*3 MOON, C.J., BAKER, Before BENTON, COLEMAN, and WILLIS, ELDER, BRAY, FITZPATRICK, ANNUNZIATA OVERTON, and JJ. BANC EN A REHEARING
UPON ELDER, Judge. Jenkins 9,1993, Lloyd James jury a convicted December
On in of Code battery, violation sexual aggravated (appellant) Court, appellant contended: to this appeal On 18.2-67.3. to a (1) right violated his constitutional juror that misconduct (2) in trial; trial court erred that the impartial and fair (3) issue; in that fact testimony on an ultimate allowing expert testify to allowing witness to expert court erred in the the trial child; and sexually made abused hearsay statement the a (4) prove to conviction. the was insufficient that evidence Va.App. Jenkins (1995), appellant’s reversed a of this Court panel divided the majority that and the case. The held conviction remanded (1) to to an testify allowing expert in trial court erred (2) testify issue, expert in to allowing fact and ultimate did hearsay statement of child. to judge, although The third the other contested issues. address to that court concurring the trial erred issue, respect fact in with testify to an ultimate dissented admit- issue, properly trial court hearsay opining made treatment. during the child’s statement ted banc, we upon rehearing, en and granted rehearing We (1) that trial court affirm conviction. We hold: appellant’s right constitutional a fair appellant’s did not violate juror trial it refused dismiss on impartial when (2) misconduct; trial court juror that the erred grounds fact in the testimony on ultimate issue allowing expert (3) harmless; trial court that such error was case but *4 testify not err witness did (4) treatment; during child’s statement made appellant’s conviction. sufficiently proved evidence
I.
FACTS victim, on a male child born proved The evidence 26, 1990, during grandparents cared for his February was the weekdays parents while his Appellant, worked. the child’s uncle, often visited the child’s grandparents when the child present. was charged indictment that appellant commit- ted aggravated sexual on battery the child during period September 1992 through March 1993.
On April a Youth Services Unit investigator with the Henrico County Police Department met with appellant. Appellant first denied any sexual contact with the child but then admitted to child, one incident with the which occurred in approximately February 1993. The investigator testified as to appellant what told' him:
He said that he was sitting the living TV, room watching and that [the was sitting lap, child] leaning against his chest, and he said that began he to start having sexual fantasies as to how [the would be got child] when he older and more mature. He said that put he his hand on [the penis from top child’s] over his clothing and held it there and touched him there for about a minute. He said while this, doing he was having sexual thoughts having about oral sex with if [the he were child] older.
Appellant told the investigator that during this incident his penis became semi-erect because just “he wanted somebody love and he was real emotional during this time and actually cried for a Appellant while.” also related this incident in a written statement.
During the case-in-chief, Commonwealth’s a licensed clinical psychologist testified that he conducted ten counseling ses- child, sions with the beginning on March 1993. During examination, direct the following exchange occurred between the Commonwealth’s Attorney and the psychologist:
Q: sessions, ... Sir, After these or some during time sessions,
these you were able to form an to a opinion reasonable degree certainty your expertise as to whether [the from suffering any psychologi- child] cal disorder? Yes,
A: Ma'am.
Q: that, And what is Sir? *5 adjustment disorder from an suffers A: That [the child] of emotion with mixed emotional—mixed—features conduct. degree to a reasonable Do
Q: you opinion have disor- adjustment what certainty, your expertise, adjustment this disor- had suffered from der—why he der, Sir? unusual reac- An is a or adjustment persistent
A: disorder stress. tion to some identifiable case, as to you do have Q: what—what And that identifiable stress? sexually abused.
A: That he had been had that he also described the methods psychologist The and obser- including to form his interviews with opinion, used testified, over The defense psychologist vations the child. told him that objection, that on one occasion child counsel’s move- corresponding body and made he “had been sexed” asked meant. When being ments describe what “sexed” “sexed,” area. groin he to his pointed where had been the child occasion, the that, on another also testified to demonstrate anatomically used correct male dolls child two act. a sexual evidence, jurors one of the notified presentation
After the years with ten appellant the trial court that he had worked juror not realize this fact before Although earlier. did trial, the trial court that during juror much of the told father testified. memory triggered appellant’s when was following manner: juror in the questioned trial court with affect [your prior relationship appellant] Court: Would in this reach a decision you any way being able to case? Um, made— already I a decision honestly
Juror: had Court: Sir. know, it so I not. You shouldn’t up, guess
Juror: This came really affect decision. my
Court: You haven’t reached decision before the case was
tried—had you reached a decision before the case tried? mean, I I know,
Juror: had my opinions, yeah. You while *6 it, going through and I just right realized it before the up father came here. That’s when it struck me. Appellant: mistrial, We’d move for a Your Honor.
Court: Can you—the Sir, last—I don’t want to lead but you,
when you came in this morning, here I you— asked I here—right, Juror: When came when I came in here this I morning, had no clue.
Court: You had—did know you case, about anything in
any fashion? No.
Juror: None whatsoever. Court: Now I asked you this morning you could determine evidence, courtroom, from in you what heard here
apply is, it to law I you as instruct it that and we have is, not told what you the law and reach decision. You recall that? Yes,
Juror: Sir. I you—told you Court: asked you shall decide no issue this case until the matter is to you your submitted from deliberation under the instructions of the Court. youDo recall that? Yes,
Juror: Sir. you any case, Court: Have decided issue or your is open? mind just
Juror: No. I’m saying you I have taken in everything, know, I’m just weighing and balancing my own head. All right, you, Court: Sir. Well do not? you you do do your Just tell Is mind open? you go me. in there Can your and listen jurors, discuss is? what evidence that, know, Juror: Yeah. Yeah. But I knew you if I knew here, anybody, I should not I just be and I realized. I thought should say something. juror, Attorney “[a]nd also asked the Commonwealth’s him, way in any that have known would you may fact that verdict, impartial and to be able to render fair you
cause law and the you’ve that heard on the evidence solely based juror by the Court?” The to read and hear you’re going “[njone whatsoever.” responded, counsel, admit- juror from questioning appellant’s
Upon over disagreement had a work appellant and had ted that he yell them to appellant, causing he worked for scheduling when However, that no “hard juror stated at each other. juror also disagreement. after the feelings” remained had that he not formed appellant’s reiterated to counsel that he would guilt or innocence and appellant’s moved Appellant again instructions. wait for the trial court’s motion, ruling mistrial, trial overruled the for a but the court to the cause juror impartial indicated he could remain that the not made his mind. yet up he had *7 charged in the jury appellant convicted of the offense 18.2-67.3(A)(1) that accused “[a]n indictment. Code states if he battery of sexual or she guilty aggravated shall be witness, the and ... com- sexually complaining [t]he abuses years is of plaining age.” witness less than thirteen II.
JUROR MISCONDUCT
contends,
mere fact of
the
“the
As
Commonwealth
juror
automatically
litigant
entitle either
misconduct does
Airport
Metropolitan Washington
to a mistrial.” Robertson v.
(1995).
th.,
76,
845,
72,
“In
249 Va.
452 S.E.2d
847
Au
discretion, must
stead,
court, in
sound
the trial
the exercise of
probably
prej
resulted
determine whether such misconduct
upon
is
probability
of
that
establishing
udice. And the burden
for
Id. A trial court’s decision
moving
a mistrial.”
party
to great
is entitled
juror
impartial
that a
can be fair and
469,
Commonwealth, 229 Va.
on
weight
review. Watkins
denied,
1099,
(1985),
475 U.S.
cert.
1503,
After hearing all of the
the juror indicated
he
that
had
an opinion
formed
about the case and had reached
his tentative decision
he
recalling
appellant.
before
that
knew
However,
juror
never stated whether he had concluded in
appellant
his own mind that
was
guilty
More
innocent.
over, it appears that
juror
made these statements to
assuage the trial court’s
that
fears
he harbored animus to
words,
appellant.
wards
other
juror,
who
already
had
evidence,
all of
convey
heard
meant to
that he had not
his prior relationship
allowed
with appellant
to affect his
Upon
evaluation of the evidence.
thorough questioning by the
counsel,
trial court and
both
by
juror
assured the trial
that
court
he could deliberate and reach a
after
verdict
jurors.
discussion with
fellow
his
Supreme
Court
has
“limited
Virginia
generally
find-
ings
prejudicial juror
jurors
misconduct to activities of
that
occur outside the jury room.” Caterpillar Tractor Co. v.
Hulvey,
233 Va.
(1987)(holding
juror
misconduct
not sufficient to set aside the verdict
juror
when one
lawyer
told the others that he was a
opined that the case was “garbage”). Haddad v. Common-
wealth,
(1985),
Va.
S.E.2d 17
on
relied
appellant,
directly
is not
applicable to this case
it
because
juror activity
Haddad,
involved
outside
room. In
jury
juror made a comment to a third party defense attorney
trial,
during a break in the
stating that the defendant was “not
going
get off’ and
if he
asking
attorney
guilty
felt
about
to free criminal
helping
defendants. The trial court thereafter
juror
fully questioned the
about
statements before conclud-
ing
juror
could
both
give
parties
fair trial and
*8
328,
prejudging
refrain from
the
guilt.
defendant’s
Id. at
329
at 19. The Supreme
juror
S.E.2d
Court
miscon-
stated
duct occurred
framed
issue
review
the
for
as “whether
juror
in
of expressions
opinion
misconduct
the form
made
by juror
persons during
a
to third
the
proceedings
trial
should
329,
in a
result
mistrial.” Id. at
at 19-20. The
granted
Court held that a mistrial
have
because
should
been
proved
probability
prejudice
the defendant
and that the
to the trial
despite promises
longer impartial,
no
juror was
330-31,
20.
at
Id. at
329 S.E.2d
contrary.
court
case,
party any
to third
juror
never
expressed
In this
in
defendants
or
criminal
appellant
toward
animus toward
had
Furthermore,
whether he
juror
never stated
general.
Thus, appel-
or innocent.
guilty
appellant
concluded that
from the
case differs
potential prejudgment
lant’s
the trial court
hold that
in Haddad. We
juror’s prejudgment
in
a mistrial
declining
declare
did not abuse its discretion
Ins. Co.
See
Union
juror
on
misconduct.
Commercial
based
(1986).
260,
ULTIMATE FACT in court erred Appellant argues that trial sexually abused. We testify that the child had been expert to light but hold that such error was harmless agree other adduced at trial. evidence that, in his child opinion, statement expert’s Cartera v. sexually
had been
was inadmissible under
abused
Commonwealth,
516,
Cart-
248 S.E.2d
Va.
era,
well-accepted
stated the
Supreme
following
Court
case,
any
may
“In
an
witness
be
proper
principle:
not within
opinion upon
matters
express
permitted
testimony, howev
Opinion
knowledge
experience.
common
or ultimate fact
er, is
‘upon
precise
not admissible
”
Webb v.
(quoting
at
was the causative stressor.1 The psychologist’s testimony went to the ultimate fact issue and invaded the jury’s province Cartera, as the fact finder. 219 Va. at S.E.2d at 786.
We also hold that the trial court’s error in admitting this evidence was harmless. When an element of the crime is fully established by other competent evidence, an error in improperly admitting evidence with respect to that is point harmless. Commonwealth, See Rozier v. 525, 528, 219 Va. (1978); Commonwealth, Lavinder v. 12 Va. 1003, 1005, App. (1991)(en 407 S.E.2d banc); Code § 8.01-678. case,
In this the Commonwealth’s evidence included testimo- ny from the child’s mother of multiple instances of bizarre sexually-oriented behavior the child. The expert’s testimo- ny also showed the child’s familiarity with sexual acts. Most probative was appellant’s admission that he participated in one sexual episode with the child. The trial court instructed the jurors that sexual abuse had been if committed the evidence showed that appellant had “with the molest, intent to sexually arouse or gratify any person, ... intentionally touch[ed] complaining witness’ intimate parts clothing covering such 18.2-67.10(6). intimate parts.” See Code The facts contained in appellant’s confession proved these elements. Appellant confessed that holding while the child on his lap, he began to have sexual fantasies about the child. Appellant admitted that he placed his hand on the child’s penis minute, and held it there for a during which time appellant had sexual thoughts about having oral sex with the child when the child facts, was older. Based on these the error in admitting expert’s testimony was harmless. Rodriguez v. 249 Va. (1995)(holding that in the face of conclusive proof guilt, any diagnostic 1. One of the "adjustment criteria for disorder” is a "reaction (or stressors).” psychological to an identifiable multiple stressor DSM (Diagnostic (3d III-R & Statistical Manual Mental Disorders 329-30 1987). ed. rev. ultimate fact on the testimony admitting expert’s error harmless”). “utterly in issue was
IV.
*10
OF
USE
CHILD’S STATEMENT
MADE TO PSYCHOLOGIST
the trial court erred
next contends that
Appellant
testimony,
expert
to
allowing the
who offered
psychologist,
had
that he
been
testify
héarsay
the child’s
statement
to
properly
hold that the trial court
admitted
“sexed.” We
psychologist’s testimony.
of the
portion
held,
First,
have
because the
many
jurisdictions
as
other
offered for its
expert
child’s
as made to the
not
statement
truth,
hearsay.
not
as
child’s
qualify
the statement did
that
conveyed
statement that he had been “sexed”
information
of
for
clearly
expert’s diagnosis
formed
basis
disorder, regardless
falsity.2
child’s
of its truth or
adjustment
See,
Inc.,
PYA/Monarch,
e.g., Howle v.
288
344
S.C.
(Ct.App.1986)(holding
psychiatrist
a
who ex
S.E.2d 157
that
defendant,
amined
a car accident could
patient,
his
after
defendant;
testify
he
with the
such
as to conversations
had
for
truth but for the basis of
statements were
offered
their
State,
160
diagnosis);
his
Brown
S.W.2d
a
a
who examined
(Tex.Ct.App.1983)(holding
physician
an
molestation could relate
shortly
alleged
child victim
after
Expert
Opinion
According
Evidence
2.
to 31A Am.Jur.2d
and
1996):
(1989 &Supp.
person’s
a
... a
testifying
as an
on
mental condition
on,
psychiatrist
may
his or
rely
as one basis for
her
party
opinion,
by or
held with the
statements made
conversations
necessarily
question....
The results of interviews conducted
become
part
expert’s
a
opinion.
expressing
is not
as
of the
witness
belief
statements,
falsity
merely expressing the
but is
truth or
of
opinion
of
concerning
cause
professional
basis for his or her
patient’s mental condition.
added).
Annotation,
(Footnotes omitted)(emphasis
See also
Admissibili-
ty
Testimony
Opinion,
Expert, As to.
his
Matters
Basis
Cases,
(1991
Hearsay—State
&
Excludible
89 A.L.R.4th
Otherwise
as
Supp.1995).
the child’s
attack;
statements regarding the
such statements
were admitted to show the basis of
physician’s
opinion, not
truth);
Wade,
for their
State v.
296 N.C.
In this the expert testified that the child suffered from an adjustment disorder with mixed features of emotion and adjustment conduct and that an disorder is a persistent or unusual reaction to some identifiable stressor. psycholo- gist described the methods he used to form his opinion as to stressor, the identifiable which included interviews with and observations of the child. The psychologist testified that the child told him that he “had been sexed” and made correspond- ing body movements to being describe what “sexed” meant. “sexed,” When asked where he had been pointed the child his groin area. This information was not prove offered to sex had actually occurred with the child but rather to show how the expert reached his opinion concerning the child’s
521 stressor.3 identifiable rule to apply a difficult is exception “not-for-truth”
This controversy, always caused cases. It has of real the context it is often so, because do always will and presumably to prove offered being is the declaration arguable whether not, and of the declaration of the content the truth different reasonably reach judges may quite lawyers case.... question any given conclusions on situations is due in “not-for-truth” difficulty Part of the nature; will have a dual often such evidence the fact that matter on some indeed be relevant may declaration statement, and of the truth of the content unrelated to the issues of the may go to the of the statement yet the content See, v. Va. e.g., Donahue [225 case as well. (1983) the situation perhaps This is ]. 300 S.E.2d In that for the courts. greatest dilemma which creates a time- however, that it is it be remembered regard, should that, if evi in general, of evidence law principle honored any purpose, it is admissible. admissible for dence is 18-3, Virginia The Law Evidence in Friend, Charles E. v. (4th ed.1993)(footnote omitted); see Hanson Com at 95-96 (1992). monwealth, 416 S.E.2d Va.App. it hearsay, if child’s statement constituted
Even many if within one of the introduced it fell may still have been Evans-Smith Com See hearsay exceptions. established monwealth, Va.App. rule
Cartera
exception
hearsay
permitting
provides
concerning
statements
testify
patient’s
to a
physician
“a
‘the
subjective symptoms’ to show
suffering and
‘past pain,
injuries
to the nature of the
physician’s
basis
*12
” Cartera,
518,
A
V. THE SUFFICIENCY OF EVIDENCE Finally, appellant contends that the evidence was to prove charge. appeal, sufficient On the evidence must light be viewed most favorable to the Common wealth and all given fairly be reasonable inferences deducible Commonwealth, Higginbotham 349, therefrom. 216 Va. (1975). 534, 218 S.E.2d jury’s “The verdict will not be disturbed on it appeal plainly unless is or without wrong support evidence to it.” Traverso v. 6 Va. (1988); App. Code 8.01-680. physician may patient A 4. also relate statements made a child for the J.P.M., purpose establishing the child’s state of mind. M.E.D. v. 391, Va.App. dissent, Contrary Judge analysis 5. to the assertion in Benton's our expert repeat would not allow the the disclosure that the child names appellant, nor would it detailed circumstances allow relate surrounding the abuse. Details about the abuser or the abuse would expert’s opinion regarding underlying have been irrelevant stressor, may prejudicial probative. have been more This is than precludes. what Cartera
523 III, in and examined under supra, As detailed Section review, we hold that the appellate the familiar standards of appel presented support Commonwealth sufficient evidence lant’s conviction. reasons, appellant’s we affirm con- foregoing
Based on the viction.
Affirmed.
MOON, Judge, Chief with whom BAKEK and ANNUNZIATA, in Judges, join, concurring part and in dissenting part.
I majority opinion concur with the insofar as it holds that trial judgment any should be affirmed because error However, court I disagree was harmless error. with majority concerning having child’s statement been guise expert “sexed” was admissible under the explain opinion. the basis of his I concur that the Judge with Benton’s dissent’s conclusion child’s statement was inadmissible under Cartera v. Common- wealth, 516, 219 Va. It is also impor- S.E.2d tant to that in criminal recognize Virginia, expert trials generally may not base on opinion inadmissible evidence. Commonwealth, Simpson See v. 227 Va. 318 S.E.2d 386, (1984); (expert opinion Code 8.01-401.1 civil cf. evidence). may cases be based on inadmissible a quali- While psychologist may testify fied as an witness in a criminal part case and render an based in on interviews with Commonwealth, 575, subject, see Rollins v. 207 Va. 580- 622, (1966), may 625-26 he not in the place him during record inadmissible statements made to the evalu- ation process. See 214 Va. Greenfield (1974) (affirming trial court’s exclu- sion of hearsay psychiatric evidence offered to support opinion). majority’s decision allows for the admission of evidence previously
not criminal cases. Because permitted Virginia was admissi- majority also holds whether evidence not, affirmed, I conviction should be issue
ble or .would time as but would instead wait until such ruling, a definitive Supreme adopts enacts or the Court Assembly the General new rule evidence.6 *14 through mischief ruling opens
This the door for considerable It an provides of hired witnesses. manipulation the parties get jury potentially for to before the opportunity A that could not otherwise be admitted. prejudicial evidence defendant, to subjecting criminal without himself cross-exami- nation, jury an incident before the put could his version of testimony psychiatrist explaining of from his guise under testimony. prosecution for the The psychiatrist’s the basis place could a or to statements psychiatrist psychologist use not be admissible and which the record that would otherwise could not withstand cross-examination. if be admissible under might
Even the child’s statement rule, n.6, I do supra, see suggested proposed standards laid to admit the proper not believe that a foundation was “sexed,” child’s statement that he had been statement. The sessions, surely counseling during made one of more than ten “adjustment disorder.” diagnosis of an was not essential the basis understanding for a necessary proper Nor was it majority opinion graphically The expert’s opinion. of the knowledge. psy- sexual apparent describes the child’s diagnosis the same without likely would have made chologist “sexed,” surely and he that he had been the child’s statement study subject of much and raised in this case has been the 6. The issue Virginia on to Draft Rules of Evidence for debate. The Committee 10, 1984, Virginia approved proposed Rule a draft of November Data, of Facts and as follows: Disclosure opinion give and his expert may testify or inference in terms of underlying facts and prior therefor without disclosure reasons examination, data, an otherwise. On direct unless the court directs unless the expert may testify data otherwise inadmissible not facts summary are a that such or data or court determines thereof facts expert’s understanding necessary proper the basis for for unfairly prejudice an testimony opinion that such would expert to disclose may require the opposing party. A cross-examiner based. opinion or inference is facts or data on which recount- jury without diagnosis explained could have this statement. ing majority result reached I concur
Accordingly, that the child’s state- holds insofar as the but dissent admissible. psychiatrist ment to the BENTON, dissenting. Judge,
I. judge the trial erred majority opinion I with the agree the child had been opine Commonwealth, v. Va.App. sexually abused. See Jenkins (1995). an offense and The elements of at issue in are ultimate facts agent the criminal identity Nicholas 91 Va. criminal prosecution. for prosecution In a S.E. 18.2-67.3, whether battery sexual under Code aggravated *15 the of the offense that occurred is an element sexual abuse in the record. upon decide based the evidence jury must v. Cartera Common- in stated Supreme clearly Court has wealth, (1978), 516, expert may that an 248 784 219 Va. S.E.2d “ fact in precise to ‘the or ultimate opinion not an express ” v. Webb 519, Id. at (quoting at 786 issue.’ (1963)). Commonwealth, 22, 24, 33, 129 S.E.2d 29 204 Va. however, the majority’s holding the I with disagree, conclude reasonably cannot harmless. This Court error was jury’s the error did not affect this record that the upon Commonwealth, 1003, 1005, Lavinder v. Va.App. 12 verdict. (1991). sexual- 910, issue whether Jenkins 407 911 S.E.2d in the record Nothing disputed. the child was ly abused testimony jury rely upon that the did suggests in at verdict. arriving its alone, does not standing fact disputed evidence of a Other harmless error [A] that an error is harmless.... establish sufficiency of the evidence ... analysis simply not] [is analysis.
526 Commonwealth, Hooker v. 454, 458, 14 418 Va.App. S.E.2d (1992). This in case is not one which “the other evidence of guilt
was so
overwhelming
insignificant by
the error so
compar-
ison that the error could not have affected the verdict.”
Id.
at
457 n.
at
n. 2.
if
S.E.2d
Even
“the other evidence
verdicts,
amply supports
jury’s
is not harmless
[evidence
disputed testimony may
well
when]
have affected the
Cartera,
jury’s decision.”
at
219 Va.
Although inculpatory, Jenkins’ statement was this Court say jury cannot that the could not it in have cast a different light the absence of the inadmissible evidence. In his statement, sitting living Jenkins “said that he was room TV, watching sitting and that his lap, leaning [the child] chest, his and ... he his hand on his from against put penis and held it him top clothing over there and touched there jury for about a minute.” The could have found that Jenkins addition, if battery. lacked the intent to commit sexual jury accepted lap Jenkins’ statement that the child sat on his *16 occasion, jury single on one could have concluded that the episode could not have led to the bizarre conduct conceivably Moreover, considering exhibited the child. the mother’s testimony, and testimony, great grandparent’s the child’s Jen- admission, jury certainly kins’ could have found that its and unrelated to the genesis prior child’s behavior had touching one occasion Jenkins admitted the child. child’s origin of the expert’s opinion, from the
Aside mother The child’s established. clearly behavior was child, who was in 1992when the beginning instances described engage sex and to talk about age, began years then two For she example, her. toward sexually-oriented behavior television watching she was evening one when testified that and said bedroom, clothing, his removed child entered her occasions, he told her. On other to have sex with he wanted kissing with [her] ... and [her] trie[d] “he to sex want[ed] her like a ... his head around mov[ing] open his mouth [while] “gy- occasions he that on other kiss.” testified french She on pillow top ... penis, put [a] and his hips rub[ed] his rate[d] sexing him that he was saying him ... or underneath on retail rubbing [a store] ... started his behind pillow, [and] sexing that he was it.” saying display of those to the first prior The child’s mother testified fondled her and that he the child took showers with incidents stopped him. She later she showered with her breast while about sex. began talking him when he taking showers with father, testimony no child also showered with Although the The psychologist child fondled his father. that the established mother and the father if he had known that the testified that it. discouraged child he would have showering with the were could that sexual awareness also testified The age who took showers years of one to three result a child a parent. with primary who was the child’s great grandmother, child’s testified that on years, for three
babysitter days five week up “run hand [his the child occasions she saw several just smile dress, and mother [the would] mother’s] cutely ” testified that she ‘Oh, do that.’ She also say don’t [child] baths taking to discontinue the child’s mother admonished great right.” “told her it wasn’t with the child and child times” the a few “quite also testified grandfather and in her on his mother put his hands inappropriately frequently that he her breasts. He testified brassiere to feel the child to touch mother for the child’s admonished her in that manner. *17 evidence, thus,
The provided a basis from jury which the inference, could have drawn an in the absence of the inadmis- sible part the psychologist’s testimony, that circumstances other than Jenkins’ conduct caused the child’s behavior. In- deed, the evidence that suggests may the child have several stimuli for his behavior.
The proved evidence that the two-year-old child was exten- sively exposed to cable television and watched movies. The mother testified that she has television cable service on two of the five televisions in her house. The great grandmother testified that the child watched television and movies at her house. television,
In addition to the evidence suggests by age that three the child exposures had other that may have influenced his behavior. great grandmother The testified that she warned the mother about her conduct with the child because the child “knew too much ... was too bright.” [and] The evidence also suggests that the child was exposed adult music and “could sing ‘Achy Heart’ Breaky good as” any singer. The proved evidence also that the child had two sixteen-year-old babysitters female who have him on kept weekends and overnight. conduct, talk,
The child’s sexual and of an singing adult love ballad daily are consistent with the fare of cable television. Moreover, be, unseemly may many as it adult males are seen in public placed genital with a hand on their region. jury The obviously could have found that the child’s conduct was the manifestation of various exposures unrelated to Jenkins. addition, no evidence proved that the child .approached any person other than sexually his mother suggestive Indeed, manner. approached child never the father in that manner and never rubbed his father sexually. jury have might significant only found it that the child exhibited evidence, such conduct toward a female. origin On question jury child’s behavior was a for the to decide. I believe that it is evident from the record how important psychologist’s opinion jury’s could have been deci- have jury might testimony, inadmissible sion. Without origin had its conduct the child’s the conclusions reached everyday experiences but inappropriate exposures the child. sexually touch intent had no that Jenkins admission the erroneous record demonstrates *18 lessened the Commonwealth’s testimony greatly psychologist’s doubt. a reasonable beyond abuse to sexual prove burden fact “conclude, jury’s the usurping without Thus, I cannot occurred, the function, that, had the error[s] finding Lavinder, Va.App. at have been the same.” verdict would Because 911; 8.01-678. 1005, at see Code 407 S.E.2d to the ultimate issue psychologist’s opinion admission judge improperly the trial error and of was not harmless fact of complaint the child’s repeat to psychologist allowed the conviction and “sexed,” appellant’s I the would reverse being for a new trial. remand
II. occasion, “on one that the child psychologist testified That was his word.” me that he had been sexed. indicated to the trial erred judge I also hold that the would majority approves of testify. to so hearsay to the exception or an non-hearsay evidence as either rule. rule, hearsay the exception to finding the statement and the use broadly expands reads Cartera too majority ruled in Virginia Supreme what the Court
hearsay beyond
exception
“acknowledgefd]
Court
Supreme
that case. The
statements made
that renders admissible
hearsay
rule”
and
suffering
“concerning
patient’s] ‘past pain,
physicians
[a
physician’s
to show ‘the basis of
subjective symptoms’
” 219
at
injuries or illness.’
Va.
as to the nature of the
518,
at 786. See also Mackall
248 S.E.2d
denied,
759,
(1988),
cert.
Va.
The Su
The testimony that the trial admitted in judge this case is analogous to the testimony Supreme Court barred in psychologist’s Cartera. The testimony the child told him he had been “sexed” concerns the circumstances of partic- Cartera, ular offense. As the statement was a description of the child’s alleged physical encounter and description not a symptoms. By “sexed,” the child’s stating he was report child did not pain, suffering subjective symptoms but rather described the circumstance of events. Cartera does not stand proposition for the that a psychologist may describe the actual physical contact from which the prosecu- tion arises. decisions,
Without reference to any Virginia the majority expands beyond Cartera its bounds by reference to decisions *19 from other states. The Commonwealth concedes that “many of these out-of-state partially cases are based on the adoption by the states of rules to equivalent the Federal Rules of Evidence, 803(4).” § The Supreme Court of Virginia, howev- er, adopted has not the Federal of Rules Evidence as rules of Virginia. Furthermore, evidence in I find no indication in Virginia suggest case law to that the rule announced can supplemented expanded by Cartera be reference to the Federal Rules of Evidence or rules of from decision other states based on application of the Federal Rules. addition, I do not share the majority’s assumption that statements psychologist this child made to a are inherently reliable. The basis for evidence statements that a patient treating physician makes to a is the assumption that the “that patient understands the effectiveness of the treatment received will the of the in- depend upon accuracy provided physician.” Strong, formation John W. (4th ed.1992). McCormick on Evidence at 246-47 years This has no to a child two of principle application age, to a trial, talking psy- at testify to competent was who capacity mental have the to young If child is too chologist. understand child cannot trial, obviously the at testify to for to a psychologist matters relating truthfully of importance of treatment. purposes di- challenge
Furthermore, no opportunity had Jenkins and to demonstrate statements the child’s rectly from a context arisen may term have child’s use of the abuse no nexus to sexual him or that bore unrelated to was situation, such given must be scrutiny Close any person. of cross-examination here, incompetence, of where because psycholo- that the I would hold is non-existent. an accuser estab- hearsay, the child’s statement gist’s repeating offense, clearly and was an ultimate fact element lished prejudicial. had named Jen- if the child majority’s analysis,
Under session, testimony psycholo- therapy during kins have been admissible. that disclosure would gist repeating have believed that may Additionally, psychologist because might how the abuse occurred surrounding circumstances forming expert opinion, treatment or also be for important to relate allow a majority’s reasoning would the abuse occurred. circumstances and where all of those nuances repeat all the experts will allow majority’s opinion element of the offense every and establish complaints will of the offense descriptions that the guise detail under the That matter asserted. for the truth of the not be offered contradicts Cartera. reasoning directly the conviction and reasons, I reverse For these would trial. remand for a new