Jenkins v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Baker, Benton, Coleman,
Willis, Elder, Bray, Fitzpatrick, Annunziata and
Overton
Argued at Richmond, Virginia

JAMES LLOYD JENKINS
OPINION BY
v. Record No. 0371-94-2 JUDGE LARRY G. ELDER
JUNE 18, 1996
COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC
Michael Morchower (Lee W. Kilduff; Morchower,
Luxton & Whaley, on briefs), for appellant.

Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
briefs), for appellee.

On December 9, 1993, a jury convicted James Lloyd Jenkins

(appellant) of aggravated sexual battery, in violation of Code

§ 18.2-67.3. On appeal to this Court, appellant contended:

(1) that juror misconduct violated his constitutional right to a

fair and impartial trial; (2) that the trial court erred in

allowing expert testimony on an ultimate fact in issue; (3) that

the trial court erred in allowing the expert witness to testify

to a hearsay statement made by the sexually abused child; and

(4) that the evidence was insufficient to prove his conviction.

In Jenkins v. Commonwealth, 21 Va. App. 222, 463 S.E.2d 330

(1995), a divided panel of this Court reversed appellant's

conviction and remanded the case. The majority held that the

trial court erred in (1) allowing the expert to testify to an

ultimate fact in issue, and (2) in allowing the expert to testify
to a hearsay statement of the child. The opinion did not address

the other contested issues. The third judge, although concurring

that the trial court erred in allowing the expert to testify to

an ultimate fact in issue, dissented with respect to the hearsay

issue, opining that the trial court properly admitted the child's

statement made during treatment.

We granted rehearing en banc, and upon rehearing, we affirm

appellant's conviction. We hold: (1) that the trial court did

not violate appellant's constitutional right to a fair and

impartial trial when it refused to dismiss a juror on the grounds

of juror misconduct; (2) that the trial court erred in allowing

expert testimony on an ultimate fact in issue in the case but

that such error was harmless; (3) that the trial court did not

err in allowing the expert witness to testify to the child's

statement made during treatment; and (4) that the evidence

sufficiently proved appellant's conviction.
I.

FACTS

The evidence proved that the victim, a male child born on

February 26, 1990, was cared for by his grandparents during the

weekdays while his parents worked. Appellant, the child's uncle,

often visited the child's grandparents when the child was

present. The indictment charged that appellant committed

aggravated sexual battery on the child during the period

September 1992 through March 1993.

2
 On April 14, 1993, a Youth Services Unit investigator with

the Henrico County Police Department met with appellant.

Appellant first denied any sexual contact with the child but then

admitted to one incident with the child, which occurred in

approximately February 1993. The investigator testified as to

what appellant told him:

He said that he was sitting in the living room watching
TV, and that [the child] was sitting in his lap,
leaning against his chest, and he said that he began to
start having sexual fantasies as to how [the child]
would be when he got older and more mature. He said
that he put his hand on [the child's] penis from over
top his clothing and held it there and touched him
there for about a minute. He said while doing this, he
was having sexual thoughts about having oral sex with
[the child] if he were older.

Appellant told the investigator that during this incident

his penis became semi-erect because "he just wanted somebody to

love and he was real emotional during this time and actually

cried for a while." Appellant also related this incident in a

written statement.

During the Commonwealth's case-in-chief, a licensed clinical

psychologist testified that he conducted ten counseling sessions

with the child, beginning on March 31, 1993. During direct

examination, the following exchange occurred between the

Commonwealth's Attorney and the psychologist:

Q: . . . After these sessions, Sir, or some time
during these sessions, were you able to form an
opinion to a reasonable degree of certainty in
your expertise as to whether [the child] was
suffering from any psychological disorder?

3
 A: Yes, Ma'am.

Q: And what opinion is that, Sir?

A: That [the child] suffers from an adjustment
disorder with mixed emotional--mixed--features of
emotion and conduct.

Q: Do you have an opinion to a reasonable degree of
certainty, in your expertise, what adjustment
disorder--why he had suffered from this adjustment
disorder, Sir?

A: An adjustment disorder is a persistent or unusual
reaction to some identifiable stress.

Q: And in this case, what--what opinion do you have
as to that identifiable stress?
A: That he had been sexually abused.

The psychologist also described the methods that he had used

to form his opinion, including interviews with and observations

of the child. The psychologist testified, over defense counsel's

objection, that on one occasion the child told him that he "had

been sexed" and made corresponding body movements to describe

what being "sexed" meant. When asked where he had been "sexed,"

the child pointed to his groin area. The psychologist also

testified that, on another occasion, the child used two

anatomically correct male dolls to demonstrate a sexual act.

After the presentation of evidence, one of the jurors

notified the trial court that he had worked with appellant ten

years earlier. Although the juror did not realize this fact

before or during much of the trial, the juror told the trial

court that his memory was triggered when appellant's father

testified. The trial court questioned the juror in the following

4
manner:

Court: Would [your prior relationship with
appellant] affect you in any way in being
able to reach a decision in this case?

Juror: Um, honestly I already had a decision made--

Court: Sir.

Juror: This came up, so I guess not. You know, it
shouldn't really affect my decision.

Court: You haven't reached a decision before the
case was tried--had you reached a decision
before the case was tried?
Juror: I mean, I had my opinions, yeah. You know,
while going through it, and I just realized
it right before the father came up here.
That's when it struck me.

Appellant: We'd move for a mistrial, Your Honor.

Court: Can you--the last--I don't want to lead you,
Sir, but when you came in here this morning,
I asked you--

Juror: When I came here--right, when I came in here
this morning, I had no clue.

Court: You had--did you know anything about this
case, in any fashion?

Juror: No. None whatsoever.

Court: Now I asked you this morning could you
determine the evidence, from what you heard
here in the courtroom, apply it to the law as
I instruct you that it is, and we have not
told you what the law is, and reach a
decision. You recall that?

Juror: Yes, Sir.

Court: I asked you--told you you shall decide no
issue in this case until the matter is
submitted to you from your deliberation under
the instructions of the Court. Do you recall
that?

5
 Juror: Yes, Sir.

Court: Have you decided any issue in the case, or is
your mind open?

Juror: No. I'm just saying I have taken in
everything, you know, I'm just weighing and
balancing in my own head.

Court: All right, Sir. Well do you, do you or do
you not? Just tell me. Is your mind open?
Can you go in there and listen to your
jurors, discuss what the evidence is?

Juror: Yeah. Yeah. But I knew that, you know, if I
knew anybody, I should not be in here, and I
just realized. I thought I should say
something.

The Commonwealth's Attorney also asked the juror, "[a]nd the

fact that you may have known him, would that in any way cause you

not to be able to render a fair and impartial verdict, based

solely on the evidence that you've heard and the law that you're

going to read and hear by the Court?" The juror responded,

"[n]one whatsoever."

Upon questioning from appellant's counsel, the juror

admitted that he and appellant had had a disagreement over work

scheduling when he worked for appellant, causing them to yell at

each other. However, the juror stated that no "hard feelings"

remained after the disagreement. The juror also reiterated to

appellant's counsel that he had not formed an opinion as to

appellant's guilt or innocence and that he would wait for the

trial court's instructions. Appellant again moved for a

mistrial, but the trial court overruled the motion, ruling that

6
the juror indicated he could remain impartial to the cause and

that he had not yet made up his mind.

The jury convicted appellant of the offense charged in the

indictment. Code § 18.2-67.3(A)(1) states that "[a]n accused

shall be guilty of aggravated sexual battery if he or she

sexually abuses the complaining witness, and . . . [t]he

complaining witness is less than thirteen years of age."

II.
JUROR MISCONDUCT

As the Commonwealth contends, "the mere fact of juror

misconduct does not automatically entitle either litigant to a

mistrial." Robertson v. Metropolitan Washington Airport Auth.,

249 Va. 72, 76, 452 S.E.2d 845, 847 (1995). "Instead, the trial

court, in the exercise of sound discretion, must determine

whether such misconduct probably resulted in prejudice. And the

burden of establishing that probability is upon the party moving

for a mistrial." Id. A trial court's decision that a juror can

be fair and impartial is entitled to great weight on review.
Watkins v. Commonwealth, 229 Va. 469, 480, 331 S.E.2d 422, 431

(1985), cert. denied, 475 U.S. 1099 (1986).

After hearing all of the evidence, the juror indicated that

he had formed an opinion about the case and had reached his

tentative decision before recalling that he knew appellant.

However, the juror never stated whether he had concluded in his

own mind that appellant was guilty or innocent. Moreover, it

7
appears that the juror made these statements to assuage the trial

court's fears that he harbored animus towards appellant. In

other words, the juror, who had already heard all of the

evidence, meant to convey that he had not allowed his prior

relationship with appellant to affect his evaluation of the

evidence. Upon thorough questioning by the trial court and by

both counsel, the juror assured the trial court that he could

deliberate and reach a verdict after discussion with his fellow

jurors.
The Supreme Court of Virginia has generally "limited

findings of prejudicial juror misconduct to activities of jurors

that occur outside the jury room." Caterpillar Tractor Co. v.

Hulvey, 233 Va. 77, 83, 353 S.E.2d 747, 751 (1987)(holding that

juror misconduct was not sufficient to set aside the verdict when

one juror told the others that he was a lawyer and opined that

the case was "garbage"). Haddad v. Commonwealth, 229 Va. 325,

329 S.E.2d 17 (1985), relied on by appellant, is not directly

applicable to this case because it involved juror activity

outside of the jury room. In Haddad, a juror made a comment to a
third party defense attorney during a break in the trial, stating

that the defendant was "not going to get off" and asking the

attorney if he felt guilty about helping to free criminal

defendants. The trial court thereafter fully questioned the

juror about his statements before concluding that the juror could

give both parties a fair trial and refrain from prejudging the

8
defendant's guilt. Id. at 328, 329 S.E.2d at 19. The Supreme

Court stated that juror misconduct occurred and framed the issue

for review as "whether juror misconduct in the form of

expressions of opinion made by a juror to third persons during

the trial proceedings should result in a mistrial." Id. at 329,

329 S.E.2d at 19-20. The Court held that a mistrial should have

been granted because the defendant proved a probability of

prejudice and that the juror was no longer impartial, despite

promises to the trial court to the contrary. Id. at 330-31, 329

S.E.2d at 20.

In this case, the juror never expressed to a third party any

animus toward appellant or toward criminal defendants in general.

Furthermore, the juror never stated whether he had concluded

that appellant was guilty or innocent. Thus, appellant's

potential prejudgment of the case differs from the juror's

prejudgment in Haddad. We hold that the trial court did not

abuse its discretion in declining to declare a mistrial based on

juror misconduct. See Commercial Union Ins. Co. v. Moorefield,

231 Va. 260, 343 S.E.2d 329 (1986).

III.

ULTIMATE FACT IN ISSUE

Appellant argues that the trial court erred in allowing the

expert to testify that the child had been sexually abused. We

agree but hold that such error was harmless in light of the other

evidence adduced at trial.

9
 The expert's statement that, in his opinion, the child had

been sexually abused was inadmissible under Cartera v.

Commonwealth, 219 Va. 516, 248 S.E.2d 784 (1978). In Cartera,

the Supreme Court stated the following well-accepted principle:

"In any proper case, an expert witness may be permitted to

express his opinion upon matters not within common knowledge or

experience. Opinion testimony, however, is not admissible 'upon

the precise or ultimate fact in issue.'" Id. at 519, 248 S.E.2d

at 786 (quoting Webb v. Commonwealth, 204 Va. 24, 33, 129 S.E.2d
22, 29 (1963)). Consistent with the Cartera rule, we hold that

the expert's testimony in this case that the child had been

sexually abused expressed an opinion on the ultimate fact in

issue (i.e., that the charged offense occurred). The

psychologist opined not as to what could have been the causative

stressor but rather what was the causative stressor. 1 The

psychologist's testimony went to the ultimate fact in issue and

invaded the jury's province as the fact finder. Cartera, 219 Va.

at 519, 248 S.E.2d at 786.

We also hold that the trial court's error in admitting this

evidence was harmless. When an element of the crime is fully

established by other competent evidence, an error in improperly

admitting evidence with respect to that point is harmless. See

1
One of the diagnostic criteria for "adjustment disorder"
is a "reaction to an identifiable psychological stressor (or
multiple stressors)." DSM-III-R (Diagnostic & Statistical Manual
of Mental Disorders 329-30 (3d ed. rev. 1987).

10
Rozier v. Commonwealth, 219 Va. 525, 528, 248 S.E.2d 789, 791

(1978); Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407

S.E.2d 910, 911 (1991)(en banc); Code § 8.01-678.

In this case, the Commonwealth's evidence included testimony

from the child's mother of multiple instances of bizarre

sexually-oriented behavior by the child. The expert's testimony

also showed the child's familiarity with sexual acts. Most

probative was appellant's admission that he participated in one

sexual episode with the child. The trial court instructed the

jurors that sexual abuse had been committed if the evidence

showed that appellant had "with the intent to sexually molest,

arouse or gratify any person, . . . intentionally touch[ed] the

complaining witness' intimate parts or clothing covering such

intimate parts." See Code § 18.2-67.10(6).

The facts contained in appellant's confession proved these

elements. Appellant confessed that while holding the child on

his lap, he began to have sexual fantasies about the child.

Appellant admitted that he placed his hand on the child's penis

and held it there for a minute, during which time appellant had

sexual thoughts about having oral sex with the child when the

child was older. Based on these facts, the error in admitting

the expert's testimony was harmless. Rodriguez v. Commonwealth,

249 Va. 203, 208, 454 S.E.2d 725, 728 (1995)(holding that in the

face of conclusive proof of guilt, any error in admitting an

expert's testimony on the ultimate fact in issue was "utterly

11
harmless").

IV.

USE OF CHILD'S STATEMENT MADE TO PSYCHOLOGIST

Appellant next contends that the trial court erred in

allowing the psychologist, who offered expert testimony, to

testify to the child's hearsay statement that he had been

"sexed." We hold that the trial court properly admitted this

portion of the psychologist's testimony.
First, as many other jurisdictions have held, because the

child's statement as made to the expert was not offered for its

truth, the statement did not qualify as hearsay. The child's

statement that he had been "sexed" conveyed information that

clearly formed the basis for the expert's diagnosis of the

child's adjustment disorder, regardless of its truth or falsity. 2

See, e.g., Howle v. PYA/Monarch, Inc., 344 S.E.2d 157 (S.C. Ct.

2
According to 31A Am. Jur. 2d Expert and Opinion Evidence
§ 187 (1989 & Supp. 1996):

In testifying as an expert on a person's mental
condition . . . a psychiatrist or psychologist may rely
on, as one basis for his or her opinion, statements
made by or conversations held with the party in
question. . . . The results of interviews conducted
necessarily become a part of the expert's opinion. The
witness is not expressing a belief as to the truth or
falsity of the statements, but is merely expressing the
basis for his or her professional opinion concerning
the cause of the patient's mental condition.

(Footnotes omitted)(emphasis added). See also Annotation,
Admissibility of Testimony of Expert, As to Basis of his Opinion,
to Matters Otherwise Excludible as Hearsay--State Cases, 89
A.L.R.4th 456 (1991 & Supp. 1995).

12
App. 1986)(holding that a psychiatrist who examined defendant,

his patient, after a car accident could testify as to

conversations he had with the defendant; such statements were not

offered for their truth but for the basis of his diagnosis);

Brown v. State, 649 S.W.2d 160 (Tex. Ct. App. 1983)(holding that

a physician who examined a child victim shortly after an alleged

molestation could relate the child's statements regarding the

attack; such statements were admitted to show the basis of the

physician's opinion, not for their truth); State v. Wade, 251
S.E.2d 407 (N.C. 1979)(holding that a psychiatrist should have

been allowed to testify as to the content of conversations with

the defendant, his patient, in order to show the basis for his

diagnosis); Dickens v. Adams, 224 S.E.2d 468 (Ga. Ct. App.

1976)(holding that statements made by psychiatrist's patient were

not inadmissible as hearsay, as the psychiatrist was not

expressing a belief as to the truth or falsity of the statements,

but merely expressing the basis of his opinion concerning the

cause of the patient's anxiety and depression); Jones v. State,
289 So. 2d 725, 727 (Fla. 1974)(holding that "in general, a

statement by an injured or diseased person to a physician as to

past matters, although not admissible as evidence of the truth of

the facts stated, may be included in the physician's testimony to

show the basis for his opinion"); Goldstein v. Sklar, 216 A.2d

298 (Me. 1966)(holding that a physician's testimony to medical

history related by a patient is admitted to show the basis for

13
the physician's professional opinion as to the nature of the

patient's illness, rather than to show the truth of the matters

related by the patient).

In this case, the expert testified that the child suffered

from an adjustment disorder with mixed features of emotion and

conduct and that an adjustment disorder is a persistent or

unusual reaction to some identifiable stressor. The psychologist

described the methods he used to form his opinion as to the

identifiable stressor, which included interviews with and

observations of the child. The psychologist testified that the

child told him that he "had been sexed" and made corresponding

body movements to describe what being "sexed" meant. When asked

where he had been "sexed," the child pointed to his groin area.

This information was not offered to prove that sex had actually

occurred with the child but rather to show how the expert reached

his opinion concerning the child's identifiable stressor. 3

This "not-for-truth" exception is a difficult rule
to apply in the context of real cases. It has always
caused controversy, and presumably will always do so,
because it is often arguable whether the declaration is
being offered to prove the truth of the content of the
declaration or not, and lawyers and judges may quite
reasonably reach different conclusions on this question
in any given case. . . .

Part of the difficulty in "not-for-truth"
3
In a parallel example, if a doctor diagnoses a patient as
suffering from a herniated disc and testifies that the patient
described having back pain, this testimony might be offered not
for the truth of the matter (i.e., whether back pain actually
existed), but rather for the fact that back pain was reported to
the doctor and formed the basis of the doctor's diagnosis.

14
 situations is due to the fact that often such evidence
will have a dual nature; the declaration may indeed be
relevant on some matter unrelated to the truth of the
content of the statement, and yet the content of the
statement may go to the issues of the case as well.
See, e.g., Donahue v. Commonwealth, [225 Va. 145, 300
S.E.2d 768 (1983)]. This is perhaps the situation
which creates the greatest dilemma for the courts. In
that regard, however, it should be remembered that it
is a time-honored principle of evidence law that, in
general, if evidence is admissible for any purpose, it
is admissible.

2 Charles E. Friend, The Law of Evidence in Virginia § 18-3, at

95-96 (4th ed. 1993)(footnote omitted); see Hanson v.
Commonwealth, 14 Va. App. 173, 416 S.E.2d 14 (1992).

Even if the child's statement constituted hearsay, it may

still have been introduced if it fell within one of the many

established hearsay exceptions. See Evans-Smith v. Commonwealth,

5 Va. App. 188, 197, 361 S.E.2d 436, 441 (1987). Cartera

provides an exception to the hearsay rule permitting "a physician

to testify to a patient's statements concerning his 'past pain,

suffering and subjective symptoms' to show 'the basis of the

physician's opinion as to the nature of the injuries or

illness.'" Cartera, 219 Va. at 518, 248 S.E.2d at 785-86. A

physician may also testify as to his or her observations of a

patient's physical and emotional conditions and may "state what

examinations and tests he performed upon the victims and what

medical conclusions he reached as a result." 4 Id. at 519, 248
4
A physician may also relate statements made by a child
patient for the purpose of establishing the child's state of
mind. M.E.D. v. J.P.M., 3 Va. App. 391, 401, 350 S.E.2d 215, 222
(1986).

15
S.E.2d at 786. A physician may not, however, "recite the details

of the offenses and the description of the assailant, as reported

to him [or her] by the victim[]." Id.

In this case, the trial court followed Cartera's guidelines

in allowing the psychologist's testimony regarding the child's

statement that he had been "sexed." The child's statement

assisted the expert in identifying the stressor underlying the

child's mental condition. The expert did not recite the details

of a specifically identified offense nor did he offer any
5
description of the abuser. The trial court, therefore, did not

err in allowing this testimony to be introduced.

V.

SUFFICIENCY OF THE EVIDENCE

Finally, appellant contends that the evidence was not

sufficient to prove the charge. On appeal, the evidence must be

viewed in the light most favorable to the Commonwealth and be

given all reasonable inferences fairly deducible therefrom.
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,

537 (1975). "The jury's verdict will not be disturbed on appeal

unless it is plainly wrong or without evidence to support it."

5
Contrary to the assertion in Judge Benton's dissent, our
analysis would not allow the expert to repeat the disclosure that
the child names appellant, nor would it allow the expert to
relate detailed circumstances surrounding the abuse. Details
about the abuser or the abuse would have been irrelevant to the
expert's opinion regarding the underlying stressor, and may have
been more prejudicial than probative. This is what Cartera
precludes.

16
Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719,

721 (1988); Code § 8.01-680.

As detailed in Section III, supra, and examined under the

familiar standards of appellate review, we hold that the

Commonwealth presented sufficient evidence to support appellant's

conviction.

Based on the foregoing reasons, we affirm appellant's

conviction.
Affirmed.

17
Moon, C.J., with whom Baker and Annunziata, JJ., join, concurring
in part and dissenting in part.

I concur with the majority opinion insofar as it holds that

the judgment should be affirmed because any error in the trial

court was harmless error. However, I disagree with the majority

that the child's statement concerning having been "sexed" was

admissible under the guise of allowing the expert to explain the

basis of his opinion.

I concur with Judge Benton's dissent's conclusion that the

child's statement was inadmissible under Cartera v. Commonwealth,

219 Va. 516, 248 S.E.2d 784 (1978). It is also important to

recognize that in criminal trials in Virginia, an expert

generally may not base his opinion on inadmissible evidence. See

Simpson v. Commonwealth, 227 Va. 557, 566, 318 S.E.2d 386, 391

(1984); cf. Code § 8.01-401.1 (expert opinion in civil cases may

be based on inadmissible evidence). While a qualified

psychologist may testify as an expert witness in a criminal case

and render an opinion based in part on interviews with the

subject, see Rollins v. Commonwealth, 207 Va. 575, 580-81, 151
S.E.2d 622, 625-26 (1966), he may not place in the record

inadmissible statements made to him during the evaluation

process. See Greenfield v. Commonwealth, 214 Va. 710, 714, 204

S.E.2d 414, 418 (1974) (affirming trial court's exclusion of

hearsay evidence offered to support a psychiatric opinion).

The majority's decision allows for the admission of evidence

not previously permitted in Virginia criminal cases. Because the

18
majority also holds that whether the evidence was admissible or

not, the conviction should be affirmed, I would not issue a

definitive ruling, but would instead wait until such time as the

General Assembly enacts or the Supreme Court adopts a new rule of

evidence. 6

This ruling opens the door for considerable mischief through

the manipulation of hired expert witnesses. It provides an

opportunity for parties to get before the jury potentially

prejudicial evidence that could not otherwise be admitted. A

criminal defendant, without subjecting himself to cross-

examination, could put his version of an incident before the jury

under the guise of testimony from his psychiatrist explaining the

basis for the psychiatrist's testimony. The prosecution could

use a psychiatrist or psychologist to place statements in the

record that would not otherwise be admissible and which could not

withstand cross-examination.
6
The issue raised in this case has been the subject of
much study and debate. The Committee to Draft Rules of Evidence
for Virginia on November 10, 1984, approved a draft of proposed
Virginia Rule 705, Disclosure of Facts and Data, as follows:

The expert may testify in terms of opinion or
inference and give his reasons therefor without prior
disclosure of the underlying facts and data, unless the
court directs otherwise. On direct examination, an
expert may not testify to facts or data otherwise
inadmissible unless the court determines that such
facts or data or a summary thereof are necessary for a
proper understanding of the basis for the expert's
opinion and that such testimony would not unfairly
prejudice an opposing party. A cross-examiner may
require the expert to disclose the facts or data on
which an opinion or inference is based.

19
 Even if the child's statement might be admissible under the

standards suggested in the proposed rule, see n.1, supra, I do

not believe that a proper foundation was laid to admit the

statement. The child's statement that he had been "sexed," made

during one of more than ten counseling sessions, surely was not

essential to diagnosis of an "adjustment disorder." Nor was it

necessary for a proper understanding of the basis of the expert's

opinion. The majority opinion graphically describes the child's

apparent sexual knowledge. The psychologist would likely have

made the same diagnosis without the child's statement that he had

been "sexed," and he surely could have explained his diagnosis to

the jury without recounting this statement.
Accordingly, I concur in the result reached by the majority

but dissent insofar as the opinion holds that the child's

statement to the psychiatrist was admissible.

20
Benton, J., dissenting.

I.

I agree with the majority opinion that the trial judge erred

in allowing the psychologist to opine that the child had been

sexually abused. See Jenkins v. Commonwealth, 21 Va. App. 222,

463 S.E.2d 330 (1995). The elements of an offense and the

identity of the criminal agent are ultimate facts at issue in a

criminal prosecution. Nicholas v. Commonwealth, 91 Va. 741, 750,

21 S.E. 364, 366 (1895). In a prosecution for aggravated sexual

battery under Code § 18.2-67.3, whether sexual abuse occurred is

an element of the offense that the jury must decide based upon

the evidence in the record. The Supreme Court has clearly stated

in Cartera v. Commonwealth, 219 Va. 516, 248 S.E.2d 784 (1978),
that an expert may not express an opinion as to "'the precise or

ultimate fact in issue.'" Id. at 519, 248 S.E.2d at 786 (quoting

Webb v. Commonwealth, 204 Va. 24, 33, 129 S.E.2d 22, 29 (1963)).

I disagree, however, with the majority's holding that the

error was harmless. This Court cannot reasonably conclude upon

this record that the error did not affect the jury's verdict.
Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910,

911 (1991). The issue whether Jenkins sexually abused the child

was disputed. Nothing in the record suggests that the jury did

not rely upon the testimony of the psychologist in arriving at

its verdict.
Other evidence of a disputed fact standing
alone, does not establish that an error is
harmless. . . . [A] harmless error analysis

21
 . . . [is not] simply a sufficiency of the
evidence analysis.

Hooker v. Commonwealth, 14 Va. App. 454, 458, 418 S.E.2d 343, 345

(1992).

This case is not one in which "the other evidence of guilt

was so overwhelming and the error so insignificant by comparison

that the error could not have affected the verdict." Id. at 457

n.2, 418 S.E.2d at 345 n.2. Even if "the other evidence amply

supports the jury's verdicts, [evidence is not harmless when] the

disputed testimony may well have affected the jury's decision."
Cartera, 219 Va. at 519, 248 S.E.2d at 786. Furthermore, the

quality of the inadmissible evidence must be considered. "When

an opinion is rendered by a witness whom the trial [judge] has

declared to be an expert in his field, such opinion will carry

great weight with the jury and could very well have been the

decisive factor in their minds in determining the [accused's]

guilt." Callahan v. Commonwealth, 8 Va. App. 135, 140, 379

S.E.2d 476, 479 (1989). In this case, the psychologist's

testimony, based on ten sessions with the child, that sexual

abuse occurred obviously significantly influenced the jury's

decision.

Although Jenkins' statement was inculpatory, this Court

cannot say that the jury could not have cast it in a different

light in the absence of the inadmissible evidence. In his

statement, Jenkins "said that he was sitting in the living room

watching TV, and that [the child] was sitting in his lap, leaning

22
against his chest, and . . . he put his hand on his penis from

over top his clothing and held it there and touched him there for

about a minute." The jury could have found that Jenkins lacked

the intent to commit sexual battery. In addition, if the jury

accepted Jenkins' statement that the child sat on his lap on one

occasion, the jury could have concluded that the single episode

could not conceivably have led to the bizarre conduct exhibited

by the child. Moreover, in considering the mother's testimony,

the child's great grandparent's testimony, and Jenkins'

admission, the jury certainly could have found that the child's

behavior had its genesis prior to and unrelated to the one

occasion Jenkins admitted touching the child.
Aside from the expert's opinion, the origin of the child's

behavior was not clearly established. The child's mother

described instances beginning in 1992 when the child, who was

then two years of age, began to talk about sex and engage in

sexually-oriented behavior toward her. For example, she

testified that one evening when she was watching television the

child entered her bedroom, removed his clothing, and said he

wanted to have sex with her. On other occasions, he told her "he

want[ed] to sex [her] . . . and trie[d] kissing [her] with his

mouth open [while] . . . mov[ing] his head around like a french

kiss." She testified that on other occasions he "gyrate[d] his

hips and rub[ed] his penis, . . . put [a] pillow on top of him or

underneath . . . him saying that he was sexing the pillow, . . .

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[and] started rubbing his behind on [a retail store] display

saying that he was sexing it."

The child's mother testified that prior to the first of

those incidents the child took showers with her and that he

fondled her breast while she showered with him. She later

stopped taking showers with him when he began talking about sex.

Although the child also showered with the father, no testimony

established that the child fondled his father. The psychologist

testified that if he had known that the mother and the father

were showering with the child he would have discouraged it. The

psychologist also testified that sexual awareness could result in

a child of one to three years of age who took showers with a

parent.
The child's great grandmother, who was the child's primary

babysitter five days a week for three years, testified that on

several occasions she saw the child "run his hand up [his

mother's] dress, and [the mother would] just cutely smile and say

'Oh, [child] don't do that.'" She also testified that she

admonished the child's mother to discontinue taking baths with

the child and "told her it wasn't right." The great grandfather

also testified that "quite a few times" the child inappropriately

put his hands on his mother and in her brassiere to feel her

breasts. He testified that he frequently admonished the child's

mother for allowing the child to touch her in that manner.

The evidence, thus, provided a basis from which the jury

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could have drawn an inference, in the absence of the inadmissible

part of the psychologist's testimony, that circumstances other

than Jenkins' conduct caused the child's behavior. Indeed, the

evidence suggests that the child may have several stimuli for his

behavior.

The evidence proved that the two-year-old child was

extensively exposed to cable television and watched movies. The

mother testified that she has television cable service on two of

the five televisions in her house. The great grandmother

testified that the child watched television and movies at her

house.
In addition to television, the evidence suggests that by age

three the child had other exposures that may have influenced his

behavior. The great grandmother testified that she warned the

mother about her conduct with the child because the child "knew

too much . . . [and] was too bright." The evidence also suggests

that the child was exposed to adult music and "could sing 'Achy

Breaky Heart' as good as" any singer. The evidence also proved

that the child had two sixteen-year-old female babysitters who

have kept him on weekends and overnight.

The child's conduct, sexual talk, and singing of an adult

love ballad are consistent with the daily fare of cable

television. Moreover, unseemly as it may be, many adult males

are seen in public with a hand placed on their genital region.

The jury obviously could have found that the child's conduct was

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the manifestation of various exposures unrelated to Jenkins.

In addition, no evidence proved that the child approached

any person other than his mother in a sexually suggestive manner.

Indeed, the child never approached the father in that manner and

never rubbed his father sexually. The jury might have found it

significant that the child only exhibited such conduct toward a

female. On this evidence, the origin of the child's behavior was

a question for the jury to decide.
I believe that it is evident from the record how important

the psychologist's opinion could have been in the jury's

decision. Without his inadmissible testimony, the jury might

have reached the conclusions that the child's conduct had its

origin in exposures to inappropriate but everyday experiences and

that Jenkins had no intent to sexually touch the child. The

record demonstrates that the erroneous admission of the

psychologist's testimony greatly lessened the Commonwealth's

burden to prove sexual abuse beyond a reasonable doubt. Thus, I

cannot "conclude, without usurping the jury's fact finding

function, that, had the error[s] not occurred, the verdict would

have been the same." Lavinder, 12 Va. App. at 1005, 407 S.E.2d

at 911; see Code § 8.01-678. Because admission of the

psychologist's opinion as to the ultimate issue of fact was not

harmless error and the trial judge improperly allowed the

psychologist to repeat the child's complaint of being "sexed," I

would reverse the appellant's conviction and remand for a new

26
trial.

II.

The psychologist testified that the child "on one occasion,

indicated to me that he had been sexed. That was his word." I

would also hold that the trial judge erred in allowing the

psychologist to so testify. The majority approves of this

evidence as either non-hearsay or an exception to the hearsay

rule.
In finding the statement an exception to the hearsay rule,

the majority reads Cartera too broadly and expands the use of

hearsay beyond what the Supreme Court of Virginia ruled in that

case. The Supreme Court "acknowledge[d] the exception to the

hearsay rule" that renders admissible statements made to

physicians "concerning [a patient's] 'past pain, suffering and

subjective symptoms' to show 'the basis of the physician's

opinion as to the nature of the injuries or illness.'" 219 Va.

at 518, 248 S.E.2d at 786. See also Mackall v. Commonwealth, 236

Va. 240, 255, 372 S.E.2d 759, 769 (1988), cert. denied, 492 U.S.
925 (1989). The Supreme Court declined, however, to apply the

exception to statements "concerning the circumstances of the

offenses and the description of the assailant" made by the rape

victims. Cartera, 219 Va. at 518, 248 S.E.2d at 785. The Court

declined to do so because "[t]his testimony goes beyond a recital

of 'past pain, suffering and subjective symptoms.'" Id. at 518,

248 S.E.2d at 786.

27
 The testimony that the trial judge admitted in this case is

analogous to the testimony the Supreme Court barred in Cartera.

The psychologist's testimony that the child told him he had been

"sexed" concerns the circumstances of the particular offense. As

in Cartera, the statement was a description of the child's

alleged physical encounter and not a description of the child's

symptoms. By stating that he was "sexed," the child did not

report his pain, suffering or subjective symptoms but rather

described the circumstance of events. Cartera does not stand for

the proposition that a psychologist may describe the actual

physical contact from which the prosecution arises.

Without reference to any Virginia decisions, the majority

expands Cartera beyond its bounds by reference to decisions from

other states. The Commonwealth concedes that "many of these

out-of-state cases are partially based on the adoption by the

states of rules equivalent to the Federal Rules of Evidence,

§ 803(4)." The Supreme Court of Virginia, however, has not

adopted the Federal Rules of Evidence as rules of evidence in

Virginia. Furthermore, I find no indication in Virginia case law

to suggest that the rule announced in Cartera can be supplemented
and expanded by reference to the Federal Rules of Evidence or

rules of decision from other states based on application of the

Federal Rules.

In addition, I do not share the majority's assumption that

statements this child made to a psychologist are inherently

28
reliable. The basis for allowing in evidence statements that a

patient makes to a treating physician is the assumption that the

patient understands "that the effectiveness of the treatment

received will depend upon the accuracy of the information

provided to the physician." John W. Strong, 2 McCormick on

Evidence § 277, at 246-47 (4th ed. 1992). This principle has no

application to a child two years of age, who was not competent to

testify at trial, talking to a psychologist. If a child is too

young to have the mental capacity to testify at trial, obviously

the child cannot understand the importance of truthfully relating

matters to a psychologist for purposes of treatment.
Furthermore, Jenkins had no opportunity to challenge

directly the child's statements and to demonstrate that the

child's use of the term may have arisen from a context that was

unrelated to him or that bore no nexus to sexual abuse by any

person. Close scrutiny must be given to a situation, such as

here, where because of incompetence, cross-examination of an

accuser is non-existent. I would hold that the psychologist's

repeating of the child's statement was hearsay, established an

ultimate fact element of the offense, and was clearly

prejudicial.

Under the majority's analysis, if the child had named

Jenkins during the therapy session, the testimony of the

psychologist repeating that disclosure would have been

admissible. Additionally, because the psychologist may have

29
believed that the circumstances surrounding how the abuse

occurred might also be important for treatment or forming an

expert opinion, the majority's reasoning would allow a

psychologist to relate all of those circumstances and where the

abuse occurred. The majority's opinion will allow experts to

repeat all the nuances of complaints and establish every element

of the offense in detail under the guise that the descriptions of

the offense will not be offered for the truth of the matter

asserted. That reasoning directly contradicts Cartera.

For these reasons, I would reverse the conviction and remand

for a new trial.

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