COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata and Senior Judge Cole 

Argued at Richmond, Virginia 

RICHARD WILLIAM WEBB, A/K/A 

 RICHARD W. WEBB 

 MEMORANDUM OPINION* BY 

v. Record No. 0122-96-2 JUDGE MARVIN F. COLE 

 JUNE 10, 1997 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF NORTHUMBERLAND COUNTY 

Joseph E. Spruill, Jr., Judge 

 Gordon A. Wilkins (Charles J. McKerns, Jr.; 

Wilkins & Davison; McKerns & McKerns, on 

brief), for appellant. 

 Pamela A. Rumpz, Assistant Attorney General 

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

brief), for appellee. 

 Following a bench trial, Richard William Webb (defendant) 

was found guilty of capital murder, aggravated malicious wounding 

and related firearm charges. He was sentenced to life 

imprisonment on each of the greater charges and statutory 

mandatory sentences on the firearms counts. Defendant contends 

that the trial court erred in permitting the prosecution's expert 

medical witness to testify on the ultimate fact at issue in the 

aggravated malicious wounding charge, namely, whether the victim 

was severely injured and was caused to suffer permanent and 

significant physical impairment. Finding no reversible error, we 

affirm the conviction. 

 

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

designated for publication. 
 2 

 To prove aggravated malicious wounding, the Commonwealth had 

the burden of proving that appellant committed an offense under 

Code § 18.2-51.2 which "severely injured" the victim and caused 

him "to suffer permanent and significant" physical impairment. 

"On appeal, we review the evidence in the light most favorable to 

the Commonwealth, granting to it all reasonable inferences fairly 

deducible therefrom." Martin v. Commonwealth, 4 Va. App. 438, 

443, 358 S.E.2d 415, 418 (1987). 

 The Commonwealth's evidence is undisputed. The defendant 

did not put on any evidence to contradict the testimony of the 

prosecution witnesses. The evidence shows that on February 27, 

1995, defendant shot and killed his grandmother, Peggy Webb, in 

the trailer where she lived with her husband. After murdering 

his grandmother, defendant turned the rifle on his grandfather, 

Julian Webb (Webb), and shot him in the left wrist. The bullet 

penetrated Webb's wrist and lodged in his cheek. After being 

shot, Webb fled the scene on foot as the defendant fired 

additional shots at him. Webb was carried to the hospital and 

treated by Dr. Ronald H. Patterson for injuries to his wrist and 

face. He was discharged from the hospital on March 2, 1995, with 

his arm in a cast. 

 At trial, Webb testified that he threw his left arm up to 

ward off the bullet and the bullet went through the left wrist 

and hit his right cheek. Webb testified that he remained under 

Dr. Patterson's care, that the arm still bothered him and that 
 3 

this would continue the rest of his life. He stated that 

fragments from the shot remained in both his wrist and cheek. 

Webb testified that he was a commercial fisherman and that he had 

not returned to work since the shooting because his hand burns 

and hurts when he moves it. Webb was still taking pain 

medication at the time of trial. 

 Dr. Patterson, an orthopedic surgeon, qualified as an expert 

in the field of orthopedics and testified that Webb came under 

his care at MCV Hospital for a gunshot wound to the left wrist. 

According to his testimony, "Webb had a through and through 

gunshot wound. Through the left wrist with an entrance and exit 

wound in the distal forearm just proximate to the left wrist. 

The slug from the gunshot wound continued into his right cheek 

and lodged in the right maxillary sinus of his face, facial 

bone." He stated that fragments remained in both the wrist and 

the face. Dr. Patterson testified that Webb would lose some 

function and motion of his left wrist and would be left with some 

traumatic arthritis of his left wrist. Dr. Patterson testified 

that his prognosis was that Webb 

 had several degrees of loss of motion. 

Approximately five degrees in each plane, 

which means to me five degrees of extension, 

five degrees of flexion, five degrees of 

ulnar deviation and five degrees of radial 

deviation that he had lost secondary to his 

injury. He had also lost a few degrees of 

supination . . . . A loss of about ten 

degrees of supination . . . . 

 Over defendant's objection, Dr. Patterson was permitted to 
 4 

testify further that, based upon his education, training and 

experience, it was his opinion that Webb would suffer permanent 

injuries from the gunshot wounds and that the injuries were 

significant. 

 The Supreme Court has stated the following generally 

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.'" 

Cartera v. Commonwealth, 219 Va. 516, 519, 248 S.E.2d 784, 786 

(1978) (quoting Webb v. Commonwealth, 204 Va. 24, 33, 129 S.E.2d 

22, 29 (1963)). See also Jenkins v. Commonwealth, 22 Va. App. 

508, 517, 471 S.E.2d 785, 790 (1996) (en banc). 

 However, it is equally as well settled that 

expert opinion and testimony are admissible 

"where the jury, or the court trying a case 

without a jury, is confronted with issues 

which require scientific or specialized 

knowledge or experience in order to be 

properly understood, and which cannot be 

determined intelligently merely from the 

deductions made and inferences drawn on the 

basis of ordinary knowledge, common sense, 

and practical experience gained in the 

ordinary affairs of life." 

Compton v. Commonwealth, 219 Va. 716, 726, 250 S.E.2d 749, 755-56 

(1979) (citation omitted). An expert medical witness can testify 

concerning any physical evidence he observes at the crime scene 

and in general he can testify as any other expert witness about 

facts within his knowledge. He can testify about his examination 

and tests he performed and what medical conclusions he reached as 
 5 

a result, except that he is precluded from testifying as to the 

precise ultimate issue. See 2 Charles E. Friend, The Law of 

Evidence in Virginia, § 17-17 (4th ed. 1993). 

 Because of the view we take on the issue, it is unnecessary 

for us to decide whether the testimony of Dr. Patterson that Webb 

suffered permanent and significant physical impairment 

constituted testimony upon the ultimate issue in the case. For 

this opinion, we will assume that his testimony was improper and 

should not have been admitted. We hold that the admission of 

such evidence was harmless error. 

 A nonconstitutional error is harmless if "it plainly appears 

from the record and the evidence given at trial that the error 

did not affect the verdict." Lavinder v. Commonwealth, 12 Va. 

App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc). "An error 

does not affect a verdict if a reviewing court can conclude, 

without usurping the [trial court's] fact finding function, that, 

had the error not occurred, the verdict would have been the 

same." Id. An error may be harmless because other evidence of 

guilt is "so overwhelming and the error so insignificant by 

comparison that the error could not have affected the verdict." 

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

345 n.2 (1992); see also Hanson v. Commonwealth, 14 Va. App. 173, 

189-90, 416 S.E.2d 14, 24 (1992) (error inconsequential in 

comparison to uncontradicted evidence of guilt). An error in 

admitting expert testimony is harmless where an accused "has had 
 6 

a fair trial according to law, and the proof is conclusive of his 

guilt." Rodriguez v. Commonwealth, 249 Va. 203, 208, 454 S.E.2d 

725, 728 (1995). 

 We find as a matter of law that the undisputed testimony of 

Webb and the admissible testimony of Dr. Patterson constitute 

overwhelming evidence that Webb's injuries were severe and that 

he suffered permanent and significant impairment as a result. 

That evidence showed that Webb continued under Dr. Patterson's 

care at the time of trial, that the injured arm still caused Webb 

burning and pain and that Webb's condition would continue for the 

rest of his life. The evidence showed that bullet fragments 

remained in Webb's wrist and cheek, that a thumb-sized scar 

remained on Webb's cheek and that, because of his condition, Webb 

could no longer engage in his work as a commercial fisherman. 

Dr. Patterson's admissible testimony corroborated Webb's loss of 

function and motion in his wrist and his prognosis included the 

development of traumatic arthritis in Webb's wrist.1

 Dr. Patterson's inadmissible testimony was insignificant in 

light of the overwhelming evidence concerning the severity of the 

injury and the permanency of the impairment. To be sure, the 

trial judge's comment with respect to needing the help of a 

 

 1While Dr. Patterson could not distinguish between arthritis 

which he expected to develop in Webb's wrist as a result of the 

gunshot and that which would develop as a result of age, his 

opinion that Webb would sustain "a certain degree of traumatic

arthritis of [the] left wrist joints" and that Webb "will have 

significant symptoms in that wrist . . . for the remainder of his 

life at times," was unequivocal and unrebutted. 
 7 

medical expert reflects the medical complexity of the issue the 

court faced. That comment, however, does not lead us to conclude 

that the trial court would have reached a different finding on 

the ultimate facts at issue had Dr. Patterson not offered an 

opinion with respect to them. Indeed, it is evident from other 

comments that the court considered evidence other than the 

opinion erroneously admitted in making its ultimate finding. 

With respect to severity, the trial judge stated, "I think to be 

shot in the face would be severe in almost any circumstances," 

and in concluding that Webb's injuries were permanent, the court 

noted Webb's range of motion in his wrist "was limited in almost 

every sphere." Finally, to the extent the evidence raises a 

question concerning the extent of Webb's disability to work and 

perform household chores, we note that the victim's disability is 

not an element of the crime. 

 In sum, we find that Dr. Patterson's statement that the 

injuries were permanent and significant, when considered with the 

other testimony, had no effect upon the decision of the trial 

judge. Accordingly, we find the error to be harmless and affirm 

the conviction. 

 Affirmed.
 8 

Benton, J., dissenting. 

 I would hold that the trial judge erred in allowing Dr. 

Ronald H. Patterson to give his expert opinion about whether 

Richard Webb's grandfather "suffer[ed] permanent and significant 

physical impairment," an ultimate issue of fact under Code 

§ 18.2-51.2. In addition, I disagree with the majority's 

conclusion that the error was harmless. Accordingly, I dissent. 

 I. 

 To prove Webb committed the offense of aggravated malicious 

wounding, the Commonwealth had to prove that Webb's grandfather, 

"the victim[, was] . . . severely injured and [was] caused to 

suffer permanent and significant physical impairment." Code 

§ 18.2-51.2. The principle is well settled, however, that expert 

"[o]pinion testimony . . . is not admissible 'upon the precise or 

ultimate fact in issue.'" Cartera v. Commonwealth, 219 Va. 516, 

519, 248 S.E.2d 784, 786 (1978) (citation omitted). 

 At trial, both the grandfather and Dr. Patterson, the 

grandfather's treating physician, testified about the 

grandfather's injuries. Over defense counsel's objection, Dr. 

Patterson gave the following testimony, which is at issue in this 

appeal: 

 COUNSEL: Based on your education, training 

and experience and on the history taken here 

and on your examination of the patient do you 

have an opinion based on reasonable medical 

probability as to two questions, A, the 

causal connection of the injuries for which 

you treated him and B, whether [the 

grandfather] will suffer permanent and 

significant physical impairment? 
 9 

 A: Yes, sir, I do. 

 COUNSEL: All right. And what is your 

opinion? 

 A: I think his injury was due to a gunshot 

wound through and through near the left 

wrist. I think he will suffer permanent 

injury from this gunshot wound. I think he 

will lose some function and motion of his 

left wrist and I think he will be left with 

some traumatic arthritis of his left wrist. 

* * * * * * * 

 COUNSEL: And would you consider those items 

that you testified to as being significant? 

 A: Yes, sir, I would. 

(Emphasis added.) 

 These essential elements of the offense were ultimate facts 

at issue in this prosecution. See Nicholas v. Commonwealth, 91 

Va. 741, 750, 21 S.E. 364, 366-67 (1895); see also Webb v. 

Commonwealth, 204 Va. 24, 32-33, 129 S.E.2d 22, 29 (1963). Thus, 

the trial judge erred in allowing Dr. Patterson to testify that, 

in his expert opinion, the grandfather's injuries were permanent 

and significant. 

 II. 

 I disagree with the majority's conclusion that the trial 

judge's error in allowing Dr. Patterson to give his expert 

opinion on the ultimate issues was harmless. The error was not 

harmless because it does not "'plainly appear[] from the record 

and the evidence given at the trial that' the error did not 

affect the verdict." Lavinder v. Commonwealth, 12 Va. App. 1003, 
 10 

1005, 407 S.E.2d 910, 911 (1991) (en banc) (quoting Code 

§ 8.01-678). The majority reasons that "the admissible testimony 

. . . constitute[s] overwhelming evidence" that the grandfather's 

injuries were permanent and significant. I disagree. 

 The severity of the grandfather's injury was disputed at 

trial. The grandfather testified that he was sixty-five years 

old and had been a commercial fisherman until the shooting. He 

stated that he could no longer engage in his trade as a 

commercial waterman. He testified that his injury still bothered 

him, that it still burned, and that he thought it would bother 

him "as long as [he] live[d]." He testified that his cheek bone 

was broken and that the wound was still numb. When asked whether 

he thought his arm would ever return to normal, he answered, 

"no." On cross-examination, however, the grandfather testified 

that he "can move [his] hands all right" but he has not tried to 

pick up anything. He also testified that he had accompanied his 

son on his son's work boat since the incident. He further 

testified that there is not really anything that he is prevented 

from doing around his house. 

 Dr. Patterson testified and described the grandfather's 

injuries as follows: 

 [The grandfather] had had a through and 

through gunshot wound through the left wrist 

with an entrance and exit wound in the distal 

forearm just proximal to the left wrist. The 

slug from the gunshot wound continued into 

his right cheek and lodged in the right 

maxillary sinus of his face, facial bone. 
 11 

 Although Dr. Patterson testified that the grandfather had 

lost several degrees of motion of his wrist, he also testified, 

contrary to the grandfather's testimony, that the grandfather's 

injuries should not prevent him from engaging in his job as a 

commercial fisherman. He further testified that the injuries 

would not prevent the grandfather from performing normal 

household chores. He diagnosed the grandfather with permanent 

arthritis to his wrist, but he stated that he could not 

distinguish between arthritis caused by the gunshot wound and 

arthritis caused by the grandfather's age.2

 Moreover, Dr. 

Patterson had not determined whether the grandfather was 

suffering from arthritis in other areas of his body. 

 The majority discounts the importance of the conflict in the 

evidence because "the victim's disability is not an element of 

the crime." That assertion is simply unsupported by the law. 

See Code § 18.2-51.2 (stating that an element of aggravated 

malicious wounding is a "permanent and significant physical 

impairment") (emphasis added). 

 Given the conflicting evidence, this is not a case in which 

"the other evidence of [the permanence and significance of the 

injury] was so overwhelming and the error so insignificant by 

comparison that the error could not have affected the verdict." 

Hooker v. Commonwealth, 14 Va. App. 454, 457 n.2, 418 S.E.2d 343, 

 

 2In view of this testimony, the fact that the doctor's 

opinion was unrebutted clearly does not lead to a conclusion that 

the arthritis was caused by the gunshot wound. 
 12 

345 n.2 (1992). Moreover, "[o]ther evidence of a disputed fact, 

standing alone, does not establish that an error is harmless. If 

so, a harmless error analysis would be simply a sufficiency of 

the evidence analysis." Id. at 458, 418 S.E.2d at 345. Even if 

"the other evidence amply supports the . . . verdict[], the 

[error is not harmless when] disputed testimony may well have 

affected the . . . decision." Cartera, 219 Va. at 519, 248 

S.E.2d at 786. 

 The record in this case clearly established that the 

expert's opinion "carr[ied] great weight . . . and could very 

well have been the decisive factor in [the trier of fact's] 

mind[] in determining [Webb's] guilt." Callahan v. Commonwealth, 

8 Va. App. 135, 140, 379 S.E.2d 476, 479 (1989). Indeed, in 

overruling defense counsel's objection and admitting Dr. 

Patterson's testimony, the trial judge stated "I don't think we 

can make it without the help of medical experts." Certainly, in 

view of that statement alone, we cannot say that if the expert 

had been prohibited from testifying that the injuries were 

"significant," the trial judge would not have decided that the 

injury was not "significant." 

 The majority states that the judge's comments show that the 

judge "considered evidence other than the opinion erroneously 

admitted." The majority cites two statements made by the judge 

but fails to demonstrate that the doctor's inadmissible opinion 

did not lead the judge to make those statements. Moreover, that 
 13 

the judge considered other evidence does not rule out the 

possibility that the judge also considered the erroneously 

admitted evidence. Thus, we cannot "conclude, without usurping 

the . . . fact finding function, that, had the error not 

occurred, the verdict would have been the same." Lavinder, 12 

Va. App. at 1005, 407 S.E.2d at 911. 

 For these reasons, I would hold that the trial judge erred 

in allowing Dr. Patterson to give his expert opinion as to the 

permanency and significance of the grandfather's injuries. 

Because the error may have affected the judge's decision, I would 

hold that the error was prejudicial and reverse the conviction. 

Accordingly, I dissent.