COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Frank Argued at Chesapeake, Virginia

THOMAS RALPH RIFFLE, JR. MEMORANDUM OPINION * BY v. Record No. 0145-03-1 J UDGE JAMES W. BENTON, JR. SEPTEMBER 14, 2004 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Norman Olitsky, Judge John W. Brown (Brown, Denslow, Black & Billups, P.C., on brief), for appellant. Josephine F. Whalen, Assistant A ttorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
The trial judge convicted Thomas R. Riffle, Jr. of forcible sodo my of a child, in violation of Code § 18.2-67.1, and aggravated se xual battery of a child, in violat ion of Code § 18.2-67.3. Riffle contends the trial judge er red by allowing a wi tness to express an opinion about the credib ility of the child. For the reason s that follow, we a ffirm the convictions.
I. Riffle’s teenage daughter testified that in the summer of 2000, when she was eleven years old, Riffle entered her bedroom to wake her. She testified that she pretended to be asleep and did not respond. Riffle left the room , but then returned an d got into bed with he r. While she feigned sleep, he pulled down her underwear, placed his pe nis between her legs and against her vagina, and began moving.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - She testified that a y ear later, while she was watching a movie at home with Riffle, he asked her to join him on the sofa in or der to “cuddle.” She did and feigne d sleep. He le ft the room and later returned to lie on the sofa behind her. As they were lying on the sofa, Ri ffle pulled down her underwear and slowly put his penis in her “butt-hole,” moving back and forth. She testified that she had diarrhea the next day. She test ified about several other incident s of sexual contact and testified that these events occurred only wh en Riffle thought she was asleep. Dr. Jeffrey Schlichter, a clinical psychologist, testified he first encount ered the child in 1999 when, following her parents’ divorce , Riffle brought her for an evalua tion. Dr. Schlic hter said those sessions ended in June of 1999 and he did not see her again unt il February of 2001, “when her mother brought her after [the child had] gotten very upset over an incident that had occurred in her father’s house the night before.” Dr. Schlichter testifie d that the child was un comfortable discussing the abuse she reported but that ov er the course of several visits she became more comfortable, describing five occasions in which she believe d Riffle had sexually abused her. On cross-examination, Dr. Schlichter testified that, when he had a conf erence with Riffle, Riffle’s new wife, and the child together, the child “became rather passive . . . because[, he opined,] she was overpowered.” He also acknowledged various “signs of sexual abuse that are triggers or flags” and testified that the chil d “clearly had some adjustment problems.” On redirect examination, Dr. Schlichter explained that the child tended to be ambiguous about exact times, dates, an d places. He explained: There was a lot of ambiguity in a lo t of it, and I think this typifies [the child. She] has been ambivalent about lots of thing in terms of the details. She has been ambiva lent about her relationship with her father particularly in terms of where she wants to live. But I think what’s impressive is the fact that she still says she loves her father. She wants to be with him. She wishes he would not have done these things, and she would like him to stop, which to me is one of the most important dynamics about this case.- 3 - The trial judge then asked, “Why is that an important dynamic?” Dr. Schlichter responded as follows: Because in instances in which particularly adolescents are fabricating things, one of the things you often get is a very one-sided -- I hate him. He should die. I never want to see him. And I have dealt with a lot of abused children in my life, and I don’t know that I can recall in 22 years of any abused child who’s actually been abused who said to me after a while that they never wanted to see their parents ag ain. I’ve had kids sitting there who’ve had all sorts of horrible th ings done to them, and they still want to see their parents. So my conclusion is she sti ll wants to see him. She feels badly about what’s happened, and I think if Mr. Riffle were to be found guilty and suffer any consequence, the next problem we would have to deal with is she is going to feel very gu ilty, and I think that’s an important issue. No objection was made by Riffle’s attorney to th is question or Dr. Schlichter’s responses. At the conclusion of the evid ence, the trial judge convicted Riffle of both crimes. After the trial judge sentenced Riffle for these offenses, Riffle filed a motion to set aside the verdict, alleging that Dr. Schlichter gave opinion testimony commenting on the credibility of the child. The trial judge denied the motion.
II. “An expert witness may not express an opini on as to the veracity of a witness because such testimony improperly invades th e province of the [trier of fact] to determine the reliability of a witness.” Pritchett v. Commonwealth , 263 Va. 182, 187, 557 S.E.2d 205, 208 (2002). In denying Riffle’s Rule 3A:15 motion to set aside th e verdict, the trial judge ruled as follows: Now, this . . . second motion to set aside [is] based upon a doctor, one of the many witnesses in this case, who testified concerning his observations but not as to the guilt and i nnocence of the defendant, because that sole decision was up to the Court to decide, but [Riffle’s attorney] has . . . highlighted an answer of Dr. Slechter [sic] which among other things -- which at the end of his answer to the question said, “W hich to me is one of the most- 4 - important dynamics about the case,” and then the Court asked why that was an important dynamic, and the witness said, “Because of instances in which adolescents are fabricating things. One of the things that you often get is a one -sided, I hate him. I think he should die. I never want to see him,” and goes on to dealing with abused children in his life and 23 years and about children never wanting to see their parents. It was just something that he was talking about his experience with children, but the Court based its decision on the facts of the case as to this particular case in this child and this defendant and all of the evidence pertaining to it. The Commonwealth contends that Rule 5A :18 precludes us from considering this issue on appeal. As the paragraph above reflects, the trial judge cons idered Riffle’s post-trial motion to set aside the verdict to be based upon the claim that the testimony of Dr. Schlichter was susceptible of being considered only as a commen t on the ultimate issue. The judge ruled on the merits of the motion, finding that Dr. Schlichter “testified concer ning his observations but not as to the guilt and innocence of the defendant,” and denied the motion. The trial judge essentially found that the motion raised a sufficiency issue. Because the trial judg e had the opportunity to rule on the issue at trial and di d so on the merits, we find no ba sis to invoke Rule 5A:18, which provides that “[n]o ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated together with the ground s therefor at the time of the ruling.” See Neal v. Commonwealth , 27 Va. App. 233, 236 n.1, 498 S.E.2d 422, 424 n.1 (1998) (holding that a claim of preclusion is moot when the trial judge cons idered a suppression issu e raised by an untimely motion after the Commonwealth’s case-in-chie f but denied the motion on its merits). A review of Dr. Schlichter’s testimony indicates that, befo re the trial judge asked his question, Dr. Schlichter was describing the chil d’s “ambivalen[ce] about her relationship with her father” but also opining that her professe d love for Riffle was an “important dynamic.” Responding to the judge’s question, Dr. Schlichter explained that adolescents who fabricate often say they never want to see the parent. He furthe r explained that “an importa nt issue” in this case will be the child’s feeling of guilt which will requ ire Dr. Schlichter’s intervention. In explaining- 5 - his ruling, the trial judge said he considered Dr. Schlichter’s testimony to be generally “talking about his experience with children” and did not consider it to be a comment on the child’s credibility. The Supreme Court has held that, when evidence has both an admissible purpose and an inadmissible purpose, “[a] j udge unlike a juror, is uniquely suited by training, experience and judicial discipline to disregar d potentially prejudicial commen ts and to separate, during the mental process of adjudication, the admissible from the inadmissible, even though he has heard both.” Eckhart v. Commonwealth , 222 Va. 213, 216, 279 S.E.2d 155, 157 (1981). See also Flannery v. City of Norfolk , 216 Va. 362, 368, 218 S.E.2d 730, 735 (1975). This is such a case. The judge has expressed on the record that he di d not consider the testim ony to be an opinion on the witness’ credibility. We hold, therefore, that the tr ial judge did not err in denyi ng the motion to set aside the verdict. Accordingly, we affirm the convictions. Affirmed

.- 6 - Frank, J., concurring. I concur with the majority that the judgment should be affirmed, but I would not address the merits because the issue is defaulted under Rule 5A:18. 1 As the majority indicated, Riffle’s attorney did not object to Dr. Schlicter’s testimony, which counsel later characterized as comme nting on the credibility of the victim. [U]nder Rule 5A:18 we do not notice the trial errors for which no timely objection was made except in extraordinary situations when necessary to enable us to attain th e ends of justice. The laudatory purpose behind Rule 5A:18, and it s equivalent Supreme Court Rule 5:25, frequently referred to as the contemporaneous objection rules, is to require that object ions be promptly brought to the attention of the trial court with sufficient specificty [sic] that the alleged error can be dealt with and timely addressed and corrected when necessary. The rules promot e orderly and efficient justice and are to be strictly enforced except where the error has resulted in manifest injustice. Errors can usually be corrected in the trial court, particularly in a bench trial, without the necessity of appeal. Because our function is to review the rulings of the trial court, rather than superintend the pro ceedings, we will notice error for which there has been no timely objection only when necessary to satisfy the ends of justice. Brown v. Commonwealth , 8 Va. App. 126, 131, 380 S.E.2d 8, 10 (1989) (citation omitted). Generally, a contemporaneous objec tion on stated specific grounds must be made in the trial cour t before an appellate court is authorized to review the question of admissibility of evidence. Rule 5A:18; Ingram v. Commonwealth , 1 Va. App. 335, 341, 338 S.E.2d 657, 660 (1986). To be timely, an objection to the admissibility of evidence must be made when the occasion arises -- that is when the evidence is offered, the statement made or the ruling given. Marlowe v. Commonwealth , 2 Va. App. 619, 621,

1 Rule 5A:18 -- No ruling of the trial court or the Virginia Workers’ Compensation Commission will be considered as a basis for reversal unless the objection was stated together with the grounds theref or at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of ju stice. A mere statement that the judgment or award is contrary to the law and the evidence is not sufficient to constitute a ques tion to be ruled upon on appeal.- 7 - 347 S.E.2d 167, 168 (1986). Among the purposes underlying the contemporaneous objection rule are to enable the trial court to prevent error, to cure alleged error with prompt and decisive instruction, and to preven t compounding any harmful consequences by dwelling on irrelevant matters. Harward v. Commonwealth , 5 Va. App. 468, 473-74, 364 S.E.2d 511, 513 (1988). The instant case is a grand illustration of the rationale behind the contemporaneous objection rule. The trial court heard the evidence, found Riffle guilty and imposed sentence. Subsequently, Riffle moved the co urt to set aside the verdict and for the first time raised the admissibility issue. Riffle did not make this ar gument known to the trial court until four months after trial. “‘Thus, the objection came too late fo r any error to be corrected by the trial court, and for the error, if any, to constitute reve rsible error.’” Pelletier v. Commonwealth , 42 Va. App. 406, 423 n.4, 592 S.E.2d 382, 390 n.4 (2004) (q uoting Ryan v. Commonwealth , 219 Va. 439, 447, 247 S.E.2d 698, 704 (1978)). If the trial court determined Dr. Schlicter’s comments were inadmissible, it could only set aside the verdict and declare a mistrial. Riffle ga ve the trial court no other remedies. Had Riffle timely objected, the trial court, as fact finder, could have ruled on the objection and proceeded accordingly. The trial court could have continued in an orderly fashion. A motion to set aside the verdict pursuant to Rule 3A:15 is not the proper vehicle to first dispute the admissibility of evidence previously introduced, yet unchallenged. If such were the case, Rule 5A:18 would be subsumed by Rule 3A:15 and the “contemporaneous objection” rule would have no vitality. I also respectfully disagree with the ma jority’s characterization of Neal v. Commonwealth , 27 Va. App. 233, 498 S.E.2d 422 (1998). Th e issue is not whether the trial court had the opportunity to rule on the evidentia ry issue, but whether the objection was timely so that the trial court could correct the error.- 8 - The majority cites Neal for the proposition that “a claim of preclusion is moot when the trial judge considered a suppression issu e raised by an untimely motion after the Commonwealth's case-in-chief but denied the motion on its merits.” In Neal , the defendant did not file a pretrial motion to suppress the eviden ce, allegedly illegally obtained, but raised the issue for the first time at trial. The trial court overruled the motion to suppress. This Court, in footnote 1, said: The Commonwealth contends appellant’s failure to address the reasonableness of the stop in a pret rial motion to suppress deprived the Commonwealth of its right to a pretrial appeal under Code § 19.2-398. The question is moot as the trial court decided the motion in the Commonwealth’s favor, rendering an appeal unnecessary. Id. at 237 n.1, 498 S.E.2d at 424 n.1. The foot note simply concludes that since the Commonwealth prevailed in the motion to suppress, th e fact that it was depr ived of its right to appeal is moot. There was nothing to appeal. I also do not find, and appellant does not argue , that a manifest in justice has occurred. The record reflects no reason to invoke the good cause or ends of justice exceptions to Rule 5A:18. Bazemore v. Commonwealth , 42 Va. App. 203, 218, 590 S.E.2d 602, 609 (2004). Accordingly, I would find that Rule 5A:18 ba rs consideration of this question on appeal.