Jenkins v. Commonwealth

Present: Carrico, C.J., Compton, Stephenson 1 , Lacy, Hassell and
Keenan, JJ., and Poff, Senior Justice

JAMES LLOYD JENKINS
OPINION BY
v. Record No. 961459 SENIOR JUSTICE RICHARD H. POFF
September 12, 1997
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

We awarded this appeal to consider whether the trial court's

admission of certain expert testimony introduced by the

Commonwealth constituted reversible error.
A jury assembled in the Circuit Court of the County of

Henrico found that "[d]uring the period September, 1992 through

March, 1993 . . . James Lloyd Jenkins did . . . commit aggravated

sexual battery on . . . a male minor child under the age of

thirteen years old . . . [in violation of] Virginia Code Section

18.2-67.3". 2 In a final judgment entered February 22, 1994, the

trial judge confirmed the verdict and imposed the twenty-year

sentence fixed by the jury.

On appeal to a panel of the Court of Appeals of Virginia,

Jenkins contended, inter alia, that "the trial judge erred in

1
Justice Stephenson participated in the hearing and decision of
this case prior to the effective date of his retirement on July 1,
1997.
2
In relevant part, Code § 18.2-67.3 provides as follows:
A. An accused shall be guilty of aggravated sexual
battery if he or she sexually abuses the complaining
witness, and
1. The complaining witness is less than thirteen
years of age . . .
. . . .
B. Aggravated sexual battery is a felony punishable by
confinement in a state correctional facility for a term
of not less than one nor more than twenty years . . . .
allowing expert testimony on an ultimate fact at issue . . .

[and] in allowing the expert witness to testify to hearsay

statements of the child". Jenkins v. Commonwealth, 21 Va.App.

222, 223, 463 S.E.2d 330, 330-31 (1995). With regard to the

first contention, the panel held that "[b]ecause that testimony

invaded the province of the jury and was not harmless, the ruling

was reversible error." Id. at 226, 463 S.E.2d at 332. Upholding

Jenkins' argument concerning the child's hearsay statements, the

panel reversed the conviction on both grounds.
Upon a rehearing en banc, the Court of Appeals expressly

agreed that "the trial court erred in allowing the expert to

testify that the child had been sexually abused"; the court

ruled, however, that "such error was harmless in light of the

other evidence adduced at trial." Jenkins v. Commonwealth, 22

Va.App. 508, 517, 471 S.E.2d 785, 789 (1996). Finding no merit

in Jenkins' argument on the hearsay issue, the Court affirmed the

conviction. We awarded Jenkins an appeal to consider the hearsay

issue and whether the Court of Appeals erred in finding that the

admission of expert testimony on an ultimate issue of fact was

harmless.

Expert opinion on an ultimate fact in issue is inadmissible

in a criminal case because it "invade[s] the province of the

jury." Llamera v. Commonwealth, 243 Va. 262, 264, 414 S.E.2d

597, 598 (1992). 3 Such an invasion implicates the due process
3
Cf. Code § 8.01-401.3(B) (rule applicable in civil cases).

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and fair trial guarantees of the Constitution of the United

States. "[B]efore a federal constitutional error can be held

harmless, the court must be able to declare a belief that it was

harmless beyond a reasonable doubt 4 ." Chapman v. California, 386

U.S. 18, 24 (1967); see Mu'Min v. Commonwealth, 239 Va. 433, 441-

42, 389 S.E.2d 886, 892 (1990), aff'd 500 U.S. 415 (1991); Dunn

v. Commonwealth, 222 Va. 750, 753, 284 S.E.2d 807, 808-09 (1981).

We will apply that standard of review.
The victim identified in the indictment was a male child

born February 26, 1990. In September 1992, his mother began

observing radical changes in his behavior indicating precocious

sexual awareness. In March 1993, she took her son to see a

licensed clinical psychologist. The psychologist conducted ten

interviews with the child. He testified in detail to several

statements couched in sexual language made by the child and to

certain physical demonstrations the child performed with his own

body and with male dolls illustrating sexual conduct between a

male adult and a male child. Asked if he had formed "an opinion

. . . whether [the child] was suffering from any psychological

disorder", he said that he "suffers from an adjustment disorder",

and that "[a]n adjustment disorder is a persistent or unusual

reaction to some identifiable stress." Asked further to identify
4
Compare the standard for collateral review of constitutional
error, that is, "whether the error had 'substantial and injurious
effect or influence in determining the jury's verdict.'" Brecht
v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v.
United States, 328 U.S. 750, 776 (1946)).

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the stressor underlying the disorder, the expert opined that the

child "had been sexually abused."

Explaining its finding that admission of this testimony was

not prejudicial, the Court of Appeals said that "[w]hen 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." Jenkins, 22 Va.App. at 518, 471

S.E.2d at 790. The "other competent evidence" the Court

considered "[m]ost probative" was "appellant's admission that he

participated in one sexual episode with the child." Id.
The Court had reference to a statement written and signed by

the defendant in the presence of a police investigator. That

statement was read into evidence as follows:
I was sitting in the recliner and Michael was sitting
in my lap, as we watched TV. I began to fantasize how
Michael would look and act as he got older. He was
leaning against my chest and sitting on my lap. I
reached down and picked him up, holding him between his
legs and laid him beside me in the chair, because my
thoughts for him were sexy, as he was laying on top of
me. He laid down beside me and looked up and said I
love you, Bubba. All this took place at my mom's house
and within a short period of time. When I reached
down, I placed my hand on his penis and held it there
for about a minute before I moved him over to the side,
because I was having sexual fantasies as to how he
would be as he got older and mature. I was thinking
how it would be to have oral sex with him, as he would
tell me, 'I love you.' This was the only time that I
touched Michael's penis, or any other part of him in a
sexual way. We were both fully clothed at the time.

Code § 18.2-67.3 provides that "[a]n accused shall be guilty

of aggravated sexual battery if he or she sexually abuses the

complaining witness . . . ." The term "sexual abuse" is defined

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in § 18.2-67.10(6)(a) as "an act committed with the intent to

sexually molest, arouse, or gratify any person, where . . . [t]he

accused intentionally touches the complaining witness's intimate

parts or material directly covering such intimate parts . . . ."

That definition was recited in an instruction to the jury.

Clearly, the defendant's handwritten statement satisfies

that definition. It was fully sufficient, without benefit of the

expert's opinion, to support a jury finding that the accused was

guilty of one act of aggravated sexual battery. Had the expert

based his opinion that the child's adjustment disorder had been

caused by the stress of "one sexual episode", the error in

admitting that opinion into evidence would have been harmless as

merely cumulative. But the expert's opinion was not based upon a

single act of sexual abuse. Rather, it appears from his

testimony that his opinion was based upon what his ten interviews

with the child disclosed about his premature sexual cognizance

and upon what he learned from separate interviews with the

child's mother about the myriad sexually-oriented behavioral

changes the child had undergone over a period of several months.
Notwithstanding the defendant's confession to one sexual

episode and the lack of any other evidence identifying the

accused as the criminal agent in any other episode with the

child, the jury could have been persuaded by the testimony of one

witness, a witness qualified by the trial judge as an expert in

the diagnosis and treatment of child abuse victims, to believe

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that the accused had committed not one but multiple acts of

sexual abuse and that his criminal conduct was more aggravated

than he was willing to confess.

While the error in admitting the expert's opinion may have

been harmless for purposes of conviction, we think it was

prejudicial for purposes of fixing the quantum of punishment

imposed. In closing argument, the Commonwealth relied upon

Jenkins' written confession but urged the jury "not to believe

the part that it only [happened] once" and "to give him the

[statutory] maximum, which is twenty years in the penitentiary."
Applying the standard of review defined in Chapman, we

cannot agree that the trial court's error in admitting the

expert's opinion testimony was harmless beyond a reasonable

doubt, and we will reverse the judgment of the Court of Appeals

on that question. Because the hearsay issue may arise in a new

trial, we will consider the Court of Appeals' ruling reversing

the panel's decision that the trial court erred in allowing the

expert witness to testify to statements made to him by the child.

Overruling the defendant's hearsay objection, the trial

court permitted the expert to testify that the child had told him

that he had been "sexed". He had illustrated his understanding

of that term by "gyrat[ing] his pelvic area in sort of a forward-

thrusting motion" and had "pointed down towards his groin area"

when asked where he was sexed. In a divided opinion, the Court

of Appeals affirmed the trial court's ruling on the hearsay

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question. We agree with the dissent subscribed by four members

of that Court.

The Court majority concluded that "because the child's

statement . . . was not offered for its truth, the statement did

not qualify as hearsay." Jenkins, 22 Va.App. at 519, 471 S.E.2d

at 790.

We have defined hearsay evidence as "testimony in court

. . . of a statement made out of court, the statement being

offered as an assertion to show the truth of matters asserted

therein, and thus resting for its value upon the credibility of

the out-of-court asserter." Stevenson v. Commonwealth, 218 Va.

462, 465, 237 S.E.2d 779, 781 (1977) (quoting E. Cleary,

McCormick's Handbook on the Law of Evidence § 246, at 584 (2d ed.

1972)); accord State Farm Fire and Casualty Co. v. Scott, 236 Va.

116, 122, 372 S.E.2d 383, 386 (1988); Donahue v. Commonwealth,

225 Va. 145, 151-52, 300 S.E.2d 768, 771 (1983). The child's

statement that he had been "sexed" was uniquely probative of the

truth of the pending charge. That statement falls within the

definition of hearsay.

Next, the majority of the Court of Appeals held that "[e]ven

if the child's statement constituted hearsay", it was admissible

"if it fell within one of the many established hearsay

exceptions." Jenkins, 22 Va.App. at 521, 471 S.E.2d at 791. The

Court quoted the comment in Cartera v. Commonwealth, 219 Va. 516,

518, 248 S.E.2d 784, 785-86 (1978) relating to the hearsay

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exception that permits "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.'" Here, as in Cartera, the

child's statement to the psychologist went "beyond a recital of

'past pain, suffering and subjective symptoms'". Id. That

statement was evidence of the very criminal act that was an

essential element of the offense charged against the defendant.

We hold that the statement was hearsay, it was not subject to

this exception, and the trial court erred in admitting it before

the jury.
The Commonwealth contends that we should apply the hearsay

exception extended in some jurisdictions to statements made by a

patient to a treating physician. As the Commonwealth recognized

on brief, "many of these out-of-state cases are partially based

on their state's adoption of rules equivalent to Federal Rule of

Evidence 803(4)".

Neither this Court nor the General Assembly has adopted any

such rule. The rationale for such an exception is that a patient

making a statement to a treating physician recognizes that

providing accurate information to the physician is essential to

receiving appropriate treatment. See 2 John W. Strong, McCormick

on Evidence § 277, at 246-47 (4th ed. 1992). Because the patient

in this case was a two-year old child who could not appreciate

the need for furnishing reliable information, we decline to apply

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the exception here.

Urging yet another exception to the hearsay rule, the

Commonwealth argues on brief that the child's statement was

admissible as a "recent-complaint" under Code § 19.2-268.2. That

statute provides that "in any prosecution for criminal sexual

assault . . . the fact that the person injured made complaint of

the offense recently after commission of the offense is

admissible, not as independent evidence of the offense, but for

the purpose of corroborating the testimony of the complaining

witness."
That statute is inapplicable here. As we have said, the

child's statement that he had been sexed was uniquely probative

of the charge of sexual abuse; as such, it was "independent

evidence of the offense". Moreover, that statement was not made

"for the purpose of corroborating the testimony of the

complaining witness"; the child never testified in court. 5

To correct the errors committed by the trial court, we will

reverse the judgment of the Court of Appeals, annul the

conviction, and remand the case to that court with direction to

remand the case to the trial court for further proceedings

5
The Commonwealth cites McManus v. Commonwealth, 16 Va.App.
310, 312, 429 S.E.2d 475, 476 (1993) where the Court, in its
consideration of "a rule unique to rape trials", held that "the
underlying rationale for the [recent-complaint] rule does not
limit its application to those cases where the victim actually
testifies." We will reserve judgment on that question until it is
raised by assignment of error in an appeal of a rape conviction to
this Court.

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consistent with this opinion.

Reversed and remanded.

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