Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Kinser, JJ., and Poff, Senior Justice
LEBAN A. HUSSEN
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 980940 January 8, 1999
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether an expert witness'
testimony improperly invaded the province of the jury.
Leban A. Hussen was convicted by a jury in the Circuit
Court of Fairfax County of the rape and forcible sodomy of
Donyala G. Hucaby and sentenced to serve 15 years in the
penitentiary. The circuit court confirmed the verdicts, and
the Court of Appeals denied the defendant's petition for
appeal. The defendant filed a habeas corpus petition and
asserted that his former appellate counsel failed to seek an
appeal from the judgment of the Court of Appeals. The
Commonwealth agreed, and we held that the defendant was
entitled to pursue a delayed appeal to this Court. We awarded
the defendant an appeal.
We will summarize the relevant facts and inferences
deducible therefrom in the light most favorable to the
Commonwealth, the prevailing party below. See Davidson v.
Commonwealth, 244 Va. 129, 132, 419 S.E.2d 656, 658 (1992).
The defendant met Hucaby during a party at Howard University
in September 1993. The defendant, who was a stranger to
Hucaby, approached her at the party while she was conversing
with friends. The defendant told Hucaby that he was a member
of an entertainment group and inquired whether she was
interested in working for the group. The defendant asked
Hucaby her name, address, and telephone number, which she
provided to him. The defendant told Hucaby that he "found
[her] attractive" and asked if they could "go out to dinner
sometime."
The next evening, the defendant made a telephone call to
Hucaby, who was not in her dormitory at the time of the call.
The defendant left a message on her answering machine. The
defendant called Hucaby later that night, around 12:15 a.m.,
and asked if he could see her. She decided to go out with him
because she thought they might have a late dinner.
The defendant arrived at Hucaby's dormitory room and
informed her that his roommate had given him a ride there. He
asked if they could go to his house. In response to Hucaby's
question, "why are we going to your house?", the defendant
replied that his sister had prepared a meal and he wanted to
"get to know [Hucaby] better." Hucaby told the defendant that
she did not intend to "do anything [of a sexual nature], if
that was his intention" and further stated, "I'm practicing
abstinence."
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The defendant's roommate drove the defendant and Hucaby
to the defendant's house in Fairfax. They arrived at the
house about 2:00 a.m. Hucaby told the defendant that she
needed to return to her dormitory no later than 4:00 a.m.
Upon arrival at the defendant's house, Hucaby used a
telephone to call her roommate to let her know that Hucaby had
arrived safely. After she finished speaking to her roommate,
Hucaby talked to the defendant in the kitchen for a while.
There, he made an effort to kiss her, but she rejected his
advances.
The defendant suggested that Hucaby accompany him to his
bedroom because he did not have any furniture in other rooms
in the house. She went to his bedroom which contained a
mattress on the floor adjacent to a wall, a box spring
adjacent to another wall, and a lamp. The defendant closed
the bedroom door, and Hucaby sat on the mattress. They
conversed for a while and, during the conversation, the
defendant repeatedly asked Hucaby for a kiss. Eventually, they
kissed for about "four seconds," and they began to talk some
more.
During this conversation, Hucaby informed the defendant
that she was a virgin. Subsequently, Hucaby looked at her
watch and realized that the time was about 3:40 a.m., and she
told the defendant she needed to return to her dormitory. The
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defendant, who had previously promised Hucaby that his
roommate would drive her home, responded that his roommate had
gone, but that he would be back. The defendant's roommate,
however, never returned.
Hucaby, who felt "stranded" at the defendant's house,
told him that she was very sleepy and she needed to go home.
The defendant responded that she could go to sleep at his home
until someone was able to take her back to her dormitory.
Hucaby, who was fully clothed, got into the defendant's
bed. She told him that she was going to go to sleep. After
about 10 seconds, the defendant told her that he wanted to be
affectionate. She tried to move away from him, and she told
him that she did not "want to be affectionate." He grabbed
her arm and told her "not to be foul." She tried to push him
away. He tried to kiss her as she tried to push him away. He
put his hand around her throat and said, "[y]ou came into this
house under your own free will, and I can make it seem as
though you were never here. And no one will say you were
here." He also told her that "I have something under the
bed."
The defendant told Hucaby to remove her clothes. When
she refused, he removed her clothes and raped her. After he
raped her, he forced her to perform an act of oral sodomy upon
him. Then, he raped her again. After he raped Hucaby, the
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defendant went to sleep. Hucaby went to sleep, and when she
awakened, it was still dark outside. She called her roommate
and obtained directions to the nearest location of the public
transportation system. She went to the public transportation
system and rode a subway to her dormitory.
Hucaby did not inform anyone that she had been raped and
sodomized until three days later, when she went to the Howard
University Medical Center. She was examined by Dr. Jean
Williams, who determined that Hucaby had sustained a
laceration approximately one-half centimeter just below her
vaginal introitus, which is the area just below the vaginal
opening.
During the trial, Suzanne L. Brown, a sexual assault
nurse examiner at Fairfax Hospital, qualified as an expert
witness. She was permitted, over the defendant's objection,
to give the following testimony which is at issue in this
appeal:
"Q Now that you've been qualified as an
expert. You have received medical information
concerning Donyala Hucaby, correct?
"A Correct.
"Q With that information can you form a
professional opinion based upon a reasonable degree
of medical certainty as what would be consistent
with an injury such as that?
"A Yes, I can.
. . . .
"Q Knowing what you know about the injury and
knowing -- let's talk now about the female response,
normal female response. Is there a term for that?
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"A Yes, the human sexual response.
. . . .
"Q And tell the ladies and gentlemen of the
jury please what it is, this human sexual response.
"A The human sexual response is a [sic]
involuntary what happens during or just prior to
sexual intercourse and a lot of it has to do with —
the first phase is when the person is sexually
excited causing lubricant to form in the vaginal
area.
"The second part of that causes some actual
structural changes to the entire vaginal area. One
of the changes that occurs is that the labia majora
which are the outer lips of the vaginal opening
actually thin out and flatten against the wall of
the vagina. After —
"Q Where was this injury with respect to
where you're speaking of now?
"A Just below the vaginal opening.
. . . .
"Q Okay. After the outer labia majora
flattens out then the smaller lips, the labia
minora, will engorge and actually move away from the
vaginal opening to allow for a penis to enter the
vagina. The vagina will also elongate causing a
little bit of a shelving area to guide the penis
into the vagina.
"Q Now, with what you know about the human
sexual response and with what you know about the
injuries that Donyala Hucaby received can you give
— let me add something to that hypothetical.
"Suppose for these questions that Donyala
Hucaby was a virgin and that she had had sexual
intercourse several days prior to being examined.
Can you give an opinion as to whether or not these
injuries were consistent with a first time
intercourse?
"MR. DEVINE: Your Honor, for the reasons I
stated earlier I will object to that question.
"THE COURT: . . . . Overruled.
"Proceed.
"Q Please tell the ladies and gentlemen of
the jury whether these injuries were consistent with
a woman having sex for the first time.
"A They are not consistent with a virgin
having sex for the first time.
"Q Are these injuries —
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"A JUROR: I didn't hear.
"Q Could you please repeat that?
"A I said that the injuries, when a virgin
has sex for the first time this is not a typical
area for an injury to be.
"Q And we're speaking of consensual?
"A Correct."
The defendant, relying principally upon Bond v.
Commonwealth, 226 Va. 534, 311 S.E.2d 769 (1984), and Llamera
v. Commonwealth, 243 Va. 262, 414 S.E.2d 597 (1992), argues
that the trial court erred in allowing Brown to testify that
the complaining witness' injury was not consistent with
consensual sex because consent was an ultimate issue of fact
at trial, and Brown's testimony impermissibly invaded the
province of the jury. We disagree with the defendant.
We have held consistently that the admission of expert
testimony upon an ultimate issue of fact is impermissible
because it invades the function of the fact finder. Jenkins
v. Commonwealth, 254 Va. 333, 336, 492 S.E.2d 131, 132 (1997);
Llamera, 243 Va. at 264, 414 S.E.2d at 598; Bond, 226 Va. at
538, 311 S.E.2d at 771-72; Cartera v. Commonwealth, 219 Va.
516, 519, 248 S.E.2d 784, 786 (1978); Webb v. Commonwealth,
204 Va. 24, 33, 129 S.E.2d 22, 29 (1963); Ramsey v.
Commonwealth, 200 Va. 245, 250, 105 S.E.2d 155, 158 (1958).
In Bond, we considered whether the circuit court
misapplied this rule by permitting an expert witness to
testify about the cause of the victim's death. The defendant
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had been charged with murder, and one of the issues that the
Commonwealth was required to prove was whether the victim's
death "was brought about by the criminal agency of another,"
which was an ultimate issue of fact. 226 Va. at 537, 311
S.E.2d at 771. The expert witness testified, over the
defendant's objection, that he had "made a determination that
[the victim's] death was as a result of a homicide." Id. We
held that the expert witness' testimony invaded the province
of the jury because the ultimate factual issue to be decided
by the jury was whether the victim jumped intentionally to her
death, fell accidentally to her death, or was thrown to her
death. Id. at 539, 311 S.E.2d at 772.
In Llamera, we also considered whether a circuit court
improperly permitted an expert witness to express an opinion
upon an ultimate fact in issue. There, a police detective,
who had qualified as an expert witness on the subject of the
sale, distribution, marketing, packaging, and effects of
narcotics, opined that cocaine, which had been seized in the
defendant's store, "was packaged that way for distribution."
The detective testified, over the defendant's objection, that
the quantity of cocaine found "would suggest that the owner of
the cocaine was a person who sold cocaine" and that such
quantity was inconsistent with personal use. Llamera, 243 Va.
at 264, 414 S.E.2d at 598. We held that the Commonwealth was
8
required to prove that the defendant possessed the cocaine and
that the defendant did so with the intent to distribute and
that these elements were ultimate issues of fact to be
resolved by the jury. Id. at 265, 414 S.E.2d at 599. We
concluded that the challenged testimony was inadmissible
because the detective expressed an opinion upon an ultimate
issue of fact when he testified that the owner of the cocaine
was a person who sold cocaine. Id.
The present appeal, however, is clearly distinguishable
from, and is not controlled by, our decisions in Llamera and
Bond. It is true, as the defendant here asserts, that the
Commonwealth was required to prove, among other things, that
he forced the victim to engage in sexual intercourse against
her will. However, Brown's testimony was not an opinion that
the sexual intercourse between the defendant and the victim
was against her will. Rather, Brown's testimony, which must
be viewed as a whole, reflects her opinion that the unique
nature of the victim's laceration, particularly the location
of the injury, was not consistent with consensual, first time
intercourse. Such an opinion by this expert witness is not a
comment on one of the ultimate issues of fact to be determined
by the jury, that is, whether the defendant's conduct was
against the victim's will. See Davis v. Commonwealth, 12 Va.
App. 728, 731-32, 406 S.E.2d 922, 923-24 (1991) (detective's
9
testimony that a certain quantity of drugs was not consistent
with personal use did not constitute an opinion that the
defendant intended to distribute marijuana and, thus, did not
invade the province of the jury).
Accordingly, we will affirm the judgment of the Court of
Appeals.
Affirmed.
SENIOR JUSTICE POFF, with whom JUSTICE LACY and JUSTICE KEENAN
join, dissenting.
The issue before this Court turns upon the testimony of a
registered nurse employed by a hospital as a "Sexual Assault
Nurse Examiner". The nurse qualified in the trial court as an
expert in the examination of victims of sexual assault. Asked
to explain the term "human sexual response", the witness
testified that "the first phase is when the person is sexually
excited causing lubricant to form in the vaginal area" and
that the "second part of that causes some actual structural
changes" that enlarge access through "the vaginal opening".
Basing her testimony on a doctor's report of his examination,
the nurse said that Hucaby had sustained a "half a centimeter
laceration just below . . . the vaginal opening."
Responding to questions posed by the prosecutor, the
nurse then testified as follows:
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Question: Please tell the ladies and gentlemen of the
jury whether these injuries were consistent with a woman
having sex for the first time.
Answer: They are not consistent with a virgin having sex
for the first time.
. . .
Question: Could you please repeat that?
Answer: I said that the injuries, when a virgin has sex
for the first time this is not a typical area for an
injury to be.
Question: And we're speaking of consensual?
Answer: Correct.
The trial judge overruled Hussen's objection to that
testimony.
The nurse's statement that the situs of Hucaby's injury
was "not a typical area for an injury to be" and her
acknowledgement that she was "speaking of consensual" was an
expression of her expert opinion that the injury was the
result of a sexual assault. The import of that language was
reinforced by the nurse's further testimony when she agreed
that "when the human sexual response is triggered . . .
injuries do not occur." Clearly, a lay juror would conclude
that such testimony reflects the opinion of a witness, a
witness qualified by the trial judge as an expert, that
Hucaby's injury was one suffered by a person whose sexual
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response had not been triggered, i.e., that the sexual conduct
was not consensual.
"We consistently have held that the admission of expert
opinion upon an ultimate issue of fact is impermissible
because it invades the function of the fact finder." Llamera
v. Commonwealth, 243 Va. 262, 264, 414 S.E.2d 597, 598 (1992)
(holding inadmissible expert's opinion that quantity of
cocaine seized was inconsistent with personal use and
consistent with intent to distribute). Such an invasion of
the function of the fact finder "implicates the due process
and fair trial guarantees of the Constitution of the United
States." Jenkins v. Commonwealth, 254 Va. 333, 336, 492
S.E.2d 131, 132 (1997) (error in admission of expert opinion
that child had been sexually abused was not harmless). As we
said in Cartera v. Commonwealth, 219 Va. 516, 519, 248 S.E.2d
784, 786 (1978), "it was improper to permit the doctor to
express his opinion that the girls had been raped. Whether
rape had occurred was the precise and ultimate issue in the
case." See also Bond v. Commonwealth, 226 Va. 534, 537, 311
S.E.2d 769, 771 (1984) (murder conviction reversed because
expert "ruled out" possibility of suicide and accident and
classified victim's death as "result of a homicide").
Notwithstanding our decisions in these cases, the
Commonwealth contends that "the Court of Appeals has held it
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proper for an expert to opine that a quantity of drugs in a
defendant's possession was not consistent with personal use."
The Commonwealth relies upon Davis v. Commonwealth, 12 Va.
App. 728, 406 S.E.2d 922 (1991). But Davis did not hold that
such testimony is "proper" if it constitutes an expert opinion
on an ultimate fact in issue. Rather, the court held that the
testimony was admissible only because it had not "violated
this long-established rule." Id. at 731, 406 S.E.2d at 924.
Specifically, the court said that "we find that [the expert's]
testimony . . . did not constitute an opinion that Davis had
an intent to distribute the marijuana found in his house." 1
Id. at 732, 406 S.E.2d at 924.
Citing ten other decisions of the Court of Appeals in
criminal drug cases 2 , the Commonwealth also argues that "as a
1
The marijuana was found in the basement of Davis' house,
and he was one of three occupants of the dwelling. Davis'
cousin, one of the occupants, testified that he had purchased
the marijuana and hidden it in the basement. The Court of
Appeals noted that "[a] given quantity of a controlled
substance can be possessed jointly by several
individuals. . . . In such a case, that amount might be
inconsistent with an individual's personal use, and yet not
establish an intent to distribute." Id. at 732, 406 S.E.2d at
924. The Court concluded that the detective's testimony,
considered in context with the facts and the jury
instructions, was appropriate for the jury's consideration
because it was not the ultimate issue in the case.
2
Welshman v. Commonwealth, 28 Va. App. 20, 37, 502
S.E.2d 122, 130 (1998); Lovelace v. Commonwealth, 27 Va. App.
575, 587, 500 S.E.2d 267, 273 (1998); Spivey v. Commonwealth,
23 Va. App. 715, 479 S.E.2d 543 (1997); Jones v. Commonwealth,
13
matter of practice such [expert] testimony is routinely
received." But the admissibility of expert opinion was not in
issue in those cases. In each, the issue was sufficiency of
the evidence; expert testimony was discussed only as an
adjunct to the circumstantial evidence underlying the
conviction.
Here, as in Cartera, "(w)hether rape had occurred was the
precise and ultimate issue in the case." 219 Va. at 519, 248
S.E.2d at 786. The nurse's testimony on that question was an
opinion of an expert. That opinion was patently prejudicious.
I would hold that the trial judge erred in admitting that
evidence, annul the conviction, reverse the judgment of the
Court of Appeals denying Hussen's petition for appeal, and
remand the case to the Court of Appeals with direction to
remand the case to the trial court for further proceedings.
23 Va. App. 93, 474 S.E.2d 825 (1996); Williams v.
Commonwealth, 21 Va. App. 263, 463 S.E.2d 679 (1995); Wilkins
v. Commonwealth, 18 Va. App. 293, 443 S.E.2d 440 (1994); Hardy
v. Commonwealth, 17 Va. App. 677, 440 S.E.2d 434 (1994);
Poindexter v. Commonwealth, 16 Va. App. 730, 432 S.E.2d 527
(1993); Early v. Commonwealth, 10 Va.
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