Velazquez v. Commonwealth

Present: All the Justices

EDUARDO V. VELAZQUEZ
OPINION BY
v. Record No. 010926 JUSTICE LAWRENCE L. KOONTZ, JR.
January 11, 2002
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal of a conviction for rape, we consider

whether the trial court erred in permitting a Sexual Assault

Nurse Examiner (SANE) to testify regarding her expert medical

opinion on the causation of the victim’s injuries and, if not,

whether that testimony improperly invaded the province of the

jury.

BACKGROUND

Under well established principles, we review the evidence

and the reasonable inferences arising therefrom in the light

most favorable to the Commonwealth, the party prevailing below.

Turner v. Commonwealth, 259 Va. 645, 648, 529 S.E.2d 787, 789

(2000). The fifteen-year-old female victim, A.L., was a regular

visitor in the home of Eduardo V. Velazquez. Velazquez’s wife

was a good friend of A.L.’s mother, and A.L. considered her to

be “my second mom.” On one occasion when A.L. was visiting the

home, Velazquez “was drunk and he tried kissing [A.L.].” A.L.

did not tell anyone about the incident because she was afraid

that she would not be believed.
 On March 18, 1997, A.L. went to the Velazquez home after

school to retrieve a school library book which she had lent to

Velazquez’s wife. Velazquez and a male friend of his were

present in the home. Velazquez told A.L. that he would get the

book for her and then he asked his friend to go outside.

Velazquez told A.L. to sit down, and he removed her

backpack from her shoulders. A.L. told Velazquez that she

wanted to leave, but Velazquez attempted to kiss her. A.L. told

him to stop. While she attempted to push Velazquez away from

her, A.L. tripped and they both fell to the floor. At that

point, A.L. was on her back; Velazquez was on top of her.

Velazquez attempted to remove A.L.’s pants, while she again told

him “no” and fought to get away.

After Velazquez succeeded in pulling A.L.’s pants and

underwear down to her knees, he then pulled his own pants down.

While Velazquez was on top of A.L. with his waist positioned

between her knees and his hands beside her hips, A.L. felt a

sharp pain in her vaginal area. The “bottom half” of

Velazquez’s body was making “an up and down movement” when A.L.

felt that pain. During the assault, A.L. feared that she would

“lose [her] virginity” and would become pregnant. Velazquez

remained on top of A.L. for five minutes and then stood up after

he became irritated with A.L.’s struggles to get away. A.L.

attempted to leave, but Velazquez stopped her and told her “to

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clean [herself] up.” Velazquez left the room, and A.L. grabbed

her backpack and left.

When A.L. arrived at her home, she telephoned a cousin and

told her that she “was hurting in [her] vagina [sic] area.”

Later that evening, A.L.’s mother, who had spoken to the cousin,

telephoned A.L. and asked her what was wrong. A.L. told her

mother that Velazquez had “forced [her] to have sex with him.”

A.L.’s mother contacted the Fairfax County Police, who

subsequently interviewed A.L. at her home. The police also

collected A.L.’s clothing for forensic analysis. A.L.’s mother

then took her to a local hospital where Barbara Jean Patt, a

registered nurse who was a certified SANE, examined her.

A.L.’s mother also contacted Velazquez’s wife, who told her

husband that A.L. had accused him of rape. Velazquez left

Virginia that night, abandoning his wife, step-daughter, and

infant daughter. Velazquez was subsequently apprehended in

Texas in November 1997.

On December 21, 1997, Velazquez was indicted for the rape

of A.L. pursuant to Code § 18.2-61. A jury trial commenced in

the Circuit Court of Fairfax County on March 29, 1999. On that

same day, Velazquez filed a motion in limine “to exclude any

. . . ‘conclusions’ made by” Patt, contending that such

testimony would invade the province of the jury. The motion was

argued immediately prior to trial. Relying on Hussen v.

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Commonwealth, 257 Va. 93, 511 S.E.2d 106, cert. denied, 526 U.S.

1137 (1999), the trial judge overruled the motion in limine,

ruling that the SANE “can express an opinion as to whether [her

findings were] consistent with consensual sex or not,” but

admonishing the Commonwealth that “I think it would be very

limited in my view as to how far I’d let her go beyond that.”

A.L. gave testimony in accord with the facts recited above.

The Commonwealth called Patt to testify “as an expert in [the]

diagnosis of sexual assault.” Patt testified that she had been

a registered nurse for 26 years, had 40 hours of classroom

training and 40 hours of clinical training to qualify as a SANE,

and had worked as a SANE for six and one half years. Patt

further testified that as a SANE she had conducted approximately

150 examinations of children under the age of 16 who were

victims of sexual assault and 350 examinations of adult victims

of sexual assault.

Velazquez objected to Patt being qualified as an expert on

the ground that experts qualified to testify about medical

diagnosis “are doctors and scientists . . . . [S]he’s a nurse

. . . she does not have the scientific training to testify as to

. . . causation.” After the Commonwealth further examined Patt

on the nature and extent of her clinical training, the trial

court overruled the objection and ruled that Patt was qualified

as an expert in the diagnosis of sexual assault.

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 Patt then testified that she had examined A.L. on the

evening of March 18, 1997. Describing the injuries that she had

found during a pelvic examination, Patt stated that one deep

tear in the labial tissue “most likely is consistent with

attempted intercourse.” Velazquez objected to this testimony.

The trial court sustained the objection, admonished the jury to

“disregard the answer as given,” but indicated to the

Commonwealth’s Attorney that he could “rephrase the question.”

After eliciting further testimony on the nature of A.L.’s

injuries, the Commonwealth’s Attorney asked Patt whether she had

“an opinion within a reasonable degree of medical certainty as

to whether the physical findings . . . are consistent with

consensual sexual intercourse?” Patt replied, “I have an

opinion that it’s inconsistent with consensual intercourse.”

Velazquez objected “[t]o the phraseology” of Patt’s answer. The

trial court overruled the objection. The Commonwealth’s

Attorney then asked, “Why is it you have that opinion?” Patt

responded, “Because the injuries she had are consistent with

non-consensual intercourse.”

Forensic analysis of the DNA profile of a semen stain found

on A.L.’s clothing was consistent with Velazquez’s DNA. The

forensic expert testified that the possibility of a random match

to an unrelated individual was “one in greater than the

population of the world.”

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 Velazquez testified in his own defense. He maintained that

A.L. had initiated a relationship with him sometime prior to

March 18, 1997, and that they “did things that we shouldn’t have

done.” Velazquez denied having had sexual intercourse with A.L.

on March 18, 1997, and claimed that he fell on top of A.L. while

they were engaged in consensual foreplay. He further testified

that A.L. had pulled her own pants down and that he had inserted

his fingers into her vagina, but that he complied with A.L.’s

request that they not have intercourse because “I think we both

believed that we were going too far.” Velazquez admitted that

he had ejaculated after A.L. asked him not to have intercourse.

The jury found Velazquez guilty of rape and recommended a

sentence of seven years. By order entered July 7, 1999, the

trial court imposed sentence in accord with the jury’s verdict.

On July 9, 1999, Velazquez filed a motion to set aside the

jury’s verdict, asserting that the trial court had erred in

qualifying Patt as an expert and in permitting her to testify on

an ultimate issue of fact. Velazquez asserted that Patt was not

qualified to “render a medical diagnosis or opinion” because she

had not gone to medical school and had not been licensed to

practice medicine in Virginia. Velazquez further asserted that

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the evidence was insufficient to support a finding that he had

actually penetrated A.L.’s vagina with his penis. 1

Velazquez filed an appeal in the Court of Appeals of

Virginia. In that appeal, he reasserted the issues raised in

the motion to set aside the jury’s verdict.

Addressing the threshold issue whether Patt was qualified

to give expert testimony, the Court of Appeals held that Patt’s

training and experience established that she “had knowledge

concerning matters beyond a lay person’s common knowledge and

would assist the jury in understanding the evidence” and, thus,

that she qualified as “an expert in the diagnosis of a sexual

assault.” Velazquez v. Commonwealth, 35 Va. App. 189, 196, 543

S.E.2d 631, 635 (2001). Addressing what it characterized as an

issue “of first impression,” the Court of Appeals further held

that a SANE can testify as an expert regarding the cause of

trauma in a sexual assault case. In doing so, the Court of

Appeals specifically rejected Velazquez’s contention that only a

licensed physician may testify regarding causation of injuries. 2

Id. at 197-99, 543 S.E.2d at 635-36.

1
The trial court took no action on the motion to set aside
the jury’s verdict prior to the expiration of its jurisdiction
under Rule 1:1.
2
The Court of Appeals declined to address Velazquez’s
contention that permitting a SANE to provide a medical diagnosis
would constitute the unlawful practice of medicine, finding that
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 Relying on Hussen, the Court of Appeals also rejected

Velazquez’s contention that Patt’s testimony had invaded the

province of the jury by expressing an opinion on an ultimate

issue of fact. The Court held that “Patt’s testimony only dealt

with consistencies and inconsistencies. Patt did not testify

that, in her opinion, [Velazquez] engaged in sexual intercourse

with A.L. against A.L.’s will, the ultimate issue of the case.”

Velazquez, 35 Va. App. at 200, 543 S.E.2d at 637.

Finally, addressing the sufficiency of the evidence to

prove penile penetration, the Court of Appeals held that the

inconsistencies between A.L.’s testimony and that offered by

Velazquez presented issues of credibility for the jury to

consider. The Court held that A.L.’s testimony corroborated by

the evidence of the injuries A.L. suffered was sufficient to

allow the jury to find the necessary penile penetration. Id. at

202, 543 S.E.2d at 638.

For these reasons, the Court of Appeals affirmed

Velazquez’s conviction. By order dated July 31, 2001, we

awarded Velazquez this appeal.

he had not adequately preserved the issue in the trial court.
Velazquez, 35 Va. App. at 196 n.2, 543 S.E.2d at 635 n.2.

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 DISCUSSION

Velazquez first contends, as he did in the Court of

Appeals, that the trial court erred in permitting Patt to

testify as an expert in the field of sexual assault diagnosis

because such diagnosis constitutes the practice of medicine and

Patt is not a licensed physician. 3 In support of this

contention, Velazquez cites Combs v. Norfolk & Western Railway

Co., 256 Va. 490, 496, 507 S.E.2d 355, 358 (1998), for the

proposition that “the question of the causation of a human

injury is a component part of a diagnosis, which in turn is part

of the practice of medicine.”

Velazquez’s reliance on Combs is misplaced. In Combs, we

held that a witness, who had completed all the academic

requirements for a degree in medicine but was not a licensed

medical doctor, could not offer an opinion on medical causation

3
To the extent that Velazquez asserts that Patt’s testimony
could constitute the unlawful practice of medicine, the
Commonwealth contends that the Court of Appeals correctly
determined that Velazquez failed to adequately preserve this
issue in the trial court because it was raised for the first
time only in the motion to set aside the jury’s verdict.
However, reviewing the record of the oral argument on his motion
in limine to exclude SANE testimony and subsequently when he
opposed Patt’s qualification as an expert, we find that the
issue was adequately preserved, albeit inartfully, by
Velazquez’s assertion that Patt was not a physician and would
require specialized scientific training beyond that of a
registered nurse to testify regarding the causation of A.L.’s
injuries.

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upon being qualified by the trial court to testify as an expert

in biomechanical engineering. However, we reached this holding

because a medical diagnosis was not within the field of

expertise in which the witness had been qualified by the trial

court, rather than because the expert was not a licensed medical

doctor, as Velazquez asserts. Id. at 497-98, 507 S.E.2d at 359-

60. The Court of Appeals correctly interpreted our holding in

Combs.

The sole purpose of permitting expert testimony is to

assist the trier of fact to understand the evidence presented or

to determine a fact in issue. Generally, a witness is qualified

to testify as an expert when the witness possesses sufficient

knowledge, skill, or experience to make the witness competent to

testify as an expert on the subject matter at issue. See Sami

v. Varn, 260 Va. 280, 284, 535 S.E.2d 172, 174 (2000); Noll v.

Rahal, 219 Va. 795, 800, 250 S.E.2d 741, 744 (1979). “An

expert’s testimony is admissible not only when scientific

knowledge is required, but when experience and observation . . .

give the expert knowledge of a subject beyond that of persons of

common intelligence and ordinary experience. The scope of such

evidence extends to any subject in respect of which one may

derive special knowledge by experience, when [the witness’s]

knowledge of the matter in relation to which [the witness’s]

opinion is asked is such, or is so great, that it will probably

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aid the trier [of fact] in the search for the truth.” Neblett

v. Hunter, 207 Va. 335, 339-40, 150 S.E.2d 115, 118 (1966); cf.

Code § 8.01-401.3. In essence, all that is necessary for a

witness to qualify as an expert is that the witness have

sufficient knowledge of the subject to give value to the

witness’s opinion. Norfolk & Western Railway Co. v. Anderson,

207 Va. 567, 571, 151 S.E.2d 628, 631 (1966).

Velazquez does not cite any specific authority for the

proposition that a SANE may not testify as an expert in sexual

assault cases because she neither is a licensed medical doctor

nor holds a medical degree. Rather, his entire argument is

based on the premise that the statutes governing the practice of

medicine as a profession, Code §§ 54.1-2900 through 54.1-2903,

prohibit the expert testimony of a SANE in a sexual assault case

because such testimony constitutes the practice of medicine. We

disagree.

Code § 54.1-2900 defines the practice of medicine as “the

prevention, diagnosis and treatment of human physical or mental

ailments, conditions, diseases, pain or infirmities by any means

or method.” We are of opinion that the testimony of a SANE

regarding the causation of physical injuries to a victim of a

sexual assault is not the practice of medicine as contemplated

by this statutory definition. Velazquez takes “diagnosis” of

“human physical . . . conditions” entirely out of context to

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support his argument. Moreover, it has long been accepted that

nurses and other healthcare professionals with the proper

training, expertise, and experience are qualified to give expert

opinions on medical causation in appropriate circumstances.

See, e.g., Cates v. Commonwealth, 111 Va. 837, 843, 69 S.E. 520,

522 (1910); see also Gregory v. State, 56 S.W.3d 164, 179-80

(Tex. App. 2001) and cases collected therein at n.10; State v.

White, 457 S.E.2d 841, 858 (N.C. 1995). Accordingly, we hold

that a SANE need not be licensed to practice medicine to express

an expert opinion on the causation of injuries in the context of

an alleged sexual assault, nor does the expression of such an

opinion by a SANE in a trial constitute the unlawful practice of

medicine. Thus, there is no error in the judgment of the Court

of Appeals on this issue.

“The issue whether a [potential] witness is qualified to

testify as an expert on a given subject is a matter submitted to

the trial court’s discretion, and the trial court’s ruling in

this regard will not be disturbed on appeal unless it plainly

appears that the witness was not qualified.” Johnson v.

Commonwealth, 259 Va. 654, 679, 529 S.E.2d 769, 783 (2000).

Velazquez does not contend that Patt’s knowledge, skill, and

experience were insufficient to give value to her opinion, and

the record amply demonstrates that she possessed specialized

knowledge of the subject matter at issue beyond that of persons

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of common intelligence and ordinary experience. Accordingly,

the Court of Appeals correctly held that the trial court did not

err in permitting Patt to testify as an expert in this case.

Velazquez next contends that, even if Patt was qualified to

express an opinion on the causation of A.L.’s injuries, her

testimony on that issue improperly invaded the province of the

jury because she expressed an opinion on an ultimate issue of

fact. Velazquez contends that the expert opinion in this case

went beyond that permitted in Hussen and effectively “closed the

circle” by permitting the expert witness to testify that the

injuries were, in her opinion, the result of non-consensual

intercourse. 4 We agree with Velazquez’s contention.

We consistently have held that the admission of expert

opinion upon an ultimate issue of fact in a criminal case is

impermissible because it invades the province of the jury.

Llamera v. Commonwealth, 243 Va. 262, 264, 414 S.E.2d 597, 598

(1992); Bond v. Commonwealth, 226 Va. 534, 538, 311 S.E.2d 769,

771-72 (1984); Cartera v. Commonwealth, 219 Va. 516, 519, 248

4
We reject the Commonwealth’s contention that Velazquez’s
failure to object to Patt’s ultimate conclusion that “the
injuries [A.L.] had are consistent with non-consensual
intercourse” at the time the statement was made constituted a
waiver. In the context of the entire trial, it is clear that
Velazquez had a continuing objection to Patt’s testifying as to
causation and any “conclusions” she had drawn. The trial court
was aware of and fully considered that objection.

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S.E.2d 784, 786 (1978); Webb v. Commonwealth, 204 Va. 24, 34,

129 S.E.2d 22, 29 (1963).

The Cartera case is particularly instructive in this

instance. In that case, the defendant was charged with two

counts of rape. A physician, who had examined and treated the

victims, was permitted to express his opinion that the victims

had been raped. 219 Va. at 518, 248 S.E.2d at 785. We held

that this was reversible error because “[w]hether rape had

occurred was the precise and ultimate issue in the case.

Determination of this issue did not require special knowledge or

experience. To permit the doctor to express his opinion upon

the subject invaded the province of the jury.” Id. at 519, 248

S.E.2d at 786.

In Hussen, we held that the SANE’s testimony that the

victim’s injury “was not consistent with consensual, first time

intercourse,” was “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.” 257 Va. at

99, 511 S.E.2d at 109. By contrast, in the present case Patt

initially testified that A.L.’s injuries were “inconsistent with

consensual intercourse,” and that she held that opinion because

those injuries were “consistent with non-consensual

intercourse.” Under the rationale of Hussen, Patt’s initial

opinion, that A.L.’s injuries were “inconsistent with consensual

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intercourse,” does not preclude a finding that A.L.’s injuries

resulted from some trauma other than a rape. However, Patt’s

additional opinion, that A.L.’s injuries were “consistent with

non-consensual intercourse,” when expressed specifically in

connection with her initial opinion, significantly expands that

initial opinion. In doing so, Patt’s testimony as a whole

clearly expressed her opinion that A.L. was raped because her

opinion excluded all other trauma as the cause of A.L.’s

injuries. In this sense, the combination of the two opinions

“closed the circle.” As in Cartera, whether rape had occurred

was the precise and ultimate issue in the case. Accordingly, we

hold that Patt’s opinion testimony improperly invaded the

province of the jury on the ultimate issue of fact to be decided

in the case, and the Court of Appeals erred in holding

otherwise.

Although the error in admitting improper expert opinion

testimony requires reversal of Velazquez’s conviction, we must

nonetheless consider his challenge to the sufficiency of the

evidence. If the evidence adduced at trial, excluding the

improperly admitted expert opinion testimony, was insufficient

to convict Velazquez, he is entitled to an acquittal; if he is

so entitled, a remand for retrial would violate the

Constitution’s prohibition against double jeopardy. See Parsons

v. Commonwealth, 32 Va. App. 576, 581, 529 S.E.2d 810, 812-13

15
(2000); see also Overbee v. Commonwealth, 227 Va. 238, 245, 315

S.E.2d 242, 245 (1984). As established in Burks v. United

States, 437 U.S. 1, 18 (1978), a full sufficiency analysis is

required to satisfy the mandate of the Double Jeopardy Clause of

the federal Constitution.

Velazquez contends that the evidence supports the

reasonable hypothesis that he only penetrated A.L.’s vagina with

his fingers. Stressing A.L.’s testimony concerning the position

of his body when she first felt a sharp pain in her vagina, he

contends that it would have been impossible for him to have

achieved penile penetration of her vagina. In addition, because

he admitted inserting his fingers into A.L.’s vagina and A.L.

testified that she did not know what caused the sharp pain,

Velazquez contends that the evidence was insufficient to prove

penile penetration and, thus, all the necessary elements of

rape. We disagree.

Velazquez’s interpretation of the evidence discounts

several element’s of A.L.’s testimony, particularly her

description of the motion of his body during the time that she

felt the pain and the length of time this activity continued.

While Velazquez’s contention that A.L.’s pain and injuries could

have resulted from digital penetration is not wholly without

support in the record, neither is the evidence contradictory to

a finding of penile penetration. As such, the matter was one to

16
be decided by the trier of fact. Accordingly, we hold that the

evidence was sufficient to support the jury’s verdict and, thus,

that Velazquez is not entitled to an acquittal and upon remand

the Commonwealth may retry Velazquez for rape.

CONCLUSION

For these reasons, we will affirm in part and reverse in

part the judgment of the Court of Appeals, vacate Velazquez’s

conviction, and remand the case to the Court of Appeals with

direction that the case be remanded to the trial court for a new

trial, if the Commonwealth be so advised.

Affirmed in part,
reversed in part,
and remanded.

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