Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and 

Kinser, JJ., and Poff, Senior Justice 

LEBAN A. HUSSEN 

 OPINION BY JUSTICE LEROY R. HASSELL, SR. 

v. Record No. 980940 January 8, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 In this appeal, we consider whether an expert witness' 

testimony improperly invaded the province of the jury. 

 Leban A. Hussen was convicted by a jury in the Circuit 

Court of Fairfax County of the rape and forcible sodomy of 

Donyala G. Hucaby and sentenced to serve 15 years in the 

penitentiary. The circuit court confirmed the verdicts, and 

the Court of Appeals denied the defendant's petition for 

appeal. The defendant filed a habeas corpus petition and 

asserted that his former appellate counsel failed to seek an 

appeal from the judgment of the Court of Appeals. The 

Commonwealth agreed, and we held that the defendant was 

entitled to pursue a delayed appeal to this Court. We awarded 

the defendant an appeal. 

 We will summarize the relevant facts and inferences 

deducible therefrom in the light most favorable to the 

Commonwealth, the prevailing party below. See Davidson v. 

Commonwealth, 244 Va. 129, 132, 419 S.E.2d 656, 658 (1992). 

The defendant met Hucaby during a party at Howard University 
in September 1993. The defendant, who was a stranger to 

Hucaby, approached her at the party while she was conversing 

with friends. The defendant told Hucaby that he was a member 

of an entertainment group and inquired whether she was 

interested in working for the group. The defendant asked 

Hucaby her name, address, and telephone number, which she 

provided to him. The defendant told Hucaby that he "found 

[her] attractive" and asked if they could "go out to dinner 

sometime." 

 The next evening, the defendant made a telephone call to 

Hucaby, who was not in her dormitory at the time of the call. 

The defendant left a message on her answering machine. The 

defendant called Hucaby later that night, around 12:15 a.m., 

and asked if he could see her. She decided to go out with him 

because she thought they might have a late dinner. 

 The defendant arrived at Hucaby's dormitory room and 

informed her that his roommate had given him a ride there. He 

asked if they could go to his house. In response to Hucaby's 

question, "why are we going to your house?", the defendant 

replied that his sister had prepared a meal and he wanted to 

"get to know [Hucaby] better." Hucaby told the defendant that 

she did not intend to "do anything [of a sexual nature], if 

that was his intention" and further stated, "I'm practicing 

abstinence." 

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 The defendant's roommate drove the defendant and Hucaby 

to the defendant's house in Fairfax. They arrived at the 

house about 2:00 a.m. Hucaby told the defendant that she 

needed to return to her dormitory no later than 4:00 a.m. 

 Upon arrival at the defendant's house, Hucaby used a 

telephone to call her roommate to let her know that Hucaby had 

arrived safely. After she finished speaking to her roommate, 

Hucaby talked to the defendant in the kitchen for a while. 

There, he made an effort to kiss her, but she rejected his 

advances. 

 The defendant suggested that Hucaby accompany him to his 

bedroom because he did not have any furniture in other rooms 

in the house. She went to his bedroom which contained a 

mattress on the floor adjacent to a wall, a box spring 

adjacent to another wall, and a lamp. The defendant closed 

the bedroom door, and Hucaby sat on the mattress. They 

conversed for a while and, during the conversation, the 

defendant repeatedly asked Hucaby for a kiss. Eventually, they 

kissed for about "four seconds," and they began to talk some 

more. 

 During this conversation, Hucaby informed the defendant 

that she was a virgin. Subsequently, Hucaby looked at her 

watch and realized that the time was about 3:40 a.m., and she 

told the defendant she needed to return to her dormitory. The 

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defendant, who had previously promised Hucaby that his 

roommate would drive her home, responded that his roommate had 

gone, but that he would be back. The defendant's roommate, 

however, never returned. 

 Hucaby, who felt "stranded" at the defendant's house, 

told him that she was very sleepy and she needed to go home. 

The defendant responded that she could go to sleep at his home 

until someone was able to take her back to her dormitory. 

 Hucaby, who was fully clothed, got into the defendant's 

bed. She told him that she was going to go to sleep. After 

about 10 seconds, the defendant told her that he wanted to be 

affectionate. She tried to move away from him, and she told 

him that she did not "want to be affectionate." He grabbed 

her arm and told her "not to be foul." She tried to push him 

away. He tried to kiss her as she tried to push him away. He 

put his hand around her throat and said, "[y]ou came into this 

house under your own free will, and I can make it seem as 

though you were never here. And no one will say you were 

here." He also told her that "I have something under the 

bed." 

 The defendant told Hucaby to remove her clothes. When 

she refused, he removed her clothes and raped her. After he 

raped her, he forced her to perform an act of oral sodomy upon 

him. Then, he raped her again. After he raped Hucaby, the 

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defendant went to sleep. Hucaby went to sleep, and when she 

awakened, it was still dark outside. She called her roommate 

and obtained directions to the nearest location of the public 

transportation system. She went to the public transportation 

system and rode a subway to her dormitory. 

 Hucaby did not inform anyone that she had been raped and 

sodomized until three days later, when she went to the Howard 

University Medical Center. She was examined by Dr. Jean 

Williams, who determined that Hucaby had sustained a 

laceration approximately one-half centimeter just below her 

vaginal introitus, which is the area just below the vaginal 

opening. 

 During the trial, Suzanne L. Brown, a sexual assault 

nurse examiner at Fairfax Hospital, qualified as an expert 

witness. She was permitted, over the defendant's objection, 

to give the following testimony which is at issue in this 

appeal: 

 "Q Now that you've been qualified as an 

expert. You have received medical information 

concerning Donyala Hucaby, correct? 

 "A Correct. 

 "Q With that information can you form a 

professional opinion based upon a reasonable degree 

of medical certainty as what would be consistent 

with an injury such as that? 

 "A Yes, I can. 

 . . . . 

 "Q Knowing what you know about the injury and 

knowing -- let's talk now about the female response, 

normal female response. Is there a term for that? 

5
 "A Yes, the human sexual response. 

 . . . . 

 "Q And tell the ladies and gentlemen of the 

jury please what it is, this human sexual response. 

 "A The human sexual response is a [sic] 

involuntary what happens during or just prior to 

sexual intercourse and a lot of it has to do with — 

the first phase is when the person is sexually 

excited causing lubricant to form in the vaginal 

area. 

 "The second part of that causes some actual 

structural changes to the entire vaginal area. One 

of the changes that occurs is that the labia majora 

which are the outer lips of the vaginal opening 

actually thin out and flatten against the wall of 

the vagina. After — 

 "Q Where was this injury with respect to 

where you're speaking of now? 

 "A Just below the vaginal opening. 

 . . . . 

 "Q Okay. After the outer labia majora 

flattens out then the smaller lips, the labia 

minora, will engorge and actually move away from the 

vaginal opening to allow for a penis to enter the 

vagina. The vagina will also elongate causing a 

little bit of a shelving area to guide the penis 

into the vagina. 

 "Q Now, with what you know about the human 

sexual response and with what you know about the 

injuries that Donyala Hucaby received can you give 

— let me add something to that hypothetical. 

 "Suppose for these questions that Donyala 

Hucaby was a virgin and that she had had sexual 

intercourse several days prior to being examined. 

Can you give an opinion as to whether or not these 

injuries were consistent with a first time 

intercourse? 

 "MR. DEVINE: Your Honor, for the reasons I 

stated earlier I will object to that question. 

 "THE COURT: . . . . Overruled. 

 "Proceed. 

 "Q Please tell the ladies and gentlemen of 

the jury whether these injuries were consistent with 

a woman having sex for the first time. 

 "A They are not consistent with a virgin 

having sex for the first time. 

 "Q Are these injuries — 

6
 "A JUROR: I didn't hear. 

 "Q Could you please repeat that? 

 "A I said that the injuries, when a virgin 

has sex for the first time this is not a typical 

area for an injury to be. 

 "Q And we're speaking of consensual? 

 "A Correct." 

 The defendant, relying principally upon Bond v. 

Commonwealth, 226 Va. 534, 311 S.E.2d 769 (1984), and Llamera

v. Commonwealth, 243 Va. 262, 414 S.E.2d 597 (1992), argues 

that the trial court erred in allowing Brown to testify that 

the complaining witness' injury was not consistent with 

consensual sex because consent was an ultimate issue of fact 

at trial, and Brown's testimony impermissibly invaded the 

province of the jury. We disagree with the defendant. 

 We have held consistently that the admission of expert 

testimony upon an ultimate issue of fact is impermissible 

because it invades the function of the fact finder. Jenkins

v. Commonwealth, 254 Va. 333, 336, 492 S.E.2d 131, 132 (1997); 

Llamera, 243 Va. at 264, 414 S.E.2d at 598; Bond, 226 Va. at 

538, 311 S.E.2d at 771-72; Cartera v. Commonwealth, 219 Va. 

516, 519, 248 S.E.2d 784, 786 (1978); Webb v. Commonwealth, 

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

Commonwealth, 200 Va. 245, 250, 105 S.E.2d 155, 158 (1958). 

 In Bond, we considered whether the circuit court 

misapplied this rule by permitting an expert witness to 

testify about the cause of the victim's death. The defendant 

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had been charged with murder, and one of the issues that the 

Commonwealth was required to prove was whether the victim's 

death "was brought about by the criminal agency of another," 

which was an ultimate issue of fact. 226 Va. at 537, 311 

S.E.2d at 771. The expert witness testified, over the 

defendant's objection, that he had "made a determination that 

[the victim's] death was as a result of a homicide." Id. We 

held that the expert witness' testimony invaded the province 

of the jury because the ultimate factual issue to be decided 

by the jury was whether the victim jumped intentionally to her 

death, fell accidentally to her death, or was thrown to her 

death. Id. at 539, 311 S.E.2d at 772. 

 In Llamera, we also considered whether a circuit court 

improperly permitted an expert witness to express an opinion 

upon an ultimate fact in issue. There, a police detective, 

who had qualified as an expert witness on the subject of the 

sale, distribution, marketing, packaging, and effects of 

narcotics, opined that cocaine, which had been seized in the 

defendant's store, "was packaged that way for distribution." 

The detective testified, over the defendant's objection, that 

the quantity of cocaine found "would suggest that the owner of 

the cocaine was a person who sold cocaine" and that such 

quantity was inconsistent with personal use. Llamera, 243 Va. 

at 264, 414 S.E.2d at 598. We held that the Commonwealth was 

8
required to prove that the defendant possessed the cocaine and 

that the defendant did so with the intent to distribute and 

that these elements were ultimate issues of fact to be 

resolved by the jury. Id. at 265, 414 S.E.2d at 599. We 

concluded that the challenged testimony was inadmissible 

because the detective expressed an opinion upon an ultimate 

issue of fact when he testified that the owner of the cocaine 

was a person who sold cocaine. Id.

 The present appeal, however, is clearly distinguishable 

from, and is not controlled by, our decisions in Llamera and 

Bond. It is true, as the defendant here asserts, that the 

Commonwealth was required to prove, among other things, that 

he forced the victim to engage in sexual intercourse against 

her will. However, Brown's testimony was not an opinion that 

the sexual intercourse between the defendant and the victim 

was against her will. Rather, Brown's testimony, which must 

be viewed as a whole, reflects her opinion that the unique 

nature of the victim's laceration, particularly the location 

of the injury, was not consistent with consensual, first time 

intercourse. Such an opinion by this expert witness is not a 

comment on one of the ultimate issues of fact to be determined 

by the jury, that is, whether the defendant's conduct was 

against the victim's will. See Davis v. Commonwealth, 12 Va. 

App. 728, 731-32, 406 S.E.2d 922, 923-24 (1991) (detective's 

9
testimony that a certain quantity of drugs was not consistent 

with personal use did not constitute an opinion that the 

defendant intended to distribute marijuana and, thus, did not 

invade the province of the jury). 

 Accordingly, we will affirm the judgment of the Court of 

Appeals. 

Affirmed. 

SENIOR JUSTICE POFF, with whom JUSTICE LACY and JUSTICE KEENAN 

join, dissenting. 

 The issue before this Court turns upon the testimony of a 

registered nurse employed by a hospital as a "Sexual Assault 

Nurse Examiner". The nurse qualified in the trial court as an 

expert in the examination of victims of sexual assault. Asked 

to explain the term "human sexual response", the witness 

testified that "the first phase is when the person is sexually 

excited causing lubricant to form in the vaginal area" and 

that the "second part of that causes some actual structural 

changes" that enlarge access through "the vaginal opening". 

Basing her testimony on a doctor's report of his examination, 

the nurse said that Hucaby had sustained a "half a centimeter 

laceration just below . . . the vaginal opening." 

 Responding to questions posed by the prosecutor, the 

nurse then testified as follows: 

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Question: Please tell the ladies and gentlemen of the 

jury whether these injuries were consistent with a woman 

having sex for the first time. 

Answer: They are not consistent with a virgin having sex 

for the first time. 

. . . 

Question: Could you please repeat that? 

Answer: I said that the injuries, when a virgin has sex 

for the first time this is not a typical area for an 

injury to be. 

Question: And we're speaking of consensual? 

Answer: Correct. 

The trial judge overruled Hussen's objection to that 

testimony. 

 The nurse's statement that the situs of Hucaby's injury 

was "not a typical area for an injury to be" and her 

acknowledgement that she was "speaking of consensual" was an 

expression of her expert opinion that the injury was the 

result of a sexual assault. The import of that language was 

reinforced by the nurse's further testimony when she agreed 

that "when the human sexual response is triggered . . . 

injuries do not occur." Clearly, a lay juror would conclude 

that such testimony reflects the opinion of a witness, a 

witness qualified by the trial judge as an expert, that 

Hucaby's injury was one suffered by a person whose sexual 

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response had not been triggered, i.e., that the sexual conduct 

was not consensual. 

 "We consistently have held that the admission of expert 

opinion upon an ultimate issue of fact is impermissible 

because it invades the function of the fact finder." Llamera 

v. Commonwealth, 243 Va. 262, 264, 414 S.E.2d 597, 598 (1992) 

(holding inadmissible expert's opinion that quantity of 

cocaine seized was inconsistent with personal use and 

consistent with intent to distribute). Such an invasion of 

the function of the fact finder "implicates the due process 

and fair trial guarantees of the Constitution of the United 

States." Jenkins v. Commonwealth, 254 Va. 333, 336, 492 

S.E.2d 131, 132 (1997) (error in admission of expert opinion 

that child had been sexually abused was not harmless). As we 

said in Cartera v. Commonwealth, 219 Va. 516, 519, 248 S.E.2d 

784, 786 (1978), "it was improper to permit the doctor to 

express his opinion that the girls had been raped. Whether 

rape had occurred was the precise and ultimate issue in the 

case." See also Bond v. Commonwealth, 226 Va. 534, 537, 311 

S.E.2d 769, 771 (1984) (murder conviction reversed because 

expert "ruled out" possibility of suicide and accident and 

classified victim's death as "result of a homicide"). 

 Notwithstanding our decisions in these cases, the 

Commonwealth contends that "the Court of Appeals has held it 

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proper for an expert to opine that a quantity of drugs in a 

defendant's possession was not consistent with personal use." 

The Commonwealth relies upon Davis v. Commonwealth, 12 Va. 

App. 728, 406 S.E.2d 922 (1991). But Davis did not hold that 

such testimony is "proper" if it constitutes an expert opinion 

on an ultimate fact in issue. Rather, the court held that the 

testimony was admissible only because it had not "violated 

this long-established rule." Id. at 731, 406 S.E.2d at 924. 

Specifically, the court said that "we find that [the expert's] 

testimony . . . did not constitute an opinion that Davis had 

an intent to distribute the marijuana found in his house."1 

Id. at 732, 406 S.E.2d at 924. 

 Citing ten other decisions of the Court of Appeals in 

criminal drug cases2, the Commonwealth also argues that "as a 

 1

 The marijuana was found in the basement of Davis' house, 

and he was one of three occupants of the dwelling. Davis' 

cousin, one of the occupants, testified that he had purchased 

the marijuana and hidden it in the basement. The Court of 

Appeals noted that "[a] given quantity of a controlled 

substance can be possessed jointly by several 

individuals. . . . In such a case, that amount might be 

inconsistent with an individual's personal use, and yet not 

establish an intent to distribute." Id. at 732, 406 S.E.2d at 

924. The Court concluded that the detective's testimony, 

considered in context with the facts and the jury 

instructions, was appropriate for the jury's consideration 

because it was not the ultimate issue in the case. 

2

 Welshman v. Commonwealth, 28 Va. App. 20, 37, 502 

S.E.2d 122, 130 (1998); Lovelace v. Commonwealth, 27 Va. App. 

575, 587, 500 S.E.2d 267, 273 (1998); Spivey v. Commonwealth, 

23 Va. App. 715, 479 S.E.2d 543 (1997); Jones v. Commonwealth, 

13
matter of practice such [expert] testimony is routinely 

received." But the admissibility of expert opinion was not in 

issue in those cases. In each, the issue was sufficiency of 

the evidence; expert testimony was discussed only as an 

adjunct to the circumstantial evidence underlying the 

conviction. 

 Here, as in Cartera, "(w)hether rape had occurred was the 

precise and ultimate issue in the case." 219 Va. at 519, 248 

S.E.2d at 786. The nurse's testimony on that question was an 

opinion of an expert. That opinion was patently prejudicious. 

I would hold that the trial judge erred in admitting that 

evidence, annul the conviction, reverse the judgment of the 

Court of Appeals denying Hussen's petition for appeal, and 

remand the case to the Court of Appeals with direction to 

remand the case to the trial court for further proceedings. 

 

23 Va. App. 93, 474 S.E.2d 825 (1996); Williams v. 

Commonwealth, 21 Va. App. 263, 463 S.E.2d 679 (1995); Wilkins 

v. Commonwealth, 18 Va. App. 293, 443 S.E.2d 440 (1994); Hardy 

v. Commonwealth, 17 Va. App. 677, 440 S.E.2d 434 (1994); 

Poindexter v. Commonwealth, 16 Va. App. 730, 432 S.E.2d 527 

(1993); Early v. Commonwealth, 10 Va. 

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