COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia
MELVIN ALEXANDER MOORE
v. Record No. 1595-94-2 MEMORANDUM OPINION * BY
JUDGE MARVIN F. COLE
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF APPOMATTOX COUNTY
Kenneth M. Covington, Judge
Andrew M. Sacks (Sacks, Sacks & Imprevento,
on brief), for appellant.
Leah A. Darron, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Melvin Alexander Moore, appellant, was convicted of
statutory rape of a six-year old girl in violation of Code
§ 18.2-61(A)(iii). On appeal, appellant argues that the trial
court erred in allowing a mental health therapist "to testify as
an expert witness on the credibility of the [victim] and on the
probability of the incident occurring based on certain
hypothetical questions tracking the [victim]'s symptoms." For
the reasons that follow, we affirm the judgment of the trial
judge.
I.
The victim was fifteen years old at the time of the trial.
She testified that when she was six years old she had a sexual
encounter with appellant, who had been dating the victim's
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
mother. The victim testified that appellant "held his penis with
one of his hands and he rubbed it on the inside of my
vagina . . . ." The next day the victim told her babysitter
"that [appellant] had made love to [her]." She was upset and
cried as she disclosed the incident to the babysitter. She then
told her mother about the incident, but her mother did not
believe her and did not take her to a doctor.
The victim testified that after the incident, when appellant
visited her home, she hid under the bed, in the closet, or behind
other furniture. The victim became upset at television shows
that depicted rape or sexual molestation. She often cried about
the incident and, at one time, took an overdose of aspirin.
In September, 1993, about nine years after the incident, the
victim saw appellant at a laundromat. She became upset and left
the building, although she had not seen appellant since 1984.
The victim testified that she cried, wished she was dead, and
asked herself why the incident had to happen to her. Her mother
took her to the hospital, where she was referred to the
Appomattox Counseling Center.
The victim began seeing Carol DePew, a mental health
therapist. She met with DePew for a total of eleven sessions.
DePew has an undergraduate degree in psychology and a masters
degree in mental health counseling. She has "a National
Counseling Certification which is a five year renewable license
to be continued with 100 continued education hours of which [she]
2
ha[d] earned 50." She has attended professional seminars on such
topics as working with sexual abuse survivors. DePew testified
she has "done extensive professional reading of books and
journals on topics relevant to working with adolescents and
families and [has] five years of professional experience in
therapy primarily working with children and families." DePew
stated that one-third to one-half of her caseload involves
children who have been sexually abused.
DePew was qualified as an expert witness over appellant's
objection. Appellant argued to the trial court that DePew's
testimony was inadmissible because it would address the ultimate
issue in the case -- the credibility of the victim. However, the
trial court ruled that DePew could testify, stating:
[T]he Court would not allow the witness to
give an opinion as to the ultimate fact in
issue. That is in her opinion whether or not
this child on the occasion was sexually
abused or not. That is an issue for the jury
to draw from all the evidence. However, I
assume what the Commonwealth is about to do
is to relate certain behavioral happenings
and characteristics and ask the witness
whether that type of behavior is consistent
with a child who has been sexually abused. I
don't think the response to that, assuming it
would be an affirmative one based upon the
facts that the Commonwealth would give, would
go to invading the province of the jury in
deciding the ultimate issue. I think it
would be probative here. We have something
that happened some nine years ago.
Basically, the case comes down to the
testimony of the young lady at this juncture
as would be opposed by testimony of the
defendant if he testifies. But, basically,
it's coming down to the testimony of what the
young lady has to say. This could be helpful
to the jury in deciding whether or not she is
3
telling the truth. Something that the jury
could consider other than their observation
of her manner and demeanor and responses here
today.
At the trial, DePew testified in response to hypothetical
questions. She listed the following as "pretty common" symptoms
of sexual abuse victims: crying; expressing painful or negative
emotions in inappropriate fashions; becoming upset in a manner
that is not rational or reasonable to others, such as when seeing
something on television reminiscent of the event; safety seeking
behavior such as hiding; overdose or suicide attempts; and panic
attacks upon seeing the perpetrator. She testified that one of
the strongest indicators of sexual abuse was when the victim
remembered the exact event even though it occurred many years
ago.
Appellant testified and denied any sexual activity with the
victim.
II.
"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." Blain v.
Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)
(citation omitted).
Relying on Davison v. Commonwealth, 18 Va. App. 496, 445
S.E.2d 683 (1994), appellant argues that DePew's testimony
impermissibly bolstered the credibility of the victim and offered
conclusions as to the ultimate issue in the case. However,
4
DePew's testimony differed from the testimony offered by the
expert witness in Davison. In Davison, the expert witness, a
therapist, testified concerning the "phenomenon of recanting" to
explain why the victim, a child, would relate prior inconsistent
statements that contradicted both the victim's trial testimony
and the victim's original version of a sexual assault. Id. at
498-99, 445 S.E.2d at 684-85. We held that the trial court erred
in admitting the therapist's testimony because she offered an
opinion as to why the victim's testimony at trial should be
believed and why the victim's prior inconsistent statement should
be disbelieved. Id. at 503-04, 445 S.E.2d at 687.
The testimony of DePew is more analogous to the expert
witness testimony offered in Taylor v. Commonwealth, 21 Va. App.
___, ___ S.E.2d ___ (1996). In Taylor, a licensed clinical
social worker testified that she "'found [the victim] to be
suffering from posttraumatic stress disorder,' 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.'"
Id. at ___, ___ S.E.2d at ___. The expert witness also
identified criteria necessary to diagnose posttraumatic stress
disorder, applied the criteria to the victim, and expressed her
professional opinion that "the victim demonstrated the requisite
number of criteria to support a diagnosis of posttraumatic stress
5
disorder." Id. at ___, ___ S.E.2d at ___.
This Court rejected Taylor's assertion that the expert
witness' testimony "constituted a comment on the victim's
credibility." Id. at ___, ___ S.E.2d at ___. We held:
[E]vidence 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, [the expert witness'] 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.
Id. at ___, ___ S.E.2d at ___. 1
An expert in a criminal case "may give an
opinion based [only] upon his own knowledge
of facts disclosed in his testimony or . . .
upon facts in evidence assumed in a
hypothetical question," but the witness may
not express an opinion as to the ultimate
issue to be determined by the trier of fact.
Price, 18 Va. App. at 764, 446 S.E.2d at 645 (citations omitted).
In this case, DePew responded only to hypothetical questions
concerning the symptoms related to sexual abuse. She also
testified that victims "could easily have a panic attack" when
they encountered their offender, even years after a traumatizing
1
See also Price v. Commonwealth, 18 Va. App. 760, 765, 446
S.E.2d 642, 645 (1994) (holding that an expert witness' testimony
concerning 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.'" (citation omitted)).
6
incident. DePew did not enumerate any details of the incident
that the victim may have related to her in therapy sessions.
Further, DePew did not testify that she believed the victim was
telling the truth, or that, in her opinion, appellant committed
the charged offense. DePew merely responded to hypothetical
questions that certain behavior was consistent with that of a
sexually abused child. Therefore, DePew's testimony corroborated
the fact that the victim had been sexually abused 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." See Taylor, 21 Va. App. at ___, ___
S.E.2d at ___. Thus, the trial court did not abuse its
discretion in admitting the evidence.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
7
BENTON, J., dissenting.
In Davison v. Commonwealth, 18 Va. App. 496, 445 S.E.2d 683
(1994), we held as follows:
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). Because the
therapist's testimony was admitted in this case only to bolster
the complainant's credibility by discussing truthfulness
criteria, I would hold that Davison controls this case and
reverse the conviction.
In her testimony, the complainant said that Moore had sexual
intercourse with her nine years earlier when she was six years of
age. Because the complainant was under the age of thirteen when
the incident was alleged to have occurred, the Commonwealth had
to prove only that Moore had sexual intercourse with the
complainant, who was not his spouse, to establish a violation of
Code § 18.2-61(A)(iii). To support her claim, the Commonwealth
introduced testimony by the complainant's mother and babysitter
8
describing the complainant's behavior during the years following
the incident. However, only the complainant testified that
sexual intercourse actually occurred and that Moore was the
perpetrator. Moore testified and denied that he ever had sexual
intercourse or other sexual contact with the complainant.
Consequently, this case turned solely on the credibility of the
complainant and Moore.
During the Commonwealth's case-in-chief, the prosecutor
asked to have the therapist qualified as an expert witness.
Defense counsel objected and stated that "the matters that are in
controversy in this case are well within the knowledge and
experience of all of these jurors." Defense counsel argued that
the only purpose of the therapist's testimony was to prove that
the victim testified truthfully. In admitting the testimony the
trial judge ruled as follows:
We have something that happened some nine
years ago. Basically, the case comes down to
the testimony of the [complainant] at this
juncture as would be opposed by testimony of
the defendant if he testifies. But,
basically, it's coming down to the testimony
of what the [complainant] has to say. [The
therapist's testimony] could be helpful to
the jury in deciding whether or not [the
complainant] is telling the truth. Something
that the jury could consider other than their
observation of her manner and demeanor and
responses here today.
The trial judge's reason for admitting the therapist's testimony
is precisely the reason that it should not have been admitted.
The prosecutor used the therapist's testimony to validate
9
the truthfulness of the complainant's testimony. By commenting
upon the various behaviors that the child was said to have
exhibited over a nine year period, the therapist sought to convey
by a professional explanation that a rape must have occurred and
that the complainant obviously testified truthfully. The
therapist's testimony was used in this manner to impermissibly
vouch for the credibility of the complainant. "Permitting a
person in the role of an expert to suggest that because the
complainant exhibits some of the symptoms of rape trauma . . . ,
the complainant was therefore raped, unfairly prejudices the
[accused] by creating an aura of special reliability and
trustworthiness." State v. Salana, 324 N.W.2d 227, 230 (Minn.
1982).
The therapist's testimony clearly was systematically
structured to bolster the complainant's testimony. (See
Appendix). The prosecutor's strategy is obvious in the following
question and response:
Q. Let's go a little further. If this child
related to you that I told my mother and I
told my babysitter and they didn't believe
me, is that consistent with this type of
case, sexual abuse case?
A. Yes. Often adults who are charged with
caretaking of young children feel so much
shame and guilt and denial that a child has
been violated while in their care that it is
very difficult for them to accept.
At its core, this testimony affirms the therapist's belief in the
complainant's truthfulness. In addition, the testimony asserts
10
that the complainant is credible even when she appears otherwise
to others. By asserting as a characteristic of "sexual abuse
case[s]" the disbelief of others when hearing a complaint, the
therapist gave an expert opinion that truth should be inferred
from the disbelief of the others. The illogic is patent. I find
no basis to allow an expert to comment on the validity of the
complainant's charge and the complainant's truthfulness in the
guise of explaining why the complainant would be disbelieved by
others.
If there could be any doubt as to the thrust and purpose of
this testimony, the Commonwealth's strategy is again revealed in
the following exchange:
Q. Okay. Again, hypothetically, this
incident occurred when this child was six
years old and some nine years later, is it
consistent that the child remember the exact
or close to the exact events of what occurred
to the child when she was six years old?
A. Yes.
Q. That wouldn't be unusual?
A. That's one of the strongest indicators.
This testimony manifestly and openly asserted that the child
truthfully and accurately testified concerning an event that was
alleged to have occurred nine years earlier when the child was
six. Simply put, the therapist was permitted to give an "expert"
evaluation of the complainant's truthfulness.
When expert testimony is intended to prove a witness'
credibility, the role of the fact finder is invaded. Davison, at
11
504, 445 S.E.2d at 688. Expert testimony will be allowed to aid
jurors only when the jurors must consider matters that are not
within their common knowledge. See Callahan v. Commonwealth, 8
Va. App. 135, 138, 379 S.E.2d 476, 478 (1989).
Where a jury is confronted with evidence of
an alleged child victim's behaviors, paired
with expert testimony concerning similar
syndrome behaviors, the invited inference -
that the child was sexually abused because he
or she fits the syndrome profile - will be as
potentially misleading and equally as
unreliable as expert testimony applying the
syndrome to the facts of the case and stating
outright the conclusion that a given child
was abused. The danger of the jury
misapplying syndrome evidence thus remains
the same whether an expert expresses an
explicit opinion that abuse has occurred or
merely allows the jury to draw the final
conclusion of abuse.
Seward v. State, 652 N.E.2d 490, 499 (Ind. 1995).
The therapist's affirmation of the complainant's testimony
proved to be a critical part of the Commonwealth's case.
However, the therapist's testimony "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). An expert
witness may not give a judgment on the truthfulness of a witness
"under the guise of a scientific diagnosis." Id. See also
Wescott v. Crinklaw, 68 F.3d 1073, 1077 (8th Cir. 1995).
Moreover, when the conflicting testimony of witnesses is an
ultimate issue in fact, an expert may not comment upon the
credibility of one of the witnesses. See Davison, at 504, 445
S.E.2d at 688. The sole purpose of the therapist's testimony was
12
to comment on the complainant's credibility and to prove she
truthfully testified when she said that she was the victim of a
sexual assault almost a decade ago.
13
APPENDIX
In pertinent part, the therapist testified as follows:
Q. Hypothetical question. The young lady
comes to you and tells you she has been,
since she was six years been upset, crying
for no reason at all, telling her mother and
her best friend or babysitter who is like a
mother to her that she had been raped at
another time earlier than this, she watches
television shows dealing with child
molestation and she becomes upset and cries,
is this consistent with a child who has been
sexually abused?
A. Yes.
Q. Can you explain why?
A. There are certain symptoms that are like
symptoms of any illness or disease that are
customary for sexual abuse or sexual violence
survivors. Those can include inappropriate
expressions of emotions, especially painful
or negative emotions like excessive crying or
crying at inappropriate times.
* * *
There are certain symptoms of survivoring
sexual abuse or sexual violence that are
pretty common and those can include
expressing negative or painful emotions in
inappropriate fashions. Crying or becoming
upset in a manner that doesn't seem
reasonable or rational to adults or other
people. Witnessing media exposure through
books or movies or television or videos
that's reminisce of the event that may have
occurred in the young person's life.
Witnessing that can fracture their
psychological defenses and cause the painful
emotions to emerge and sometimes those
emotions are split off and attributed to
other things, maybe upset about school or
grades.
Q. Let's go a little further. If this child
related to you that I told my mother and I
told my babysitter and they didn't believe
14
me, is that consistent with this type of
case, sexual abuse case?
A. Yes. Often adults who are charged with
caretaking of young children feel so much
shame and guilt and denial that a child has
been violated while in their care that it is
very difficult for them to accept.
Q. Now, if the child further told you that
subsequent to this rape episode when this man
would come back to the home of her parent,
her mother, the child would hide in closets
or under tables or under beds, is that
consistent with a child that has been abused?
A. Yes. It's really interesting in sexually
abused children, male and female children.
It's natural for a child to maybe hide and
play but children who have been physically
violated it's called safety seeking behaviors
and they go to excessive lengths and they
often hide in the bottom of closets or behind
furniture. They hide much more than a
regular child would for regular reasons of
play and they do this because they need to go
somewhere where they feel physically and
psychologically safe.
Q. This same child four or five years after
the original incident took an overdose of
medication from the home, is that consistent
behavior for a child who has been sexually
abused?
A. Yes. Often children themselves, their
mind protects the trauma victim by
surrounding the event with denial or
splitting the event off from the mind and a
child can experience so much emotional pain
that they don't really know how to cope with
it and an overdose or suicide attempts are
quite common.
Q. Okay. Now, the child, say, eight years
later came in contact with this person, they
are in the same room together, is it
consistent that this child would become
hysterical, have trouble breathing, shaking,
screaming, relating back to that incident, is
that consistent?
15
A. Yes. The child could easily have a panic
attack or an episode where the way that their
mind disassociates or splits off the emotion
content of the trauma, those two things can
become connected. Seeing the perpetrator, or
the offender, again could cause the person to
feel like the same event is happening and the
fear and trauma can emerge. The subconscious
mind has no concept of time like we do. So
we might be able to say a car wreck happened
ten years ago, maybe there was a lot of
crashing or loud glass breaking and if you
were to hear those noises again it may appear
that that event was happening all over again.
That's because the subconscious memory has
been triggered and it seems like it's
happening at the same moment again.
Q. That kind of leads me to my next
question. Back to the hypothetical again,
first. It's been related that this child who
is seven or eight years old may have
masturbated with her fingers. Is that
consistent with a child that's been sexually
abused?
A. Yes. Children don't develop healthy
sexuality until the onset of hormonal
development in adolescence. So provocative
or sexualized behavior in young children is
almost always a sign that they have been
sexually violated in some way. It's natural
for the body to enjoy the feeling of arousal
but not in a sexualized fashion like that.
Q. Okay. Again, hypothetically, this
incident occurred when this child was six
years old and some nine years later, is it
consistent that the child remember the exact
or close to the exact events of what occurred
to the child when she was six years old?
A. Yes.
Q. That wouldn't be unusual?
A. That's one of the strongest indicators.
16