COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Clements
Argued at Alexandria, Virginia
EDUARDO VELAZQUEZ
OPINION BY
v. Record No. 1838-99-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
MARCH 27, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Dennis J. Smith, Judge
Clinton O. Middleton, Deputy Public Defender,
for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Eduardo Velazquez (appellant) was convicted in a jury trial
of rape, in violation of Code § 18.2-61. On appeal, he contends
the trial court erred in allowing a sexual assault nurse examiner
(SANE) to (1) give expert testimony regarding the cause of the
victim's injuries and (2) testify regarding the ultimate fact in
issue and (3) in finding the evidence was sufficient to prove his
guilt. Finding no error, we affirm.
I.
Under familiar principles of appellate review, we examine the
evidence in the light most favorable to the Commonwealth, the
prevailing party below, granting to that evidence all reasonable
inferences fairly deducible therefrom. See Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
So viewed, the evidence established that on March 18, 1997, A.L.,
the fifteen-year-old victim, went to appellant's house to retrieve
a book she had lent to appellant's wife. Appellant told A.L. to
sit down and attempted to kiss her. A.L. told appellant, "no,"
and said she needed to leave. A struggle ensued, and A.L. and
appellant fell to the floor with appellant on top of A.L.
Appellant pulled A.L.'s pants and underwear down to her knees as
A.L. continued to tell appellant, "no," and tried to get up from
the floor. Appellant also pulled his pants down to his knees.
While appellant was on top of A.L. with his waist "between
[A.L.'s] knees" and head "over top of [her] stomach," A.L. felt a
sharp pain "inside of [her] vagina area." Appellant's "bottom
half" was "[m]aking an up and down movement" when she felt the
pain in her vagina, and his hands were on the floor on either side
of her. Appellant admitted he touched and put his fingers in her.
After five minutes of struggling with A.L., appellant became
"irritated" and stood up. A.L. dressed and left.
Later that evening, A.L. told her mother what happened. Her
mother took her to Fairfax Hospital where she was examined by
Barbara Patt (Patt), a sexual assault nurse examiner (SANE). Patt
was allowed to testify, over appellant's objection, as an "expert
in the diagnosis of a sexual assault." She testified that in her
opinion the physical findings she made regarding A.L.'s injuries
were "inconsistent with consensual intercourse." Appellant
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objected to Patt's testimony regarding causation of the injuries
and on the ground that Patt's testimony concerned the "ultimate
fact in issue." The trial court overruled appellant's objection,
and he was found guilty of rape by the jury.
II. Expert Witness Designation and Testimony
Appellant first contends the trial court erred in allowing
Patt, a SANE nurse, to testify as an expert witness regarding the
cause of the victim's injuries. Appellant argues that Patt lacked
the expertise required to allow her to state "an expert medical
opinion regarding the cause of the alleged victim's injury."
Appellant also contends Patt's testimony that the "alleged
victim's injuries were consistent with non-consensual intercourse
and inconsistent with consensual intercourse" was improper
testimony on the ultimate issue. We address these issues
seriatim.
A. Patt's Qualifications as an Expert Witness
"The issue whether a witness is qualified to render an expert
opinion is a question submitted to the sound discretion of the
trial court." Combs v. Norfolk and Western Ry. Co., 256 Va. 490,
496, 507 S.E.2d 355, 358 (1998) (citations omitted). However,
"[t]he record must show that the proffered expert witness has
sufficient knowledge, skill, or experience to render [her]
competent to testify as an expert on the subject matter of the
inquiry." Id. (citations omitted).
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A witness qualifies as an expert if "because
of his skill, training, or experience[s], he
is better able to form a more accurate
opinion as to the matter under consideration
than is an ordinary person." . . .
[S]pecialized formal training [i]s
unnecessary, . . . [and] experience alone
[can] qualify one as an expert, . . . . [A]s
long as the testimony is based upon
information of the "type reasonably relied
upon by experts in the field," it would be
proper to admit it.
Utz v. Commonwealth, 28 Va. App. 411, 424, 505 S.E.2d 380, 386
(1998) (citation omitted). An expert is qualified as long as he
or she possesses specialized knowledge that will assist the trier
of fact to understand the evidence presented or to determine a
fact in issue. See id. "The fact that a witness is an expert in
one field does not make him an expert in another field, even
though the two fields are closely related." Combs, 256 Va. at
496, 507 S.E.2d at 358.
In the instant case, Patt became a nurse following a "three
year 33 month" diploma program at Mercy Hospital. She was a
registered nurse for twenty-six years, had sixteen years of
emergency nursing experience and three and one-half years of
neurosurgical nursing experience. In 1991, she took a specialized
course at Cabrio College to become a sexual assault nurse
examiner. The course required forty hours of classroom education
and forty hours of hands-on clinical instruction. She received
additional training in crisis intervention, physical assessment,
injury recognition, documentation, evidence collection,
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photography and injury assessment. Patt was taught to compare and
contrast normal and abnormal findings in a physical examination as
part of her training in injury assessment. This training also
included clinical work.
Patt worked as a SANE nurse for six and one-half years before
becoming the clinical coordinator and nursing supervisor at Fair
Oaks Hospital. While working as a SANE nurse, Patt performed
approximately 350 adult examinations and 150 examinations of
children. She also witnessed or "chaperoned" 1 thousands of pelvic
examinations done by physicians and discussed their findings.
Patt also participated with other SANE nurses in peer review of
their examinations, using tapes, photographs and reports. She had
previously been qualified to give expert testimony by many courts.
After reviewing her training and qualifications, the trial
judge qualified her to testify as "an expert in the diagnosis of a
sexual assault." 2 We hold that based upon Patt's training and
experience she had knowledge concerning matters beyond a lay
person's common knowledge and would assist the jury in
understanding the evidence. See Utz, 28 Va. App. at 423, 505
1
Hospital policy required a female chaperon to be present
with the physician on duty at all times during any pelvic
examination in the emergency room.
2
In his brief, appellant alleges that Code §§ 54.1-2900,
54.1-2903 and 54.1-3000 do not allow SANE nurses to provide a
medical diagnosis. However, appellant did not raise this issue
before the trial court and, therefore, appellant cannot raise it
for the first time on appeal. See Rule 5A:18.
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S.E.2d at 386. The trial court did not abuse its discretion in
allowing Patt to testify as "an expert in the diagnosis of a
sexual assault." 3
B. Patt's Testimony Regarding the Cause of the Victim's Injury
The issue of whether a SANE nurse can testify as an expert
regarding the cause of trauma in a sexual assault is a case of
first impression for this Court. 4 However, a recent case decided
by the Court of Appeals of Georgia addressed the issue of whether
a SANE nurse was properly qualified as an expert in "the field of
examination of sexual assault victims." Griffin v. State, 531
S.E.2d 175, 180 (Ga. Ct. App. 2000) (reconsideration denied March
30, 2000; cert. denied, September 8, 2000). The SANE nurse in
question had worked in women's health since 1971 and as an
obstetrical nurse with gynecological experience for twenty-three
years. She had specialized training in the examination of victims
of sexual assaults and in the collection of evidence from sexual
3
Appellant did not argue before the trial court or on
appeal that the science underlying Patt's testimony is not "one
reasonably relied upon by experts in the field." Therefore, we
do not address the issue of whether the science underlying
Patt's testimony is reliable.
4
The Virginia Supreme Court held that a SANE nurse's
testimony that a victim's injury was not consistent with
consensual, first time intercourse was not testimony regarding
the ultimate issue of fact. See Hussen v. Commonwealth, 257 Va.
93, 99, 511 S.E.2d 106, 109 (1999). However, in Hussen, the
appellant did not argue that the SANE nurse lacked the requisite
expertise to testify regarding causation. Thus, the issue of
whether a SANE nurse can testify regarding causation of injury
remains a case of first impression.
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assaults. As a SANE nurse, she performed approximately 100
examinations at a rape crisis center. Looking at her
qualifications, the Court of Appeals of Georgia held that the
trial court properly qualified the SANE nurse as an expert in "the
field of examination of sexual assault victims." Id.; see also
Kent v. State, 538 S.E.2d 185, 188 (Ga. Ct. App. 2000) (SANE nurse
testified as an expert that "the multiple tearing she observed in
the victim's vaginal area was consistent with the use of force and
not with normal sexual intercourse"). 5
Appellant relies on Combs, 256 Va. 490, 507 S.E.2d 355, for
the proposition that no expert witness can give an opinion
regarding causation unless the person is also a licensed medical
doctor. We find that interpretation unsupported by an analysis of
the case. In Combs, a witness was qualified as an "expert witness
5
See also Chevez v. State, 2000 WL 1618459 (Tex. Ct. App.
2000) (unpublished opinion) (SANE nurse allowed to testify
regarding causation when the SANE nurse took a forty-eight hour
course over three weekends in 1995 on sexual assault examinations,
performed three examinations with a pediatrician present, had
conducted a total of twenty examinations, delivered presentations
to police departments on the examinations and periodically met
with other nurses and an obstetrician to review their cases and
photographs); State v. Shipley, 1997 WL 21190 (Tenn. Crim. App.
1997) (unpublished opinion) (SANE nurse permitted to testify
regarding causation of injury; SANE nurse had been a registered
nurse for eighteen years, was an instructor at a nursing school,
and was an examiner at a sexual assault center); Gonzales v.
State, 1991 WL 67061 (Tex. Ct. App. 1991) (unpublished opinion)
(SANE nurse qualified to testify as either a lay witness or expert
witness that victim's condition was consistent with "being a
victim of sexual assault . . . [and] complainant's physical
condition would not be usual where sexual activity had been
consensual").
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on the subject of biomechanical engineering." Combs, 256 Va. at
494, 507 S.E.2d at 357. The witness had a "bachelor's degree in
mechanical engineering, a master's degree in medical science, and
a Ph.D. in fluid, thermal and aerospace sciences, with a
specialization in biomedical engineering." Id. "He is a
professor of engineering, science, and mechanics and is the
director of the biomedical engineering program at Virginia
Polytechnic Institute and State University." Id. Although the
witness "had completed all the academic work required for a
medical degree, [he] had not completed a medical internship or
residency and was not licensed to practice medicine." Id. Combs
held that an expert in "the field of biomechanical engineering"
could not testify as to medical causation even though he had
completed the "academic work required for a medical degree"
because "[t]he fact that a witness is an expert in one field does
not make him an expert in another field, even though the two
fields are closely related." Combs, 256 Va. at 496, 507 S.E.2d at
358. Thus, the Court held that an expert in "the field of
biomechanical engineering" was not an expert in "medical
causation." Id.
In the instant case, Patt was trained as a medical nurse with
specialized training as a sexual assault nurse examiner in injury
recognition and treatment of sexual assault victims. She was
qualified as "an expert in the diagnosis of a sexual assault," and
her expertise clearly encompassed the area about which she
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testified. She personally observed the victim and the tests she
administered showed A.L.'s injuries to be a "recent injury" with
"no lubrication," indicating an absence of the human sexual
response. She concluded her descriptive testimony by stating that
in her opinion her findings were "inconsistent with consensual
intercourse" because the injuries A.L. had are "consistent with
non-consensual intercourse." As "an expert in the diagnosis of a
sexual assault," she possessed sufficient knowledge, skill,
training and experience in the diagnosis of sexual assaults to
qualify as an expert in the field. Accordingly, we hold that the
trial court did not err in allowing her to testify regarding her
observations and her conclusions based upon those observations.
C. Patt's Testimony on an Ultimate Issue of Fact
Appellant further contends Patt impermissibly testified on
the ultimate issue of fact when she stated that her findings were
"inconsistent with consensual intercourse" because A.L.'s injuries
were "consistent with non-consensual intercourse." "Expert
opinion on an ultimate fact in issue is inadmissible in a criminal
case because it 'invade[s] the province of the jury.'" Jenkins v.
Commonwealth, 254 Va. 333, 336, 492 S.E.2d 131, 132 (1997)
(quoting Llamera v. Commonwealth, 243 Va. 262, 264, 414 S.E.2d
597, 598 (1992)). This case is factually similar to Hussen v.
Commonwealth, 257 Va. 93, 511 S.E.2d 106 (1999), where a sexual
assault nurse examiner testified that the injuries of the victim
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"are not consistent with a virgin having sex for the first time."
Id. at 97, 511 S.E.2d at 108. The Supreme Court held:
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 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).
Hussen, 257 Va. at 99, 511 S.E.2d at 109 (emphasis in original).
Patt's testimony in the instant case is virtually identical to
Brown's testimony in Hussen. Patt testified that, "I have an
opinion that [the physical findings are] inconsistent with
consensual intercourse" and the basis for that opinion was
"[b]ecause she [sic] injuries she had are consistent with
non-consensual intercourse." (Emphasis added.) Patt's testimony
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." As in Hussen, Patt's testimony
only dealt with consistencies and inconsistencies. Patt did not
testify that, in her opinion, appellant engaged in sexual
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intercourse with A.L. against A.L.'s will, the ultimate issue in
the case. She merely described A.L.'s injuries as "inconsistent"
with consensual intercourse. Accordingly we hold that the trial
court did not err in allowing her testimony over appellant's
objection.
III. Sufficiency
Lastly, appellant contends the prosecution's evidence "does
not prove penetration," a necessary element of rape. "'Rape is
defined as "sexual intercourse against the victim's will by
force, threat, or intimidation."'" Johnson v. Commonwealth, 259
Va. 654, 681, 529 S.E.2d 769, 785 (2000) (quoting Wilson v.
Commonwealth, 249 Va. 95, 100, 452 S.E.2d 669, 673, cert.
denied, 516 U.S. 841 (1995) (quoting Hoke v. Commonwealth, 237
Va. 303, 310, 377 S.E.2d 595, 599, cert. denied, 491 U.S. 910
(1989))); see Code § 18.2-61. "'"Penetration by a penis of a
vagina is an essential element of the crime of rape; proof of
penetration, however slight the entry may be, is sufficient."'"
Johnson, 259 Va. at 682, 529 S.E.2d at 785 (quoting Moore v.
Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740 (1997)
(quoting Elam v. Commonwealth, 229 Va. 113, 115, 326 S.E.2d 685,
686 (1985))). "'Penetration may be prove[n] by circumstantial
evidence and is not dependent on direct testimony from the
victim that penetration occurred.'" Jett v. Commonwealth, 29
Va. App. 190, 194, 510 S.E.2d 747, 748 (1999) (quoting Morrison
v. Commonwealth, 10 Va. App. 300, 301, 391 S.E.2d 612, 612
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(1990)). When convincing, circumstantial evidence may be more
compelling and persuasive than direct evidence and is entitled
to as much weight as direct evidence. See id. at 194, 510
S.E.2d at 748-49. Evidence concerning the condition, position,
and proximity of the parties can provide sufficient evidence of
penetration. Morrison, 10 Va. App. at 301, 391 S.E.2d at 612.
A.L. testified that when she and appellant fell to the
floor, appellant was on top of her. He pulled her pants and
underwear down to her knees and did the same to his pants and
underwear. A.L. testified that she "felt a sharp pain inside of
[her] vagina area" when appellant's head was on the top of her
stomach, his waist was between her knees and his hands were "on
the floor laying flat beside my hips." (Emphasis added.) The
pain continued for "five minutes" as appellant's "bottom half"
was "[m]aking an up and down movement." This evidence
concerning the relative positions of the parties and the
victim's testimony of concurrent pain was sufficient for the
jury to find appellant penetrated A.L. Furthermore, Patt
testified that A.L. had recent injuries, including lacerations
in the vagina.
Appellant's reliance on Moore is misplaced. Unlike the
instant case, the inconsistencies in Moore were developed in the
prosecution's presentation of evidence during the victim's
direct examination. Moore, 254 Va. at 189, 491 S.E.2d at
741-42. Furthermore, the Moore Court emphasized the unique
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situation presented in the case by stating that "where
inconsistencies have been developed during cross-examination of
the victim or . . . where there has been other evidence
contradicting the testimony of the victim . . . those types of
credibility issues are for the jury to decide." Id. at 189, 491
S.E.2d at 742. Thus, A.L.'s admission on cross-examination that
appellant used his hands on her and appellant's own testimony
that he only used his hands on A.L. do not negate the
Commonwealth's evidence. The inconsistencies presented an issue
of credibility for the jury. Furthermore, A.L.'s testimony on
direct was corroborated by Patt's testimony and conclusions.
A.L.'s testimony on direct that during at least part of the time
she felt the "sharp pain inside of [her] vagina area" both of
appellant's hands were on the floor is sufficient to allow the
jury to find that appellant penetrated A.L. with his penis.
Accordingly, we hold that the trial court did not err in
allowing Patt to testify as an expert witness and that the
evidence was sufficient to sustain appellant's conviction for
rape.
Affirmed.
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