Velazquez v. Com.

• Court: Virginia Supreme Court
• Writing for the Court: All the Justices.
• Citation: Velazquez v. Com., 557 S.E.2d 213, 263 Va. 95 (2002)
• Decision Date: 11 January 2002
• Docket Number: Record No. 010926.
• Parties: Eduardo V. VELAZQUEZ v. COMMONWEALTH of Virginia.

557 S.E.2d 213

263 Va. 95

Eduardo V. VELAZQUEZ v. COMMONWEALTH of Virginia.

Record No. 010926.

Supreme Court of Virginia.

January 11, 2002.

James G. Connell, III (Clinton O. Middleton; Devine & Connell, on briefs), Richmond, for appellant.

Eugene Murphy, Asst. Atty. Gen. (Randolph A. Beales, Atty. Gen. on brief), for appellee.

Present: All the Justices.

Opinion by Justice LAWRENCE L. KOONTZ, JR.

In this appeal of a conviction for rape, we consider whether the trial court erred in permitting a Sexual Assault Nurse Examiner (SANE) to testify regarding her expert medical opinion on the causation of the victim's injuries and, if not, whether that testimony improperly invaded the province of the jury.

BACKGROUND

Under well established principles, we review the evidence and the reasonable inferences arising therefrom in the light most favorable to the Commonwealth, the party prevailing below. Turner v. Commonwealth, 259 Va. 645, 648, 529 S.E.2d 787, 789 (2000). The fifteen-year-old female victim, A.L., was a regular visitor in the home of Eduardo V. Velazquez. Velazquez's wife was a good friend of A.L.'s mother, and A.L. considered her to be "my second mom." On one occasion when A.L. was visiting the home, Velazquez "was drunk and he tried kissing [A.L.]." A.L. did not tell anyone about the incident because she was afraid that she would not be believed.

On March 18, 1997, A.L. went to the Velazquez home after school to retrieve a school library book which she had lent to Velazquez's wife. Velazquez and a male friend of his were present in the home. Velazquez told A.L. that he would get the book for her and then he asked his friend to go outside.

Velazquez told A.L. to sit down, and he removed her backpack from her shoulders. A.L. told Velazquez that she wanted to leave, but Velazquez attempted to kiss her. A.L. told him to stop. While she attempted to push Velazquez away from her, A.L. tripped and they both fell to the floor. At that point, A.L. was on her back; Velazquez was on top of her. Velazquez attempted to remove A.L.'s pants, while she again told him "no" and fought to get away.

After Velazquez succeeded in pulling A.L.'s pants and underwear down to her knees, he then pulled his own pants down. While Veazquez was on top of A.L. with his waist positioned between her knees and his hands beside her hips, A.L. felt a sharp pain in her aginal area. The "bottom half' of Yeazquez's body was making "an up and down movement" when A.L. felt that pain. During he assault, A.L. feared that she would "lose her] virginity" and would become pregnant. elazquez remained on top of A.L. for five minutes and then stood up after he became irritated with Al.'s struggles to get away. A.L. attempted to leave, but Velazquez topped her and told her "to clean [herself] p." Velazquez left the room, and A.L. Tabbed her backpack and left.

When A.L. arrived at her home, she telehoned a cousin and told her that she "was urting in [her] vagina [sic ] area." Later hat evening, A.L.'s mother, who had spoken the cousin, telephoned A.L. and asked her hat was wrong. A.L. told her mother that elazquez had "forced [her] to have sex with him."

A.L.'s mother contacted the Fairfax Coun-Police, who subsequently interviewed A.L. her home. The police also collected A.L.'s othing for forensic analysis. A.L.'s mother en took her to a local hospital where Barara Jean Patt, a registered nurse who was a rtified SANE, examined her. A.L.'s mother also contacted Velazquez's wife, who told her husband that A.L. had accused him of rape. Velazquez left Virginia that night, abandoning his wife, step-daughter, and infant daughter. Velazquez was subsequently apprehended in Texas in November 1997.

On December 21, 1997, Velazquez was indicted for the rape of A.L. pursuant to Code § 18.241. A jury trial commenced in the Circuit Court of Fairfax County on March 29, 1999. On that same day, Velazquez filed a motion in limine "to exclude any `conclusions' made by" Patt, contending that such testimony would invade the province of the jury. The motion was argued immediately prior to trial. Relying on Hussen v. Commonwealth, 257 Va. 93, 511 S.E.2d 106, cert. denied, 526 U.S. 1137, 119 S.Ct. 1792, 143 L.Ed.2d 1019 (1999), the trial judge overruled the motion in limine, ruling that the SANE "can express an opinion as to whether [her findings were] consistent with consensual sex or not," but admonishing the Commonwealth that "I think it would be very limited in my view as to how far I'd let her go beyond that."

A.L. gave testimony in accord with the facts recited above. The Commonwealth called Patt to testify "as an expert in [the] diagnosis of sexual assault." Patt testified that she had been a registered nurse for 26 years, had 40 hours of classroom training and 40 hours of clinical training to qualify as a SANE, and had worked as a SANE for six and one half years. Patt further testified that as a SANE she had conducted approximately 150 examinations of children under the age of 16 who were victims of sexual assault and 350 examinations of adult victims of sexual assault.

Velazquez objected to Patt being qualified as an expert on the ground that experts qualified to testify about medical diagnosis "are doctors and scientists .... [S]he's a nurse ... she does not have the scientific training to testify as to ... causation." After the Commonwealth further examined Patt on the nature and extent of her clinical training, the trial court overruled the objection and ruled that Patt was qualified as an expert in the diagnosis of sexual assault.

Patt then testified that she had examined A.L. on the evening of March 18, 1997. Describing the injuries that she had found during a pelvic examination, Patt stated that one deep tear in the labial tissue "most likely is consistent with attempted intercourse." Velazquez objected to this testimony. The trial court sustained the objection, admonished the jury to "disregard the answer as given," but indicated to the Commonwealth's Attorney that he could "rephrase the question."

After eliciting further testimony on the nature of A.L.'s injuries, the Commonwealth's Attorney asked Patt whether she had "an opinion within a reasonable degree of medical certainty as to whether the physical findings ... are consistent with consensual sexual intercourse?" Patt replied, "I have an opinion that it's inconsistent with consensual intercourse." Velazquez objected "[t]o the phraseology" of Patt's answer. The trial court overruled the objection. The Commonwealth's Attorney then asked, "Why is it you have that opinion?" Patt responded, "Because the injuries she had are consistent with non-consensual intercourse."

Forensic analysis of the DNA profile of a semen stain found on A.L.'s clothing was consistent with Velazquez's DNA. The forensic expert testified that the possibility of a random match to an unrelated individual was "one in greater than the population of the world."

Velazquez testified in his own defense. He maintained that A.L. had initiated a relationship with him sometime prior to March 18, 1997, and that they "did things that we shouldn't have done." Velazquez denied having had sexual intercourse with A.L, on March 18, 1997, and claimed that he fell on top of A.L. while they were engaged in consensual foreplay. He further testified that A.L. had pulled her own pants down and that he had inserted his fingers into her vagina, but that he complied with A.L.'s request that they not have intercourse because "I think we both believed that we were going too far." Velazquez admitted that he had ejaculated after A.L. asked him not to have intercourse.

The jury found Velazquez guilty of rape and recommended a sentence of seven years. By order entered July 7, 1999, the trial court imposed sentence in accord with the jury's verdict.

On July 9, 1999, Velazquez filed a motion to set aside the jury's verdict, asserting that the trial court had erred in qualifying Patt as an expert and in permitting her to testify on an ultimate issue of fact. Velazquez asserted that Patt was not qualified to "render a medical diagnosis or opinion" because she had not gone to medical school and had not been licensed to practice medicine in Virginia. Velazquez further asserted that the evidence was insufficient to support a finding that he had actually penetrated A.L.'s vagina with his penis.¹

Velazquez filed an appeal in the Court of Appeals of Virginia. In that appeal, he reasserted the issues raised in the motion to set aside the jury's verdict.

Addressing the threshold issue whether Patt was qualified to give expert testimony, the Court of Appeals held that Patt's training and experience established that she "had knowledge concerning matters beyond a lay person's common knowledge and would assist the jury in understanding the evidence" and, thus, that she qualified as "an expert in the diagnosis of a sexual assault." Velazquez v. Commonwealth, 35 Va.App. 189, 196, 543 S.E.2d 631, 635 (2001). Addressing what it characterized as an issue "of first impression," the Court of Appeals further held that a SANE can testify as an expert regarding the cause of trauma in a sexual assault case. In doing so, the Court of Appeals specifically rejected Velazquez's contention that only a licensed physician may testify regarding causation of injuries.² Id. at 197-99, 543 S.E.2d at 635-36.

Relying on Hussen, the Court of Appeals also rejected Velazquez's contention that Patt's testimony had invaded the province of the jury by expressing an opinion on an ultimate issue of fact. The Court held that "Patt's testimony only dealt with consistencies and inconsistencies. Patt did not testify that, in her opinion, [Velazquez] engaged in sexual intercourse with A.L. against A.L.'s will, the ultimate issue of the case." Velazquez, 35 Va.App. at 200, 543 S.E.2d at 637.

Finally, addressing the sufficiency of the evidence to prove penile penetration, the Court of Appeals held...