COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Baker, Benton, Coleman, 

 Willis, Elder, Bray, Fitzpatrick, Annunziata and 

 Overton 

Argued at Richmond, Virginia 

JAMES LLOYD JENKINS 

 OPINION BY 

v. Record No. 0371-94-2 JUDGE LARRY G. ELDER 

 JUNE 18, 1996 

COMMONWEALTH OF VIRGINIA 

UPON A REHEARING EN BANC 

 Michael Morchower (Lee W. Kilduff; Morchower, 

Luxton & Whaley, on briefs), for appellant. 

 Eugene Murphy, Assistant Attorney General 

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

briefs), for appellee. 

 On December 9, 1993, a jury convicted James Lloyd Jenkins 

(appellant) of aggravated sexual battery, in violation of Code 

§ 18.2-67.3. On appeal to this Court, appellant contended: 

(1) that juror misconduct violated his constitutional right to a 

fair and impartial trial; (2) that the trial court erred in 

allowing expert testimony on an ultimate fact in issue; (3) that 

the trial court erred in allowing the expert witness to testify 

to a hearsay statement made by the sexually abused child; and 

(4) that the evidence was insufficient to prove his conviction. 

 In Jenkins v. Commonwealth, 21 Va. App. 222, 463 S.E.2d 330 

(1995), a divided panel of this Court reversed appellant's 

conviction and remanded the case. The majority held that the 

trial court erred in (1) allowing the expert to testify to an 

ultimate fact in issue, and (2) in allowing the expert to testify 
 2 

to a hearsay statement of the child. The opinion did not address 

the other contested issues. The third judge, although concurring 

that the trial court erred in allowing the expert to testify to 

an ultimate fact in issue, dissented with respect to the hearsay 

issue, opining that the trial court properly admitted the child's 

statement made during treatment. 

 We granted rehearing en banc, and upon rehearing, we affirm 

appellant's conviction. We hold: (1) that the trial court did 

not violate appellant's constitutional right to a fair and 

impartial trial when it refused to dismiss a juror on the grounds 

of juror misconduct; (2) that the trial court erred in allowing 

expert testimony on an ultimate fact in issue in the case but 

that such error was harmless; (3) that the trial court did not 

err in allowing the expert witness to testify to the child's 

statement made during treatment; and (4) that the evidence 

sufficiently proved appellant's conviction. 

 I. 

 FACTS 

 The evidence proved that the victim, a male child born on 

February 26, 1990, was cared for by his grandparents during the 

weekdays while his parents worked. Appellant, the child's uncle, 

often visited the child's grandparents when the child was 

present. The indictment charged that appellant committed 

aggravated sexual battery on the child during the period 

September 1992 through March 1993. 
 3 

 On April 14, 1993, a Youth Services Unit investigator with 

the Henrico County Police Department met with appellant. 

Appellant first denied any sexual contact with the child but then 

admitted to one incident with the child, which occurred in 

approximately February 1993. The investigator testified as to 

what appellant told him: 

 He said that he was sitting in the living room watching 

TV, and that [the child] was sitting in his lap, 

leaning against his chest, and he said that he began to 

start having sexual fantasies as to how [the child] 

would be when he got older and more mature. He said 

that he put his hand on [the child's] penis from over 

top his clothing and held it there and touched him 

there for about a minute. He said while doing this, he 

was having sexual thoughts about having oral sex with 

[the child] if he were older. 

 Appellant told the investigator that during this incident 

his penis became semi-erect because "he just wanted somebody to 

love and he was real emotional during this time and actually 

cried for a while." Appellant also related this incident in a 

written statement. 

 During the Commonwealth's case-in-chief, a licensed clinical 

psychologist testified that he conducted ten counseling sessions 

with the child, beginning on March 31, 1993. During direct 

examination, the following exchange occurred between the 

Commonwealth's Attorney and the psychologist: 

 Q: . . . After these sessions, Sir, or some time 

during these sessions, were you able to form an 

opinion to a reasonable degree of certainty in 

your expertise as to whether [the child] was 

suffering from any psychological disorder? 
 4 

 A: Yes, Ma'am. 

 Q: And what opinion is that, Sir? 

 A: That [the child] suffers from an adjustment 

disorder with mixed emotional--mixed--features of 

emotion and conduct. 

 Q: Do you have an opinion to a reasonable degree of 

certainty, in your expertise, what adjustment 

disorder--why he had suffered from this adjustment 

disorder, Sir? 

 A: An adjustment disorder is a persistent or unusual 

reaction to some identifiable stress. 

 Q: And in this case, what--what opinion do you have 

as to that identifiable stress? 

 A: That he had been sexually abused. 

 The psychologist also described the methods that he had used 

to form his opinion, including interviews with and observations 

of the child. The psychologist testified, over defense counsel's 

objection, that on one occasion the child told him that he "had 

been sexed" and made corresponding body movements to describe 

what being "sexed" meant. When asked where he had been "sexed," 

the child pointed to his groin area. The psychologist also 

testified that, on another occasion, the child used two 

anatomically correct male dolls to demonstrate a sexual act. 

 After the presentation of evidence, one of the jurors 

notified the trial court that he had worked with appellant ten 

years earlier. Although the juror did not realize this fact 

before or during much of the trial, the juror told the trial 

court that his memory was triggered when appellant's father 

testified. The trial court questioned the juror in the following 
 5 

manner: 

 Court: Would [your prior relationship with 

appellant] affect you in any way in being 

able to reach a decision in this case? 

 Juror: Um, honestly I already had a decision made-- 

 Court: Sir. 

 Juror: This came up, so I guess not. You know, it 

shouldn't really affect my decision. 

 Court: You haven't reached a decision before the 

case was tried--had you reached a decision 

before the case was tried? 

 Juror: I mean, I had my opinions, yeah. You know, 

while going through it, and I just realized 

it right before the father came up here. 

That's when it struck me. 

 Appellant: We'd move for a mistrial, Your Honor. 

 Court: Can you--the last--I don't want to lead you, 

Sir, but when you came in here this morning, 

I asked you-- 

 Juror: When I came here--right, when I came in here 

this morning, I had no clue. 

 Court: You had--did you know anything about this 

case, in any fashion? 

 Juror: No. None whatsoever. 

 Court: Now I asked you this morning could you 

determine the evidence, from what you heard 

here in the courtroom, apply it to the law as 

I instruct you that it is, and we have not 

told you what the law is, and reach a 

decision. You recall that? 

 Juror: Yes, Sir. 

 Court: I asked you--told you you shall decide no 

issue in this case until the matter is 

submitted to you from your deliberation under 

the instructions of the Court. Do you recall 

that? 
 6 

 Juror: Yes, Sir. 

 Court: Have you decided any issue in the case, or is 

your mind open? 

 Juror: No. I'm just saying I have taken in 

everything, you know, I'm just weighing and 

balancing in my own head. 

 Court: All right, Sir. Well do you, do you or do 

you not? Just tell me. Is your mind open? 

Can you go in there and listen to your 

jurors, discuss what the evidence is? 

 Juror: Yeah. Yeah. But I knew that, you know, if I 

knew anybody, I should not be in here, and I 

just realized. I thought I should say 

something. 

 The Commonwealth's Attorney also asked the juror, "[a]nd the 

fact that you may have known him, would that in any way cause you 

not to be able to render a fair and impartial verdict, based 

solely on the evidence that you've heard and the law that you're 

going to read and hear by the Court?" The juror responded, 

"[n]one whatsoever." 

 Upon questioning from appellant's counsel, the juror 

admitted that he and appellant had had a disagreement over work 

scheduling when he worked for appellant, causing them to yell at 

each other. However, the juror stated that no "hard feelings" 

remained after the disagreement. The juror also reiterated to 

appellant's counsel that he had not formed an opinion as to 

appellant's guilt or innocence and that he would wait for the 

trial court's instructions. Appellant again moved for a 

mistrial, but the trial court overruled the motion, ruling that 
 7 

the juror indicated he could remain impartial to the cause and 

that he had not yet made up his mind. 

 The jury convicted appellant of the offense charged in the 

indictment. Code § 18.2-67.3(A)(1) states that "[a]n accused 

shall be guilty of aggravated sexual battery if he or she 

sexually abuses the complaining witness, and . . . [t]he 

complaining witness is less than thirteen years of age." 

 II. 

 JUROR MISCONDUCT 

 As the Commonwealth contends, "the mere fact of juror 

misconduct does not automatically entitle either litigant to a 

mistrial." Robertson v. Metropolitan Washington Airport Auth., 

249 Va. 72, 76, 452 S.E.2d 845, 847 (1995). "Instead, the trial 

court, in the exercise of sound discretion, must determine 

whether such misconduct probably resulted in prejudice. And the 

burden of establishing that probability is upon the party moving 

for a mistrial." Id. A trial court's decision that a juror can 

be fair and impartial is entitled to great weight on review. 

Watkins v. Commonwealth, 229 Va. 469, 480, 331 S.E.2d 422, 431 

(1985), cert. denied, 475 U.S. 1099 (1986). 

 After hearing all of the evidence, the juror indicated that 

he had formed an opinion about the case and had reached his 

tentative decision before recalling that he knew appellant. 

However, the juror never stated whether he had concluded in his 

own mind that appellant was guilty or innocent. Moreover, it 
 8 

appears that the juror made these statements to assuage the trial 

court's fears that he harbored animus towards appellant. In 

other words, the juror, who had already heard all of the 

evidence, meant to convey that he had not allowed his prior 

relationship with appellant to affect his evaluation of the 

evidence. Upon thorough questioning by the trial court and by 

both counsel, the juror assured the trial court that he could 

deliberate and reach a verdict after discussion with his fellow 

jurors. 

 The Supreme Court of Virginia has generally "limited 

findings of prejudicial juror misconduct to activities of jurors 

that occur outside the jury room." Caterpillar Tractor Co. v. 

Hulvey, 233 Va. 77, 83, 353 S.E.2d 747, 751 (1987)(holding that 

juror misconduct was not sufficient to set aside the verdict when 

one juror told the others that he was a lawyer and opined that 

the case was "garbage"). Haddad v. Commonwealth, 229 Va. 325, 

329 S.E.2d 17 (1985), relied on by appellant, is not directly 

applicable to this case because it involved juror activity 

outside of the jury room. In Haddad, a juror made a comment to a 

third party defense attorney during a break in the trial, stating 

that the defendant was "not going to get off" and asking the 

attorney if he felt guilty about helping to free criminal 

defendants. The trial court thereafter fully questioned the 

juror about his statements before concluding that the juror could 

give both parties a fair trial and refrain from prejudging the 
 9 

defendant's guilt. Id. at 328, 329 S.E.2d at 19. The Supreme 

Court stated that juror misconduct occurred and framed the issue 

for review as "whether juror misconduct in the form of 

expressions of opinion made by a juror to third persons during 

the trial proceedings should result in a mistrial." Id. at 329, 

329 S.E.2d at 19-20. The Court held that a mistrial should have 

been granted because the defendant proved a probability of 

prejudice and that the juror was no longer impartial, despite 

promises to the trial court to the contrary. Id. at 330-31, 329 

S.E.2d at 20. 

 In this case, the juror never expressed to a third party any 

animus toward appellant or toward criminal defendants in general. 

 Furthermore, the juror never stated whether he had concluded 

that appellant was guilty or innocent. Thus, appellant's 

potential prejudgment of the case differs from the juror's 

prejudgment in Haddad. We hold that the trial court did not 

abuse its discretion in declining to declare a mistrial based on 

juror misconduct. See Commercial Union Ins. Co. v. Moorefield, 

231 Va. 260, 343 S.E.2d 329 (1986). 

 III. 

ULTIMATE FACT IN ISSUE 

 Appellant argues that the trial court erred in allowing the 

expert to testify that the child had been sexually abused. We 

agree but hold that such error was harmless in light of the other 

evidence adduced at trial. 
 10 

 The expert's statement that, in his opinion, the child had 

been sexually abused was inadmissible under Cartera v. 

Commonwealth, 219 Va. 516, 248 S.E.2d 784 (1978). In Cartera, 

the Supreme Court stated the following well-accepted principle: 

"In any proper case, an expert witness may be permitted to 

express his opinion upon matters not within common knowledge or 

experience. Opinion testimony, however, is not admissible 'upon 

the precise or ultimate fact in issue.'" Id. at 519, 248 S.E.2d 

at 786 (quoting Webb v. Commonwealth, 204 Va. 24, 33, 129 S.E.2d 

22, 29 (1963)). Consistent with the Cartera rule, we hold that 

the expert's testimony in this case that the child had been 

sexually abused expressed an opinion on the ultimate fact in 

issue (i.e., that the charged offense occurred). The 

psychologist opined not as to what could have been the causative 

stressor but rather what was the causative stressor.1 The 

psychologist's testimony went to the ultimate fact in issue and 

invaded the jury's province as the fact finder. Cartera, 219 Va. 

at 519, 248 S.E.2d at 786. 

 We also hold that the trial court's error in admitting this 

evidence was harmless. When an element of the crime is fully 

established by other competent evidence, an error in improperly 

admitting evidence with respect to that point is harmless. See

 

 1 One of the diagnostic criteria for "adjustment disorder" 

is a "reaction to an identifiable psychological stressor (or 

multiple stressors)." DSM-III-R (Diagnostic & Statistical Manual 

of Mental Disorders 329-30 (3d ed. rev. 1987). 
 11 

Rozier v. Commonwealth, 219 Va. 525, 528, 248 S.E.2d 789, 791 

(1978); Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 

S.E.2d 910, 911 (1991)(en banc); Code § 8.01-678. 

 In this case, the Commonwealth's evidence included testimony 

from the child's mother of multiple instances of bizarre 

sexually-oriented behavior by the child. The expert's testimony 

also showed the child's familiarity with sexual acts. Most 

probative was appellant's admission that he participated in one 

sexual episode with the child. The trial court instructed the 

jurors that sexual abuse had been committed if the evidence 

showed that appellant had "with the intent to sexually molest, 

arouse or gratify any person, . . . intentionally touch[ed] the 

complaining witness' intimate parts or clothing covering such 

intimate parts." See Code § 18.2-67.10(6). 

 The facts contained in appellant's confession proved these 

elements. Appellant confessed that while holding the child on 

his lap, he began to have sexual fantasies about the child. 

Appellant admitted that he placed his hand on the child's penis 

and held it there for a minute, during which time appellant had 

sexual thoughts about having oral sex with the child when the 

child was older. Based on these facts, the error in admitting 

the expert's testimony was harmless. Rodriguez v. Commonwealth, 

249 Va. 203, 208, 454 S.E.2d 725, 728 (1995)(holding that in the 

face of conclusive proof of guilt, any error in admitting an 

expert's testimony on the ultimate fact in issue was "utterly 
 12 

harmless"). 

 IV. 

USE OF CHILD'S STATEMENT MADE TO PSYCHOLOGIST 

 Appellant next contends that the trial court erred in 

allowing the psychologist, who offered expert testimony, to 

testify to the child's hearsay statement that he had been 

"sexed." We hold that the trial court properly admitted this 

portion of the psychologist's testimony. 

 First, as many other jurisdictions have held, because the 

child's statement as made to the expert was not offered for its 

truth, the statement did not qualify as hearsay. The child's 

statement that he had been "sexed" conveyed information that 

clearly formed the basis for the expert's diagnosis of the 

child's adjustment disorder, regardless of its truth or falsity.2

See, e.g., Howle v. PYA/Monarch, Inc., 344 S.E.2d 157 (S.C. Ct. 

 

 2 According to 31A Am. Jur. 2d Expert and Opinion Evidence

§ 187 (1989 & Supp. 1996): 

 In testifying as an expert on a person's mental 

condition . . . a psychiatrist or psychologist may rely 

on, as one basis for his or her opinion, statements 

made by or conversations held with the party in 

question. . . . The results of interviews conducted 

necessarily become a part of the expert's opinion. The 

witness is not expressing a belief as to the truth or 

falsity of the statements, but is merely expressing the 

basis for his or her professional opinion concerning 

the cause of the patient's mental condition. 

(Footnotes omitted)(emphasis added). See also Annotation, 

Admissibility of Testimony of Expert, As to Basis of his Opinion, 

to Matters Otherwise Excludible as Hearsay--State Cases, 89 

A.L.R.4th 456 (1991 & Supp. 1995). 
 13 

App. 1986)(holding that a psychiatrist who examined defendant, 

his patient, after a car accident could testify as to 

conversations he had with the defendant; such statements were not 

offered for their truth but for the basis of his diagnosis); 

Brown v. State, 649 S.W.2d 160 (Tex. Ct. App. 1983)(holding that 

a physician who examined a child victim shortly after an alleged 

molestation could relate the child's statements regarding the 

attack; such statements were admitted to show the basis of the 

physician's opinion, not for their truth); State v. Wade, 251 

S.E.2d 407 (N.C. 1979)(holding that a psychiatrist should have 

been allowed to testify as to the content of conversations with 

the defendant, his patient, in order to show the basis for his 

diagnosis); Dickens v. Adams, 224 S.E.2d 468 (Ga. Ct. App. 

1976)(holding that statements made by psychiatrist's patient were 

not inadmissible as hearsay, as the psychiatrist was not 

expressing a belief as to the truth or falsity of the statements, 

but merely expressing the basis of his opinion concerning the 

cause of the patient's anxiety and depression); Jones v. State, 

289 So. 2d 725, 727 (Fla. 1974)(holding that "in general, a 

statement by an injured or diseased person to a physician as to 

past matters, although not admissible as evidence of the truth of 

the facts stated, may be included in the physician's testimony to 

show the basis for his opinion"); Goldstein v. Sklar, 216 A.2d 

298 (Me. 1966)(holding that a physician's testimony to medical 

history related by a patient is admitted to show the basis for 
 14 

 

the physician's professional opinion as to the nature of the 

patient's illness, rather than to show the truth of the matters 

related by the patient). 

 In this case, the expert testified that the child suffered 

from an adjustment disorder with mixed features of emotion and 

conduct and that an adjustment disorder is a persistent or 

unusual reaction to some identifiable stressor. The psychologist 

described the methods he used to form his opinion as to the 

identifiable stressor, which included interviews with and 

observations of the child. The psychologist testified that the 

child told him that he "had been sexed" and made corresponding 

body movements to describe what being "sexed" meant. When asked 

where he had been "sexed," the child pointed to his groin area. 

This information was not offered to prove that sex had actually 

occurred with the child but rather to show how the expert reached 

his opinion concerning the child's identifiable stressor.3

 This "not-for-truth" exception is a difficult rule 

to apply in the context of real cases. It has always 

caused controversy, and presumably will always do so, 

because it is often arguable whether the declaration is 

being offered to prove the truth of the content of the 

declaration or not, and lawyers and judges may quite 

reasonably reach different conclusions on this question 

in any given case. . . . 

 Part of the difficulty in "not-for-truth" 

 3 In a parallel example, if a doctor diagnoses a patient as 

suffering from a herniated disc and testifies that the patient 

described having back pain, this testimony might be offered not 

for the truth of the matter (i.e., whether back pain actually 

existed), but rather for the fact that back pain was reported to 

the doctor and formed the basis of the doctor's diagnosis. 
 15 

situations is due to the fact that often such evidence 

will have a dual nature; the declaration may indeed be 

relevant on some matter unrelated to the truth of the 

content of the statement, and yet the content of the 

statement may go to the issues of the case as well. 

See, e.g., Donahue v. Commonwealth, [225 Va. 145, 300 

S.E.2d 768 (1983)]. This is perhaps the situation 

which creates the greatest dilemma for the courts. In 

that regard, however, it should be remembered that it 

is a time-honored principle of evidence law that, in 

general, if evidence is admissible for any purpose, it 

is admissible. 

2 Charles E. Friend, The Law of Evidence in Virginia § 18-3, at 

95-96 (4th ed. 1993)(footnote omitted); see Hanson v. 

Commonwealth, 14 Va. App. 173, 416 S.E.2d 14 (1992). 

 Even if the child's statement constituted hearsay, it may 

still have been introduced if it fell within one of the many 

established hearsay exceptions. See Evans-Smith v. Commonwealth, 

5 Va. App. 188, 197, 361 S.E.2d 436, 441 (1987). Cartera

provides an exception to the hearsay rule permitting "a physician 

to testify to a patient's statements concerning his 'past pain, 

suffering and subjective symptoms' to show 'the basis of the 

physician's opinion as to the nature of the injuries or 

illness.'" Cartera, 219 Va. at 518, 248 S.E.2d at 785-86. A 

physician may also testify as to his or her observations of a 

patient's physical and emotional conditions and may "state what 

examinations and tests he performed upon the victims and what 

medical conclusions he reached as a result."4

 Id. at 519, 248 

 

 4 A physician may also relate statements made by a child 

patient for the purpose of establishing the child's state of 

mind. M.E.D. v. J.P.M., 3 Va. App. 391, 401, 350 S.E.2d 215, 222 

(1986). 
 16 

S.E.2d at 786. A physician may not, however, "recite the details 

of the offenses and the description of the assailant, as reported 

to him [or her] by the victim[]." Id.

 In this case, the trial court followed Cartera's guidelines 

in allowing the psychologist's testimony regarding the child's 

statement that he had been "sexed." The child's statement 

assisted the expert in identifying the stressor underlying the 

child's mental condition. The expert did not recite the details 

of a specifically identified offense nor did he offer any 

description of the abuser.5

 The trial court, therefore, did not 

err in allowing this testimony to be introduced. 

 V. 

SUFFICIENCY OF THE EVIDENCE 

 Finally, appellant contends that the evidence was not 

sufficient to prove the charge. On appeal, the evidence must be 

viewed in the light most favorable to the Commonwealth and be 

given all reasonable inferences fairly deducible therefrom. 

Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 

537 (1975). "The jury's verdict will not be disturbed on appeal 

unless it is plainly wrong or without evidence to support it." 

 

 5Contrary to the assertion in Judge Benton's dissent, our 

analysis would not allow the expert to repeat the disclosure that 

the child names appellant, nor would it allow the expert to 

relate detailed circumstances surrounding the abuse. Details 

about the abuser or the abuse would have been irrelevant to the 

expert's opinion regarding the underlying stressor, and may have 

been more prejudicial than probative. This is what Cartera

precludes. 
 17 

Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 

721 (1988); Code § 8.01-680. 

 As detailed in Section III, supra, and examined under the 

familiar standards of appellate review, we hold that the 

Commonwealth presented sufficient evidence to support appellant's 

conviction. 

 Based on the foregoing reasons, we affirm appellant's 

conviction. 

Affirmed.
 18 

Moon, C.J., with whom Baker and Annunziata, JJ., join, concurring 

 in part and dissenting in part. 

 I concur with the majority opinion insofar as it holds that 

the judgment should be affirmed because any error in the trial 

court was harmless error. However, I disagree with the majority 

that the child's statement concerning having been "sexed" was 

admissible under the guise of allowing the expert to explain the 

basis of his opinion. 

 I concur with Judge Benton's dissent's conclusion that the 

child's statement was inadmissible under Cartera v. Commonwealth, 

219 Va. 516, 248 S.E.2d 784 (1978). It is also important to 

recognize that in criminal trials in Virginia, an expert 

generally may not base his opinion on inadmissible evidence. See

Simpson v. Commonwealth, 227 Va. 557, 566, 318 S.E.2d 386, 391 

(1984); cf. Code § 8.01-401.1 (expert opinion in civil cases may 

be based on inadmissible evidence). While a qualified 

psychologist may testify as an expert witness in a criminal case 

and render an opinion based in part on interviews with the 

subject, see Rollins v. Commonwealth, 207 Va. 575, 580-81, 151 

S.E.2d 622, 625-26 (1966), he may not place in the record 

inadmissible statements made to him during the evaluation 

process. See Greenfield v. Commonwealth, 214 Va. 710, 714, 204 

S.E.2d 414, 418 (1974) (affirming trial court's exclusion of 

hearsay evidence offered to support a psychiatric opinion). 

 The majority's decision allows for the admission of evidence 

not previously permitted in Virginia criminal cases. Because the 
 19 

 

majority also holds that whether the evidence was admissible or 

not, the conviction should be affirmed, I would not issue a 

definitive ruling, but would instead wait until such time as the 

General Assembly enacts or the Supreme Court adopts a new rule of 

evidence.6

 This ruling opens the door for considerable mischief through 

the manipulation of hired expert witnesses. It provides an 

opportunity for parties to get before the jury potentially 

prejudicial evidence that could not otherwise be admitted. A 

criminal defendant, without subjecting himself to crossexamination, could put his version of an incident before the jury 

under the guise of testimony from his psychiatrist explaining the 

basis for the psychiatrist's testimony. The prosecution could 

use a psychiatrist or psychologist to place statements in the 

record that would not otherwise be admissible and which could not 

withstand cross-examination. 

 6 The issue raised in this case has been the subject of 

much study and debate. The Committee to Draft Rules of Evidence 

for Virginia on November 10, 1984, approved a draft of proposed 

Virginia Rule 705, Disclosure of Facts and Data, as follows: 

 The expert may testify in terms of opinion or 

inference and give his reasons therefor without prior 

disclosure of the underlying facts and data, unless the 

court directs otherwise. On direct examination, an 

expert may not testify to facts or data otherwise 

inadmissible unless the court determines that such 

facts or data or a summary thereof are necessary for a 

proper understanding of the basis for the expert's 

opinion and that such testimony would not unfairly 

prejudice an opposing party. A cross-examiner may 

require the expert to disclose the facts or data on 

which an opinion or inference is based. 
 20 

 Even if the child's statement might be admissible under the 

standards suggested in the proposed rule, see n.1, supra, I do 

not believe that a proper foundation was laid to admit the 

statement. The child's statement that he had been "sexed," made 

during one of more than ten counseling sessions, surely was not 

essential to diagnosis of an "adjustment disorder." Nor was it 

necessary for a proper understanding of the basis of the expert's 

opinion. The majority opinion graphically describes the child's 

apparent sexual knowledge. The psychologist would likely have 

made the same diagnosis without the child's statement that he had 

been "sexed," and he surely could have explained his diagnosis to 

the jury without recounting this statement. 

 Accordingly, I concur in the result reached by the majority 

but dissent insofar as the opinion holds that the child's 

statement to the psychiatrist was admissible. 
 21 

Benton, J., dissenting. 

 I. 

 I agree with the majority opinion that the trial judge erred 

in allowing the psychologist to opine that the child had been 

sexually abused. See Jenkins v. Commonwealth, 21 Va. App. 222, 

463 S.E.2d 330 (1995). The elements of an offense and the 

identity of the criminal agent are ultimate facts at issue in a 

criminal prosecution. Nicholas v. Commonwealth, 91 Va. 741, 750, 

21 S.E. 364, 366 (1895). In a prosecution for aggravated sexual 

battery under Code § 18.2-67.3, whether sexual abuse occurred is 

an element of the offense that the jury must decide based upon 

the evidence in the record. The Supreme Court has clearly stated 

in Cartera v. Commonwealth, 219 Va. 516, 248 S.E.2d 784 (1978), 

that an expert may not express an opinion as to "'the precise or 

ultimate fact in issue.'" Id. at 519, 248 S.E.2d at 786 (quoting 

Webb v. Commonwealth, 204 Va. 24, 33, 129 S.E.2d 22, 29 (1963)). 

 I disagree, however, with the majority's holding that the 

error was harmless. This Court cannot reasonably conclude upon 

this record that the error did not affect the jury's verdict. 

Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 

911 (1991). The issue whether Jenkins sexually abused the child 

was disputed. Nothing in the record suggests that the jury did 

not rely upon the testimony of the psychologist in arriving at 

its verdict. 

 Other evidence of a disputed fact standing 

alone, does not establish that an error is 

harmless. . . . [A] harmless error analysis 
 22 

. . . [is not] simply a sufficiency of the 

evidence analysis. 

Hooker v. Commonwealth, 14 Va. App. 454, 458, 418 S.E.2d 343, 345 

(1992). 

 This case is not one in which "the other evidence of guilt 

was so overwhelming and the error so insignificant by comparison 

that the error could not have affected the verdict." Id. at 457 

n.2, 418 S.E.2d at 345 n.2. Even if "the other evidence amply 

supports the jury's verdicts, [evidence is not harmless when] the 

disputed testimony may well have affected the jury's decision." 

Cartera, 219 Va. at 519, 248 S.E.2d at 786. Furthermore, the 

quality of the inadmissible evidence must be considered. "When 

an opinion is rendered by a witness whom the trial [judge] has 

declared to be an expert in his field, such opinion will carry 

great weight with the jury and could very well have been the 

decisive factor in their minds in determining the [accused's] 

guilt." Callahan v. Commonwealth, 8 Va. App. 135, 140, 379 

S.E.2d 476, 479 (1989). In this case, the psychologist's 

testimony, based on ten sessions with the child, that sexual 

abuse occurred obviously significantly influenced the jury's 

decision. 

 Although Jenkins' statement was inculpatory, this Court 

cannot say that the jury could not have cast it in a different 

light in the absence of the inadmissible evidence. In his 

statement, Jenkins "said that he was sitting in the living room 

watching TV, and that [the child] was sitting in his lap, leaning 
 23 

against his chest, and . . . he put his hand on his penis from 

over top his clothing and held it there and touched him there for 

about a minute." The jury could have found that Jenkins lacked 

the intent to commit sexual battery. In addition, if the jury 

accepted Jenkins' statement that the child sat on his lap on one 

occasion, the jury could have concluded that the single episode 

could not conceivably have led to the bizarre conduct exhibited 

by the child. Moreover, in considering the mother's testimony, 

the child's great grandparent's testimony, and Jenkins' 

admission, the jury certainly could have found that the child's 

behavior had its genesis prior to and unrelated to the one 

occasion Jenkins admitted touching the child. 

 Aside from the expert's opinion, the origin of the child's 

behavior was not clearly established. The child's mother 

described instances beginning in 1992 when the child, who was 

then two years of age, began to talk about sex and engage in 

sexually-oriented behavior toward her. For example, she 

testified that one evening when she was watching television the 

child entered her bedroom, removed his clothing, and said he 

wanted to have sex with her. On other occasions, he told her "he 

want[ed] to sex [her] . . . and trie[d] kissing [her] with his 

mouth open [while] . . . mov[ing] his head around like a french 

kiss." She testified that on other occasions he "gyrate[d] his 

hips and rub[ed] his penis, . . . put [a] pillow on top of him or 

underneath . . . him saying that he was sexing the pillow, . . . 
 24 

[and] started rubbing his behind on [a retail store] display 

saying that he was sexing it." 

 The child's mother testified that prior to the first of 

those incidents the child took showers with her and that he 

fondled her breast while she showered with him. She later 

stopped taking showers with him when he began talking about sex. 

 Although the child also showered with the father, no testimony 

established that the child fondled his father. The psychologist 

testified that if he had known that the mother and the father 

were showering with the child he would have discouraged it. The 

psychologist also testified that sexual awareness could result in 

a child of one to three years of age who took showers with a 

parent. 

 The child's great grandmother, who was the child's primary 

babysitter five days a week for three years, testified that on 

several occasions she saw the child "run his hand up [his 

mother's] dress, and [the mother would] just cutely smile and say 

'Oh, [child] don't do that.'" She also testified that she 

admonished the child's mother to discontinue taking baths with 

the child and "told her it wasn't right." The great grandfather 

also testified that "quite a few times" the child inappropriately 

put his hands on his mother and in her brassiere to feel her 

breasts. He testified that he frequently admonished the child's 

mother for allowing the child to touch her in that manner. 

 The evidence, thus, provided a basis from which the jury 
 25 

could have drawn an inference, in the absence of the inadmissible 

part of the psychologist's testimony, that circumstances other 

than Jenkins' conduct caused the child's behavior. Indeed, the 

evidence suggests that the child may have several stimuli for his 

behavior. 

 The evidence proved that the two-year-old child was 

extensively exposed to cable television and watched movies. The 

mother testified that she has television cable service on two of 

the five televisions in her house. The great grandmother 

testified that the child watched television and movies at her 

house. 

 In addition to television, the evidence suggests that by age 

three the child had other exposures that may have influenced his 

behavior. The great grandmother testified that she warned the 

mother about her conduct with the child because the child "knew 

too much . . . [and] was too bright." The evidence also suggests 

that the child was exposed to adult music and "could sing 'Achy 

Breaky Heart' as good as" any singer. The evidence also proved 

that the child had two sixteen-year-old female babysitters who 

have kept him on weekends and overnight. 

 The child's conduct, sexual talk, and singing of an adult 

love ballad are consistent with the daily fare of cable 

television. Moreover, unseemly as it may be, many adult males 

are seen in public with a hand placed on their genital region. 

The jury obviously could have found that the child's conduct was 
 26 

the manifestation of various exposures unrelated to Jenkins. 

 In addition, no evidence proved that the child approached 

any person other than his mother in a sexually suggestive manner. 

 Indeed, the child never approached the father in that manner and 

never rubbed his father sexually. The jury might have found it 

significant that the child only exhibited such conduct toward a 

female. On this evidence, the origin of the child's behavior was 

a question for the jury to decide. 

 I believe that it is evident from the record how important 

the psychologist's opinion could have been in the jury's 

decision. Without his inadmissible testimony, the jury might 

have reached the conclusions that the child's conduct had its 

origin in exposures to inappropriate but everyday experiences and 

that Jenkins had no intent to sexually touch the child. The 

record demonstrates that the erroneous admission of the 

psychologist's testimony greatly lessened the Commonwealth's 

burden to prove sexual abuse beyond a reasonable doubt. Thus, I 

cannot "conclude, without usurping the jury's fact finding 

function, that, had the error[s] not occurred, the verdict would 

have been the same." Lavinder, 12 Va. App. at 1005, 407 S.E.2d 

at 911; see Code § 8.01-678. Because admission of the 

psychologist's opinion as to the ultimate issue of fact was not 

harmless error and the trial judge improperly allowed the 

psychologist to repeat the child's complaint of being "sexed," I 

would reverse the appellant's conviction and remand for a new 
 27 

trial. 

 II. 

 The psychologist testified that the child "on one occasion, 

indicated to me that he had been sexed. That was his word." I 

would also hold that the trial judge erred in allowing the 

psychologist to so testify. The majority approves of this 

evidence as either non-hearsay or an exception to the hearsay 

rule. 

 In finding the statement an exception to the hearsay rule, 

the majority reads Cartera too broadly and expands the use of 

hearsay beyond what the Supreme Court of Virginia ruled in that 

case. The Supreme Court "acknowledge[d] the exception to the 

hearsay rule" that renders admissible statements made to 

physicians "concerning [a patient's] 'past pain, suffering and 

subjective symptoms' to show 'the basis of the physician's 

opinion as to the nature of the injuries or illness.'" 219 Va. 

at 518, 248 S.E.2d at 786. See also Mackall v. Commonwealth, 236 

Va. 240, 255, 372 S.E.2d 759, 769 (1988), cert. denied, 492 U.S. 

925 (1989). The Supreme Court declined, however, to apply the 

exception to statements "concerning the circumstances of the 

offenses and the description of the assailant" made by the rape 

victims. Cartera, 219 Va. at 518, 248 S.E.2d at 785. The Court 

declined to do so because "[t]his testimony goes beyond a recital 

of 'past pain, suffering and subjective symptoms.'" Id. at 518, 

248 S.E.2d at 786. 
 28 

 The testimony that the trial judge admitted in this case is 

analogous to the testimony the Supreme Court barred in Cartera. 

The psychologist's testimony that the child told him he had been 

"sexed" concerns the circumstances of the particular offense. As 

in Cartera, the statement was a description of the child's 

alleged physical encounter and not a description of the child's 

symptoms. By stating that he was "sexed," the child did not 

report his pain, suffering or subjective symptoms but rather 

described the circumstance of events. Cartera does not stand for 

the proposition that a psychologist may describe the actual 

physical contact from which the prosecution arises. 

 Without reference to any Virginia decisions, the majority 

expands Cartera beyond its bounds by reference to decisions from 

other states. The Commonwealth concedes that "many of these 

out-of-state cases are partially based on the adoption by the 

states of rules equivalent to the Federal Rules of Evidence, 

§ 803(4)." The Supreme Court of Virginia, however, has not 

adopted the Federal Rules of Evidence as rules of evidence in 

Virginia. Furthermore, I find no indication in Virginia case law 

to suggest that the rule announced in Cartera can be supplemented 

and expanded by reference to the Federal Rules of Evidence or 

rules of decision from other states based on application of the 

Federal Rules. 

 In addition, I do not share the majority's assumption that 

statements this child made to a psychologist are inherently 
 29 

reliable. The basis for allowing in evidence statements that a 

patient makes to a treating physician is the assumption that the 

patient understands "that the effectiveness of the treatment 

received will depend upon the accuracy of the information 

provided to the physician." John W. Strong, 2 McCormick on 

Evidence § 277, at 246-47 (4th ed. 1992). This principle has no 

application to a child two years of age, who was not competent to 

testify at trial, talking to a psychologist. If a child is too 

young to have the mental capacity to testify at trial, obviously 

the child cannot understand the importance of truthfully relating 

matters to a psychologist for purposes of treatment. 

 Furthermore, Jenkins had no opportunity to challenge 

directly the child's statements and to demonstrate that the 

child's use of the term may have arisen from a context that was 

unrelated to him or that bore no nexus to sexual abuse by any 

person. Close scrutiny must be given to a situation, such as 

here, where because of incompetence, cross-examination of an 

accuser is non-existent. I would hold that the psychologist's 

repeating of the child's statement was hearsay, established an 

ultimate fact element of the offense, and was clearly 

prejudicial. 

 Under the majority's analysis, if the child had named 

Jenkins during the therapy session, the testimony of the 

psychologist repeating that disclosure would have been 

admissible. Additionally, because the psychologist may have 
 30 

believed that the circumstances surrounding how the abuse 

occurred might also be important for treatment or forming an 

expert opinion, the majority's reasoning would allow a 

psychologist to relate all of those circumstances and where the 

abuse occurred. The majority's opinion will allow experts to 

repeat all the nuances of complaints and establish every element 

of the offense in detail under the guise that the descriptions of 

the offense will not be offered for the truth of the matter 

asserted. That reasoning directly contradicts Cartera. 

 For these reasons, I would reverse the conviction and remand 

for a new trial.