Floyd Martin Lane, s/k/a Floyd M. Lane, Sr. v. CW

• Court: Court of Appeals of Virginia
• Decided: September 28, 1999
• Docket: 2161982
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Frank and Senior Judge Hodges Argued at Richmond, Virginia

FLOYD MARTIN LANE, SOMETIMES KNOWN AS FLOYD MARTIN LANE, SR. MEMORANDUM OPINION * BY v. Record No. 2161-98-2 JUDGE LARRY G. ELDER SEPTEMBER 28, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY William H. Ledbetter, Jr., Judge

Andrea C. Long (Charles C. Cosby, Jr.; Boone, Beale, Cosby & Long, on brief), for appellant.

Jeffrey S. Shapiro, Assistant Attorney General (Mark L. Earley, Attorney General; John H. McLees, Jr., Assistant Attorney General, on brief), for appellee.

Floyd Martin Lane, Sr., (appellant) appeals from his jury

trial convictions for rape and forcible sodomy of the victim,

who was his stepdaughter. Appellant contends that the trial

court erred in admitting the testimony of an expert concerning

victim recantation, as well as the testimony of the victim's

mental health counselor. Appellant also challenges the

sufficiency of the evidence to support his convictions. Finding

no error, we affirm.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. I.

ADMISSIBILITY OF LANZAFAMA'S TESTIMONY

Appellant contends that the trial court erred in ruling

that Detective Lanzafama was qualified to testify as an expert

witness on the subject of recantation by alleged victims of

sexual abuse. 1 We disagree and affirm the ruling of the trial

court.

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

express his opinion upon matters not within common knowledge or

experience." Cartera v. Commonwealth, 219 Va. 516, 518, 248

S.E.2d 784, 786 (1978). "The record must show that the

proffered expert possesses sufficient knowledge, skill, or

experience to render him competent to testify as an expert on

the subject matter of the inquiry." King v. Sowers, 252 Va. 71,

78, 471 S.E.2d 481, 485 (1996). A witness need not have

specialized training in a particular field and may gain his

expertise solely through work experience. See Wileman v.

Commonwealth, 24 Va. App. 642, 647-48, 484 S.E.2d 621, 624

1 Appellant's only contention in his petition for appeal, and on brief, was that the trial court erred in qualifying Lanzafama as an expert on recantation in child abuse cases. Under Rule 5A:12(c), "[o]nly questions presented in the petition for appeal will be noticed by the Court of Appeals." See Cruz v. Commonwealth, 12 Va. App. 661, 664 n.1, 406 S.E.2d 406, 407 n.1 (1991). Further, unlike Rule 5A:18, Rule 5A:12 contains no "good cause" or "ends of justice" exception. See Thompson v. Commonwealth, 27 Va. App. 620, 626, 500 S.E.2d 823, 826 (1998). Therefore, no appeal was granted on any other aspect of Lanzafama's testimony, and we may not consider any other challenges to it on appeal.

- 2 - (1997) (qualifying bank official as expert in comparing

signatures to determine authenticity). "Whether a particular

witness is qualified to testify as an expert is 'largely a

matter in the discretion of the trial court, and its rulings

allowing a witness to testify will not be disturbed unless it

clearly appears that [the expert] was not qualified.'" Id. at

647, 484 S.E.2d at 624 (citation omitted).

Lanzafama testified that, in his six years as a detective,

he had investigated approximately three hundred sexual assault

cases. In addition, he had undergone many hours of training in

the area of alleged sexual abuse, which had incorporated about

ten hours of specialized training on the issue of a child's

recanting allegations of abuse. Finally, he testified that he

had read about twelve articles on the subject of recantation in

conjunction with his formal training. We cannot say from the

evidence in this record that the trial court abused its

discretion in permitting Detective Lanzafama to give an expert

opinion on the likelihood of recantation based on a hypothetical

question.

II.

ADMISSIBILITY OF HOBBS' TESTIMONY

Appellant contends the trial court erred in allowing Karen

Hobbs to testify that J.D. suffered from post-traumatic stress

disorder (PTSD) and that it could result from sexual abuse. He

contends that Hobbs was not competent to testify on these

- 3 - issues; that her testimony was more prejudicial than probative;

and that her testimony constituted impermissible "bolster[ing]"

of J.D.'s testimony. Again, we disagree.

We note first that appellant raised no objection at the

trial level to Hobbs' competency to give expert testimony. In

fact, even after the trial court specifically pointed out that

appellant had not objected to Hobbs' competency to testify,

appellant articulated no objection on these grounds. Appellant

also did not contend that Hobbs' testimony was more prejudicial

than probative. Therefore, Rule 5A:18 bars our consideration of

these issues on appeal. Further, under the principles

enunciated above regarding the admissibility of expert

testimony, we hold that neither the good cause nor the ends of

justice exception to Rule 5A:18 justifies our consideration of

these issues.

Appellant properly preserved for appeal his argument that

Hobbs' testimony regarding J.D.'s PTSD diagnosis and the

possible link between sexual abuse and PTSD constituted

impermissible bolstering of J.D.'s testimony. However, this

objection is without merit. Under settled principles,

"[e]vidence 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).

As we held in Taylor v. Commonwealth, 21 Va. App. 557, 565, 466

S.E.2d 118, 122 (1996), "evidence of an emotional or

- 4 - 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."

For these same reasons, Hobbs' testimony that sexual

assault is one of several traumatic events that could trigger

PTSD also was proper. Hobbs did not opine that J.D. had been

sexually abused. 2 See Jenkins v. Commonwealth, 254 Va. 333,

338-40, 492 S.E.2d 131, 134 (1997) (reversing conviction for

sexual battery on ground that trial court erroneously permitted

expert witness to opine that victim had been sexually abused and

2 Hobbs also testified that J.D. reported having been sexually assaulted "[b]y her stepfather," but Hobbs provided no further details. At trial, prior to Hobbs' testifying, the Commonwealth asserted that the fact of J.D.'s report to Hobbs was "admissible as a fresh complaint." Appellant registered no objection to the admissibility of such statements at that time, and he made no contemporaneous objection to their admissibility when Hobbs testified to them before the jury. Finally, he did not challenge this portion of Hobbs' testimony in his petition for appeal, on brief, or in oral argument to this Court. Therefore, assuming without deciding that admission of Hobbs' testimony regarding J.D.'s statements to her was error, see Jenkins v. Commonwealth, 254 Va. 333, 338-40, 492 S.E.2d 131, 134 (1997) (in reversing conviction for sexual battery on other grounds, noting that trial court erroneously permitted expert witness to repeat hearsay statement of non-testifying child victim "that he had been 'sexed'"), this issue is not properly before this Court on appeal. See Rule 5A:12(c); Cruz, 12 Va. App. at 664 n.1, 406 S.E.2d at 407 n.1 (noting that issue was not raised in petition for appeal and, therefore, that no appeal was granted by this Court on that issue); see also Thompson, 27 Va. App. at 626, 500 S.E.2d at 826 (noting that Rule 5A:12, unlike Rule 5A:18, contains no "good cause" or "ends of justice" exception).

- 5 - that erroneous admission of opinion was not harmless). Hobbs'

testimony amounted, at most, to an opinion that the victim's

PTSD diagnosis was consistent with sexual abuse, and it did not

exclude the possibility that some other stressor had triggered

the PTSD. See Hussen v. Commonwealth, 257 Va. 93, 99, 511

S.E.2d 106, 109 (1999) (in affirming rape conviction, holding

that expert testimony that victim's injury was "not consistent

with consensual, first time intercourse" was not comment on

ultimate issue of whether encounter occurred "against the

victim's will"); see also Jenkins v. Commonwealth, 22 Va. App.

508, 517-18, 471 S.E.2d 785, 790 (1996) (en banc) (holding that

expert testimony on PTSD was improper comment on ultimate issue

because expert "opined not as to what could have been the

causative stressor but rather what was the causative stressor"),

rev'd on other grounds, 254 Va. 333, 492 S.E.2d 131 (1997).

Therefore, we hold the trial court did not err in admitting

the challenged portions of Hobbs' testimony.

III.

SUFFICIENCY OF THE EVIDENCE

Appellant's last contention is that J.D.'s testimony was

uncorroborated and inherently incredible, rendering the evidence

to support his convictions insufficient as a matter of law.

Again, we disagree and affirm appellant's convictions.

On appellate review, we must examine the evidence in the

light most favorable to the Commonwealth, and we may not disturb

- 6 - the jury's verdict unless it is plainly wrong or without

evidence to support it. See Traverso v. Commonwealth, 6 Va.

App. 172, 176, 366 S.E.2d 719, 721 (1988). The conclusions of

the fact finder on issues of witness credibility "may only be

disturbed on appeal if this Court finds that [the witness']

testimony was 'inherently incredible, or so contrary to human

experience as to render it unworthy of belief.'" Robertson v.

Commonwealth, 12 Va. App. 854, 858, 406 S.E.2d 417, 419 (1991)

(quoting Fisher v. Commonwealth, 228 Va. 296, 299-300, 321

S.E.2d 202, 204 (1984)). In all other cases, we must defer to

the conclusions of "the fact finder[,] who has the opportunity

of seeing and hearing the witnesses." Schneider v.

Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985).

These same principles apply in cases involving rape and sodomy

convictions, which may be sustained solely upon the testimony of

the victim, even in the absence of corroborating evidence. See

Fisher, 228 Va. at 299, 321 S.E.2d at 203.

Here, the victim testified very specifically that on

October 17, 1997, appellant had sexual intercourse with her

against her will and forced her to perform fellatio on him. The

jury clearly believed her testimony, as it was entitled to do,

despite its knowledge that she previously had made and recanted

allegations that appellant sexually abused her. Contrary to

appellant's assertion, the medical evidence did not disprove the

victim's allegations, for medical evidence established that her

- 7 - hymen, due to its shape, would permit sexual intercourse without

any tearing. Further, although no corroboration was necessary,

other evidence supported J.D.'s testimony. First, she made a

tape recording of the incident and explained to the jury what

was happening as the tape played. Second, she reported that

appellant had a distinctive mole just above his pubic hairline,

a fact confirmed by police. Although appellant attempted to

provide an innocent explanation for J.D.'s knowledge of the

mole's location, the jury was free to reject his testimony and

conclude he was lying to conceal his guilt. Third, J.D.

received a diagnosis of PTSD, which was consistent with her

allegations of ongoing abuse. Although the jury, as the finder

of fact, was free to reject the victim's testimony, it also was

free to believe the victim's testimony, for no evidence

compelled the conclusion that she was lying.

Appellant contends that his convictions must be reversed

because the Commonwealth failed to exclude all reasonable

hypotheses of appellant's innocence. Appellant misconstrues the

law applied on appellate review. This principle applies only

when the Commonwealth attempts to prove its case with

circumstantial evidence. See, e.g., Burrows v. Commonwealth,

224 Va. 317, 319, 295 S.E.2d 893, 894 (1982) (evidence

insufficient to prove accused was criminal agent in robbery and

malicious wounding because victim could not affirmatively

identify his assailant and circumstantial evidence did not

- 8 - exclude all reasonable hypotheses of appellant's innocence).

When the Commonwealth offers direct evidence from an eyewitness

whose testimony is not inherently incredible, the jury may

accept that testimony as credible and reject all conflicting

evidence, thereby determining, in essence, that no reasonable

hypotheses of innocence remain.

For these reasons, we hold that the trial court did not err

in admitting the challenged testimony of Lanzafama or Hobbs or

in concluding that the evidence was sufficient to prove

appellant committed rape and sodomy. Therefore, we affirm

appellant's convictions.

Affirmed.

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