Stephen James Kilpatrick v. Commonwealth of Virginia

S
                                          COURT OF APPEALS OF VIRGINIA


            Present: Judges Huff, Russell and Malveaux
PUBLISHED


            Argued by videoconference


            STEPHEN JAMES KILPATRICK
                                                                                  OPINION BY
            v.     Record No. 2043-19-3                                        JUDGE GLEN A. HUFF
                                                                                   MAY 4, 2021
            COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF BEDFORD COUNTY
                                          James W. Updike, Jr., Judge

                           Gregory M. Lipper (Timothy R. Clinton; Clinton & Peed, on
                           briefs), for appellant.

                           Craig W. Stallard, Senior Assistant Attorney General (Mark R.
                           Herring, Attorney General, on brief), for appellee.


                   Among the tools available to parties in a criminal trial is the use of expert testimony to

            assist the jury’s understanding of the evidence and its resolution of facts at issue. To be sure,

            that right comes with certain limitations, many of which serve to guarantee that an expert’s

            testimony does not express opinions on issues entrusted exclusively to the jury for its own

            consideration, such as the defendant’s mental state at the time of the alleged offense and,

            ultimately, whether the defendant is guilty. But so long as a party’s experts do not violate these

            limiting principles, they have substantial latitude in terms of the relevant information they may

            present.

                   In this appeal, Stephen J. Kilpatrick (“appellant”) contends the Bedford County Circuit

            Court (the “trial court”) unduly restricted his ability to offer expert testimony which he believes

            was crucial to his defense. Prior to being convicted by a jury on multiple counts of computer

            solicitation of a minor, appellant attempted to offer expert testimony from a forensic
psychologist who would have testified that, after conducting a psychological evaluation of

appellant, he concluded appellant was not a pedophile. Appellant sought this testimony to

support his argument that he did not believe that the person with whom he engaged in electronic

communications was a minor and to show that he lacked a motive to solicit a minor. The trial

court barred this testimony, ruling that it would amount to an expression of an opinion on an

ultimate issue of the case and thereby invade the exclusive province of the jury. Because the trial

court’s ruling was erroneous and prejudicial, this Court reverses appellant’s convictions and

remands the case for a new trial.

                                       I. BACKGROUND

         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.
                                               -2-
       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?”
                                                -3-
       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,

                                                -4-
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.”
                                               -5-
                 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.
                                                -6-
       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”).




                                                -7-
                                         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.
                                                 -8-
                                                 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

                                                -9-
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).
                                              - 10 -
       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

                                               - 11 -
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.

                                                - 12 -
       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.
                                                  - 13 -
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).
                                              - 14 -
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))).
                                                  - 15 -
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).
                                              - 16 -
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

                                                 - 17 -
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.




                                               - 18 -
       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.




                                                - 19 -
       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.
                                                 - 20 -
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.13

                                       IV. CONCLUSION

       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.

                                                                           Reversed and remanded.




       13
           Consistent with the rest of this opinion, Dr. Fisher would not be permitted to testify
that appellant “lacked the predisposition to solicit a minor.” While the distinction is subtle, that
testimony is not the same as simply saying appellant is not a pedophile. A person who is
otherwise sexually attracted to minors may nonetheless lack a predisposition to violate Code
§ 18.2-374.3—for example, that person could show he or she possesses extraordinary
self-control and has learned to subvert his or her sexually deviant preferences through years of
discipline. Conversely, the Commonwealth could prove that a person who is not otherwise
attracted to minors had a predisposition to violate Code § 18.2-374.3 in a particular instance for
circumstantial reasons other than his or her ordinary sexual preferences.
                                                 - 21 -
Malveaux, J., dissenting.

       I conclude that any presumed error in excluding Dr. Fisher’s expert testimony was

harmless, and thus I respectfully dissent from the majority’s holding.

       “Code § 8.01-678 makes ‘harmless-error review required in all cases’” and “puts a

limitation on the powers of this [C]ourt to reverse the judgment of the trial court.”

Commonwealth v. White, 293 Va. 411, 419-20 (2017) (first quoting Commonwealth v. Swann,

290 Va. 194, 200 (2015); then quoting Walker v. Commonwealth, 144 Va. 648, 652 (1926)).

See also Spruill v. Garcia, 298 Va. 120, 127 (2019) (noting that an appellate court will

“search . . . in all cases for ‘the best and narrowest grounds available’ for decision,” including

harmless error (quoting White, 293 Va. at 419)); Swann, 290 Va. at 196 (noting that “[t]he

doctrine of judicial restraint dictates” that we resolve cases on the best and narrowest grounds).

       Where, as here, an appellant “alleges evidentiary error[,] [w]e examine this claim under

the standard for non-constitutional harmless error. [Such] error is harmless ‘[w]hen 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.’” Salahuddin v. Commonwealth, 67

Va. App. 190, 211-12 (2017) (fourth alteration in original) (quoting Code § 8.01-678). “This

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.’” Id. at 212

(alteration in original) (quoting Clay v. Commonwealth, 262 Va. 253, 260 (2001)). “In the

context of the required test, such error is harmless where ‘other evidence of guilt is so

overwhelming and the error so insignificant by comparison that the error could not have affected

the verdict.’” Smith v. Commonwealth, 72 Va. App. 523, 543 (2020) (quoting Salahuddin, 67

Va. App. at 212).




                                                - 22 -
       As noted by the majority, appellant argues that Dr. Fisher’s testimony was admissible

both to support his claim that he did not believe “Jenny” was a minor and to show that he lacked

motive to solicit a minor.14 Assuming, without deciding, that the excluded testimony was

admissible on these points, I conclude that the evidence against appellant on both these points

was overwhelming.15

       Here, the evidence demonstrates that during their electronic communications “Jenny”

told appellant that she was “only 13,” would be “fourteen next year,” and that girls “a year older”

would be “around fourteen.” Investigator Wade testified that throughout his email

communications with appellant, he consistently represented to appellant that “Jenny” was

thirteen. Further, appellant wrote to “Jenny” that she had “a pretty thirteen YO body with

growing curves,” that she was “no ordinary eighth grader,” and that “[i]f I get this excited when

you’re thirteen how excited will you get me when you’re sixteen.” Appellant also urged “Jenny”

to delete their “text trail” weekly “so no one would get too suspicious by seeing lots of stuff or

our ages.” When police asked appellant how old “Jenny” was, appellant told them she was

fourteen. Appellant also wrote an apology letter to “Jenny’s” parents in which he expressed his

“remorse for inappropriate texting with your daughter.” In light of this overwhelming evidence


       14
         Like the majority, for the sake of simplicity I use the word “minor” to describe a
person younger than fifteen years of age, as required to convict for a violation Code
§ 18.2-374.3(C). See supra, n.3.
       15
           I note that to convict appellant the Commonwealth was not required to prove, as an
“ultimate issue[],” that “appellant believed Jenny was a minor.” See supra, at 10 (emphasis
added). Rather, the Commonwealth was required to prove only that appellant “kn[e]w[] or ha[d]
reason to believe” that “Jenny” was “a child younger than 15 years of age”—i.e., that appellant
had either actual or constructive knowledge that “Jenny” was a minor. Code § 18.2-374.3(C);
see also Stoltz v. Commonwealth, 297 Va. 529, 535-37 (2019) (affirming the appellant’s
conviction for computer solicitation of a minor where, although the “facts . . . d[id] not prove
that [he] actually knew that [the minor] was underage[] . . . they amply demonstrate[d] that he
had reason to believe that she was” based upon her representations that she was thirteen, and
holding that “[a]t the moment that [he] obtained such reason to believe, his use of the internet for
the purpose of solicitation became a crime”).
                                                 - 23 -
that appellant had reason to believe that “Jenny” was a minor, I conclude that even if Dr. Fisher’s

expert testimony on this point had been admitted at trial, it could not have affected the verdict.

       Likewise, the evidence supports that appellant had motive to solicit a minor, as he

repeatedly expressed a prurient interest in “Jenny.”16 After “Jenny” told appellant that she would

be fourteen the following year, appellant emailed her with questions about her vagina. He asked

her, “[d]o you have lots of hair down there or hasn’t it come in too much yet, do you shave down

there.” He also wondered if “Jenny” didn’t “get your period too much yet.” As noted above,

appellant also indicated to “Jenny” that he was “excited when you’re thirteen” and wondered

how much more excited he would be by her when she was sixteen. Further, appellant

complimented “Jenny” on her “pretty thirteen YO body with growing curves” and her

knowledge of “how to flirt . . . really well in a sexy way,” before observing that she was “so

curious about sexual things” and “interested in maybe trying some stuff, hehe, wild girl.” In

addition, immediately after telling “Jenny” that she was “no ordinary eighth grader,” appellant

stated that he was “[s]till thinking about licking [her] tits.” Based upon this overwhelming

evidence of appellant’s sexual interest in “Jenny,” I conclude that Dr. Fisher’s testimony on

motive would not have influenced the jury or would have had but slight effect.

       For the forgoing reasons, I conclude that even if it was error for the trial court to exclude

Dr. Fisher’s expert testimony, any such error was insignificant by comparison with the evidence

of appellant’s guilt and thus could not have affected the jury’s verdict. It follows that I would

affirm appellant’s convictions, and accordingly, I respectfully dissent.


       16
           I note that the Commonwealth was not required to prove any particular motive, such as
pedophilia, in order to convict appellant for computer solicitation of a minor. While intent “is a
requisite element in many crimes, . . . motive is not. Motive is merely a circumstance tending to
prove the guilt of the alleged perpetrator, as its absence may tend to show his innocence.” Tibbs
v. Commonwealth, 31 Va. App. 687, 704 (2000) (quoting Cantrell v. Commonwealth, 229 Va.
387, 397 (1985)). Stated differently, “motive is generally a relevant circumstance to establish
intent when a conviction is based on circumstantial evidence.” Id.
                                                 - 24 -

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