Jenkins v. Commonwealth

463 S.E.2d 330, 21 Va. App. 222
CourtCourt of Appeals of Virginia
DecidedDecember 20, 1995
DocketRecord 0371-94-2
StatusPublished
Cited by7 cases

This text of 463 S.E.2d 330 (Jenkins v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jenkins v. Commonwealth, 463 S.E.2d 330, 21 Va. App. 222 (Va. Ct. App. 1995).

Opinions

BENTON, Judge.

James Lloyd Jenkins was convicted in a jury trial of aggravated sexual battery. Code § 18.2-67.3. On appeal, he contends (1) that his constitutional right to a fair and impartial trial was violated because of juror misconduct; (2) that the trial judge erred in allowing expert testimony on an ultimate fact at issue in the case; (3) that the trial judge erred in allowing the expert witness to testify to hearsay statements of the child; and (4) that the evidence was insufficient to prove his conviction. We hold that the trial judge erred in allowing the expert to testify as to an ultimate issue of fact and in allowing the expert to testify to certain hearsay statements. Accordingly, we reverse the conviction and remand the case to the circuit court.

I.

The evidence proved that the victim, a male child born in 1990, was cared for by his grandparents during the weekdays while his parents worked. Jenkins, the child’s uncle, often visited the child’s grandparents, who were Jenkins’ parents, when the child was present. The indictment charged that Jenkins committed aggravated sexual battery on the child during the period September 1992 through March 1993.

In the Commonwealth’s case-in-chief, a licensed clinical psychologist testified that he conducted ten sessions with the child, beginning March 31, 1993. Over defense counsel’s [224]*224objection, the trial judge allowed the psychologist to repeat statements made by the child and to testify that the child was sexually abused. The psychologist testified that during one of the sessions, the child said he had been “sexed” and that the child “gyrated his pelvic area in ... a forward-thrusting motion.” The psychologist testified that when he asked the child where he had been “sexed,” the child pointed toward his own groin. He testified that on another occasion the child used two anatomically correct male dolls to demonstrate a sexual act.

The psychologist also testified that the child suffers from “an adjustment disorder with mixed ... features of emotion and conduct.” The psychologist explained that an adjustment disorder is a persistent or unusual reaction to some identifiable stress. He opined that the identifiable stress the child had experienced was sexual abuse.

The jury convicted Jenkins of the offense charged in the indictment. Code § 18.2-67.3(A)(1) provides that “[a]n accused shall be guilty of aggravated sexual battery if he or she sexually abuses the complaining witness, and ... [t]he complaining witness is less than thirteen years of age.”

II.

Jenkins argues that the trial judge erred in allowing the expert to testify that the child had been sexually abused. Jenkins contends that the issue whether the child had been sexually abused was the ultimate fact in issue. The Commonwealth contends that the trial judge did not err because the ultimate issue in the case was whether Jenkins himself sexually abused the child.

In Cartera v. Commonwealth, 219 Va. 516, 248 S.E.2d 784 (1978), the Supreme Court stated the following well established principles:

In any proper case, an expert witness may be permitted to express his opinion upon matters not within common knowledge or experience. Opinion testimony, however, is not admissible “upon the precise or ultimate fact in issue.” [225]*225Id. at 519, 248 S.E.2d at 786 (quoting Webb v. Commonwealth, 204 Va. 24, 33, 129 S.E.2d 22, 29 (1963)). Although a physician was permitted to testify in Cartera that the victims told him they had been raped, that testimony was permitted only because of “a rule unique to rape cases,” 219 Va. at 518, 248 S.E.2d at 786, that allowed such hearsay “as corroboration of the victim’s testimony.” Id. The physician was barred, however, from expressing his own opinion concerning rape. The Court reasoned as follows:
Thus, while it was proper to permit ... [the physician] to testify to the victims’ complaints that they had been raped and to state his observations of the girls’ physical and emotional conditions, it was improper to permit him to recite the details of the offenses and the description of the assailant, as reported to him by the victims. It was proper also to permit the doctor to state what examinations and tests he performed upon the victims and what medical conclusions he reached as a result. But it was improper to permit the doctor to express his opinion that the girls had been raped. Whether rape had occurred was the precise and ultimate issue in the case.

Id. at 519, 248 S.E.2d at 786 (emphasis added).

The holding in Cartera is consistent with the holding in other cases barring testimony regarding an ultimate issue of fact. See Llamera v. Commonwealth, 243 Va. 262, 264, 414 S.E.2d 597, 598 (1992)(whether quantity of cocaine would suggest an intent to distribute was an ultimate issue of fact); Bond v. Commonwealth, 226 Va. 534, 539, 311 S.E.2d 769, 772 (1984)(whether death was suicide, accident, or homicide was an ultimate issue of fact); Webb v. Commonwealth, 204 Va. 24, 32-33, 129 S.E.2d 22, 29 (1963)(whether effect of two deposit slips was to replace converted funds was an ultimate issue of fact); Ramsey v. Commonwealth, 200 Va. 245, 250-51, 105 S.E.2d 155, 159 (1958)(whether a fire was incendiary or accidental was an ultimate issue of fact); Strawderman v. Commonwealth, 200 Va. 855, 859, 108 S.E.2d 376, 380 (1959)(whether injury to child was caused by a penis or other circumstance is an issue of ultimate fact). Consistent with [226]*226these cases, we hold that the psychologist’s testimony in this case, that the child was sexually abused, expressed an opinion on an ultimate fact in issue. The expert stated an opinion that the charged offense occurred. Thus, his testimony improperly “invaded the province of the jury.” Cartera, 219 Va. at 519, 248 S.E.2d at 786.

The Commonwealth argues that Price v. Commonwealth, 18 Va.App. 760, 446 S.E.2d 642 (1994), requires a contrary result. We disagree. Price was indicted and tried for first degree murder; he was convicted of second degree murder. Id. at 763, 446 S.E.2d at 644. At the trial, a physician testified from his review of medical records that the child, who died from a blow in July 1991, exhibited symptoms of battered child syndrome “in the spring of 1991.” Id. The physician did not testify that the child was unlawfully killed, did not express an opinion concerning the defendant’s state of mind, and did not identify the child’s killer.

The elements of an offense and the identity of the criminal agent are ultimate facts at issue in a criminal prosecution. Nicholas v. Commonwealth, 91 Va. 741, 750, 21 S.E. 364, 366 (1895). The issue on appeal in Price was whether in a murder prosecution “the trial court abused its discretion in admitting Dr.

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Bluebook (online)
463 S.E.2d 330, 21 Va. App. 222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jenkins-v-commonwealth-vactapp-1995.