Home / Fulltext Opinions / Supreme Court of Virginia / JENKINS v. COMMONWEALTH OF VIRGINIA



September 12, 1997
Record No. 961459





Present: Carrico, C.J., Compton, Stephenson[1], Lacy, Hassell and
Keenan, JJ., and Poff, Senior Justice

We awarded this appeal to consider whether the trial court’s
admission of certain expert testimony introduced by the
Commonwealth constituted reversible error.

A jury assembled in the Circuit Court of the County of Henrico
found that "[d]uring the period September, 1992 through
March, 1993 . . . James Lloyd Jenkins did
. . . commit aggravated sexual battery on
. . . a male minor child under the age of thirteen
years old . . . [in violation of] Virginia Code Section
18.2-67.3".[2] In a final judgment entered
February 22, 1994, the trial judge confirmed the verdict and
imposed the twenty-year sentence fixed by the jury.

On appeal to a panel of the Court of Appeals of Virginia,
Jenkins contended, inter alia, that "the trial
judge erred in allowing expert testimony on an ultimate fact at
issue . . . [and] in allowing the expert witness to
testify to hearsay statements of the child". Jenkins v.
, 21 Va.App. 222, 223, 463 S.E.2d 330, 330-31
(1995). With regard to the first contention, the panel held that
"[b]ecause that testimony invaded the province of the jury
and was not harmless, the ruling was reversible error." Id.
at 226, 463 S.E.2d at 332. Upholding Jenkins’ argument concerning
the child’s hearsay statements, the panel reversed the conviction
on both grounds.

Upon a rehearing en banc, the Court of Appeals
expressly agreed that "the trial court erred in allowing the
expert to testify that the child had been sexually abused";
the court ruled, however, that "such error was harmless in
light of the other evidence adduced at trial." Jenkins v.
, 22 Va.App. 508, 517, 471 S.E.2d 785, 789
(1996). Finding no merit in Jenkins’ argument on the hearsay
issue, the Court affirmed the conviction. We awarded Jenkins an
appeal to consider the hearsay issue and whether the Court of
Appeals erred in finding that the admission of expert testimony
on an ultimate issue of fact was harmless.

Expert opinion on an ultimate fact in issue is inadmissible in
a criminal case because it "invade[s] the province of the
jury." Llamera v. Commonwealth, 243 Va. 262, 264, 414
S.E.2d 597, 598 (1992).[3] Such an invasion implicates the
due process and fair trial guarantees of the Constitution of the
United States. "[B]efore a federal constitutional error can
be held harmless, the court must be able to declare a belief that
it was harmless beyond a reasonable doubt[4]." Chapman v.
, 386 U.S. 18, 24 (1967); see Mu’Min v.
, 239 Va. 433, 441-42, 389 S.E.2d 886, 892
(1990); Dunn v. Commonwealth, 222 Va. 750, 753, 284 S.E.2d
807, 808-09 (1981). We will apply that standard of review.

The victim identified in the indictment was a male child born
February 26, 1990. In September 1992, his mother began observing
radical changes in his behavior indicating precocious sexual
awareness. In March 1993, she took her son to see a licensed
clinical psychologist. The psychologist conducted ten interviews
with the child. He testified in detail to several statements
couched in sexual language made by the child and to certain
physical demonstrations the child performed with his own body and
with male dolls illustrating sexual conduct between a male adult
and a male child. Asked if he had formed "an opinion
. . . whether [the child] was suffering from any
psychological disorder", he said that he "suffers from
an adjustment disorder", and that "[a]n adjustment
disorder is a persistent or unusual reaction to some identifiable
stress." Asked further to identify the stressor underlying
the disorder, the expert opined that the child "had been
sexually abused."

Explaining its finding that admission of this testimony was
not prejudicial, the Court of Appeals said that "[w]hen an
element of the crime is fully established by other competent
evidence, an error in improperly admitting evidence with respect
to that point is harmless." Jenkins, 22 Va.App. at
518, 471 S.E.2d at 790. The "other competent evidence"
the Court considered "[m]ost probative" was
"appellant’s admission that he participated in one sexual
episode with the child." Id.

The Court had reference to a statement written and signed by
the defendant in the presence of a police investigator. That
statement was read into evidence as follows:

I was sitting in the recliner and Michael was sitting in my
lap, as we watched TV. I began to fantasize how Michael would
look and act as he got older. He was leaning against my chest and
sitting on my lap. I reached down and picked him up, holding him
between his legs and laid him beside me in the chair, because my
thoughts for him were sexy, as he was laying on top of me. He
laid down beside me and looked up and said I love you, Bubba. All
this took place at my mom’s house and within a short period of
time. When I reached down, I placed my hand on his penis and held
it there for about a minute before I moved him over to the side,
because I was having sexual fantasies as to how he would be as he
got older and mature. I was thinking how it would be to have oral
sex with him, as he would tell me, ‘I love you.’ This was the
only time that I touched Michael’s penis, or any other part of
him in a sexual way. We were both fully clothed at the time.

Code ? 18.2-67.3
provides that "[a]n accused shall be guilty of aggravated
sexual battery if he or she sexually abuses the complaining
witness . . . ." The term "sexual
abuse" is defined in ? 18.2-67.10(6)(a)
as "an act committed with the intent to sexually molest,
arouse, or gratify any person, where . . . [t]he
accused intentionally touches the complaining witness’s intimate
parts or material directly covering such intimate parts
. . . ." That definition was recited in an
instruction to the jury.

Clearly, the defendant’s handwritten statement satisfies that
definition. It was fully sufficient, without benefit of the
expert’s opinion, to support a jury finding that the accused was
guilty of one act of aggravated sexual battery. Had the expert
based his opinion that the child’s adjustment disorder had been
caused by the stress of "one sexual episode", the error
in admitting that opinion into evidence would have been harmless
as merely cumulative. But the expert’s opinion was not based upon
a single act of sexual abuse. Rather, it appears from his
testimony that his opinion was based upon what his ten interviews
with the child disclosed about his premature sexual cognizance
and upon what he learned from separate interviews with the
child’s mother about the myriad sexually-oriented behavioral
changes the child had undergone over a period of several months.

Notwithstanding the defendant’s confession to one sexual
episode and the lack of any other evidence identifying the
accused as the criminal agent in any other episode with the
child, the jury could have been persuaded by the testimony of one
witness, a witness qualified by the trial judge as an expert in
the diagnosis and treatment of child abuse victims, to believe
that the accused had committed not one but multiple acts of
sexual abuse and that his criminal conduct was more aggravated
than he was willing to confess.

While the error in admitting the expert’s opinion may have
been harmless for purposes of conviction, we think it was
prejudicial for purposes of fixing the quantum of punishment
imposed. In closing argument, the Commonwealth relied upon
Jenkins’ written confession but urged the jury "not to
believe the part that it only [happened] once" and "to
give him the [statutory] maximum, which is twenty years in the

Applying the standard of review defined in Chapman, we
cannot agree that the trial court’s error in admitting the
expert’s opinion testimony was harmless beyond a reasonable
doubt, and we will reverse the judgment of the Court of Appeals
on that question. Because the hearsay issue may arise in a new
trial, we will consider the Court of Appeals’ ruling reversing
the panel’s decision that the trial court erred in allowing the
expert witness to testify to statements made to him by the child.

Overruling the defendant’s hearsay objection, the trial court
permitted the expert to testify that the child had told him that
he had been "sexed". He had illustrated his
understanding of that term by "gyrat[ing] his pelvic area in
sort of a forward-thrusting motion" and had "pointed
down towards his groin area" when asked where he was sexed.
In a divided opinion, the Court of Appeals affirmed the trial
court’s ruling on the hearsay question. We agree with the dissent
subscribed by four members of that Court.

The Court majority concluded that "because the child’s
statement . . . was not offered for its truth, the
statement did not qualify as hearsay." Jenkins, 22
Va.App. at 519, 471 S.E.2d at 790.

We have defined hearsay evidence as "testimony in court
. . . of a statement made out of court, the statement
being offered as an assertion to show the truth of matters
asserted therein, and thus resting for its value upon the
credibility of the out-of-court asserter." Stevenson v.
, 218 Va. 462, 465, 237 S.E.2d 779, 781 (1977)
(quoting E. Cleary, McCormick’s Handbook on the Law of
? 246,
at 584 (2d ed. 1972)); accord State Farm Fire and
Casualty Co. v. Scott
, 236 Va. 116, 122, 372 S.E.2d 383, 386
(1988); Donahue v. Commonwealth, 225 Va. 145, 151-52, 300
S.E.2d 768, 771 (1983). The child’s statement that he had been
"sexed" was uniquely probative of the truth of the
pending charge. That statement falls within the definition of

Next, the majority of the Court of Appeals held that
"[e]ven if the child’s statement constituted hearsay",
it was admissible "if it fell within one of the many
established hearsay exceptions." Jenkins, 22 Va.App.
at 521, 471 S.E.2d at 791. The Court quoted the comment in Cartera
v. Commonwealth
, 219 Va. 516, 518, 248 S.E.2d 784, 785-86
(1978) relating to the hearsay exception that permits "a
physician to testify to a patient’s statements concerning his
‘past pain, suffering and subjective symptoms’ to show ‘the basis
of the physician’s opinion as to the nature of the injuries or
illness.’" Here, as in Cartera, the child’s statement
to the psychologist went "beyond a recital of ‘past pain,
suffering and subjective symptoms’". Id. That
statement was evidence of the very criminal act that was an
essential element of the offense charged against the defendant.
We hold that the statement was hearsay, it was not subject to
this exception, and the trial court erred in admitting it before
the jury.

The Commonwealth contends that we should apply the hearsay
exception extended in some jurisdictions to statements made by a
patient to a treating physician. As the Commonwealth recognized
on brief, "many of these out-of-state cases are partially
based on their state’s adoption of rules equivalent to Federal
Rule of Evidence

Neither this Court nor the General Assembly has adopted any
such rule. The rationale for such an exception is that a patient
making a statement to a treating physician recognizes that
providing accurate information to the physician is essential to
receiving appropriate treatment. See 2 John W. Strong, McCormick
on Evidence
? 277,
at 246-47 (4th ed. 1992). Because the patient in this case was a
two-year old child who could not appreciate the need for
furnishing reliable information, we decline to apply the
exception here.

Urging yet another exception to the hearsay rule, the
Commonwealth argues on brief that the child’s statement was
admissible as a "recent-complaint" under Code ? 19.2-268.2. That
statute provides that "in any prosecution for criminal
sexual assault . . . the fact that the person injured
made complaint of the offense recently after commission of the
offense is admissible, not as independent evidence of the
offense, but for the purpose of corroborating the testimony of
the complaining witness."

That statute is inapplicable here. As we have said, the
child’s statement that he had been sexed was uniquely probative
of the charge of sexual abuse; as such, it was "independent
evidence of the offense". Moreover, that statement was not
made "for the purpose of corroborating the testimony of the
complaining witness"; the child never testified in court.[5]

To correct the errors committed by the trial court, we will
reverse the judgment of the Court of Appeals, annul the
conviction, and remand the case to that court with direction to
remand the case to the trial court for further proceedings
consistent with this opinion.

Reversed and remanded.





[1] Justice
Stephenson participated in the hearing and decision of this case
prior to the effective date of his retirement on July 1, 1997.

[2] In
relevant part, Code ? 18.2-67.3
provides as follows:

A. An accused shall be guilty of aggravated sexual battery
if he or she sexually abuses the complaining witness, and

1. The complaining witness is less than thirteen years
of age . . . 

. . . .

B. Aggravated sexual battery is a felony
punishable by confinement in a state correctional
facility for a term of not less than one nor more
than twenty years . . . .

[3] Cf. Code ? 8.01-401.3(B) (rule
applicable in civil cases).

[4]  Compare the standard for
collateral review of constitutional error, that is, "whether
the error had ‘substantial and injurious effect or influence in
determining the jury’s verdict.’" Brecht v. Abrahamson,
507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States,
328 U.S. 750, 776 (1946)).

[5] The Commonwealth cites McManus
v. Commonwealth
, 16 Va.App. 310, 312, 429 S.E.2d 475, 476
(1993) where the Court, in its consideration of "a rule
unique to rape trials", held that "the underlying
rationale for the [recent-complaint] rule does not limit its
application to those cases where the victim actually
testifies." We will reserve judgment on that question until
it is raised by assignment of error in an appeal of a rape
conviction to this Court.