PRESENT: All the Justices 

STEVEN LAWRENCE 

 OPINION BY 

v. Record No. 091119 JUSTICE S. BERNARD GOODWYN 

 February 25, 2010 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Randy I. Bellows, Judge 

 In this appeal we consider whether the circuit court erred 

in admitting expert testimony regarding the details of 

unadjudicated allegations of sexual misconduct the expert 

learned from police reports and whether expert opinion 

testimony dependent upon the truth of those unadjudicated 

allegations is admissible into evidence. 

In 1990, Steven L. Lawrence (Lawrence) was convicted of, 

among other things, rape and sodomy and sentenced to a total of 

forty-five years imprisonment, with five years suspended. 

Prior to his scheduled release from incarceration, the 

Commonwealth filed a petition pursuant to the Sexually Violent 

Predator Act (SVPA), Code §§ 37.2-900 et seq., requesting 

Lawrence’s civil commitment as a sexually violent predator. 

After a jury trial in the Circuit Court of Fairfax County, 

Lawrence was found to be a sexually violent predator and 

committed to the Department of Mental Health, Mental 

Retardation and Substance Abuse Services for involuntary secure 
inpatient treatment. Lawrence appeals, arguing that the 

circuit court erred in allowing certain evidence to be 

presented to the jury.

Facts 

At the outset of Lawrence’s civil commitment trial, the 

Commonwealth sought to introduce into evidence a sexually 

violent predator forensic psychological evaluation prepared by 

Dr. Ilona Gravers, a licensed clinical psychologist. Lawrence 

objected to the introduction of the document, arguing that the 

evaluation report was hearsay because it included information 

from police reports concerning various unadjudicated 

allegations of sexual misconduct and references to a previous 

polygraph test. After argument, the circuit court sustained 

the objection and the evaluation report was not admitted into 

evidence. 

During its direct examination of Dr. Gravers, the 

Commonwealth sought to elicit testimony from her concerning the 

details of the allegations of unadjudicated sexual misconduct 

contained in the police reports. Lawrence objected, arguing 

that such testimony would be hearsay and that any probative 

value was outweighed by undue prejudice. The Commonwealth 

argued that Code § 8.01-401.1 authorized an expert witness to 

rely upon hearsay and to give her reasons for her opinions. 

The Commonwealth also argued that Dr. Gravers’ testimony 

2
regarding the content of the police reports was not hearsay 

because it was not offered for the truth of the allegations but 

to show the basis for Dr. Gravers’ opinion. 

Agreeing with the Commonwealth’s position, the circuit 

court overruled Lawrence’s objections. The circuit court did, 

however, read an instruction to the jury, which stated, 

“Testimony regarding allegations of behavior contained in 

police reports for which the Respondent has not been convicted 

was not offered or is not offered to prove that the behavior 

actually occurred, but only as the basis for the expert’s 

opinion.” 

Dr. Gravers testified regarding the details of a police 

report in which it was claimed that Lawrence was acting as a 

“pimp” for a female prostitute and would cut and burn her when 

she did not make enough money for him. Dr. Gravers also 

discussed the allegations detailed in a police report that 

described an incident where Lawrence allegedly threatened a 

woman with a shotgun when she refused to perform sexual acts 

with him and his girlfriend. Neither of these recounted 

incidents resulted in formal charges. Dr. Gravers also 

testified concerning a police report that resulted in a charge 

for rape in 1975, but no conviction. In that incident, while 

18 years old, Lawrence allegedly forcefully disrobed a 15 yearold girl and attempted to rape or raped her. Dr. Gravers did 

3
not talk to any of the participants in the alleged incidents 

reported to the police. Also, the alleged victims and 

witnesses were in some cases not identified and none were 

available to testify or to be cross-examined. 

Dr. Gravers diagnosed Lawrence with a paraphilia, a mental 

abnormality and a “personality disorder not otherwise specified 

with antisocial traits,” based partially on the unadjudicated 

allegations of sexual misconduct. Dr. Gravers stated that the 

reported incidents led her to conclude that Lawrence had 

“intimacy deficits,” which are considered “a dynamic or a 

changeable risk factor for future sexual offending.” On crossexamination, Dr. Gravers stated that she relied on the 

information from the police reports in reaching the conclusion 

that there was a pattern of sexual aggression and intimacy 

deficits. Furthermore, Dr. Gravers stated that she viewed 

Lawrence’s denials of the unadjudicated allegations as an 

indication of his “minimizing” and part of his pattern of 

“distorted thinking.” 

In addition to objecting to Dr. Gravers being allowed to 

testify concerning the details of the incidents reported to the 

police, Lawrence also objected to Dr. Gravers’ opinion 

testimony. Lawrence objected to its admissibility claiming 

that Dr. Gravers’ opinions were based upon unreliable facts 

gleaned from the police reports concerning unadjudicated 

4
allegations of sexual misconduct by Lawrence. The circuit 

court overruled Lawrence’s objection. 

The Commonwealth also called Dr. Ronald M. Boggio to 

testify. Dr. Boggio concluded that Lawrence had a history of 

sexual offending based on the various charges, police reports 

and convictions and opined that Lawrence had a high risk of 

committing sexual offenses in the future. Dr. Boggio did not 

discuss the unadjudicated allegations in detail. Dr. Boggio 

diagnosed Lawrence with paraphilia not otherwise specified and 

antisocial traits, but did not find that Lawrence had an 

antisocial personality disorder. 

Analysis 

 Lawrence claims that the circuit court erred in admitting 

Dr. Gravers’ testimony regarding the details of unadjudicated 

allegations of sexual misconduct by Lawrence, because the 

testimony was hearsay and unduly prejudicial. Lawrence argues 

that this Court’s decision in Commonwealth v. Wynn, 277 Va. 92, 

671 S.E.2d 137 (2009), should inform, if not control, the 

resolution of the issue. 

 The Commonwealth argues that this case is distinguishable 

from Wynn because, in this case, the circuit court decided that 

the information concerning the details in the police reports 

was not hearsay, and the circuit court issued a cautionary 

instruction to the jury. Further, the Commonwealth argues that 

5
even if the challenged testimony was hearsay, the admission of 

the evidence was harmless error “considering the mountain of 

information that was admitted from other sources and was 

unchallenged.” 

This Court reviews evidentiary rulings under an abuse of 

discretion standard. Coe v. Commonwealth, 231 Va. 83, 87, 340 

S.E.2d 820, 823 (1986). “However, ‘[a] trial court has no 

discretion to admit clearly inadmissible evidence because 

admissibility of evidence depends not upon the discretion of 

the court but upon sound legal principles.’ " Wynn, 277 Va. at 

97, 671 S.E.2d at 139 (quoting Norfolk & Western Ry. Co. v. 

Puryear, 250 Va. 559, 563, 463 S.E.2d 442, 444 (1995)) 

(internal quotation marks omitted). 

This Court defines hearsay as an out of court statement 

offered to prove the truth of the matter asserted. Robinson v. 

Commonwealth, 258 Va. 3, 6, 516 S.E.2d 475, 476 (1999). It 

includes testimony given by a witness who relates what others 

have told him or what he has read. Id. Hearsay evidence is 

inadmissible unless it falls within one of the recognized 

exceptions to the hearsay rule. Id. The party attempting to 

introduce a hearsay statement has the burden of proving that 

the statement falls within one or more of the exceptions. Id.

at 6, 516 S.E.2d at 476-77. 

 This Court, in Wynn, stated: 

6
Code § 37.2-908(C) provides that an expert witness 

testifying at an SVPA trial may state the “basis for 

his opinions.” Similarly, pursuant to Code § 8.01-

401.1, an expert witness may rely upon “facts, 

circumstances or data made known to . . . such 

witness” in formulating an opinion; those “facts, 

circumstances or data . . . , if of a type normally 

relied upon by others in the particular field of 

expertise in forming opinions and drawing inferences, 

need not be admissible in evidence.” Neither of these 

statutes, however, allows for the introduction of 

otherwise inadmissible hearsay evidence during the 

direct examination of an expert witness merely because 

the expert relied on the hearsay information in 

formulating an opinion. 

277 Va. at 100, 671 S.E.2d at 141. 

In Wynn, this Court specifically rejected the argument 

that the details of unadjudicated allegations of sexual 

misconduct offered by an expert on direct examination, 

supposedly to show the factual basis of an expert’s opinion, 

are not hearsay. Id. at 99, 671 S.E.2d at 140. Even though 

Code § 37.2-908(C) provides that an expert witness may state 

the “basis for his opinions,” that does not extend to testimony 

about the details of hearsay allegations of sexual misconduct. 

Wynn, 277 Va. at 100-02, 671 S.E.2d at 141-42. We reasoned 

that even though an expert may rely upon hearsay allegations of 

sexual misconduct (if the information is of the type routinely 

used by experts in the given field of expertise) in formulating 

an opinion, “a litigant, nevertheless, should not be required 

to contend with [the truth of details of] such hearsay 

information because the trier of fact cannot observe the 

7
demeanor of the speaker and the statements cannot be tested by 

cross-examination.” Id. at 100, 671 S.E.2d at 141. 

The Commonwealth asserts that this case is distinguishable 

from Wynn because the circuit court read a limiting instruction 

to the jury. We disagree. Dr. Gravers’ testimony on direct 

examination improperly included numerous details about unproven 

past allegations of sexual misconduct against Lawrence. The 

alleged victims and witnesses were in some cases not identified 

and none were available for cross-examination. Lawrence, 

similar to the petitioner in Wynn, was faced with hearsay 

evidence about allegations of sexual misconduct. In this 

context, the improper admission of such evidence — which cannot 

effectively be restricted to proper use or purposes in the 

minds of the jury — cannot be remedied by the giving of a 

limiting instruction. See Coffey v. Commonwealth, 188 Va. 629, 

636, 51 S.E.2d 215, 218 (1949). We hold that the circuit court 

erred in allowing Dr. Gravers to testify on direct examination 

about the details of unadjudicated allegations of sexual 

misconduct she learned about from reading police reports. 

 The Commonwealth argues that the admission of the 

evidence, even if erroneous, was harmless error. Harmless 

error requires a showing that the parties “had a fair trial on 

the merits and substantial justice has been reached.” Code 

§ 8.01-678. This Court has held that nonconstitutional error 

8
is harmless if the reviewing court can be sure that the error 

did not influence the jury and only had a slight effect. Clay 

v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731-32 

(2001) (quoting Kotteakos v. United States, 328 U.S. 750, 764-

65 (1946)). 

 Although Dr. Boggio testified for the Commonwealth and 

opined that Lawrence had a high risk of future sexual offenses, 

it is worth noting that, by statute, expert testimony is not 

dispositive in an SVPA determination proceeding. Code § 37.2-

906(C). The jury had to decide, after hearing all the expert 

and lay testimony, whether the Commonwealth had proven by clear 

and convincing evidence that Lawrence was a sexually violent 

predator. Code § 37.2-908(C). The details about the alleged 

sexual misconduct, which were no doubt prejudicial to Lawrence, 

would not have been introduced to the jury but for Dr. Gravers’ 

impermissible testimony. Given the nature and extent of that 

detailed, improper testimony concerning alleged sexual 

misconduct, and the fact that, in rendering her opinion, Dr. 

Gravers indicated to the jury that she assumed those 

allegations to be true, it cannot be found with assurance that 

the evidence concerning the details of unadjudicated 

allegations of sexual misconduct did not influence the jury or 

that it had only slight effect. See Code § 8.01-678; Clay, 262 

Va. at 260, 546 S.E.2d at 731-32. Therefore, we hold that the 

9
error in this case regarding the admission into evidence of 

hearsay evidence concerning allegations of sexual misconduct by 

Lawrence was not harmless. 

 Lawrence also contends that Dr. Gravers’ opinion testimony 

had an inadequate factual foundation because it was based upon 

the truth of hearsay allegations in police reports concerning 

unadjudicated conduct. Thus, Lawrence argues that the circuit 

court should have stricken Dr. Gravers’ expert opinion 

testimony because it was speculative and unreliable as a matter 

of law. See Commonwealth v. Garrett, 276 Va. 590, 606, 667 

S.E.2d 739, 748 (2008). 

The Commonwealth argues that Dr. Gravers’ opinion 

testimony was admissible because Dr. Gravers did not speculate 

beyond the information she had or make any factual errors in 

terms of using the information. Further, the Commonwealth 

contends that because experts may rely on such underlying 

information, Dr. Gravers’ expert opinion had an adequate 

factual foundation. The Commonwealth also asserts that the 

circuit court did not err in failing to strike Dr. Gravers’ 

expert opinion testimony because although Dr. Gravers relied 

upon the allegations in the police reports, the information in 

the police reports was not the sole basis for her opinions and 

she had other additional information she relied on in reaching 

her conclusions. 

10
In Garrett, this Court stated that an expert opinion in a 

sexually violent predator trial must have an adequate factual 

foundation. 276 Va. at 606, 667 S.E.2d at 748. An expert may 

not “express an opinion that is speculative and unreliable as a 

matter of law.” Id. “Expert testimony founded upon 

assumptions that have no basis in fact is not merely subject to 

refutation by cross-examination or by counter-experts; it is 

inadmissible.” Vasquez v. Mabini, 269 Va. 155, 160, 606 S.E.2d 

809, 811 (2005). 

Here, the evidence indicates that Dr. Gravers, in forming 

her expert opinions, considered as true unsubstantiated 

allegations contained in police reports she read. Dr. Gravers 

stated that the unadjudicated allegations of sexual misconduct 

contained in the police reports led her to the conclusion that 

Lawrence had a pattern of sexual aggression and intimacy 

deficits. Dr. Gravers also stated that while her diagnosis of 

paraphilia, not otherwise specified, was primarily based on 

Lawrence’s two convictions, her conclusion that Lawrence had an 

antisocial personality disorder, not otherwise specified, 

depended on the allegations in the police reports and 

Lawrence’s pattern of antisocial behavior, as shown through 

those allegations. 

Based on this Court’s holding in Garrett, we hold that Dr. 

Gravers’ expert testimony did not have an adequate factual 

11
foundation to the extent it was dependent upon assuming the 

truth of the hearsay allegations concerning Lawrence’s past 

sexual misconduct. Dr. Gravers’ opinions, which were dependent 

upon the truth of hearsay allegations unsupported by evidence 

properly presented at trial, were speculative and unreliable as 

a matter of law and should not have been admitted into 

evidence. 

Conclusion 

 For these reasons, we will reverse the judgment of the 

circuit court and remand the case for further proceedings 

consistent with the views expressed in this opinion if the 

Commonwealth be so advised. To the extent that Dr. Gravers is 

able to render opinions without assuming the truth of hearsay 

allegations that are unsupported by evidence presented at 

trial, the views expressed here will not serve to bar that 

expert testimony. See Garrett, 276 Va. at 608, 667 S.E.2d at 

749. 

Reversed and remanded.

12