Jenkins v. Com.

• Decision Date: 18 June 1996
• Docket Number: No. 0371-94-2,0371-94-2
• Citation: 471 S.E.2d 785,22 Va.App. 508
• Parties: James Lloyd JENKINS v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 785

471 S.E.2d 785

22 Va.App. 508

James Lloyd JENKINS v. COMMONWEALTH of Virginia.

Record No. 0371-94-2.

Court of Appeals of Virginia Richmond.

June 18, 1996.

[22 Va.App. 510] Michael Morchower, Richmond (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.

Before MOON, C.J., and BAKER, BENTON, COLEMAN, WILLIS, ELDER, BRAY, FITZPATRICK, ANNUNZIATA and OVERTON, JJ.

UPON A REHEARING EN BANC

ELDER, Judge.

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 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 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.

with respect to the hearsay issue, opining that the trial court properly admitted the child's statement made during treatment.

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.

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?

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 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 manner:

the child used two anatomically correct male dolls to demonstrate a sexual act.

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?

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 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, 106 S.Ct. 1503, 89 L.Ed.2d 903 (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 appe...