medical records

documenting the child’s mental health history. Those records

supported Nobrega’s assertion that the child had been diagnosed

with various psychological disorders and at times had exhibited

dysfunctional behavior.

3
 The trial court held a second hearing on the motion. At

this hearing, Nobrega addressed the child’s competency as a

witness for the first time, arguing that “this really is a

competency issue . . . competency for her to testify.” Nobrega

maintained that the purpose of the requested psychological

examination was to evaluate the child’s competency to testify at

trial. In doing so, Nobrega asserted that the examination was

not for the purpose of testing the child’s credibility as a

witness.

The trial court denied Nobrega’s motion. The trial court

reasoned that, if the motion were granted, Nobrega would

inevitably call the examining psychiatrist or psychologist as an

expert witness to testify regarding the results of the

examination. The trial court concluded that an expert witness

giving such testimony would usurp the responsibility of the

trial court to determine the child’s competency to testify and

the responsibility of the fact-finder to determine the child’s

credibility as a witness. The trial court further concluded

that such expert testimony would be inadmissible because it

would address an ultimate issue of fact, the credibility of the

child as a witness.

Subsequently, the trial was conducted without a jury.

Under well-established principles, we view the evidence

4
presented and all reasonable inferences deducible therefrom in

the light most favorable to the Commonwealth, the prevailing

party at trial. Coles v. Commonwealth, 270 Va. 585, 587, 621

S.E.2d 109, 110 (2005).

The child testified that the first incident occurred at the

family’s home on Farrell Avenue in Norfolk when she was seven

years of age. She testified that she was alone in the home with

her father while her mother was at work and her siblings were at

school. The child related that she was told by Nobrega to put

on a white nightgown, not to wear underwear, and to lay on her

mother’s bed. The child further related that after Nobrega put

a bandanna over her eyes, he “stuck his private part into mine.”

Continuing, the child described the remainder of Nobrega’s

actions as going “to the bathroom . . . [i]nside of me” and that

it felt “warm and icky.” The child testified that Nobrega’s

actions caused her to bleed from her “private part.” She

further testified that Nobrega told her that he would kill her

if she ever told anyone what had happened.

The child testified that the second incident occurred when

she was eight years of age and after the family had moved to a

home on Randall Avenue in Norfolk. Her account of this incident

was nearly identical to the first. The child related that

Nobrega again told her to put on a white nightgown, instructed

5
her to lay on her mother’s bed, and placed a bandanna over her

eyes. She further related that Nobrega then “opened my private”

with his hand and “stuck his private part in[].” She testified

that Nobrega again threatened to kill her if she told anyone

what had happened.

The Commonwealth also presented the testimony of a

physician who examined the child soon after the child reported

the rapes. The physician testified that the child’s genital

anatomy revealed no evidence of prior injury or sexual contact.

The physician opined that the absence of physical symptoms of

prior sexual contact could be attributable to healing and pre-

adolescent development commonly occurring in girls of the

child’s age.

The trial court found Nobrega guilty on both counts of rape

and both counts of sexual abuse as charged in the indictments.

By order dated March 2, 2004, the trial court sentenced Nobrega

to confinement for a total of 60 years, with 30 years suspended.

Nobrega perfected an appeal from his convictions to the

Court of Appeals of Virginia. In that appeal, he asserted two

issues: (1) whether the trial court erred in denying Nobrega’s

motion for an independent psychiatric or psychological

examination of the complaining witness, and (2) whether the

6
evidence was sufficient to support the convictions. Nobrega,

Record No. 0511-04-1, slip op. at 1.

The Court of Appeals held that the trial court’s reasons

for denying Nobrega’s motion were erroneous.2 Nevertheless, the

Court of Appeals, relying on Clark v. Commonwealth, 262 Va. 517,

551 S.E.2d 642 (2001), held that the trial court lacked the

authority to grant Nobrega’s motion and, thus, the trial court’s

errors were not reversible. Nobrega, Record No. 0511-04-1, slip

op. at 9-14.

The Court of Appeals then rejected Nobrega’s contention

that the Commonwealth’s evidence was insufficient to support his

convictions and, accordingly, affirmed those convictions. Id.

at 11-13. This appeal followed.

2
The Court of Appeals rejected the trial court’s finding
that an examining psychiatrist’s testimony on a witness’
competence would usurp the trial court’s authority to determine
competence because a trial court has the discretion to permit
expert testimony in determining a witness’ competency. Nobrega,
Record No. 0511-04-1, slip op. at 6 (citing Helge v. Carr, 212
Va. 485, 491, 184 S.E.2d 794, 796 (1971) and Turnbull v.
Commonwealth, 216 Va. 328, 334, 218 S.E.2d 541, 546 (1975)).
The Court of Appeals also concluded that expert testimony
addressing a witness’ “mental disorder and the hypothetical
effect of that disorder” on the witness can be admitted so long
as it does not address the credibility of a witness’ testimony
or an ultimate issue of fact. Id. at 8 (citing Pritchett v.
Commonwealth, 263 Va. 182, 187, 557 S.E.2d 205, 208 (2002)).
7
 DISCUSSION

We begin our analysis in this appeal by first clarifying

that the issue to be resolved with regard to Nobrega’s motion

for an independent psychiatric or psychological examination of

the complaining witness is a narrow one. We are not called upon

to consider the competency of this witness, which implicitly was

resolved by the trial court when it permitted her to testify at

Nobrega’s trial. Nor must we decide whether the trial court

should have exercised its discretion to appoint an expert to

evaluate the mental health records of the witness in order to

assist Nobrega in a challenge to the competency of the witness.

The sole issue is whether the trial court had the authority to

require the complaining witness to be examined by an appropriate

mental health expert.

The Court of Appeals resolved this issue based on our

decision in Clark. In that case, the defendant was charged with

statutory rape and forcible sodomy of a child under thirteen

years of age. 262 Va. at 518, 551 S.E.2d at 643. Prior to

trial, the defendant moved the trial court to order the

complaining witness to undergo an independent medical

examination of her sexual anatomy. Id. at 519, 551 S.E.2d at

643. The trial court denied the motion, and we ultimately

affirmed. Describing the motion as a “discovery effort,” we

8
found that “in Virginia, no authority exists permitting such

discovery” by constitutional mandate, statute, rule of court, or

case law. Id. at 520, 551 S.E.2d at 644. We expressly declined

in Clark to create authority for a trial court to compel

physical examinations of complaining witnesses in rape cases.

Id.

Nobrega distinguishes his case from Clark on several

grounds. He argues that an evaluation by a psychiatrist or

psychologist would be less intrusive than a physical examination

of the sexual anatomy of a complaining witness. He further

argues that, since the complaining witness in the present case

had undergone numerous mental health examinations in the past,

the requested examination would not traumatize her and would be,

at most, a slight burden on her. The thrust of his contention

is that the requested examination should be allowed when, as

here, it is established that the complaining witness in a rape

case has a history of mental disorders and there is no

corroboration that the crime occurred. In the absence of any

authority for this position in Virginia, Nobrega asks that we

create that authority in this case. We will not do so.

We need not reach an opinion with regard to the merits or

the significance of the obvious distinctions Nobrega notes

between the circumstances of his case and those in Clark.

9
Specifically, we need not decide, as he contends, that a mental

health examination of a complaining witness in a rape case is

less intrusive than the requested genital examination of the

complaining witness at issue in Clark. We are of opinion,

however, that mental health examinations are nevertheless highly

intrusive and may violate a complaining witness’ sense of

privacy. See State v. Looney, 240 S.E.2d 612, 627 (N.C.

1978)(psychological examination is “an inquisition into [the

victim’s] most personal and private relations and past

history”). This is especially true with victims of sex crimes.

See United States v. Benn, 476 F.2d 1127, 1131 (D.C. Cir. 1972)

(stating that “the trauma that attends the role of complainant

to sex offense charges is sharply increased by the indignity of

a psychiatric examination”). Moreover, no statute or rule of

court in Virginia authorizes the psychiatric or psychological

examination Nobrega requests in this case.

The Constitution of Virginia establishes rights for both

criminal defendants and crime victims. Article 1, Section 8

guarantees criminal defendants the right to “call for evidence

in [their] favor.” We have stated that this right includes “the

right to prepare for trial . . . and to ascertain the truth.”

Clark, 262 Va. at 520, 551 S.E.2d at 644 (quoting Bobo v.

Commonwealth, 187 Va. 774, 779, 48 S.E.2d 213, 215 (1948)).

10
With equal force, Article 1, Section 8-A guarantees that crime

victims will be “treated with respect, dignity and fairness at

all stages of the criminal justice system.” Indeed, the need to

ensure the fair treatment of crime victims is one reason why a

criminal defendant’s right to call for favorable evidence is

“not boundless.” See Clark, 262 Va. at 520, 551 S.E.2d at 644

(citing Lowe v. Commonwealth, 218 Va. 670, 679, 239 S.E.2d 112,

118 (1977)).

In this case, Nobrega’s constitutional right to call for

evidence in his favor is not implicated. In Virginia, the trial

court determines whether a witness is competent and in making

that determination the court “may, but is not obligated to,

consider the opinion evidence of experts. It is a matter within

the discretion of the trial court.” Turnbull v. Commonwealth,

216 Va. 328, 334, 218 S.E.2d 541, 546 (1975) (citation omitted).

The reliance our common law places on the trial court’s

determination of the competency of a witness reflects the

balance between the constitutional rights of a criminal

defendant and those of crime victims. We are of opinion that

altering that balance by authorizing a trial court to require

a rape victim to undergo an independent psychiatric or

psychological examination to assist in the determination of the

11
victim’s competency to testify is a matter properly left to the

General Assembly to consider as an issue of public policy.

In the absence of such action by the General Assembly, we

are unpersuaded by Nobrega’s contention that a majority of

jurisdictions have adopted a “compelling need” test to authorize

such examinations. Under this approach, trial courts have the

discretion to order a psychiatric or psychological examination

of a complaining witness in a criminal case where the defendant

demonstrates a “compelling need” for the examination. See,

e.g., State v. Nelson, 453 N.W.2d 454, 458 (Neb. 1990); Forbes

v. State, 559 S.W.2d 318, 321 (Tenn. 1977); State v. Jerousek,

590 P.2d 1366, 1371 (Ariz. 1979); State v. Gregg, 602 P.2d 85,

91 (Kan. 1979).

We have no doubt that the possibility of undergoing court-

ordered psychiatric or psychological examinations as a

consequence of reporting rapes could deter victims from coming

forward. See Looney, 240 S.E.2d at 627 (stating that the

prospect of a psychological exam may “discourage the honest,

innocent victim of a genuine assault from going to the

authorities with a complaint”); Forbes, 559 S.W.2d at 320 (rule

mandating rape victim’s participation in psychiatric exams

sought by defendants would be “contrary to public policy”

because it would “deter prosecution for this loathsome criminal

12
act”). Historically, rape victims have been particularly

vulnerable to defense tactics that “put the victim on trial.”

See Winfield v. Commonwealth, 225 Va. 211, 218, 301 S.E.2d 15,

19 (1983). The General Assembly has furthered the public policy

of encouraging victims to come forward by passing legislation to

curb such tactics. See Code § 18.2-67.7 (“rape shield”

statute).

Nevertheless, we recognize that the established history of

mental illness of a particular complaining witness may create a

heightened danger that the witness lacks the capacity accurately

to observe, remember, and communicate facts. Hopkins v.

Commonwealth, 230 Va. 280, 291, 337 S.E.2d 264, 271 (1985);

Helge v. Carr, 212 Va. 485, 487-91, 184 S.E.2d 794, 795-98

(1971). It is axiomatic that an individual accused of the crime

of rape has a vital interest in ascertaining the competency of

such a complaining witness to testify. However, we believe that

an accused’s ability to voir dire a complaining witness, the

trial court’s skill and experience in observing testimony, and

the presentation of the mental health records and expert

testimony regarding those records provide adequate safeguards to

the accused to test the competency of the complaining witness

without a court-ordered mental health examination of that

witness. Thus, we hold that a trial court has no authority to

13
order a complaining witness in a rape case to undergo a

psychiatric or psychological evaluation.3

We turn next to address Nobrega’s contention that the

Commonwealth’s evidence was insufficient to support his

convictions. In accord with well-established principles, we

will not reverse the judgment of the trial court unless it is

plainly wrong or without evidence to support it. Commonwealth

v. Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72 (1998). We also

accept the trial court’s determination of the credibility of

witness testimony unless, “as a matter of law, the testimony is

inherently incredible.” Walker v. Commonwealth, 258 Va. 54, 70-

71, 515 S.E.2d 565, 575 (1999).

Nobrega does not dispute that, at the time of the alleged

rapes, the child was under the age of thirteen and Nobrega was

eighteen years or older. See Code § 18.2-61(A)(iii)(rape

includes sexual intercourse with a child under thirteen); Code

§ 18.2-370.1 (applying to acts by an adult on a child under

eighteen). Furthermore, it is undisputed that when the alleged

rapes occurred, Nobrega had a “custodial or supervisory

relationship” with the child. See Code § 18.2-370.1(A). Thus,

3
Because we will affirm the Court of Appeals’ holding that
a trial court has no authority to order a complaining witness in
a rape case to undergo a psychiatric or psychological

14
if the evidence established beyond a reasonable doubt that

Nobrega engaged in sexual intercourse with the child, Nobrega’s

contention that the evidence was insufficient to convict him

under Code § 18.2-61 and Code § 18.2-370.1 must fail.

The child testified that, on two occasions, Nobrega put his

“private part” into her “private part” and “went to the

bathroom” inside her. A rational fact-finder certainly could

understand the child’s detailed account of those acts to be a

description of sexual intercourse. Nobrega contends, however,

that inconsistencies in the child’s testimony, the child’s

history of mental illness, and the lack of physical evidence

rendered the child’s testimony unworthy of belief. We disagree.

While the child’s testimony did contain minor

inconsistencies, her testimony did not waiver with regard to the

acts of sexual intercourse. Although the child’s mental health

history bears on the weight to be given her testimony, the trial

court found her testimony to be credible. The record does not

support a conclusion that her mental health history rendered her

testimony inherently incredible as a matter of law. Finally,

the testimony of the physician who physically examined the child

showed that the lack of physical evidence of sexual intercourse

examination, we need not address whether the reasons given by
the trial court for denying Nobrega’s motion were erroneous.
15
could have been the result of the natural healing and growth

process of a girl of the child’s age.

As we have stated, the victim’s testimony alone, if not

inherently incredible, is sufficient to support a conviction for

rape. See Snyder v. Commonwealth, 220 Va. 792, 796, 263 S.E.2d

55, 57 (1980); Fogg v. Commonwealth, 208 Va. 541, 546, 159

S.E.2d 616, 620 (1968). Since the child’s testimony that

Nobrega engaged in sexual intercourse with her was not

inherently incredible, the trial court was entitled to rely on

her testimony. Accordingly, we hold that the Commonwealth’s

evidence was sufficient to support Nobrega’s convictions under

Code § 18.2-61 and Code § 18.2-370.1.

CONCLUSION

For the foregoing reasons, the holding of the Court of

Appeals that a trial court has no authority to order a

complaining witness in a rape case to undergo a psychiatric or

psychological examination was correct. The Court of Appeals

also correctly held that the Commonwealth’s evidence was

sufficient to support Nobrega’s convictions under Code § 18.2-61

and Code § 18.2-370.1. Accordingly, the judgment of the Court

of Appeals will be affirmed.

Affirmed.

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