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Date: 05-16-2021
Case Style:
Stephen James Kilpatrick v. Commonwealth of Virginia
Case Number: COURT OF APPEALS OF VIRGINIA
Judge: GLEN A. HUFF
Court: COURT OF APPEALS OF VIRGINIA
Plaintiff's Attorney: Craig W. Stallard, Senior Assistant Attorney General (Mark R.
Herring, Attorney General
Defendant's Attorney:
Description:
Richmond, VA - Criminal defense attorney represented Defendant charged with multiple counts of computer solicitation of a minor.
Appellant was caught in a sting operation, beginning when Investigator Jake Wade of the
Bedford County Sheriff’s Office set up a fake profile under the name “Jenny Block” on
Craigslist.org. On November 15, 2017, “Jenny” posted in a “hook-up area” on Craigslist
designated for “casual encounters” and used the abbreviation “W4M,” which was understood to
mean “woman for man.” In that post, Jenny described herself as a student in Lynchburg who
was looking for “any suggestions” as to “what there was to do” around the city.
Roughly a week later, appellant responded to Jenny’s post and, among other things,
requested that she “pull up [her] shirt” and watch him masturbate.1
Although Jenny did not
oblige his request, she asked that appellant tell her more about himself. After a short period of
small talk between the two, appellant asked Jenny what she was studying, to which she
responded, “I guess you could say I’m studying general studies.” Jenny then asked appellant
whether he would “be okay with [her] being a little younger than [him],” and appellant
responded in the affirmative.
1 Appellant acted under the pseudonym “David Dundall” when communicating with
Jenny.- 3 -
At this point, Jenny had not relayed her specific age to appellant. She had, however, told
appellant she occasionally drove a vehicle by appellant’s place of employment, Liberty
University, an activity legally reserved for persons at least fifteen years and six months of age.
In addition, appellant had asked Jenny what high school she attended. Jenny did not provide a
specific response to that question, but instead told him she went to a school in Bedford County.
On December 15, 2017, Jenny gave her first indication of her age, telling appellant she
was thirteen years old. At some point prior to this disclosure, appellant had made the comment
that “older guys know how to please a girl.” When Jenny asked appellant what he meant by that,
appellant responded the next day with the following message:
So here’s what I think about high school buys [sic] versus older
men. I think when boys in high school when they get horny they
don’t really understand their own body and don’t know anything
about girls . . . . They don’t know really what girls like or don’t
like . . . . They can only think about their penis, LOL, and can’t
control themselves and just cum . . . . That’s what I remember
when I was in high school, LOL. I can tell you stories about what
I did with girls in high school if you want, haha . . . [b]y now I’ve
been with enough girls that I know a lot. Although, every girl is
different. So you always have to ask a girl what they like to be
sure. I know the girls - - that girls get aroused more slowly and
they like lots of attention to get them ready to cum . . . .
Beginning on January 4, 2018, Jenny and appellant moved their communications from
the Craigslist email format to personal email and text messaging at Jenny’s request (Investigator
Wade hoped to “further the investigation” and trace the email address and phone number
appellant provided to a specific suspect). The two continued to engage in sexually explicit
conversation for the next couple of months, and in those conversations, appellant made
occasional reference to Jenny’s stated age. Specifically, appellant told Jenny she had “a pretty
thirteen Y.O. body with growing curves.” He further remarked that Jenny was “[n]o ordinary 8th
grader, baby!” and said, “if I get this excited when you’re thirteen how excited will you get me
when you’re sixteen?”- 4 -
Following appellant’s sexually explicit comments and repeated references to Jenny’s
stated age, Investigator Wade began constructing a plan for a takedown operation. He first used
the email address and phone number provided by appellant to obtain a return on an
administrative subpoena, which in turn led him to a residence in Forest, Virginia. He then
perused a number of messages appellant had sent that indicated appellant drove a blue Honda
Civic as well as other messages which described appellant’s physical appearance. Upon
conducting surveillance of the residence, Investigator Wade observed that a person matching
appellant’s stated physical appearance lived in the residence and drove a blue Honda Civic.
Once appellant became the primary suspect of the investigation, Jenny asked him to meet
her in person at Cloverhill Boulevard in Bedford County, which was designated by law
enforcement as the takedown site. The two agreed to meet at that location on June 27, 2018 at
4:00 pm. Jenny also requested that appellant go to Walmart beforehand and buy her some
cookies. Appellant agreed to do so and further indicated he would bring lubricant to the site.
Around 3:30 pm on June 27, Investigator Wade was stationed at the Walmart closest to
the takedown site and observed a blue Honda Civic pull into the parking lot. He then saw
appellant emerge from the vehicle, enter the store, and then return to the vehicle with a white
plastic bag in hand. From there, appellant drove to the takedown site and was confronted by
Investigator Wade and other members of law enforcement. Upon Investigator Wade’s request,
appellant agreed to be taken to a local police station for questioning.
During the interview, Investigator Wade asked appellant why he showed up to the
takedown location at Cloverhill Boulevard. Although appellant initially stated he was delivering
items to a girl named Jenny who “told him that she was fourteen years old,” appellant
subsequently maintained that Jenny “seems a lot older than thirteen” and that he was “not
looking for someone underage.” After admitting to sending sexually explicit messages to Jenny, - 5 -
appellant further remarked that Jenny “was able to communicate” like someone much older than
a thirteen year old and that “there’s no way [someone of Jenny’s purported age] speaks” in the
way she did to him.2
Appellant repeatedly asked Investigator Wade whether Jenny was a real person.
Investigator Wade falsely told appellant Jenny was real and had complained to the police of
appellant’s behavior. He then encouraged appellant to write “an apology letter” to Jenny’s
parents to “help[] bring closure to the family.” Appellant obliged and wrote a brief note which
said:
Dear Parent,
I wanted to express my remorse for my inappropriate texting with
your daughter. I give you my word that it will never happen again.
Sincerely,
Dave[.]
Appellant was placed under arrest and indicted for multiple counts of computer
solicitation of a minor in violation of Code § 18.2-374.3(C), which reads, in pertinent part:
It is unlawful for any person 18 years of age or older to use a
communications system . . . for the purposes of soliciting, with
lascivious intent, any person he knows or has reason to believe is a
child younger than 15 years of age to knowingly and intentionally:
1. Expose his sexual or genital parts to any child to whom he is
not legally married or propose that any such child expose his
sexual or genital parts to such person;
2. Propose that any such child feel or fondle his own sexual or
genital parts or the sexual or genital parts of such person or
propose that such person feel or fondle the sexual or genital parts
of any such child;
3. Propose to such child the performance of an act of sexual
intercourse, anal intercourse, cunnilingus, fellatio, or anilingus or
any act constituting an offense under § 18.2-361; or
2 The record is not clear as to why appellant first told Investigator Wade that Jenny told
him that she was “fourteen” but then later expressed disbelief that she could be “thirteen.”- 6 -
4. Entice, allure, persuade, or invite any such child to enter any
vehicle, room, house, or other place, for any purposes set forth in
the preceding subdivisions.
At trial, appellant pursued an entrapment defense, argued he had no intent to solicit a
minor, and maintained that he at no point believed Jenny was a minor.3
He further claimed that
whenever he referenced Jenny’s age while engaging in sexual conversation, he was taking part in
a role-playing “fantasy” as a “way to blow off steam or have [a] diversion” from his work and
home-related stress. Specifically, he asserted that the “fantasy” was one where he thought Jenny
shifted her sexual “persona” and pretended to play the part of a young schoolgirl and that he
never understood her to make a literal claim as to her age in real life.
To advance his defense, appellant sought to introduce expert testimony from Dr. Maurice
Fisher, a forensic psychologist and certified sex-offender evaluator. Dr. Fisher psychologically
evaluated appellant and determined that appellant did not meet the diagnostic criteria of a
pedophile.4
Through Dr. Fisher’s testimony, appellant sought to show that he lacked a motive to
solicit a minor, to support his contention that he did not believe Jenny was a minor, and to show
that he was not “predisposed” to soliciting minors—a consideration relevant to his entrapment
defense. Appellant assured the trial court that Dr. Fisher would not offer any opinion on
appellant’s mental state at the time he was alleged to have committed the offenses.
Upon the Commonwealth’s objection, the trial court excluded the proffered testimony
from Dr. Fisher. The trial court ruled that Dr. Fisher’s testimony would constitute an opinion on
appellant’s intent and thus would violate Virginia’s prohibition against expert opinion on the
“ultimate issues” of a criminal case.
3 For the sake of simplicity, this opinion uses the word “minor” to describe persons
younger than fifteen years old given that the statute at issue prohibits solicitation of children
“younger than 15 years of age.”
4 This type of testimony is sometimes referred to as “profile” evidence.- 7 -
Appellant 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 thirty-five years’ incarceration with no time suspended.
This appeal followed.
II. STANDARD OF REVIEW
The decision whether to admit or exclude expert testimony is one left to the sound
discretion of the trial court, and this Court will reverse only upon a showing that the trial court
abused its exercise of that discretion. Commonwealth v. Allen, 269 Va. 262, 274 (2005). While
the abuse of discretion standard generally requires a deferential posture from this Court, it is
nonetheless this Court’s duty to ensure the trial court “was not guided by erroneous legal
conclusions” in exercising its discretion. Porter v. Commonwealth, 276 Va. 203, 260 (2008)
(quoting Koons v. United States, 518 U.S. 81, 100 (1996)).
At the core of appellant’s assignment of error is the assertion that the trial court’s
exclusion of his expert witness was a “legal error” guided by a misapprehension of the law of
evidence. Thus, to the extent this appeal requires interpretation of the common law, the Virginia
Rules of Evidence, and the Virginia Criminal Code, it presents a question of law this Court
reviews de novo. Hicks v. Commonwealth, 71 Va. App. 255, 276 (2019) (“[T]o the extent [an]
admissibility determination involves a question of law, we review that issue de novo.” (citing
Beckham v. Commonwealth, 67 Va. App. 654, 658 (2017))); see also Commonwealth v. Greer,
63 Va. App. 561, 568 (2014) (stating that interpretation of the common law presents a legal
question “reviewed de novo on appeal”).- 8 -
III. ANALYSIS
Appellant contends Dr. Fisher’s testimony was admissible for two purposes: (1) to show
support for his claim that he did not believe Jenny was a minor, and (2) to show he lacked a
“motive” to solicit a minor. He further asserts that because Dr. Fisher’s testimony would not
have expressed an opinion on his mental state at the time of the alleged offenses, it would not
have violated the prohibition against expert opinion on the “ultimate issues” of a criminal case.
The Commonwealth shares the trial court’s view that Dr. Fisher’s testimony would have gone to
the ultimate issues of appellant’s intent, mental state, and guilt and thereby would have invaded
the province of the jury.
On this evidentiary point, this Court agrees with appellant. Unlike most sex crimes in
Virginia involving victims who are minors, Code § 18.2-374.3 expressly conditions a
defendant’s guilt on his knowledge of the victim’s age.5
By testifying that appellant did not meet
the diagnostic criteria of a pedophile, Dr. Fisher would have provided information that could
have aided the jury’s determination of appellant’s claim that he did not believe Jenny to be a
minor and that he was not motivated to seek minors. And appellant proffered that Dr. Fisher
would testify without expressing any opinion on appellant’s specific beliefs or mental state at the
time he was alleged to have committed the offenses. The ultimate determination of appellant’s
guilt, therefore, would have rested solely with the jury and not with Dr. Fisher’s opinion.
Accordingly, the trial court erred in excluding Dr. Fisher’s testimony on the basis that it would
have been expert opinion on an ultimate issue.
5 While irrelevant to the analysis of this opinion, it bears mentioning that, as was true
here, there need not be an actual victim in order to secure a conviction under Code § 18.2-374.3.- 9 -
A.
Generally, a litigant is “entitled to introduce all competent, material, and relevant
evidence tending to prove or disprove any material issue raised, unless the evidence violates a
specific rule of admissibility.” Lee v. Commonwealth, 68 Va. App. 313, 318 (2017) (internal
citation and quotation marks omitted). Evidence is “relevant” so long as it has “any tendency to
make the existence of any fact in issue more probable or less probable than it would be without
the evidence.” Va. R. Evid. 2:401.
In criminal cases, however, neither the defendant nor the Commonwealth may introduce
opinion testimony on the “ultimate issues” of the case. Va. R. Evid 2:704(b) (“In criminal
proceedings, opinion testimony on the ultimate issues of fact is not admissible.”); see also Knick
v. Commonwealth, 15 Va. App. 103, 108 (1992) (“It is well settled in Virginia that an expert
witness is not permitted to express an opinion as to an ultimate fact, a matter that must be
determined by the trier of fact.”). What constitutes an “ultimate issue” in a criminal trial is
determined on a case-by-case basis, depending on the nature of the crime and its constituent
elements. Bowman v. Commonwealth, 30 Va. App. 298, 303 (1999) (“‘Ultimate issues of fact’
for purposes of the conviction of a crime are the statutory elements of that offense.”).
It has long been understood that an expert does not violate the ultimate issue rule simply
because his or her testimony bears relevance to an ultimate issue. Zook v. Commonwealth, 31
Va. App. 560, 566 (2000) (“[T]he mere fact that an expert’s testimony tends to prove an ultimate
fact in issue does not preclude the witness from testifying on a subject.”). Instead, the expert’s
testimony must express a direct opinion on an ultimate issue in order to run afoul of the rule.
Compare Llamera v. Commonwealth, 243 Va. 262, 264-66 (1992) (holding expert violated
ultimate issue rule where he testified that quantity of cocaine possessed by defendant “would
suggest” the defendant “was a person who sold cocaine”), and Cartera v. Commonwealth, 219 - 10 -
Va. 516, 518-19 (1978) (holding expert violated ultimate issue rule where he testified victims in
rape prosecution “had been raped”), with Davis v. Commonwealth, 12 Va. App. 728, 732 (1991)
(holding expert testimony “did not constitute an opinion” on an ultimate issue where the expert
opined that possessing “6.88 ounces [of marijuana] was inconsistent with an individual’s
personal use”), and Hussen v. Commonwealth, 257 Va. 93, 99 (1999) (holding that expert’s
testimony was “not a comment on one of the ultimate issues” where the expert opined that “the
unique nature of the victim’s laceration, particularly the location of the injury, was not consistent
with consensual, first time intercourse”).
Applying those principles here, this Court determines that Dr. Fisher’s proffered
testimony did not express a direct (or even an indirect) opinion on any of the ultimate issues at
trial. The ultimate issues in this case were three-fold: (1) whether appellant’s conduct amounted
to “solicitation,” (2) whether appellant acted with lascivious intent, and (3) whether appellant
believed Jenny was a minor.6
The first two ultimate issues are not genuinely in dispute. The
Commonwealth argues Dr. Fisher’s testimony went to the ultimate issue of appellant’s
“lascivious intent,” but that contention is not borne out in the context of the case. By appellant’s
own concession, he had a “lascivious” intent when communicating with Jenny—as he put it, the
two “were talking about sex, not sports or politics.” Moreover, appellant does not argue (nor
could he) that Dr. Fisher’s testimony could be used to show his actions did not amount to
“solicitation” under the criminal law. Instead, the third of this case’s ultimate issues is the only
issue Dr. Fisher’s testimony would bear upon—i.e., whether appellant believed he was
communicating with a minor.
6 With the text of Code § 18.2-374.3 in mind, this opinion’s use of the words “belief” and
“believed” is intended to encompass the allegation that appellant “knew” or “had reason to
believe” Jenny was a minor. But see infra at 18-19 (noting that the nature of the statute’s mens
rea requirement is an open question in Virginia law).- 11 -
By testifying that appellant did not meet the diagnostic criteria of a pedophile, Dr. Fisher
would have provided information that would be relevant to understanding appellant’s belief as to
Jenny’s age at the time of the alleged offenses. But he would not have expressed any opinion on
appellant’s mental state when he was communicating with Jenny, and thus would not have
invaded the province of the jury in determining appellant’s guilt or innocence.
That Dr. Fisher’s testimony was within the permissible scope of the ultimate issue rule
becomes even clearer when considering the sorts of expert testimony deemed admissible in other
contexts. Consider first Virginia’s precedent on the scope of appropriate expert opinion when a
defendant is charged with possession with intent to distribute. In that scenario, the ultimate issue
is, of course, whether the defendant intended to distribute the controlled substance in his
possession. Davis, 12 Va. App. at 732 (“[T]he ultimate issue for the jury [is] whether Davis
intended to distribute the marijuana . . . .”). Nonetheless, this Court has long permitted the
Commonwealth to procure expert witnesses who opine that the given quantity of a controlled
substance possessed by a defendant is “inconsistent with personal use,” which by reasonable
inference means the quantity is consistent with an intent to distribute. See, e.g., Williams v.
Commonwealth, 52 Va. App. 194, 204 (2008) (“It was not unreasonable for the trial court to
accept [expert] opinion that [defendant’s] possession of cocaine was inconsistent with personal
use.”); Askew v. Commonwealth, 40 Va. App. 104, 110 (2003) (“[T]he Commonwealth may
introduce opinion testimony from law enforcement officers familiar with the habits and
propensities of local drug users as to what amounts are inconsistent with personal use.”).
Or consider the permissible scope of expert testimony when a defendant is charged with
rape. In a prosecution for rape, one of the ultimate issues is whether the intercourse between the
defendant and the complaining witness was consensual or against the witness’ will. Hussen, 257
Va. at 99. Similar to the possession with intent to distribute context, the Commonwealth is - 12 -
permitted to procure expert examination of the complaining witness and have the expert testify
that certain markings or wounds on the witness’ anatomy are “not consistent with consensual
intercourse.” Id.
The testimony in both of these scenarios, while admissible, certainly comes close to the
realm of opinion on ultimate issues. See Davis, 12 Va. App. at 732 (“[W]e acknowledge that the
distinction between [testimony from an expert that the amount of drugs possessed by Davis was
inconsistent with personal use], and the ultimate issue for the jury whether Davis intended to
distribute the marijuana, is a narrow one.”). Yet, because the nature of this testimony is implicit
and indirect—that is, it comes short of expressing a direct opinion on an ultimate issue—it does
not invade the province of the jury. Because Dr. Fisher’s testimony also comes short of opining
directly on an ultimate issue, it too does not violate the ultimate issue rule.7
7 Also noteworthy is the fact that the second sentence of Rule 2:704(b) recognizes a
relevant exception to the ultimate issue rule:
This Rule does not require exclusion of otherwise proper expert
testimony concerning a witness’ or the defendant’s mental disorder
and the hypothetical effect of that disorder on a person in the
witness’ or the defendant’s situation.
Historically, the “mental disorders” encompassed within this exception have been broad,
including post-traumatic stress disorder, mild mental retardation, and even a mind under the
cumulative influence of LSD, benzodiazepines, and alcohol. See, e.g., Fitzgerald v.
Commonwealth, 270 Va. 596, 601-04 (2007); Conley v. Commonwealth, 273 Va. 554, 560-63
(2007); Pritchett v. Commonwealth, 263 Va. 182, 185-88 (2002); Fitzgerald v. Commonwealth,
223 Va. 615, 629-31 (1982). And so long as the expert testifying on these disorders does not
directly opine on whether a defendant could have formed the requisite intent or mental state at
the time of the offense, the expert may discuss the nature of the disorders and the general effect
they could have on hypothetical persons in the defendant’s situation.
If an expert is permitted to testify on the hypothetical effect a “mental disorder” would
have on a person in a defendant’s circumstances, it logically follows that an expert would
likewise be permitted to testify on the inverse: that is, the hypothetical effect that a lack of a
particular disorder would have on a person in a defendant’s situation. Thus, Dr. Fisher’s
testimony on appellant’s lack of pedophilia would not just be permissible under the ultimate
issue rule, it would actively be encompassed by Rule 2:704(b)’s exception to the rule. - 13 -
This conclusion finds additional support in the approaches taken by federal courts
addressing the scope of admissible expert testimony in prosecutions under 18 U.S.C. § 2422(b).8
Similar to Code § 18.2-374.3, the federal statute criminalizes the use of “mail or any facility or
means of interstate or foreign commerce” to sexually entice a person believed by the defendant
to be under eighteen years of age. See, e.g., United States v. Roman, 795 F.3d 511, 515 (6th Cir.
2015); United States v. Meek, 366 F.3d 705, 722 (9th Cir. 2004). Where a defendant charged
under that statute seeks to elicit expert testimony relating to the defendant’s sexual profile to
bolster a “fantasy only” defense, courts routinely permit them to do so. See, e.g., United States
v. Hite, 769 F.3d 1154, 1168-70 (D.C. Cir. 2014) (expert testimony held admissible where expert
opined that defendant did not possess the psychiatric conditions of a person who desired to have
sexual contact with children); United States v. Gladish, 536 F.3d 646, 650-51 (7th Cir. 2008)
(Posner, J.) (expert testimony held admissible where expert opined that defendant possessed a
“character pathology” where defendant preferred to fulfill “sexual gratification in Internet chat
rooms” instead of seeking actual intercourse).
The rationale of the federal courts is based on the distinction between testimony that
expresses an opinion on a defendant’s mental state at the time of the offense (improper) and
testimony that simply has relevance to that issue (proper). Compare United States v. Hofus, 598
F.3d 1171, 1177-80 (9th Cir. 2010) (expert testimony inadmissible where expert opined that
defendant was merely acting out a fantasy at the time of the offense), with Hite, 769 F.3d at
1168-70 (expert testimony on defendant’s sexual profile admissible where it did not express
Nonetheless, appellant did not raise this argument in the trial court or on appeal, and reliance on
it is not necessary for this Court to conclude the trial court erred here.
8 Although Federal Rule of Evidence 704 eliminated the “ultimate issue” rule in many
respects, it still preserved the aspect of the rule which prohibits expert opinion “about whether
the defendant did or did not have a mental state or condition that constitutes an element of the
crime charged or of a defense.” Case law from federal courts is therefore instructive here.- 14 -
opinion on defendant’s mental state at the time of the offense). In other words, those courts
maintain that even though an expert may not offer an opinion “on the defendant’s intent” or other
mental state at the time of the alleged offense, the expert may nonetheless “give testimony that
‘supports an obvious inference with respect to the defendant’s state of mind if that testimony
does not actually state an opinion on [the] ultimate issue, and instead leaves this inference for the
jury to draw.’” United States v. Stahlman, 934 F.3d 1199, 1220 (11th Cir. 2019) (quoting United
States v. Augustin, 661 F.3d 1105, 1123 (11th Cir. 2011)).
To the extent other jurisdictions have rejected the introduction of profile evidence in the
context of sex crimes—as well as this Court in an unpublished case9—they did so in cases where
the defendant was charged with varying forms of sexual assault, sexual battery, or rape. See,
e.g., Cipolla v. Commonwealth, No. 1976-17-2, at *1, 4-7 (Va. Ct. App. June 18, 2019)
(defendant convicted of indecent liberties with a minor, forcible sodomy, and aggravated sexual
battery); State v. Walker, 433 P.3d 202, 204-05, 209-15 (Mont. 2018) (defendant convicted of
incest and sexual assault); State v. Hulbert, 481 N.W.2d 329, 330-33 (Iowa 1992) (defendant
convicted of sexual assault); Pendleton v. Commonwealth, 685 S.W.2d 549, 551, 553-54
(Ky. 1985) (defendant convicted of first-degree rape and first-degree sodomy); State v.
Campbell, 904 S.W.2d 608, 610-11, 616 (Tenn. Crim. App. 1995) (defendant convicted of
aggravated sexual battery); Gilstrap v. State, 450 S.E.2d 436 (Ga. Ct. App. 1994) (defendant
convicted of rape and child molestation); People v. Edwards, 586 N.E.2d 1326, 1328, 1330-31
(Ill. App. Ct. 1992) (defendant convicted of aggravated sexual assault); State v. Elbert, 831
S.W.2d 646, 647-48 (Mo. Ct. App. 1992) (defendant convicted of first-degree sexual abuse and
sodomy); People v. Berrios, 568 N.Y.S.2d 512, 513-14 (N.Y. Sup. Ct. 1991) (defendant
9
“Unpublished opinions, of course, have no precedential value and thus do not implicate
the interpanel accord doctrine.” Brandau v. Brandau, 52 Va. App. 632, 639 n.2 (2008).- 15 -
convicted of first-degree rape and first-degree sexual abuse); State v. Armstrong, 587 So.2d 168,
170 (La. Ct. App. 1991) (defendant convicted of forcible rape); State v. Person, 564 A.2d 626,
628, 631-32 (Conn. App. Ct. 1989) (defendant convicted of second-degree sexual assault and
risk of injury to a child); State v. Gallup, 779 P.2d 169, 170, 171-72 (Or. Ct. App. 1989)
(defendant convicted of first-degree sodomy); State v. Fitzgerald, 382 N.W.2d 892, 893-95
(Minn. Ct. App. 1986) (defendant convicted of second-degree criminal sexual conduct and
aiding first-degree criminal sexual conduct); Williams v. State, 649 S.W.2d 693, 694-96
(Tex. Ct. App. 1983) (defendant convicted of indecency with a child).
Unlike the statute appellant was charged with violating here, those crimes involved actual
or attempted physical contact with a minor.10
This is a distinction with a difference. Under
Virginia law, where sexual crimes involve actual or attempted physical contact with a minor, a
defendant’s knowledge of the victim’s age need not be shown in order to prove the defendant’s
guilt. See, e.g., Code § 18.2-61 (criminalizing rape against any victim “under age 13”); Code
§ 18.2-63 (criminalizing carnal knowledge of any “child thirteen years of age or older but under
fifteen years of age”); Code § 18.2-67.1 (criminalizing forcible sodomy against any victim who
“is less than 13 years of age”); Code § 18.2-67.4 (criminalizing sexual abuse against any “child
13 years of age or older but under 15 years of age”); Code § 18.2-371 (criminalizing consensual
intercourse with any “child 15 or older”); see also Rainey v. Commonwealth, 169 Va. 892,
894-95 (1937) (holding that defendant’s knowledge of victim’s age was not an element of
attempted statutory rape where statute did not explicitly so provide); Att’y Grievance Comm’n v.
Childress, 770 A.2d 685, 692 (Md. 2001) (“[S]tatutory rape in Virginia . . . does not require
10 The act of solicitation is not an “attempt” in the legal sense of the word. Hicks v.
Commonwealth, 86 Va. 223, 229 (1889); see also Brooker v. Commonwealth, 41 Va. App. 609,
614 (2003) (“[T]he act of solicitation may be completed before any attempt is made to commit
the solicited crime.” (quoting Ford v. Commonwealth, 10 Va. App. 224, 226 (1990))).- 16 -
knowledge of a victim’s age . . . .”). When an expert testifies that a defendant is not a pedophile
in these kinds of cases, the only conceivable purpose for which he or she would do so is to offer
character evidence on behalf of the defendant to prove the defendant acted in conformity with
that character trait on a particular occasion—i.e., to prove the defendant likely did not rape,
sexually assault, or sexually batter a minor because the defendant is not a pedophile.11
By contrast, Code § 18.2-374.3 provides that a defendant may not be found guilty of
soliciting a minor unless the Commonwealth proves the defendant “knows or has reason to
believe” the person he solicits is “a child younger than 15 years of age.” In this way, the statute
explicitly places a defendant’s belief as to the victim’s age at issue, which means that an expert’s
“profile” testimony may be used for a particular purpose other than the introduction of expert
character evidence. Thus, by holding that profile evidence is admissible where a defendant is
charged under Code § 18.2-374.3, this Court does not decide whether profile evidence is
admissible when a defendant is charged with sex crimes involving actual or attempted physical
contact with a minor, and therefore leaves any contribution to the debate between the majority
and minority of state jurisdictions on that question for another day. See supra at 14-15, 16 n.11.
B.
In an alternative argument, the Commonwealth urges this Court to affirm on the basis
that the trial court’s error was “harmless.” This Court declines to do so.
Once this Court determines a trial court erred in excluding evidence sought by a
defendant, it becomes the Commonwealth’s burden to prove the error was harmless.
Montgomery v. Commonwealth, 56 Va. App. 695, 702 (2010). This Court will not consider an
11 A minority of state courts permit defendants to procure expert testimony for exactly
this purpose. See State v. Gallegos, 220 P.3d 136, 145 (Utah 2009), abrogated on other grounds
by Miller v. Utah Dept. of Transp., 285 P.3d 1208 (2012); State v. Davis, 645 N.W.2d 913,
918-22 (Wis. 2002); People v. Stoll, 783 P.2d 698, 708-15 (Cal. 1989).- 17 -
evidentiary error to be harmless unless it “plainly appears from the record and the evidence given
at the trial that the parties have had a fair trial on the merits and substantial justice has been
reached” even in the absence of the omitted evidence. Campos v. Commonwealth, 67 Va. App.
690, 717 (2017) (quoting Lavinder v. Commonwealth, 12 Va. App. 1003, 1005-06 (1991) (en
banc)).
In conducting harmless error review, appellate courts must recognize that it “is not the
same thing as simply asking ‘whether the legally admitted evidence was sufficient’ to support the
conviction.” Commonwealth v. White, 293 Va. 411, 422 (2015) (quoting Satterwhite v. Texas,
486 U.S. 249, 258-59 (1988)). While a sufficiency analysis “asks whether a rational [factfinder]
could have found the defendant guilty[,]” harmless error review “looks at the other side of the
reasonable doubt spectrum” and asks whether the evidence is such “that a rational [factfinder]
would have found the defendant guilty absent the error[.]” Id. (third alteration in original)
(quoting Neder v. United States, 527 U.S. 1, 18 (1999)).
To that end, this Court does not ask itself whether evidence in the record “amply supports
the jury’s verdict[],” Cartera, 219 Va. at 519, because to do so would run the risk of conflating a
harmless error analysis with a sufficiency of the evidence analysis, Hooker v. Commonwealth,
14 Va. App. 454, 458 (1992). Instead, this Court simply determines whether the excluded
evidence went to a fact or issue genuinely in dispute and, consequently, whether its omission
“may well have affected the jury’s decision” on the fact or issue. Cartera, 219 Va. at 519; cf.
also Hooker, 14 Va. App. at 458 (“[E]ven if the erroneously admitted evidence was cumulative
of other evidence, the fact it tended to prove was genuinely in dispute, and, therefore, we are
unable to conclude that it did not affect the verdict.”).
With these principles in mind, this Court cannot say appellant “had a fair trial on the
merits” or that “substantial justice was reached” when considering the omission of Dr. Fisher’s - 18 -
testimony. Whether appellant believed Jenny was a minor was a fact genuinely in dispute.
Some evidence supports the Commonwealth’s contention that appellant did believe so (e.g., his
repeated reference to Jenny’s age in their text conversations and his statement to Investigator
Wade that he was delivering items to a girl who said she was “fourteen”). Other evidence
supports the contrary (e.g., Jenny’s statement that she occasionally drove a car around Liberty
University as well as appellant’s statement to Investigator Wade that Jenny “seem[ed] a lot older
than thirteen” and that there was “no way” a thirteen year old would speak the way Jenny did).
Had Dr. Fisher been permitted to testify that appellant was not a pedophile, the jury may
well have inferred that appellant did not believe Jenny was a minor when viewing that testimony
together with other supporting evidence. Or it may well have concluded the opposite. Because
this Court cannot confidently say one way or the other, however, it cannot hold that the omission
of Dr. Fisher’s testimony was harmless error. Cf. Lavinder, 12 Va. App. at 1005 (“An error does
not affect a verdict if a reviewing court can conclude, without usurping the jury’s fact finding
function, that, had the error not occurred, the verdict would have been the same.”).
That Code § 18.2-374.3 would permit appellant’s convictions so long as he “ha[d] reason
to believe” Jenny was a minor does not alter this Court’s conclusion. Whether the General
Assembly intended to impose an objective criminal negligence standard or a subjective “bad
faith” recklessness standard when it adopted the phrase “reason to believe” is an open question in
Virginia law. See Stoltz v. Commonwealth, 297 Va. 529, 537 (2019) (suggesting in dicta that
“reason to believe” language imposes a lower mens rea standard than actual knowledge without
clarifying what the lower standard is); but see Gorin v. United States, 312 U.S. 19, 27-28 (1941)
(holding that “intent or reason to believe” scienter requirement imposed a subjective “bad faith”
standard), cited with approval by Stoltz, 297 Va. at 535 n.3.- 19 -
Because the question presented in this appeal is limited to whether Dr. Fisher’s testimony
would have violated the ultimate issue rule, this Court does not have occasion to resolve the
nature of Code § 18.2-374.3’s scienter requirement here. And it would be especially imprudent
to do so for purposes of a harmless error analysis, where this Court’s duty is simply to decide
whether the omission of Dr. Fisher’s testimony “may well have affected” the jury’s finding as to
whether appellant “knew or had reason to believe” Jenny was a minor beyond a reasonable
doubt. For that reason, in addition to the others discussed, this Court holds that the trial court’s
erroneous omission of Dr. Fisher’s testimony was not harmless.
C.
But there is a needle to thread here. Upon remand, while Dr. Fisher may testify that
appellant does not meet the diagnostic criteria of a pedophile, he may not express an opinion
which merely conveys a conclusion concerning appellant’s guilt or innocence. Nor may he
opine that appellant did not have the required mental state under Code § 18.2-374.3 at the time
he is alleged to have committed the offenses.
To put it concretely, there is a meaningful difference between Dr. Fisher testifying
something to the effect of “The test results came back and showed appellant is not a pedophile”
and testifying “The test results came back, and because of them, I conclude appellant could not
possibly have believed he was communicating with a minor on June 6, 2018.” The former
merely provides information supporting an inference as to appellant’s beliefs regarding Jenny’s
age and is therefore permissible. The latter steps in and makes the inference for the jury and is
therefore impermissible.- 20 -
Additionally, because the issue of entrapment is likely to resurface at appellant’s new
trial, this Court briefly addresses the bearing of its opinion on that issue here.12
Given that
Dr. Fisher’s testimony would not have violated the ultimate issue rule as it relates to whether
appellant’s conduct met the statutory elements of Code § 18.2-374.3, there is no reason his
testimony could not also be used to support an entrapment defense. Indeed, that testimony
would have probative value to an entrapment defense; whenever a court reviews such a defense,
it considers as relevant, though not dispositive, the question whether a defendant possesses the
predisposition to commit the alleged offense. See, e.g., Stamper v. Commonwealth, 228 Va.
707, 716 (1985) (holding that evidence was sufficient to support a finding that defendant “had
the predisposition and propensity” to possess and distribute marijuana); Swift v. Commonwealth,
199 Va. 420, 424 (1957) (“Entrapment is the conception and planning of an offense by an
officer, and his procurement of its commission by one who would not have perpetrated it except
for the trickery, persuasion, or fraud of the officer.” (emphasis added and citations omitted)).
But proof of a lack of a predisposition is “merely one circumstance to be considered in
determining whether the intent to commit a crime is solely the product of police activity.”
McCoy v. Commonwealth, 9 Va. App. 227, 233 (1989). As such, even if the jury infers from
Dr. Fisher’s testimony that appellant lacked the predisposition to solicit a minor, it must still
decide the ultimate issue of whether the “conception and planning of [the] offense” originated
12 It is not entirely clear whether appellant still maintains the position that Dr. Fisher’s
testimony is relevant to his entrapment defense. The Commonwealth appears to be under the
impression that appellant raised the entrapment issue on appeal (the Commonwealth dedicated its
brief in substantial part to arguing why Dr. Fisher’s testimony cannot be used to support an
entrapment defense). And as noted, appellant argues that Dr. Fisher’s testimony is relevant to
show he lacked a “motive” to solicit a minor, which is quite similar (but not identical) to saying
he lacked a “predisposition” to solicit a minor. Given this ambiguity in appellant’s arguments
and because the Commonwealth had full opportunity to address whether Dr. Fisher’s testimony
could be used to pursue an entrapment defense, this Court determines it is in the interests of
fairness and judicial economy to address the issue in this appeal.- 21 -
with appellant or with law enforcement. Id. at 231. The jury’s duty to determine the validity of
appellant’s entrapment defense will therefore remain unencumbered, so appellant should be
permitted to use Dr. Fisher’s testimony to support that affirmative defense in addition to the
other purposes relevant to his overall defense.
Outcome: Dr. Fisher’s testimony that appellant was not a pedophile, while relevant to the ultimate
issue of appellant’s mental state at the time of the alleged offenses, did not express an opinion on
that issue and would not have invaded the province of the jury. Accordingly, appellant should
have been permitted to introduce this testimony. Because he was not allowed to do so, this Court
reverses appellant’s convictions and remands for a new trial, should the Commonwealth be so
advised
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