PRESENT: Carrico, C.J., Hassell, Keenan, Koontz, Kinser, and
Lemons, JJ., and Stephenson, S.J.
ADRIAN DARRYL WARD
OPINION BY
v. Record No. 020200 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
November 1, 2002
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
The two issues presented in this appeal are: (1) whether
the trial court erred in allowing an expert to testify that a
rape victim suffered from post-traumatic stress disorder, and
(2) whether the evidence is sufficient to prove that the accused
committed rape and sexual battery.
I
In a bench trial in the Circuit Court of Henrico County,
Adrian Darryl Ward was convicted of rape and sexual battery. He
was sentenced to 40 years' imprisonment with 25 years suspended
for the rape and to a suspended 12-month sentence for the sexual
battery. The Court of Appeals denied Ward's petition for
appeal; however, on May 3, 2002, we awarded him this appeal.
II
According to well-established precedent, we will view the
evidence and all reasonable inferences to be drawn therefrom in
the light most favorable to the Commonwealth, the prevailing
party at trial. On June 16, 2000, the victim was admitted to
the Manor Care Nursing Home. She was 61 years old and recently
had suffered a stroke. She was in a semi-private room, and her
bed was farthest from the hall door.
The victim's sister visited the victim at the nursing home
every day. On June 23, between 7:55 and 8:00 p.m., the sister
arrived at the nursing home for a visit. The sister first
noticed that the door to the victim's room was completely shut,
which was unusual. The sister testified that, as she pushed the
door open, "the curtain to the bed beside the door was curved
around to the end of the bed, so that it was in the way of the
door." When the sister asked why the door was shut, she heard a
male voice say, "Wait outside." The sister looked into the
mirror at the foot of the victim's bed and saw Ward washing the
victim's lower abdomen and the top of her pubic area "very
slowly and carefully . . . just real slowly."
The sister and her husband then waited outside the room.
Fifteen to 20 minutes later, Ward came out of the room and told
the sister and her husband that they could enter.
When the sister entered the room, she noticed that the
victim "was wide awake, her eyes were darting all over the room,
and she was very nervous and afraid." The sister had never seen
the victim in that condition. When the sister asked whether the
victim was all right, the victim responded, "I was raped."
Shortly thereafter, the victim was taken to a hospital
emergency room. An examination performed several hours later
revealed that she had extensive and severe redness in her
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genital area. There also were numerous areas of tearing and
several small hemorrhages. According to the examiner, the tears
could have been caused by scratching or by a penis. In giving
her history, the victim told the examiner that Ward had touched
her breasts, through her clothing, touched her genitals, kissed
her mouth, and raped her.
At trial, the victim testified that, while Ward had been
bathing her, he had washed her breasts "real slowly to feel
. . . [her], instead of washing." She further testified that
Ward had then put his penis in her vagina twice and had made her
feel his penis with her right hand, which she had very little
use of due to the stroke.
When questioned by a police investigator, Ward said that
the door to the victim's room had been open because he always
left it open. He claimed that he had spent only ten minutes
with the victim and that she had been unclothed for only two or
three minutes. He further stated that a nurse had observed 70
to 90 percent of his bathing of the victim and that he had been
alone with her for just two or three minutes. When the
investigator advised Ward that a complaint of rape had been
made, he responded that he did not know why, adding that he is
"not a premature ejaculator." When the investigator asked why
the victim would make such a complaint, Ward said, "You know,
these southern white women, they think all black males are going
to mug them, rape them, or kill them."
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A second police officer also questioned Ward. After
reiterating his version of what had transpired in the victim's
room, Ward said, "I'm sorry to say I'm not a premature
ejaculator." The officer considered the statement to be an "off
the cuff statement," so he "jotted it down."
Two nurses at the nursing home testified that the door to
the victim's room had been closed when Ward had been bathing the
victim. One of the nurses had asked another nurse why the door
had been closed.
Dr. Charlotte K. Wenzel, a licensed clinical psychologist,
testified that, based upon what the victim had told her, the
victim was suffering from post-traumatic stress disorder (PTSD).
In discussing the victim's symptoms, Dr. Wenzel stated the
following:
Obviously that she has experienced a traumatic event,
that her response to this traumatic event was horror,
fear, intense fear, that she had recurring and
distressing recollections of the event, that at times
she felt as if she were reliving the event, intense
psychological distress or exposure of external cues
that symbolized the event. . . . [A]voidance, efforts
to avoid thoughts, feelings, conversations. Efforts
to avoid activities, very fearful of places to go, and
an inability to recall an important event of the
trauma. That's foremost. Markedly diminished
interest in or participation in significant
activities. . . . Irritability, outbursts,
hypervigilence, exaggerated startled response. A lot
of these I have witnessed myself in the course of
therapy.
Dr. Evan Stewart Nelson, a licensed clinical psychologist
and a specialist in forensic matters, testified on behalf of
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Ward. He explained the difference between forensic psychology
and clinical psychology. He said that a diagnosis by a clinical
psychologist can be based strictly on a discussion with a
patient, but a forensic psychologist would "seek collateral
sources before giving opinions."
III
Ward contends that the trial court erred in allowing Dr.
Wenzel to testify that the victim was suffering from PTSD. He
asserts that this testimony was a comment on the ultimate issue
of fact, that it improperly bolstered the victim's testimony,
and that it was excessively prejudicial.
A
We first consider Ward's claim that Dr. Wenzel's testimony
constituted a comment on the ultimate issue in the case, i.e.,
whether the victim was raped. We repeatedly have held that an
expert's testimony upon the ultimate issue of fact is
impermissible because it invades the province of the fact
finder. See, e.g., Jenkins v. Commonwealth, 254 Va. 333, 336,
492 S.E.2d 131, 132 (1997); Llamera v. Commonwealth, 243 Va.
262, 264, 414 S.E.2d 597, 598 (1992); Bond v. Commonwealth, 226
Va. 534, 538, 311 S.E.2d 769, 771-72 (1984); Cartera v.
Commonwealth, 219 Va. 516, 519, 248 S.E.2d 784, 786 (1978).
Ward argues that "the expert should not have been allowed
to declare her belief that neither the stroke, nor any other
event prior to the alleged rape, was the traumatic event that
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caused [the victim] to suffer from PTSD." In support of his
contention, Ward relies upon our recent decision in Valazquez v.
Commonwealth, 263 Va. 95, 557 S.E.2d 213 (2002).
In Valazquez, the defendant was accused of rape. The trial
court allowed a medical expert to opine that the victim's
physical injuries were "inconsistent with consensual
intercourse" and that the expert held that opinion because the
injuries were "consistent with non-consensual intercourse." Id.
at 100, 557 S.E.2d at 216. We held that the combined testimony
"'closed the circle'" and "clearly expressed [the expert's]
opinion that [the victim] was raped because [the expert's]
opinion excluded all other trauma as the cause of [the victim's]
injuries." Id. at 105, 557 S.E.2d at 219. Thus, the expert's
opinion improperly invaded the province of the fact finder on
the ultimate issue of fact to be decided in the case. Id.
In the present case, however, Dr. Wenzel was not asked, and
she did not mention, on direct examination, what she thought
could, or could not, have caused the victim's PTSD. It was not
until cross-examination that Dr. Wenzel was asked whether
suffering a stroke is a traumatic event, and she answered that
it is. She also was asked whether being placed in a nursing
home is a traumatic event, and she said that "it really depends
upon the person." Then, on re-direct examination, Dr. Wenzel
was asked if a stroke could cause PTSD, and she responded that,
"in the eighteen years that [she had] been a clinical
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psychologist, . . . [she had] treated lots of stroke victims
. . . [and] always diagnosed them as depressed, but never as
. . . [suffering from] post traumatic stress disorder." This
answer, while ruling out stroke as a cause of the victim's PTSD,
was not an opinion by the expert of what had caused the victim's
condition. Indeed, Dr. Wenzel never discussed rape or any other
sexual event. We conclude, therefore, that Dr. Wenzel did not
express an opinion on the ultimate issue in the case.
B
We next consider Ward's contention that Dr. Wenzel's
testimony improperly bolstered the victim's testimony. We do
not agree.
It would have been improper for Dr. Wenzel to comment upon
the victim's veracity in order to bolster the victim's
credibility. See Fitzgerald v. Commonwealth, 223 Va. 615, 630,
292 S.E.2d 798, 806 (1982), cert. denied, 459 U.S. 1228 (1983).
This, however, did not happen. Dr. Wenzel simply testified
about the victim's mental condition, which was proper. See
Loving v. Commonwealth, 165 Va. 761, 765, 182 S.E. 224, 225
(1935). Dr. Wenzel's testimony merely tended to corroborate the
victim's testimony, in the same way that a doctor's testimony
describing a rape victim's physical injuries tends to
corroborate the victim's testimony.
C
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Ward further contends that Dr. Wenzel's testimony was so
prejudicial that the trial court erred in admitting it into
evidence. Generally, evidence is admissible if it is relevant
and its probative value outweighs any prejudicial effect.
Walker v. Commonwealth, 258 Va. 54, 68, 515 S.E.2d 565, 573
(1999), cert. denied, 528 U.S. 1125 (2000). Expert testimony is
admissible upon matters beyond a lay person's common knowledge
or experience. Cartera, 219 Va. at 519, 248 S.E.2d at 786.
We agree with the Court of Appeals that "evidence of an
emotional or psychological injury such as post traumatic stress
disorder, like medical evidence of physical injury, is relevant
as circumstantial evidence of the occurrence of a traumatizing
event." Taylor v. Commonwealth, 21 Va. App. 557, 565, 466
S.E.2d 118, 122 (1996). While all evidence tending to prove
guilt is prejudicial to an accused, we conclude that, in the
present case, the probative value of Dr. Wenzel's testimony,
which clearly is beyond a lay person's common knowledge,
outweighs its prejudicial effect to Ward.
IV
Finally, we consider Ward's challenge to the sufficiency of
the evidence. When a defendant challenges the sufficiency of
the evidence on appeal, we must view the evidence and all
reasonable inferences fairly deducible therefrom in the light
most favorable to the Commonwealth. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). We
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will not disturb the fact finder's verdict unless it is plainly
wrong or without evidence to support it. Stockton v.
Commonwealth, 227 Va. 124, 145, 314 S.E.2d 371, 385, cert.
denied, 469 U.S. 873 (1984).
Ward argues that the Commonwealth's evidence "was rife with
inconsistencies and with evidence which works to the benefit of
[Ward]." The record, however, discloses that the trial judge,
as the fact finder and the person best able to judge the
evidence, carefully weighed and analyzed the evidence. He
believed the victim's testimony and noted that it was buttressed
by corroborating evidence.
When the evidence in the present case is reviewed in the
light of the above-stated principles, we conclude that it is
sufficient to support Ward's convictions.
V
In sum, we hold that the trial court did not err in
admitting Dr. Wenzel's testimony into evidence and that the
evidence is sufficient, as a matter of law, to support Ward's
convictions of rape and sexual battery. Accordingly, we will
affirm the Court of Appeals' judgment that denied Ward's appeal.
Affirmed.
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