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Any error excluding expert’s testimony was harmless

Where the trial court excluded an expert’s testimony at appellant’s trial for computer solicitation of a minor, any error was harmless given other overwhelming evidence of his guilt.

The trial court excluded the testimony on the basis that the testimony would invade the province of the jury.

The Court of Appeals erred by reversing appellant’s conviction on the basis that the testimony would not have invaded the jury’s province concerning appellant’s defense that he did not believe he was dealing with a minor and that he lacked motive to solicit. The dissenting opinion stated that any error from the testimony’s exclusion was harmless.

We agree with the Court of Appeals dissenters.


A police officer, posing as “Jenny,” a minor child on, put up a fake profile. Appellant Kilpatrick responded in an “overtly sexual manner.” Kilpatrick continued to have sexually explicit conversations with “Jenny” between November 2017 to June 2018.

About a month after Kilpatrick and “Jenny” began talking, she revealed that she was 13 years old. After three weeks, they moved from to email and text messages. Eventually, police arrested Kilpatrick. He was indicted for multiple counts of computer solicitation of a minor.


“At trial, Kilpatrick argued that he had no intent to solicit a minor and that he at no point believed ‘Jenny’ was a minor. He also pursued an entrapment defense. According to Kilpatrick, he believed that he and ‘Jenny’ were taking part in a role-playing ‘fantasy.’

“In support of his defense, Kilpatrick sought to introduce expert testimony from Dr. Maurice Fisher[.] … The Commonwealth objected to Dr. Fisher’s testimony.

“The trial court sustained the objection, ruling that his testimony would violate the ‘ultimate issue’ rule. Kilpatrick was ultimately convicted of three counts of computer solicitation of a minor, first offense, and two counts of computer solicitation of a minor, second offense. For those convictions, he was sentenced to 35 years’ incarceration with no time suspended.”

In the Court of Appeals

“In his appeal to the Court of Appeals, Kilpatrick argued that Dr. Fisher’s testimony was admissible for two purposes: 1) to show support for his claim that he did not believe that ‘Jenny’ was a minor and 2) to show that he lacked the ‘motive’ to solicit a minor.

“In a split decision, the Court of Appeals reversed Kilpatrick’s conviction. … The majority opinion reasoned that Dr. Fisher’s expert testimony, while relevant to the ultimate issue of Kilpatrick’s mental state at the time of the alleged offense, did not express an opinion on that issue and would not have invaded the province of the jury. … The dissenting opinion expressed the view that any presumed error in excluding Dr. Fisher’s testimony was harmless.

Current appeal

“[T]he Commonwealth argues that the Court of Appeals erred in concluding that Dr. Fisher’s expert testimony should not have been excluded. Alternatively, the Commonwealth contends that excluding such evidence was harmless error. …

“In this case the appellant has waived any argument that the claimed error in excluding Dr. Fisher’s testimony violated his due process rights or any other constitutional principle. Thus, ‘[the] Court may uphold a decision on the ground that any evidentiary error involved is harmless if it can conclude “‘that the error did not influence the jury[] or had but slight effect.”’ …

“To reach this conclusion, the evidence of guilt must be so overwhelming that it renders the error insignificant by comparison such that the error could not have affected the verdict. …

“Kilpatrick sought to offer Dr. Fisher’s testimony to support his claim that he did not believe ‘Jenny’ was a minor and that he lacked motive to solicit a minor. However, as the dissent to the Court of Appeals opinion explains, the other evidence against Kilpatrick on both of these points was so overwhelming that any error in excluding the testimony was insignificant by comparison. …

“Specifically, the evidence proved that Investigator Wade consistently represented that ‘Jenny’ was thirteen. In fact, ‘Jenny’ told Kilpatrick that she was ‘only thirteen,’ would be ‘fourteen next year,’ and that girls ‘a year older’ would be ‘around fourteen.’

“Tellingly, Kilpatrick responded that ‘Jenny’ had a ‘pretty thirteen-year-old body with growing curves’ and that she was ‘no ordinary eighth grader.’

“It is true that Kilpatrick claimed that he believed ‘Jenny’ was at least twenty and the two were merely role-playing and fantasizing about her being a younger schoolgirl. However, his claim was undermined by the fact that Kilpatrick urged ‘Jenny’ to delete their ‘text trail’ weekly ‘so [that] no one would get too suspicious by seeing lots of stuff or our ages.’

“ Moreover, the Court notes that, prior to ‘Jenny’ informing Kilpatrick of her age, he repeatedly asked her questions that would ordinarily not be posed to a twenty-year-old, such as 1) ‘what high school do you go to?’; 2) ‘do you have your own room?’; and, 3) ‘what did she do in her bedroom when no one is looking?’

“It is further worth noting that, when the police initially questioned Kilpatrick about how old he believed ‘Jenny’ was, he responded that she was fourteen. He also wrote an apology letter to ‘Jenny’s parents’ expressing his ‘remorse for inappropriate texting with [their] daughter.’

“Such evidence clearly belies Kilpatrick’s assertion and supports the Commonwealth’s position that Kilpatrick clearly believed that ‘Jenny’ was a minor.

“Similarly, the evidence fully supported the fact that Kilpatrick had the motive to solicit a minor. After ‘Jenny’ revealed her age to Kilpatrick the sexual nature of the emails escalated, he e-mailed her with questions about her vagina.”


“Taken as a whole, the Court finds that the evidence of Kilpatrick’s prurient interest in ‘Jenny’ was overwhelming and, therefore, Dr. Fisher’s testimony on motive would not have influenced the jury or would have had but slight effect.

“Thus, the dissent to the Court of Appeals decision was correct, as any presumed error in excluding Dr. Fisher’s expert testimony was harmless.

“Accordingly, the decision of the Court of Appeals is reversed, and the judgment of the trial court is affirmed.”

Commonwealth v. Kilpatrick, Record No. 210530 (published order; Millette, joined by Goodwyn and Koontz, dissenting) Aug. 4, 2022. Upon an appeal from a judgment rendered by the Court of Appeals of Virginia. VLW 022-6-037, 7 pp.

VLW 022-6-037