Taylor v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Fitzpatrick
Argued at Alexandria, Virginia

JAKE THOMAS TAYLOR

v. Record No. 0957-94-4 OPINION BY
JUDGE JOHANNA L. FITZPATRICK
COMMONWEALTH OF VIRGINIA JANUARY 23, 1996

FROM THE CIRCUIT COURT OF RAPPAHANNOCK COUNTY
James M. Lumpkin, Judge Designate

Roy D. Bradley, Assistant Public Defender, for appellant.
Robert B. Condon, Assistant Attorney General (James S.
Gilmore, III, Attorney General, on brief), for appellee.

Jake Thomas Taylor (appellant) was convicted in a jury trial

of attempted rape, sexual battery, attempted forcible sodomy, and

breaking and entering with the intent to commit rape while armed

with a deadly weapon. On appeal, he argues that the trial court

erred in: (1) allowing an expert witness to testify about the

victim's posttraumatic stress disorder and thus corroborate the

victim's testimony, and (2) finding the evidence sufficient to

support the convictions. For the reasons that follow, we affirm

the judgment of the trial court.
BACKGROUND

On October 19, 1993, the victim awoke at approximately 9:00

a.m. when she heard a noise at the door of her trailer. While

sitting on her bed, she saw a person dressed in a camouflage

outfit coming toward her. Although the intruder's face was

covered, the victim believed that she recognized the intruder

because of his build. She testified that she said, "Tommy," the
name she called appellant, who was her neighbor and an

acquaintance of her male friend.

The intruder pushed the victim prone on the bed, bound her

hands behind her back, and taped her mouth. The victim struggled

as the intruder fondled her breast, inserted his fingers in her

vagina, attempted to insert his penis in her mouth, and attempted

to have sexual intercourse with her. While struggling, the

victim freed one of her hands and tore off the intruder's mask,

which allowed her to see his nose and lips. She testified that

this view of the intruder's nose and lips confirmed her belief

that the intruder was the man she called "Tommy," the appellant.
The victim identified a camouflage outfit that the police

seized from appellant's apartment as the clothing worn by her

attacker. She recalled that the shirt was "faded, . . . had

holes in it, and [had] the same design." She further testified

that, during the half hour the intruder was in her trailer, she

clearly saw his clothing and heard his voice when he engaged in

extensive conversations with her. At trial, she identified

appellant as the intruder.

Appellant testified at trial and denied involvement in this

incident. He testified that he got out of bed between 9:00 a.m.

and 9:30 a.m. and went to the Laurel Mills store to buy coffee.

He lived directly behind the store, which was located one-quarter

mile from the victim's trailer. At approximately 9:30 a.m.,

Harlan Coffey (Coffey) knocked on appellant's door to borrow a

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cooler. Appellant went with Coffey into the store's parking lot.

Five people, including Coffey, verified appellant's presence at

the store at 9:30 a.m.
EXPERT TESTIMONY

Appellant contends that the trial court erred in allowing

Peggy Christensen (Christensen), a licensed clinical social

worker, to testify that the victim suffered from posttraumatic

stress disorder. Appellant's argument is that, by corroborating

the victim's version of the events, Christensen's testimony was

used to enhance the victim's credibility, and this use invaded

the jury's function of determining the credibility of witnesses.

In overruling appellant's objections at trial, the trial judge

stated: "I will instruct the Commonwealth that [Christensen's]

not to give any opinion as to the victim's truthfulness. Other

than that, the Court will rule that the Commonwealth has the

right to call an expert witness as to counseling."
At trial, Christensen testified that, three months after the

reported incident, she began counseling the victim. The victim

told Christensen that she had been sexually assaulted and was

"having a great deal of symptoms that were making it difficult

for her to feel safe and functional." Christensen described the

victim's symptoms, including violent nightmares involving the

intruder, sleep disturbances, recurrent flashbacks, and

difficulty being around men. Christensen "found [the victim] to

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be suffering from posttraumatic stress disorder," 1 explained how

she reached her diagnosis from the symptoms that the victim

related, and testified that posttraumatic stress disorder may

afflict "anyone who has had a traumatic event outside of normal

human experience that would be markedly distressing to almost

anyone." Additionally, Christensen identified and explained the

four criteria necessary to diagnose posttraumatic stress

disorder. Applying these criteria to the victim, Christensen

expressed her professional opinion that the victim demonstrated

the requisite number of criteria to support a diagnosis of

posttraumatic stress disorder. Christensen did not recount any

details of the rape that the victim may have told her.
Appellant asserts that Christensen commented on the

credibility of the victim when she testified that she "had to

decide whether [she] believed [the victim] or not" and

acknowledged that the correctness of her diagnosis of

posttraumatic stress disorder depended upon whether she believed

the victim's history regarding her symptoms. However, these

1
Christensen testified that posttraumatic stress disorder is

recognized in the profession as a mental disorder and that the

criteria for diagnosis are set forth in the Diagnostic and

Statistical Manual, a recognized text in her field. See

Diagnostic and Statistical Manual of Mental Disorders § 309.89,

at 247-352 (3d ed. rev. 1987).

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statements were in response to cross-examination by defense

counsel and were not elicited by the Commonwealth. During her

testimony on direct examination, Christensen never stated that

she believed the victim was telling the truth or that she

believed the victim had been sexually assaulted.

"'The admissibility of evidence is within the broad

discretion of the trial court, and a ruling will not be disturbed

on appeal in the absence of an abuse of discretion.'" Crews v.
Commonwealth, 18 Va. App. 115, 118, 442 S.E.2d 407, 409 (1994)

(quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d

838, 842 (1988)). "[E]xperts in criminal cases must testify on

the basis of their own personal observations or on the basis of

evidence adduced at trial." Buchanan v. Commonwealth, 238 Va.

389, 416, 384 S.E.2d 757, 773 (1989), cert. denied, 493 U.S. 1063

(1990). In this case, Christensen's diagnosis was based on her

personal clinical observations of the victim during ten therapy

sessions and on the victim's description of her problems and fear

resulting from the incident.

"Evidence is relevant if it has any logical tendency,

however slight, to establish a fact at issue in the case."
Ragland v. Commonwealth, 16 Va. App. 913, 918, 434 S.E.2d 675,

678 (1993). "Once evidence is determined to be relevant and

material, '[t]he responsibility for balancing . . . probative

value and prejudice rests in the sound discretion of the trial

court,' and its decision 'will not be disturbed on appeal in the

5
absence of a clear abuse.'" Wilkins v. Commonwealth, 18 Va. App.

293, 298, 443 S.E.2d 440, 443 (1994) (en banc) (quoting Ferrell

v. Commonwealth, 11 Va. App. 380, 390, 399 S.E.2d 614, 620

(1990)). In a prosecution for rape, "[t]he physical and mental

condition, as well as the conduct of the prosecutrix, . . . is

always admissible. The remoteness of the examination by a

physician [or therapist], from the date of the crime, affects its

probative force, but not necessarily its admissibility." Loving
v. Commonwealth, 165 Va. 761, 765, 182 S.E. 224, 225 (1935)

(emphasis added). 2 See also Elam v. Commonwealth, 229 Va. 113,

115, 326 S.E.2d 685, 686-87 (1985) (holding medical and forensic

evidence of physical injury to be sufficient circumstantial

evidence, along with other evidence, to prove rape, despite the

prosecutrix's testimony that she did not believe she had been

raped); Tuggle v. Commonwealth, 228 Va. 493, 510-11, 323 S.E.2d

539, 549-50 (1984) (holding medical evidence of physical injuries

2
Similarly, this Court has held that expert testimony on

battered child syndrome "'is not an opinion regarding the

culpability of any particular defendant. . . . [It] merely tends

to show that the child was intentionally, rather than

accidentally, injured.'" Price v. Commonwealth, 18 Va. App. 760,

765, 446 S.E.2d 642, 645 (1994) (quoting Commonwealth v. Rodgers,

528 A.2d 610, 614 (Pa. Super. Ct. 1987), appeal denied, 542 A.2d

1368 (Pa. 1988)).

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sufficient as circumstantial evidence to prove rape), judgment

vacated on other grounds, 471 U.S. 1096 (1985).

We reject appellant's argument that Christensen's testimony

constituted a comment on the victim's credibility. Christensen

testified only as to the history of the victim's symptoms, her

clinical observations of the victim, and her diagnosis of the

victim's emotional disorder based upon those symptoms.

Christensen did not testify about any details of the attack, give

the victim's version of the offense, or testify that she believed

the victim was telling the truth. She merely testified that,

based on her observations of the victim, the victim was suffering

from posttraumatic stress disorder caused by some traumatizing

event. Additionally, any comment as to whether Christensen

believed the victim was raised solely during the cross-

examination of Christensen.
Davison v. Commonwealth, 18 Va. App. 496, 445 S.E.2d 683

(1994), relied on by appellant, is readily distinguishable from

the instant case. In Davison, this Court held that the trial
court erred by allowing a "therapist" to testify concerning the

"phenomenon of recanting" to explain why a child would give an

extrajudicial statement different from the child's testimony and

initial account of a sexual assault. Id. at 498-99, 445 S.E.2d

at 684-85. The witness in Davison, who had read one article on

recantation, was permitted to testify as to whether a child's

recantation should be disbelieved. Id. at 500-01, 445 S.E.2d at

7
685-86. We held that the therapist's testimony was inadmissible

for a number of reasons, including that the witness was offering

an opinion about why the child's testimony should be believed and

why a prior inconsistent statement should be disbelieved. Id. at

503, 445 S.E.2d at 687. No such testimony was elicited in this

case.

We hold that evidence of an emotional or psychological

injury such as posttraumatic stress disorder, like medical

evidence of physical injury, is relevant as circumstantial

evidence of the occurrence of a traumatizing event. In this

case, Christensen's testimony corroborated the fact that the

victim had suffered a traumatizing event, as evidenced by her

mental condition, and constituted neither the expression of an

opinion on the victim's credibility, nor an opinion as to which

version of events should be accepted by the jury.
SUFFICIENCY OF THE EVIDENCE

On appeal, appellant argues that insufficient evidence

supports his convictions because of inconsistencies in the

victim's testimony, and that the circumstantial evidence produced

at trial did not exclude every reasonable hypothesis of

innocence. However, in his motion to strike made at the end of

the Commonwealth's case, appellant's counsel argued only that the

evidence failed to establish that the intruder was armed with a

deadly weapon when breaking and entering, and that the sexual

battery charge was a lesser-included offense of the attempted

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rape and attempted forcible sodomy charges. Appellant's counsel

renewed the motion to strike at the end of appellant's case based

on the "same argument."

"No ruling of the trial court . . . will be considered as a

basis for reversal unless the objection was stated together with

the grounds therefor at the time of the ruling . . . ." Rule

5A:18. See Jacques v. Commonwealth, 12 Va. App. 591, 593, 405

S.E.2d 630, 631 (1991). At trial, appellant failed to raise the

specific arguments he now raises on appeal. Moreover, the record

does not reflect any reason to invoke the good cause or ends of

justice exceptions to Rule 5A:18. Thus, Rule 5A:18 bars our

consideration of these arguments on appeal.
Accordingly, the judgment of the trial court is affirmed.

Affirmed.

Benton, J., dissenting.

In his pretrial argument concerning the admissibility of

testimony from a social worker who counseled the victim three

months after the incident, the prosecutor proffered that her

testimony was "corroboration" of the victim's testimony. The

Commonwealth asserted that the social worker would testify that

"nothing in [the victim's] personal history show[ed] a traumatic

event that would lead to . . . [the victim's post-traumatic

stress] other than her reported sexual attack." No reason other

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than this credibility enhancement was offered. The trial judge

overruled Taylor's objections that the social worker's testimony

was not relevant to prove Taylor's guilt, that her testimony

contained hearsay, and that her testimony improperly bolstered

the testimony of the victim by invading the jury's function to

determine the victim's credibility.

The holding in Davison v. Commonwealth, 18 Va. App. 496, 445

S.E.2d 683 (1994), should guide this decision:
In proffering [the therapist] as an expert,
it was the prosecutor's intent to bolster the
truth of [the victim's] testimony at trial.
It is well settled that an expert may not
"express an opinion as to the veracity of any
witness." The prosecutor's question to [the
therapist] specifically concerned the
testimony of a "particular . . . witness"
and, thus, was clearly "intended to elicit an
opinion" of veracity. Such evidence is a
comment on an ultimate fact within the
province of the jury and must be excluded by
the trial court.

Id. at 504, 445 S.E.2d at 688 (citations omitted). See also

Coppola v. Commonwealth, 220 Va. 243, 252, 257 S.E.2d 797, 803

(1979), cert. denied, 444 U.S. 1103 (1980).
At trial, the victim testified that Taylor was the intruder

who sexually assaulted her. Taylor denied that he was the

intruder. Thus, the victim's identification of Taylor as her

assailant was crucial to the Commonwealth's case. Her

credibility as a witness, therefore, was at issue. See Taylor v.

Commonwealth, 3 Va. App. 59, 62-63, 348 S.E.2d 36, 38 (1986).

The resolution of this conflicting testimony presented an

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ultimate issue of fact as to the identity of the intruder. See

Evans-Smith v. Commonwealth, 5 Va. App. 188, 209-10, 361 S.E.2d

436, 448 (1987).

Over Taylor's renewed objection, the social worker testified

as an expert witness for the Commonwealth. She testified that

three months after the reported incident she began the first of

ten counseling sessions with the victim. The social worker

related statements of the victim, including the victim's

complaints of violent nightmares, sleep disturbances, recurrent

flashbacks, difficulty being around men, and "having a great deal

of symptoms that were making it difficult for her to feel safe

and functional." In addition, however, the social worker

testified that the victim told her that she had "been the victim

of a sexual assault."
In his questioning of the social worker, the prosecutor

asked for a diagnosis "based on this information you received

from [the victim]." The social worker testified that she made an

"assessment" of the victim based upon the victim's own statements

to her more than three months after reporting the event. From

the information contained in these statements, the social worker

opined that the victim suffered from post-traumatic stress

disorder. She explained that the disorder is caused by "a

traumatic event outside of normal human experience that would be

markedly distressing to almost anyone."

Assuming as true that the victim suffered from post-

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traumatic stress disorder and assuming the social worker was

capable of making that diagnosis, the social worker implicitly

told the jury that the cause of that condition was the sexual

assault that the victim said she had experienced three months

before the victim visited the social worker and not any other

cause. Without any support other than the victim's oral history,

the social worker's diagnosis of post-traumatic stress disorder

"was only a thinly veiled way of stating that [the victim] was

telling the truth." United States v. Whitted, 11 F.3d 782, 787

(8th Cir. 1993). The social worker's testimony, offered by the

Commonwealth in "corroboration" of the victim's testimony, had no

relevancy to the issues in this case other than to bolster the

victim's credibility by revealing that the victim's version of

events mirrored the therapist's descriptions and that the

therapist believed the victim was telling the truth. Davison, 18

Va. App. at 504, 445 S.E.2d at 688. Because Davison prohibits

such evidence as comment upon an ultimate fact, the trial judge

erred in admitting her testimony. Id. Thus, I would hold that

the social worker's testimony impermissibly bolsters the victim's

testimony, contrary to the ruling in Davison.

None of the cases cited by the majority supports its

conclusion that such testimony is admissible. While the victim's

physical and mental condition may be admissible in a rape trial,

see Loving v. Commonwealth, 165 Va. 761, 182 S.E. 224 (1935),

Taylor was not prosecuted for rape. In addition, in Loving, the

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doctor testified concerning the victim's physical and mental

condition after the defense raised the issue during cross-

examination of the victim. Id. at 765, 182 S.E. at 225. In this

case, the prosecution, not Taylor, first interjected the victim's

mental condition on direct examination of the victim. The

majority's decision broadly approves the admission of a social

worker's testimony recounting a victim's statements made three

months after an event.
The expert testimony in both Elam v. Commonwealth, 229 Va.

113, 326 S.E.2d 685 (1985), and Tuggle v. Commonwealth, 228 Va.

493, 323 S.E.2d 539 (1984), vacated and remanded on other

grounds, 471 U.S. 1096 (1985), concerned physical injuries as

evidence of rape. In Elam, the Court allowed medical evidence of

the tearing of skin to prove penetration when the victim did not

know whether the assailant had raped her during the assault. 229

Va. at 115, 326 S.E.2d at 686-87. In Tuggle, the Commonwealth

introduced medical evidence to prove that the dead victim had

been raped during the commission of murder. 228 Va. at 510-11,

323 S.E.2d at 549.

Nothing in Loving, Elam, or Tuggle sanctions the result
reached in this case. Here, a social worker recounted a person's

complaint that the person was a victim of the crime at issue and,

thus, bolstered the person's credibility and promoted the

veracity of the victim in a manner not heretofore approved in

Virginia. The social worker's testimony was "no more than [the

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victim's] testimony dressed up and sanctified as the opinion of

an expert." Viterbo v. Dow Chemical Co., 826 F.2d 420, 424 (5th

Cir. 1987). "The [social worker] corroborated [the victim's]

story under the guise of a scientific diagnosis and effectively

told the jury [the defendant] had committed a crime." Whitted,

11 F.3d at 787. I would hold the evidence inadmissible.

Moreover, Virginia law recognizes no exception to the

hearsay rule that would permit a social worker to testify

concerning a complainant's statement, made three months after an

incident, that the complainant was a victim of the particular

crime being prosecuted. In Cartera v. Commonwealth, 219 Va. 516,
248 S.E.2d 784 (1978), the Supreme Court of Virginia

"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.'" Id. at 518, 248 S.E.2d at 786. See also
Mackall v. Commonwealth, 236 Va. 240, 372 S.E.2d 759 (1988),

cert. denied, 492 U.S. 925 (1989). The Court in Cartera

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. 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.

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 The testimony that the trial judge admitted in this case is

analogous to the testimony the Supreme Court barred in Cartera.

The social worker's testimony that the victim told her she had

been the victim of a "sexual assault" was hearsay evidence of the

circumstances of the particular offense. As in Cartera, the

statement was a description of events related to the alleged

offense and not a statement of symptoms. Thus, for this reason,

I would also hold that the trial judge erred in admitting the

social worker's testimony that the victim said she had been

sexually abused.

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