COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Senior Judge Cole 

Argued at Richmond, Virginia 

MELVIN ALEXANDER MOORE 

v. Record No. 1595-94-2 MEMORANDUM OPINION* BY 

 JUDGE MARVIN F. COLE 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF APPOMATTOX COUNTY 

Kenneth M. Covington, Judge 

 Andrew M. Sacks (Sacks, Sacks & Imprevento, 

on brief), for appellant. 

 Leah A. Darron, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Melvin Alexander Moore, appellant, was convicted of 

statutory rape of a six-year old girl in violation of Code 

§ 18.2-61(A)(iii). On appeal, appellant argues that the trial 

court erred in allowing a mental health therapist "to testify as 

an expert witness on the credibility of the [victim] and on the 

probability of the incident occurring based on certain 

hypothetical questions tracking the [victim]'s symptoms." For 

the reasons that follow, we affirm the judgment of the trial 

judge. 

 I. 

 The victim was fifteen years old at the time of the trial. 

She testified that when she was six years old she had a sexual 

encounter with appellant, who had been dating the victim's 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

mother. The victim testified that appellant "held his penis with 

one of his hands and he rubbed it on the inside of my 

vagina . . . ." The next day the victim told her babysitter 

"that [appellant] had made love to [her]." She was upset and 

cried as she disclosed the incident to the babysitter. She then 

told her mother about the incident, but her mother did not 

believe her and did not take her to a doctor. 

 The victim testified that after the incident, when appellant 

visited her home, she hid under the bed, in the closet, or behind 

other furniture. The victim became upset at television shows 

that depicted rape or sexual molestation. She often cried about 

the incident and, at one time, took an overdose of aspirin. 

 In September, 1993, about nine years after the incident, the 

victim saw appellant at a laundromat. She became upset and left 

the building, although she had not seen appellant since 1984. 

The victim testified that she cried, wished she was dead, and 

asked herself why the incident had to happen to her. Her mother 

took her to the hospital, where she was referred to the 

Appomattox Counseling Center. 

 The victim began seeing Carol DePew, a mental health 

therapist. She met with DePew for a total of eleven sessions. 

DePew has an undergraduate degree in psychology and a masters 

degree in mental health counseling. She has "a National 

Counseling Certification which is a five year renewable license 

to be continued with 100 continued education hours of which [she] 
 3 

ha[d] earned 50." She has attended professional seminars on such 

topics as working with sexual abuse survivors. DePew testified 

she has "done extensive professional reading of books and 

journals on topics relevant to working with adolescents and 

families and [has] five years of professional experience in 

therapy primarily working with children and families." DePew 

stated that one-third to one-half of her caseload involves 

children who have been sexually abused. 

 DePew was qualified as an expert witness over appellant's 

objection. Appellant argued to the trial court that DePew's 

testimony was inadmissible because it would address the ultimate 

issue in the case -- the credibility of the victim. However, the 

trial court ruled that DePew could testify, stating: 

 [T]he Court would not allow the witness to 

give an opinion as to the ultimate fact in 

issue. That is in her opinion whether or not 

this child on the occasion was sexually 

abused or not. That is an issue for the jury 

to draw from all the evidence. However, I 

assume what the Commonwealth is about to do 

is to relate certain behavioral happenings 

and characteristics and ask the witness 

whether that type of behavior is consistent 

with a child who has been sexually abused. I 

don't think the response to that, assuming it 

would be an affirmative one based upon the 

facts that the Commonwealth would give, would 

go to invading the province of the jury in 

deciding the ultimate issue. I think it 

would be probative here. We have something 

that happened some nine years ago. 

Basically, the case comes down to the 

testimony of the young lady at this juncture 

as would be opposed by testimony of the 

defendant if he testifies. But, basically, 

it's coming down to the testimony of what the 

young lady has to say. This could be helpful 

to the jury in deciding whether or not she is 
 4 

telling the truth. Something that the jury 

could consider other than their observation 

of her manner and demeanor and responses here 

today. 

 At the trial, DePew testified in response to hypothetical 

questions. She listed the following as "pretty common" symptoms 

of sexual abuse victims: crying; expressing painful or negative 

emotions in inappropriate fashions; becoming upset in a manner 

that is not rational or reasonable to others, such as when seeing 

something on television reminiscent of the event; safety seeking 

behavior such as hiding; overdose or suicide attempts; and panic 

attacks upon seeing the perpetrator. She testified that one of 

the strongest indicators of sexual abuse was when the victim 

remembered the exact event even though it occurred many years 

ago. 

 Appellant testified and denied any sexual activity with the 

victim. 

 II. 

 "The admissibility of evidence is within the broad 

discretion of the trial court, and a ruling will not be disturbed 

on appeal in the absence of an abuse of discretion." Blain v. 

Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988) 

(citation omitted). 

 Relying on Davison v. Commonwealth, 18 Va. App. 496, 445 

S.E.2d 683 (1994), appellant argues that DePew's testimony 

impermissibly bolstered the credibility of the victim and offered 

conclusions as to the ultimate issue in the case. However, 
 5 

DePew's testimony differed from the testimony offered by the 

expert witness in Davison. In Davison, the expert witness, a 

therapist, testified concerning the "phenomenon of recanting" to 

explain why the victim, a child, would relate prior inconsistent 

statements that contradicted both the victim's trial testimony 

and the victim's original version of a sexual assault. Id. at 

498-99, 445 S.E.2d at 684-85. We held that the trial court erred 

in admitting the therapist's testimony because she offered an 

opinion as to why the victim's testimony at trial should be 

believed and why the victim's prior inconsistent statement should 

be disbelieved. Id. at 503-04, 445 S.E.2d at 687. 

 The testimony of DePew is more analogous to the expert 

witness testimony offered in Taylor v. Commonwealth, 21 Va. App. 

___, ___ S.E.2d ___ (1996). In Taylor, a licensed clinical 

social worker testified that she "'found [the victim] to be 

suffering from posttraumatic stress disorder,' explained how she 

reached her diagnosis from the symptoms that the victim related, 

and testified that posttraumatic stress disorder may afflict 

'anyone who has had a traumatic event outside of normal human 

experience that would be markedly distressing to almost anyone.'" 

Id. at ___, ___ S.E.2d at ___. The expert witness also 

identified criteria necessary to diagnose posttraumatic stress 

disorder, applied the criteria to the victim, and expressed her 

professional opinion that "the victim demonstrated the requisite 

number of criteria to support a diagnosis of posttraumatic stress 
 6 

disorder." Id. at ___, ___ S.E.2d at ___. 

 This Court rejected Taylor's assertion that the expert 

witness' testimony "constituted a comment on the victim's 

credibility." Id. at ___, ___ S.E.2d at ___. We held: 

 [E]vidence of an emotional or psychological 

injury such as posttraumatic stress disorder, 

like medical evidence of physical injury, is 

relevant as circumstantial evidence of the 

occurrence of a traumatizing event. In this 

case, [the expert witness'] testimony 

corroborated the fact that the victim had 

suffered a traumatizing event, as evidenced 

by her mental condition, and constituted 

neither the expression of an opinion on the 

victim's credibility, nor an opinion as to 

which version of events should be accepted by 

the jury. 

Id. at ___, ___ S.E.2d at ___.1 

 An expert in a criminal case "may give an 

opinion based [only] upon his own knowledge 

of facts disclosed in his testimony or . . . 

upon facts in evidence assumed in a 

hypothetical question," but the witness may 

not express an opinion as to the ultimate 

issue to be determined by the trier of fact. 

Price, 18 Va. App. at 764, 446 S.E.2d at 645 (citations omitted). 

 In this case, DePew responded only to hypothetical questions 

concerning the symptoms related to sexual abuse. She also 

testified that victims "could easily have a panic attack" when 

they encountered their offender, even years after a traumatizing 

 

 1See also Price v. Commonwealth, 18 Va. App. 760, 765, 446 

S.E.2d 642, 645 (1994) (holding that an expert witness' testimony 

concerning battered child syndrome "'is not an opinion regarding 

the culpability of any particular defendant. . . . [It] merely 

tends to show that the child was intentionally, rather than 

accidentally, injured.'" (citation omitted)). 
 7 

incident. DePew did not enumerate any details of the incident 

that the victim may have related to her in therapy sessions. 

Further, DePew did not testify that she believed the victim was 

telling the truth, or that, in her opinion, appellant committed 

the charged offense. DePew merely responded to hypothetical 

questions that certain behavior was consistent with that of a 

sexually abused child. Therefore, DePew's testimony corroborated 

the fact that the victim had been sexually abused and 

"constituted neither the expression of an opinion on the victim's 

credibility, nor an opinion as to which version of events should 

be accepted by the jury." See Taylor, 21 Va. App. at ___, ___ 

S.E.2d at ___. Thus, the trial court did not abuse its 

discretion in admitting the evidence. 

 Accordingly, the judgment of the trial court is affirmed. 

 Affirmed. 

 
 8 

BENTON, J., dissenting. 

 In Davison v. Commonwealth, 18 Va. App. 496, 445 S.E.2d 683 

(1994), we held as follows: 

 In proffering [the therapist] as an expert, 

it was the prosecutor's intent to bolster the 

truth of [the victim's] testimony at trial. 

It is well settled that an expert may not 

"express an opinion as to the veracity of any 

witness." The prosecutor's question to [the 

therapist] specifically concerned the 

testimony of a "particular . . . witness" 

and, thus, was clearly "intended to elicit an 

opinion" of veracity. Such evidence is a 

comment on an ultimate fact within the 

province of the jury and must be excluded by 

the trial court. 

Id. at 504, 445 S.E.2d at 688 (citations omitted). See also

Coppola v. Commonwealth, 220 Va. 243, 252, 257 S.E.2d 797, 803 

(1979), cert. denied, 444 U.S. 1103 (1980). Because the 

therapist's testimony was admitted in this case only to bolster 

the complainant's credibility by discussing truthfulness 

criteria, I would hold that Davison controls this case and 

reverse the conviction. 

 In her testimony, the complainant said that Moore had sexual 

intercourse with her nine years earlier when she was six years of 

age. Because the complainant was under the age of thirteen when 

the incident was alleged to have occurred, the Commonwealth had 

to prove only that Moore had sexual intercourse with the 

complainant, who was not his spouse, to establish a violation of 

Code § 18.2-61(A)(iii). To support her claim, the Commonwealth 

introduced testimony by the complainant's mother and babysitter 
 9 

describing the complainant's behavior during the years following 

the incident. However, only the complainant testified that 

sexual intercourse actually occurred and that Moore was the 

perpetrator. Moore testified and denied that he ever had sexual 

intercourse or other sexual contact with the complainant. 

Consequently, this case turned solely on the credibility of the 

complainant and Moore. 

 During the Commonwealth's case-in-chief, the prosecutor 

asked to have the therapist qualified as an expert witness. 

Defense counsel objected and stated that "the matters that are in 

controversy in this case are well within the knowledge and 

experience of all of these jurors." Defense counsel argued that 

the only purpose of the therapist's testimony was to prove that 

the victim testified truthfully. In admitting the testimony the 

trial judge ruled as follows: 

 We have something that happened some nine 

years ago. Basically, the case comes down to 

the testimony of the [complainant] at this 

juncture as would be opposed by testimony of 

the defendant if he testifies. But, 

basically, it's coming down to the testimony 

of what the [complainant] has to say. [The 

therapist's testimony] could be helpful to 

the jury in deciding whether or not [the 

complainant] is telling the truth. Something 

that the jury could consider other than their 

observation of her manner and demeanor and 

responses here today. 

The trial judge's reason for admitting the therapist's testimony 

is precisely the reason that it should not have been admitted. 

 The prosecutor used the therapist's testimony to validate 
 10 

the truthfulness of the complainant's testimony. By commenting 

upon the various behaviors that the child was said to have 

exhibited over a nine year period, the therapist sought to convey 

by a professional explanation that a rape must have occurred and 

that the complainant obviously testified truthfully. The 

therapist's testimony was used in this manner to impermissibly 

vouch for the credibility of the complainant. "Permitting a 

person in the role of an expert to suggest that because the 

complainant exhibits some of the symptoms of rape trauma . . . , 

the complainant was therefore raped, unfairly prejudices the 

[accused] by creating an aura of special reliability and 

trustworthiness." State v. Salana, 324 N.W.2d 227, 230 (Minn. 

1982). 

 The therapist's testimony clearly was systematically 

structured to bolster the complainant's testimony. (See

Appendix). The prosecutor's strategy is obvious in the following 

question and response: 

 Q. Let's go a little further. If this child 

related to you that I told my mother and I 

told my babysitter and they didn't believe 

me, is that consistent with this type of 

case, sexual abuse case? 

 A. Yes. Often adults who are charged with 

caretaking of young children feel so much 

shame and guilt and denial that a child has 

been violated while in their care that it is 

very difficult for them to accept. 

At its core, this testimony affirms the therapist's belief in the 

complainant's truthfulness. In addition, the testimony asserts 
 11 

that the complainant is credible even when she appears otherwise 

to others. By asserting as a characteristic of "sexual abuse 

case[s]" the disbelief of others when hearing a complaint, the 

therapist gave an expert opinion that truth should be inferred 

from the disbelief of the others. The illogic is patent. I find 

no basis to allow an expert to comment on the validity of the 

complainant's charge and the complainant's truthfulness in the 

guise of explaining why the complainant would be disbelieved by 

others. 

 If there could be any doubt as to the thrust and purpose of 

this testimony, the Commonwealth's strategy is again revealed in 

the following exchange: 

 Q. Okay. Again, hypothetically, this 

incident occurred when this child was six 

years old and some nine years later, is it 

consistent that the child remember the exact 

or close to the exact events of what occurred 

to the child when she was six years old? 

 A. Yes. 

 Q. That wouldn't be unusual? 

 A. That's one of the strongest indicators. 

This testimony manifestly and openly asserted that the child 

truthfully and accurately testified concerning an event that was 

alleged to have occurred nine years earlier when the child was 

six. Simply put, the therapist was permitted to give an "expert" 

evaluation of the complainant's truthfulness. 

 When expert testimony is intended to prove a witness' 

credibility, the role of the fact finder is invaded. Davison, at 
 12 

504, 445 S.E.2d at 688. Expert testimony will be allowed to aid 

jurors only when the jurors must consider matters that are not 

within their common knowledge. See Callahan v. Commonwealth, 8 

Va. App. 135, 138, 379 S.E.2d 476, 478 (1989). 

 Where a jury is confronted with evidence of 

an alleged child victim's behaviors, paired 

with expert testimony concerning similar 

syndrome behaviors, the invited inference - 

that the child was sexually abused because he 

or she fits the syndrome profile - will be as 

potentially misleading and equally as 

unreliable as expert testimony applying the 

syndrome to the facts of the case and stating 

outright the conclusion that a given child 

was abused. The danger of the jury 

misapplying syndrome evidence thus remains 

the same whether an expert expresses an 

explicit opinion that abuse has occurred or 

merely allows the jury to draw the final 

conclusion of abuse. 

Seward v. State, 652 N.E.2d 490, 499 (Ind. 1995). 

 The therapist's affirmation of the complainant's testimony 

proved to be a critical part of the Commonwealth's case. 

However, the therapist's testimony "was only a thinly veiled way 

of stating that [the victim] was telling the truth." United 

States v. Whitted, 11 F.3d 782, 787 (8th Cir. 1993). An expert 

witness may not give a judgment on the truthfulness of a witness 

"under the guise of a scientific diagnosis." Id. See also

Wescott v. Crinklaw, 68 F.3d 1073, 1077 (8th Cir. 1995). 

Moreover, when the conflicting testimony of witnesses is an 

ultimate issue in fact, an expert may not comment upon the 

credibility of one of the witnesses. See Davison, at 504, 445 

S.E.2d at 688. The sole purpose of the therapist's testimony was 
 13 

to comment on the complainant's credibility and to prove she 

truthfully testified when she said that she was the victim of a 

sexual assault almost a decade ago. 
 14 

APPENDIX

 In pertinent part, the therapist testified as follows: 

 Q. Hypothetical question. The young lady 

comes to you and tells you she has been, 

since she was six years been upset, crying 

for no reason at all, telling her mother and 

her best friend or babysitter who is like a 

mother to her that she had been raped at 

another time earlier than this, she watches 

television shows dealing with child 

molestation and she becomes upset and cries, 

is this consistent with a child who has been 

sexually abused? 

 A. Yes. 

 Q. Can you explain why? 

 A. There are certain symptoms that are like 

symptoms of any illness or disease that are 

customary for sexual abuse or sexual violence 

survivors. Those can include inappropriate 

expressions of emotions, especially painful 

or negative emotions like excessive crying or 

crying at inappropriate times. 

 * * * 

 There are certain symptoms of survivoring 

sexual abuse or sexual violence that are 

pretty common and those can include 

expressing negative or painful emotions in 

inappropriate fashions. Crying or becoming 

upset in a manner that doesn't seem 

reasonable or rational to adults or other 

people. Witnessing media exposure through 

books or movies or television or videos 

that's reminisce of the event that may have 

occurred in the young person's life. 

Witnessing that can fracture their 

psychological defenses and cause the painful 

emotions to emerge and sometimes those 

emotions are split off and attributed to 

other things, maybe upset about school or 

grades. 

 Q. Let's go a little further. If this child 

related to you that I told my mother and I 

told my babysitter and they didn't believe 
 15 

me, is that consistent with this type of 

case, sexual abuse case? 

 A. Yes. Often adults who are charged with 

caretaking of young children feel so much 

shame and guilt and denial that a child has 

been violated while in their care that it is 

very difficult for them to accept. 

 Q. Now, if the child further told you that 

subsequent to this rape episode when this man 

would come back to the home of her parent, 

her mother, the child would hide in closets 

or under tables or under beds, is that 

consistent with a child that has been abused? 

 A. Yes. It's really interesting in sexually 

abused children, male and female children. 

It's natural for a child to maybe hide and 

play but children who have been physically 

violated it's called safety seeking behaviors 

and they go to excessive lengths and they 

often hide in the bottom of closets or behind 

furniture. They hide much more than a 

regular child would for regular reasons of 

play and they do this because they need to go 

somewhere where they feel physically and 

psychologically safe. 

 Q. This same child four or five years after 

the original incident took an overdose of 

medication from the home, is that consistent 

behavior for a child who has been sexually 

abused? 

 A. Yes. Often children themselves, their 

mind protects the trauma victim by 

surrounding the event with denial or 

splitting the event off from the mind and a 

child can experience so much emotional pain 

that they don't really know how to cope with 

it and an overdose or suicide attempts are 

quite common. 

 Q. Okay. Now, the child, say, eight years 

later came in contact with this person, they 

are in the same room together, is it 

consistent that this child would become 

hysterical, have trouble breathing, shaking, 

screaming, relating back to that incident, is 

that consistent? 
 16 

 A. Yes. The child could easily have a panic 

attack or an episode where the way that their 

mind disassociates or splits off the emotion 

content of the trauma, those two things can 

become connected. Seeing the perpetrator, or 

the offender, again could cause the person to 

feel like the same event is happening and the 

fear and trauma can emerge. The subconscious 

mind has no concept of time like we do. So 

we might be able to say a car wreck happened 

ten years ago, maybe there was a lot of 

crashing or loud glass breaking and if you 

were to hear those noises again it may appear 

that that event was happening all over again. 

 That's because the subconscious memory has 

been triggered and it seems like it's 

happening at the same moment again. 

 Q. That kind of leads me to my next 

question. Back to the hypothetical again, 

first. It's been related that this child who 

is seven or eight years old may have 

masturbated with her fingers. Is that 

consistent with a child that's been sexually 

abused? 

 A. Yes. Children don't develop healthy 

sexuality until the onset of hormonal 

development in adolescence. So provocative 

or sexualized behavior in young children is 

almost always a sign that they have been 

sexually violated in some way. It's natural 

for the body to enjoy the feeling of arousal 

but not in a sexualized fashion like that. 

 Q. Okay. Again, hypothetically, this 

incident occurred when this child was six 

years old and some nine years later, is it 

consistent that the child remember the exact 

or close to the exact events of what occurred 

to the child when she was six years old? 

 A. Yes. 

 Q. That wouldn't be unusual? 

 A. That's one of the strongest indicators.