857 S.E.2d 163
Va. Ct. App.2021Background
- Kilpatrick responded to a Craigslist sting profile (“Jenny”) who represented she was 13; their communications included explicit sexual content and repeated references to her age.
- Law enforcement traced Kilpatrick, arranged a takedown, arrested him, and he was indicted under Va. Code § 18.2-374.3(C) for computer solicitation of a minor (requires that defendant "knows or has reason to believe" the person is under 15).
- At trial Kilpatrick asserted entrapment and claimed he believed the chats were role‑play/fantasy; he sought to admit testimony from Dr. Maurice Fisher (forensic psychologist) that Kilpatrick does not meet diagnostic criteria for pedophilia.
- The trial court excluded Dr. Fisher’s proffered testimony as an impermissible opinion on an ultimate issue (defendant’s intent/mental state), and the jury convicted Kilpatrick on multiple counts.
- The Court of Appeals held the exclusion was erroneous because the expert would not have opined on Kilpatrick’s mental state at the time of the offenses but only provided profile evidence relevant to his belief about the victim’s age and lack of motive; the convictions were reversed and remanded for a new trial.
- The panel instructed that on remand the expert may testify that Kilpatrick is not a pedophile but may not state conclusions about Kilpatrick’s guilt, belief, or specific mental state at the time; a concurrence dissented as to harmless error.
Issues
| Issue | Commonwealth's Argument | Kilpatrick's Argument | Held |
|---|---|---|---|
| Whether excluding Dr. Fisher’s testimony violated admissibility rules (ultimate‑issue rule) | Testimony would invade jury province by opining on intent/mental state | Testimony would not state opinion on mental state at time; it only shows Kilpatrick is not a pedophile, relevant to belief about age and motive | Exclusion was error: profile evidence admissible if it does not directly opine on the ultimate issue of the defendant's mental state at the time |
| Whether the expert opinion improperly addressed lascivious intent/solicitation elements | Argued testimony relates to lascivious intent and solicitation and is therefore barred | Argued lascivious intent/solicitation were not the proper targets; the testimony bore on belief about age (an element under § 18.2‑374.3) | Court: testimony did not directly opine on solicitation or lascivious intent and was therefore permissible insofar as it concerned belief about age |
| Whether the exclusion was harmless error | Error was harmless because evidence of Kilpatrick’s knowledge/reason to believe was overwhelming | Error was prejudicial because belief was genuinely disputed and expert could have affected the jury | Court: error was not harmless; reversal and remand ordered |
| Whether expert testimony may be used to support entrapment/predisposition defense | Argued profile evidence cannot resolve predisposition/entrapment and may improperly invade ultimate issues | Argued testimony probative of lack of predisposition/motive and relevant to entrapment defense | Court: testimony may support entrapment/predisposition inferences but may not state conclusions about predisposition or guilt; jury retains fact‑finding role |
Key Cases Cited
- Zook v. Commonwealth, 31 Va. App. 560 (Va. Ct. App. 2000) (expert relevance to ultimate issue does not automatically bar testimony)
- Llamera v. Commonwealth, 243 Va. 262 (Va. 1992) (expert improperly opined on ultimate factual issue)
- Cartera v. Commonwealth, 219 Va. 516 (Va. 1978) (expert testimony crossing into ultimate issue is impermissible)
- Davis v. Commonwealth, 12 Va. App. 728 (Va. Ct. App. 1991) (expert testimony that evidence inconsistent with personal use permissible despite relation to ultimate issue)
- Hussen v. Commonwealth, 257 Va. 93 (Va. 1999) (medical/expert opinion admissible where it does not directly resolve the ultimate issue of consent)
- Williams v. Commonwealth, 52 Va. App. 194 (Va. Ct. App. 2008) (expert opinion that quantity is inconsistent with personal use admissible)
- Askew v. Commonwealth, 40 Va. App. 104 (Va. Ct. App. 2003) (law‑enforcement expert testimony on drug quantities and intent admissible)
- United States v. Hite, 769 F.3d 1154 (D.C. Cir. 2014) (federal courts admit sexual‑profile evidence when it does not state opinion on defendant's mental state at time of offense)
- United States v. Hofus, 598 F.3d 1171 (9th Cir. 2010) (expert testimony held inadmissible where it opined the defendant was acting out a fantasy at time of offense)
- Stoltz v. Commonwealth, 297 Va. 529 (Va. 2019) (discusses "reason to believe" scienter under § 18.2‑374.3)