Kilpatrick v. Commonwealth

• Decision Date: 04 May 2021
• Docket Number: Record No. 2043-19-3
• Court: Virginia Court of Appeals
• Parties: Stephen James KILPATRICK v. COMMONWEALTH of Virginia

73 Va.App. 172

857 S.E.2d 163

Stephen James KILPATRICK

v.COMMONWEALTH of Virginia

Record No. 2043-19-3

Court of Appeals of Virginia.

MAY 4, 2021

Gregory M. Lipper (Timothy R. Clinton ; Clinton & Peed, on briefs), for appellant.

Craig W. Stallard, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Huff, Russell and Malveaux

OPINION BY JUDGE GLEN A. HUFF

Among the tools available to parties in a criminal trial is the use of expert testimony to assist the jury's understanding of the evidence and its resolution of facts at issue. To be sure, that right comes with certain limitations, many of which serve to guarantee that an expert's testimony does not express opinions on issues entrusted exclusively to the jury for its own consideration, such as the defendant's mental state at the time of the alleged offense and, ultimately, whether the defendant is guilty. But so long as a party's experts do not violate these limiting principles, they have substantial latitude in terms of the relevant information they may present.

In this appeal, Stephen J. Kilpatrick ("appellant") contends the Bedford County Circuit Court (the "trial court") unduly restricted his ability to offer expert testimony which he believes was crucial to his defense. Prior to being convicted by a jury on multiple counts of computer solicitation of a minor, appellant attempted to offer expert testimony from a forensic psychologist who would have testified that, after conducting a psychological evaluation of appellant, he concluded appellant was not a pedophile. Appellant sought this testimony to support his argument that he did not believe that the person with whom he engaged in electronic communications was a minor and to show that he lacked a motive to solicit a minor. The trial court barred this testimony, ruling that it would amount to an expression of an opinion on an ultimate issue of the case and thereby invade the exclusive province of the jury. Because the trial court's ruling was erroneous and prejudicial, this Court reverses appellant's convictions and remands the case for a new trial.

I. BACKGROUND

Appellant was caught in a sting operation, beginning when Investigator Jake Wade of the Bedford County Sheriff's Office set up a fake profile under the name "Jenny Block" on Craigslist.org. On November 15, 2017, "Jenny" posted in a "hook-up area" on Craigslist designated for "casual encounters" and used the abbreviation "W4M," which was understood to mean "woman for man." In that post, Jenny described herself as a student in Lynchburg who was looking for "any suggestions" as to "what there was to do" around the city.

Roughly a week later, appellant responded to Jenny's post and, among other things, requested that she "pull up [her] shirt" and watch him masturbate.¹ Although Jenny did not oblige his request, she asked that appellant tell her more about himself. After a short period of small talk between the two, appellant asked Jenny what she was studying, to which she responded, "I guess you could say I'm studying general studies." Jenny then asked appellant whether he would "be okay with [her] being a little younger than [him]," and appellant responded in the affirmative.

At this point, Jenny had not relayed her specific age to appellant. She had, however, told appellant she occasionally drove a vehicle by appellant's place of employment, Liberty University, an activity legally reserved for persons at least fifteen years and six months of age. In addition, appellant had asked Jenny what high school she attended. Jenny did not provide a specific response to that question, but instead told him she went to a school in Bedford County.

On December 15, 2017, Jenny gave her first indication of her age, telling appellant she was thirteen years old. At some point prior to this disclosure, appellant had made the comment that "older guys know how to please a girl." When Jenny asked appellant what he meant by that, appellant responded the next day with the following message:

So here's what I think about high school buys [sic] versus older men. I think when boys in high school when they get horny they don't really understand their own body and don't know anything about girls .... They don't know really what girls like or don't like .... They can only think about their penis, LOL, and can't control themselves and just cum .... That's what I remember when I was in high school, LOL. I can tell you stories about what I did with girls in high school if you want, haha ... [b]y now I've been with enough girls that I know a lot. Although, every girl is different. So you always have to ask a girl what they like to be sure. I know the girls -- that girls get aroused more slowly and they like lots of attention to get them ready to cum ....

Beginning on January 4, 2018, Jenny and appellant moved their communications from the Craigslist email format to personal email and text messaging at Jenny's request (Investigator Wade hoped to "further the investigation" and trace the email address and phone number appellant provided to a specific suspect). The two continued to engage in sexually explicit conversation for the next couple of months, and in those conversations, appellant made occasional reference to Jenny's stated age. Specifically, appellant told Jenny she had "a pretty thirteen Y.O. body with growing curves." He further remarked that Jenny was "[n]o ordinary 8th grader, baby!" and said, "if I get this excited when you're thirteen how excited will you get me when you're sixteen?"

Following appellant's sexually explicit comments and repeated references to Jenny's stated age, Investigator Wade began constructing a plan for a takedown operation. He first used the email address and phone number provided by appellant to obtain a return on an administrative subpoena, which in turn led him to a residence in Forest, Virginia. He then perused a number of messages appellant had sent that indicated appellant drove a blue Honda Civic as well as other messages which described appellant's physical appearance. Upon conducting surveillance of the residence, Investigator Wade observed that a person matching appellant's stated physical appearance lived in the residence and drove a blue Honda Civic.

Once appellant became the primary suspect of the investigation, Jenny asked him to meet her in person at Cloverhill Boulevard in Bedford County, which was designated by law enforcement as the takedown site. The two agreed to meet at that location on June 27, 2018 at 4:00 pm. Jenny also requested that appellant go to Walmart beforehand and buy her some cookies. Appellant agreed to do so and further indicated he would bring lubricant to the site.

Around 3:30 pm on June 27, Investigator Wade was stationed at the Walmart closest to the takedown site and observed a blue Honda Civic pull into the parking lot. He then saw appellant emerge from the vehicle, enter the store, and then return to the vehicle with a white plastic bag in hand. From there, appellant drove to the takedown site and was confronted by Investigator Wade and other members of law enforcement. Upon Investigator Wade's request, appellant agreed to be taken to a local police station for questioning.

During the interview, Investigator Wade asked appellant why he showed up to the takedown location at Cloverhill Boulevard. Although appellant initially stated he was delivering items to a girl named Jenny who "told him that she was fourteen years old," appellant subsequently maintained that Jenny "seems a lot older than thirteen" and that he was "not looking for someone underage." After admitting to sending sexually explicit messages to Jenny, appellant further remarked that Jenny "was able to communicate" like someone much older than a thirteen year old and that "there's no way [someone of Jenny's purported age] speaks" in the way she did to him.²

Appellant repeatedly asked Investigator Wade whether Jenny was a real person. Investigator Wade falsely told appellant Jenny was real and had complained to the police of appellant's behavior. He then encouraged appellant to write "an apology letter" to Jenny's parents to "help[ ] bring closure to the family." Appellant obliged and wrote a brief note which said:

Dear Parent,

I wanted to express my remorse for my inappropriate texting with your daughter. I give you my word that it will never happen again.

Sincerely,Dave[.]

Appellant was placed under arrest and indicted for multiple counts of computer solicitation of a minor in violation of Code § 18.2-374.3(C), which reads, in pertinent part:

It is unlawful for any person 18 years of age or older to use a communications system ... for the purposes of soliciting, with lascivious intent, any person he knows or has reason to believe is a child younger than 15 years of age to knowingly and intentionally:

1. Expose his sexual or genital parts to any child to whom he is not legally married or propose that any such child expose his sexual or genital parts to such person; 2. Propose that any such child feel or fondle his own sexual or genital parts or the sexual or genital parts of such person or propose that such person feel or fondle the sexual or genital parts of any such child;

3. Propose to such child the performance of an act of sexual intercourse, anal intercourse, cunnilingus, fellatio, or anilingus or any act constituting an offense under § 18.2-361; or

4. Entice, allure, persuade, or invite any such child to enter any vehicle, room, house, or other place, for any purposes set forth in the preceding subdivisions.

At trial, appellant pursued an entrapment defense, argued he had no intent to solicit a minor, and maintained that he at no point believed Jenny was a minor.³ He further claimed that whenever he referenced Jenny's age while engaging in sexual conversation, he was taking part in a role-playing "fantasy" as a "way to blow off steam or have [a] diversion" from his work and home-related stress. Spec...