                       COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia

MELVIN ALEXANDER MOORE

v.       Record No. 1595-94-2                   MEMORANDUM OPINION * BY
                                            JUDGE MARVIN F. COLE
COMMONWEALTH OF VIRGINIA


                FROM THE CIRCUIT COURT OF APPOMATTOX COUNTY
                        Kenneth M. Covington, Judge

               Andrew M. Sacks (Sacks, Sacks & Imprevento,
               on brief), for appellant.
               Leah A. Darron, Assistant Attorney General
               (James S. Gilmore, III, Attorney General, on
               brief), for appellee.



     Melvin Alexander Moore, appellant, was convicted of

statutory rape of a six-year old girl in violation of Code

§ 18.2-61(A)(iii).      On appeal, appellant argues that the trial

court erred in allowing a mental health therapist "to testify as

an expert witness on the credibility of the [victim] and on the

probability of the incident occurring based on certain

hypothetical questions tracking the [victim]'s symptoms."          For

the reasons that follow, we affirm the judgment of the trial

judge.

                                     I.

     The victim was fifteen years old at the time of the trial.

She testified that when she was six years old she had a sexual

encounter with appellant, who had been dating the victim's

           *
          Pursuant to Code       §   17-116.010   this   opinion   is    not
designated for publication.
mother.   The victim testified that appellant "held his penis with

one of his hands and he rubbed it on the inside of my

vagina . . . ."    The next day the victim told her babysitter

"that [appellant] had made love to [her]."   She was upset and

cried as she disclosed the incident to the babysitter.    She then

told her mother about the incident, but her mother did not

believe her and did not take her to a doctor.

     The victim testified that after the incident, when appellant

visited her home, she hid under the bed, in the closet, or behind

other furniture.   The victim became upset at television shows

that depicted rape or sexual molestation.    She often cried about

the incident and, at one time, took an overdose of aspirin.
     In September, 1993, about nine years after the incident, the

victim saw appellant at a laundromat.   She became upset and left

the building, although she had not seen appellant since 1984.

The victim testified that she cried, wished she was dead, and

asked herself why the incident had to happen to her.    Her mother

took her to the hospital, where she was referred to the

Appomattox Counseling Center.

     The victim began seeing Carol DePew, a mental health

therapist.   She met with DePew for a total of eleven sessions.

DePew has an undergraduate degree in psychology and a masters

degree in mental health counseling.   She has "a National

Counseling Certification which is a five year renewable license

to be continued with 100 continued education hours of which [she]




                                  2
ha[d] earned 50."   She has attended professional seminars on such

topics as working with sexual abuse survivors.   DePew testified

she has "done extensive professional reading of books and

journals on topics relevant to working with adolescents and

families and [has] five years of professional experience in

therapy primarily working with children and families."    DePew

stated that one-third to one-half of her caseload involves

children who have been sexually abused.
     DePew was qualified as an expert witness over appellant's

objection.   Appellant argued to the trial court that DePew's

testimony was inadmissible because it would address the ultimate

issue in the case -- the credibility of the victim.   However, the

trial court ruled that DePew could testify, stating:
          [T]he Court would not allow the witness to
          give an opinion as to the ultimate fact in
          issue. That is in her opinion whether or not
          this child on the occasion was sexually
          abused or not. That is an issue for the jury
          to draw from all the evidence. However, I
          assume what the Commonwealth is about to do
          is to relate certain behavioral happenings
          and characteristics and ask the witness
          whether that type of behavior is consistent
          with a child who has been sexually abused. I
          don't think the response to that, assuming it
          would be an affirmative one based upon the
          facts that the Commonwealth would give, would
          go to invading the province of the jury in
          deciding the ultimate issue. I think it
          would be probative here. We have something
          that happened some nine years ago.
          Basically, the case comes down to the
          testimony of the young lady at this juncture
          as would be opposed by testimony of the
          defendant if he testifies. But, basically,
          it's coming down to the testimony of what the
          young lady has to say. This could be helpful
          to the jury in deciding whether or not she is



                                 3
             telling the truth. Something that the jury
             could consider other than their observation
             of her manner and demeanor and responses here
             today.


       At the trial, DePew testified in response to hypothetical

questions.    She listed the following as "pretty common" symptoms

of sexual abuse victims:    crying; expressing painful or negative

emotions in inappropriate fashions; becoming upset in a manner

that is not rational or reasonable to others, such as when seeing

something on television reminiscent of the event; safety seeking

behavior such as hiding; overdose or suicide attempts; and panic

attacks upon seeing the perpetrator.    She testified that one of

the strongest indicators of sexual abuse was when the victim

remembered the exact event even though it occurred many years

ago.
       Appellant testified and denied any sexual activity with the

victim.

                                  II.

       "The admissibility of evidence is within the broad

discretion of the trial court, and a ruling will not be disturbed

on appeal in the absence of an abuse of discretion."     Blain v.

Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)

(citation omitted).

       Relying on Davison v. Commonwealth, 18 Va. App. 496, 445

S.E.2d 683 (1994), appellant argues that DePew's testimony

impermissibly bolstered the credibility of the victim and offered

conclusions as to the ultimate issue in the case.    However,



                                   4
DePew's testimony differed from the testimony offered by the

expert witness in Davison.    In Davison, the expert witness, a

therapist, testified concerning the "phenomenon of recanting" to

explain why the victim, a child, would relate prior inconsistent

statements that contradicted both the victim's trial testimony

and the victim's original version of a sexual assault.      Id. at

498-99, 445 S.E.2d at 684-85.    We held that the trial court erred

in admitting the therapist's testimony because she offered an

opinion as to why the victim's testimony at trial should be

believed and why the victim's prior inconsistent statement should

be disbelieved.   Id. at 503-04, 445 S.E.2d at 687.

     The testimony of DePew is more analogous to the expert

witness testimony offered in Taylor v. Commonwealth, 21 Va. App.

___, ___ S.E.2d ___ (1996).   In Taylor, a licensed clinical

social worker testified that she "'found [the victim] to be

suffering from posttraumatic stress disorder,' explained how she

reached her diagnosis from the symptoms that the victim related,

and testified that posttraumatic stress disorder may afflict

'anyone who has had a traumatic event outside of normal human

experience that would be markedly distressing to almost anyone.'"
Id. at ___, ___ S.E.2d at ___.    The expert witness also

identified criteria necessary to diagnose posttraumatic stress

disorder, applied the criteria to the victim, and expressed her

professional opinion that "the victim demonstrated the requisite

number of criteria to support a diagnosis of posttraumatic stress




                                  5
disorder."   Id. at ___, ___ S.E.2d at ___.

     This Court rejected Taylor's assertion that the expert

witness' testimony "constituted a comment on the victim's

credibility." Id. at ___, ___ S.E.2d at ___.    We held:
          [E]vidence of an emotional or psychological
          injury such as posttraumatic stress disorder,
          like medical evidence of physical injury, is
          relevant as circumstantial evidence of the
          occurrence of a traumatizing event. In this
          case, [the expert witness'] testimony
          corroborated the fact that the victim had
          suffered a traumatizing event, as evidenced
          by her mental condition, and constituted
          neither the expression of an opinion on the
          victim's credibility, nor an opinion as to
          which version of events should be accepted by
          the jury.

Id. at ___, ___ S.E.2d at ___. 1
            An expert in a criminal case "may give an
          opinion based [only] upon his own knowledge
          of facts disclosed in his testimony or . . .
          upon facts in evidence assumed in a
          hypothetical question," but the witness may
          not express an opinion as to the ultimate
          issue to be determined by the trier of fact.


Price, 18 Va. App. at 764, 446 S.E.2d at 645 (citations omitted).

     In this case, DePew responded only to hypothetical questions

concerning the symptoms related to sexual abuse.   She also

testified that victims "could easily have a panic attack" when

they encountered their offender, even years after a traumatizing

     1
      See also Price v. Commonwealth, 18 Va. App. 760, 765, 446
S.E.2d 642, 645 (1994) (holding that an expert witness' testimony
concerning battered child syndrome "'is not an opinion regarding
the culpability of any particular defendant. . . . [It] merely
tends to show that the child was intentionally, rather than
accidentally, injured.'" (citation omitted)).




                                 6
incident.   DePew did not enumerate any details of the incident

that the victim may have related to her in therapy sessions.

Further, DePew did not testify that she believed the victim was

telling the truth, or that, in her opinion, appellant committed

the charged offense.   DePew merely responded to hypothetical

questions that certain behavior was consistent with that of a

sexually abused child.   Therefore, DePew's testimony corroborated

the fact that the victim had been sexually abused and

"constituted neither the expression of an opinion on the victim's

credibility, nor an opinion as to which version of events should

be accepted by the jury."   See Taylor, 21 Va. App. at ___, ___

S.E.2d at ___.   Thus, the trial court did not abuse its

discretion in admitting the evidence.

     Accordingly, the judgment of the trial court is affirmed.

                                                           Affirmed.




                                 7
BENTON, J., dissenting.



       In Davison v. Commonwealth, 18 Va. App. 496, 445 S.E.2d 683

(1994), we held as follows:
          In proffering [the therapist] as an expert,
          it was the prosecutor's intent to bolster the
          truth of [the victim's] testimony at trial.
          It is well settled that an expert may not
          "express an opinion as to the veracity of any
          witness." The prosecutor's question to [the
          therapist] specifically concerned the
          testimony of a "particular . . . witness"
          and, thus, was clearly "intended to elicit an
          opinion" of veracity. Such evidence is a
          comment on an ultimate fact within the
          province of the jury and must be excluded by
          the trial court.

Id. at 504, 445 S.E.2d at 688 (citations omitted).    See also

Coppola v. Commonwealth, 220 Va. 243, 252, 257 S.E.2d 797, 803

(1979), cert. denied, 444 U.S. 1103 (1980).    Because the

therapist's testimony was admitted in this case only to bolster

the complainant's credibility by discussing truthfulness

criteria, I would hold that Davison controls this case and

reverse the conviction.

       In her testimony, the complainant said that Moore had sexual

intercourse with her nine years earlier when she was six years of

age.   Because the complainant was under the age of thirteen when

the incident was alleged to have occurred, the Commonwealth had

to prove only that Moore had sexual intercourse with the

complainant, who was not his spouse, to establish a violation of

Code § 18.2-61(A)(iii).   To support her claim, the Commonwealth

introduced testimony by the complainant's mother and babysitter


                                  8
describing the complainant's behavior during the years following

the incident.   However, only the complainant testified that

sexual intercourse actually occurred and that Moore was the

perpetrator.    Moore testified and denied that he ever had sexual

intercourse or other sexual contact with the complainant.

Consequently, this case turned solely on the credibility of the

complainant and Moore.

     During the Commonwealth's case-in-chief, the prosecutor

asked to have the therapist qualified as an expert witness.

Defense counsel objected and stated that "the matters that are in

controversy in this case are well within the knowledge and

experience of all of these jurors."      Defense counsel argued that

the only purpose of the therapist's testimony was to prove that

the victim testified truthfully.       In admitting the testimony the

trial judge ruled as follows:
          We have something that happened some nine
          years ago. Basically, the case comes down to
          the testimony of the [complainant] at this
          juncture as would be opposed by testimony of
          the defendant if he testifies. But,
          basically, it's coming down to the testimony
          of what the [complainant] has to say. [The
          therapist's testimony] could be helpful to
          the jury in deciding whether or not [the
          complainant] is telling the truth. Something
          that the jury could consider other than their
          observation of her manner and demeanor and
          responses here today.


The trial judge's reason for admitting the therapist's testimony

is precisely the reason that it should not have been admitted.

     The prosecutor used the therapist's testimony to validate




                                   9
the truthfulness of the complainant's testimony.    By commenting

upon the various behaviors that the child was said to have

exhibited over a nine year period, the therapist sought to convey

by a professional explanation that a rape must have occurred and

that the complainant obviously testified truthfully.    The

therapist's testimony was used in this manner to impermissibly

vouch for the credibility of the complainant.    "Permitting a

person in the role of an expert to suggest that because the

complainant exhibits some of the symptoms of rape trauma . . . ,

the complainant was therefore raped, unfairly prejudices the

[accused] by creating an aura of special reliability and

trustworthiness."     State v. Salana, 324 N.W.2d 227, 230 (Minn.

1982).

     The therapist's testimony clearly was systematically

structured to bolster the complainant's testimony.    (See

Appendix).    The prosecutor's strategy is obvious in the following

question and response:
          Q. Let's go a little further. If this child
          related to you that I told my mother and I
          told my babysitter and they didn't believe
          me, is that consistent with this type of
          case, sexual abuse case?

             A. Yes. Often adults who are charged with
             caretaking of young children feel so much
             shame and guilt and denial that a child has
             been violated while in their care that it is
             very difficult for them to accept.


At its core, this testimony affirms the therapist's belief in the

complainant's truthfulness.    In addition, the testimony asserts



                                  10
that the complainant is credible even when she appears otherwise

to others.    By asserting as a characteristic of "sexual abuse

case[s]" the disbelief of others when hearing a complaint, the

therapist gave an expert opinion that truth should be inferred

from the disbelief of the others.       The illogic is patent.   I find

no basis to allow an expert to comment on the validity of the

complainant's charge and the complainant's truthfulness in the

guise of explaining why the complainant would be disbelieved by

others.
       If there could be any doubt as to the thrust and purpose of

this testimony, the Commonwealth's strategy is again revealed in

the following exchange:
          Q. Okay. Again, hypothetically, this
          incident occurred when this child was six
          years old and some nine years later, is it
          consistent that the child remember the exact
          or close to the exact events of what occurred
          to the child when she was six years old?

             A.   Yes.

             Q.   That wouldn't be unusual?

             A.   That's one of the strongest indicators.


This testimony manifestly and openly asserted that the child

truthfully and accurately testified concerning an event that was

alleged to have occurred nine years earlier when the child was

six.   Simply put, the therapist was permitted to give an "expert"

evaluation of the complainant's truthfulness.

       When expert testimony is intended to prove a witness'

credibility, the role of the fact finder is invaded.        Davison, at



                                   11
504, 445 S.E.2d at 688.   Expert testimony will be allowed to aid

jurors only when the jurors must consider matters that are not

within their common knowledge.   See Callahan v. Commonwealth, 8

Va. App. 135, 138, 379 S.E.2d 476, 478 (1989).
          Where a jury is confronted with evidence of
          an alleged child victim's behaviors, paired
          with expert testimony concerning similar
          syndrome behaviors, the invited inference -
          that the child was sexually abused because he
          or she fits the syndrome profile - will be as
          potentially misleading and equally as
          unreliable as expert testimony applying the
          syndrome to the facts of the case and stating
          outright the conclusion that a given child
          was abused. The danger of the jury
          misapplying syndrome evidence thus remains
          the same whether an expert expresses an
          explicit opinion that abuse has occurred or
          merely allows the jury to draw the final
          conclusion of abuse.

Seward v. State, 652 N.E.2d 490, 499 (Ind. 1995).

     The therapist's affirmation of the complainant's testimony

proved to be a critical part of the Commonwealth's case.

However, the therapist's testimony "was only a thinly veiled way

of stating that [the victim] was telling the truth."     United
States v. Whitted, 11 F.3d 782, 787 (8th Cir. 1993).    An expert

witness may not give a judgment on the truthfulness of a witness

"under the guise of a scientific diagnosis."   Id.     See also

Wescott v. Crinklaw, 68 F.3d 1073, 1077 (8th Cir. 1995).

Moreover, when the conflicting testimony of witnesses is an

ultimate issue in fact, an expert may not comment upon the

credibility of one of the witnesses.   See Davison, at 504, 445

S.E.2d at 688.   The sole purpose of the therapist's testimony was



                                 12
to comment on the complainant's credibility and to prove she

truthfully testified when she said that she was the victim of a

sexual assault almost a decade ago.




                               13
                        APPENDIX

In pertinent part, the therapist testified as follows:
     Q. Hypothetical question. The young lady
     comes to you and tells you she has been,
     since she was six years been upset, crying
     for no reason at all, telling her mother and
     her best friend or babysitter who is like a
     mother to her that she had been raped at
     another time earlier than this, she watches
     television shows dealing with child
     molestation and she becomes upset and cries,
     is this consistent with a child who has been
     sexually abused?

     A.   Yes.
     Q.   Can you explain why?

     A. There are certain symptoms that are like
     symptoms of any illness or disease that are
     customary for sexual abuse or sexual violence
     survivors. Those can include inappropriate
     expressions of emotions, especially painful
     or negative emotions like excessive crying or
     crying at inappropriate times.

                 *        *        *

        There are certain symptoms of survivoring
     sexual abuse or sexual violence that are
     pretty common and those can include
     expressing negative or painful emotions in
     inappropriate fashions. Crying or becoming
     upset in a manner that doesn't seem
     reasonable or rational to adults or other
     people. Witnessing media exposure through
     books or movies or television or videos
     that's reminisce of the event that may have
     occurred in the young person's life.
     Witnessing that can fracture their
     psychological defenses and cause the painful
     emotions to emerge and sometimes those
     emotions are split off and attributed to
     other things, maybe upset about school or
     grades.

     Q. Let's go a little further. If this child
     related to you that I told my mother and I
     told my babysitter and they didn't believe


                              14
me, is that consistent with this type of
case, sexual abuse case?

A. Yes. Often adults who are charged with
caretaking of young children feel so much
shame and guilt and denial that a child has
been violated while in their care that it is
very difficult for them to accept.

Q. Now, if the child further told you that
subsequent to this rape episode when this man
would come back to the home of her parent,
her mother, the child would hide in closets
or under tables or under beds, is that
consistent with a child that has been abused?

A. Yes. It's really interesting in sexually
abused children, male and female children.
It's natural for a child to maybe hide and
play but children who have been physically
violated it's called safety seeking behaviors
and they go to excessive lengths and they
often hide in the bottom of closets or behind
furniture. They hide much more than a
regular child would for regular reasons of
play and they do this because they need to go
somewhere where they feel physically and
psychologically safe.
Q. This same child four or five years after
the original incident took an overdose of
medication from the home, is that consistent
behavior for a child who has been sexually
abused?

A. Yes. Often children themselves, their
mind protects the trauma victim by
surrounding the event with denial or
splitting the event off from the mind and a
child can experience so much emotional pain
that they don't really know how to cope with
it and an overdose or suicide attempts are
quite common.

Q. Okay. Now, the child, say, eight years
later came in contact with this person, they
are in the same room together, is it
consistent that this child would become
hysterical, have trouble breathing, shaking,
screaming, relating back to that incident, is
that consistent?



                     15
A. Yes. The child could easily have a panic
attack or an episode where the way that their
mind disassociates or splits off the emotion
content of the trauma, those two things can
become connected. Seeing the perpetrator, or
the offender, again could cause the person to
feel like the same event is happening and the
fear and trauma can emerge. The subconscious
mind has no concept of time like we do. So
we might be able to say a car wreck happened
ten years ago, maybe there was a lot of
crashing or loud glass breaking and if you
were to hear those noises again it may appear
that that event was happening all over again.
 That's because the subconscious memory has
been triggered and it seems like it's
happening at the same moment again.
Q. That kind of leads me to my next
question. Back to the hypothetical again,
first. It's been related that this child who
is seven or eight years old may have
masturbated with her fingers. Is that
consistent with a child that's been sexually
abused?

A. Yes. Children don't develop healthy
sexuality until the onset of hormonal
development in adolescence. So provocative
or sexualized behavior in young children is
almost always a sign that they have been
sexually violated in some way. It's natural
for the body to enjoy the feeling of arousal
but not in a sexualized fashion like that.

Q. Okay. Again, hypothetically, this
incident occurred when this child was six
years old and some nine years later, is it
consistent that the child remember the exact
or close to the exact events of what occurred
to the child when she was six years old?

A.   Yes.

Q.   That wouldn't be unusual?

A.   That's one of the strongest indicators.




                      16
