                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Petty and Chafin
              Argued at Richmond, Virginia
UNPUBLISHED




              MICHAEL HUDSON, S/K/A
               MICHAEL DERIK HUDSON
                                                                             MEMORANDUM OPINION BY
              v.     Record No. 0569-18-2                                     JUDGE WILLIAM G. PETTY
                                                                                   APRIL 2, 2019
              COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF KING WILLIAM COUNTY
                                             B. Elliott Bondurant, Judge

                               Charles E. Haden for appellant.

                               Donald E. Jeffrey, III, Senior Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     Michal Hudson was convicted by a jury of strangulation in violation of Code § 18.2-51.6,

              aggravated malicious wounding in violation of Code § 18.2-51.2, and abduction in violation of

              Code § 18.2-47. The only issue before this Court on appeal is whether the trial court erred in

              allowing the medical examiner’s “report and testimony to include pathological diagnosis of

              ‘Status Post Assault/Manual Strangulation’ as a violation of the Rules of Evidence permitting an

              expert to comment on the ultimate issue in the case of the medical examiner because it gave

              opinion on the ultimate issue.”1 For the reasons stated below, we affirm the convictions.




                     
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                         This Court did not grant the other assignments of error in the petition for appeal.
                                          BACKGROUND

       Because the parties are fully conversant with the record in this case and this

memorandum opinion carries no precedential value, we recite only those facts and incidents of

the proceedings as are necessary to the parties’ understanding of the disposition of this appeal.

We view the facts in the light most favorable to the prevailing party below, granting to it the

benefit of any reasonable inferences; we review issues of law de novo. Hall v. Commonwealth,

55 Va. App. 451, 453 (2009).

       As part of its case in chief, the Commonwealth called the medical examiner to testify

regarding the injuries sustained by the victim. The medical examiner’s partially-redacted

autopsy report was also admitted into evidence.2 Hudson objected to a pathological diagnosis in

the report of “Status Post Assault/Manual Strangulation” and a summary that referenced an

assault on December 18, 2015, in which the victim “was manually strangled.”3 Hudson argued

that the medical examiner’s use of the phrase “Post Assault/Manual Strangulation” indicated a

criminal act and thereby encompassed an ultimate issue in the case; it should therefore have been

redacted. The Commonwealth argued that the ultimate issue was whether Hudson had

committed the strangulation. After listening to extensive arguments by counsel, the trial court

overruled Hudson’s objection. The court found that the term strangulation was used as “more of

a medical term” rather than “a legal finding.” The court analogized the issue to a possession of a

controlled substance case in which a lab technician may testify that the substance is a controlled

substance, which is an element of the crime.



       2
        The victim died of unrelated causes, and references to the causes of death were redacted
by the Commonwealth.
       3
         The victim stated she had been choked on Saturday, which was December 19, 2015.
The discrepancy in dates was not explored at trial by the parties and does not affect this Court’s
analysis on appeal. 
                                               -2-
       After the expert testimony of a neurologist but prior to the medical examiner’s testimony,

the court sua sponte revisited the question of whether the references by the medical examiner to

post-assault strangulation should be allowed. After hearing a proffer of the medical examiner’s

testimony, the trial court allowed the testimony. The trial court noted that medical findings that a

repercussion injury occurred in the brain and that the “lack of blood flow to the one area of the

brain would be consistent with loss of blood flow due to compression of the neck” laid a

sufficient foundation for the medical examiner to give her opinion that the victim had been

strangled.4 The court concluded that the ultimate issue was whether Hudson strangled the

victim, which was not referenced in the medical examiner’s testimony or report.

       Hudson appeals that ruling.

                                             ANALYSIS

       “The admission of expert testimony is committed to the sound discretion of the trial judge

. . . .” Commonwealth v. Allen, 269 Va. 262, 274 (2005) (quoting Brown v. Corbin, 244 Va.

528, 531 (1992)). A trial court’s decision will be reversed on appeal only if the trial court abused

its discretion under the particular circumstances of the case. Kilby v. Commonwealth, 52

Va. App. 397, 410 (2008).

                       It is well established in Virginia that an expert witness may
               provide testimony, including opinions, if the fact finder “is
               confronted with issues” that “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” and thus require
               “scientific or specialized knowledge.”




       4
         The medical examiner testified that when a portion of the brain is deprived of oxygen
for a portion of time, and then blood flow is returned, two distinct injuries can be seen. The first
is the damage associated with the stroke from the deprivation of oxygen. The second is the
repercussion injury when the compression on the neck is released and the blood rushes back into
the area. The medical examiner testified that the victim’s brain showed both types of injury.
                                                -3-
Midgette v. Commonwealth, 69 Va. App. 362, 375 (2018) (quoting Schooler v. Commonealth,

14 Va. App. 418, 420 (1992)).

                  However, an expert witness “cannot give his opinion upon the
                  precise or ultimate fact in issue, which must be left to the jury or
                  the court trying the case without a jury for determination.” An
                  expert must not provide such an opinion, because testifying as to
                  the ultimate fact in issue “invades the function of the fact finder.”

Id. at 376 (quoting Llamera v. Commonwealth, 243 Va. 262, 264-65 (1992)). This rule is now

codified in Virginia’s Rules of Evidence, which states, “In criminal proceedings, opinion

testimony on the ultimate issues of fact is not admissible.” Va. R. Evid. 2:704(b).

       It is sometimes difficult to discern the line between expert testimony that aids the

factfinder and expert testimony that invades the function of the factfinder. “Experts are

frequently permitted to express opinions in criminal cases about matters which closely approach

the ultimate issue in the case.” Kent Sinclair, Law of Evidence in Virginia § 13-10(c) (8th ed.

2018). The Supreme Court has enumerated several cases in which it considered the ultimate

issue question.

                         In Ramsey [v. Commonwealth, 200 Va. 245 (1958)], an
                  arson case, we held that the trial court erred in allowing an expert
                  witness to conclude, based upon facts stated in a hypothetical
                  question, that the fire was of incendiary origin. This was an
                  opinion on an ultimate issue to be decided by the jury. 200 Va. at
                  251.

                          In Webb [v. Commonwealth, 204 Va. 24 (1963)], the
                  accused was charged with embezzlement. We concluded that the
                  trial court erred in permitting an expert witness to testify that the
                  “effect” of two deposit slips prepared by the accused, which
                  contained unrecorded receipts, was to replace funds converted by
                  the accused to her own use. 204 Va. at 32-33. This, we said, was
                  an opinion upon “the very issue in this case.” Id. at 33.

                         The accused in Cartera [v. Commonwealth, 219 Va. 516
                  (1978),] was charged with two counts of rape. A physician, who
                  had examined and treated the victims, was permitted to express his
                  opinion that the victims had been raped. 219 Va. at 518. We held

                                                   -4-
               that this was reversible error because “[w]hether rape had occurred
               was the precise and ultimate issue in the case.” Id. at 519.

                       In Bond [v. Commonwealth, 226 Va. 534 (1984)], the
               accused was charged with murder. The alleged victim died as a
               result of a fall from a fourth-floor balcony. 226 Va. at 535-36. A
               medical examiner’s autopsy report ruled out a suicide and an
               accident and classified the death as a homicide. Id. at 536. We
               held that the medical examiner’s opinion was inadmissible because
               “[t]he ultimate question was whether the decedent jumped
               intentionally, fell accidentally, or was thrown to her death.” Id. at
               539.

Llamera, 243 Va. at 265 (holding in prosecution for possession of cocaine with intent to

distribute that the Commonwealth was required to prove both the element of possession and the

intent to distribute, which were both ultimate issues of fact); see also Velazquez v.

Commonwealth, 263 Va. 95, 106 (2002) (holding expert’s testimony that the injuries were

consistent with non-consensual intercourse invaded factfinder’s role because “whether rape had

occurred was the precise and ultimate issue in the case”); Justiss v. Commonwealth, 61 Va. App.

261, 278 (2012) (holding that expert’s testimony that BB gun was “likely to cause death or great

bodily injury” was impermissible opinion on ultimate issue of whether BB gun was a deadly

weapon); Zelenak v. Commonwealth, 25 Va. App. 295, 300 (1997) (concluding defense expert’s

testimony that defendant was under stress was ultimate issue where defendant argued the defense

of duress). But see Hussen v. Commonwealth, 257 Va. 93, 99 (1999) (holding expert’s opinion

that victim’s injuries were not consistent with consensual sex was not a comment on the ultimate

issue, which was “whether the defendant’s conduct was against the victim’s will”); Midgette, 69

Va. App. at 376 (holding expert’s testimony that a video was not an accurate representation of a

traffic stop was not the ultimate issue in charge that “appellant testified falsely when he stated

that the video . . . was an accurate depiction of the traffic stop”); Bowman v. Commonwealth, 30

Va. App. 298, 303 (1999) (holding identity of perpetrator was not an ultimate issue of fact).



                                                -5-
       Here, Hudson was indicted for strangulation of the victim in violation of Code

§ 18.2-51.6, which provides that “[a]ny person who, without consent, impedes the blood

circulation or respiration of another person by knowingly, intentionally, and unlawfully applying

pressure to the neck of such person resulting in the wounding or bodily injury of such person is

guilty of strangulation.”5 Thus, the ultimate issues for determination by the factfinder were

whether (1) Hudson committed an act (2) that fit the legal definition of strangulation. The trial

court concluded that the testimony given by the medical examiner was medical in nature and did

not constitute the ultimate issue in the case. The trial court’s reasoning has merit, but we do not

need to decide today whether the court erred in declining to redact references to an “assault.”

We conclude that any error in permitting those references was harmless.6

       A harmless error analysis is required by Code § 8.01-678.

               When it plainly appears from the record and the evidence given at
               the trial that the parties have had a fair trial on the merits and
               substantial justice has been reached, no judgment shall be arrested
               or reversed . . . [f]or any . . . defect, imperfection, or omission in
               the record, or for any other error committed on the trial.

Gregory v. Commonwealth, 64 Va. App. 87, 96 (2014) (alterations in original) (quoting Code

§ 8.01-678) (assuming without deciding expert’s statement touched the ultimate issue but finding

any error harmless). “If, when all is said and done, [it is clear] that the error did not influence the

jury, or had but slight effect, . . . the judgment should stand . . . .” Clay v. Commonwealth, 262

Va. 253, 260 (2001) (alterations in original) (quoting Kotteakos v. United States, 328 U.S. 750,

764 (1946)).


       5
         Whether a strangulation occurred is clearly not the precise ultimate issue for either of
the other two crimes for which Hudson was convicted, abduction and aggravated malicious
wounding. We therefore focus our analysis on Hudson’s conviction for strangulation.
       6
         “Judicial restraint commands that courts decide cases ‘on the best and narrowest ground
available.’” Campbell v. Commonwealth, 69 Va. App. 217, 237 (2018) (quoting Commonwealth
v. Swann, 290 Va. 194, 196 (2015)).
                                              -6-
       Here, any error in declining to redact the autopsy report or limit the medical examiner’s

testimony had but slight effect, if any, on the jury. First, the jury was aware of the context of the

pathological diagnosis and was able to determine the proper weight to give it. The jury heard the

medical examiner testify that she based her opinion that strangulation caused the victim’s stroke

on information from other sources in the investigation rather than by personally observing signs

of strangulation.7 The jury also heard that the original final autopsy report did not include a

diagnosis of post-assault/manual strangulation, but rather blunt force trauma, and that the

medical examiner changed the diagnosis after consultation with a second neurologist.

       Second, two experts testified that the stroke symptoms were consistent with

strangulation. The medical examiner opined that, based on both medical and investigatory

evidence, the victim “had a stroke due to strangulation.” Additionally, the treating neurologist,

testifying as an expert, testified “there have been reported cases where a strangling event resulted

in specifically this type of stroke, comma-shaped stroke affecting these particular arteries.”

       Third, witnesses testified that the victim said she had been choked. A nurse testified that

when Hudson left the hospital room, the victim said she had been choked. The victim repeated

the statement to a treating doctor and indicated she wanted the police called. In response to the

victim’s statement, a hospital security officer told Hudson he had to leave the premises. The

victim later repeated to her treating neurologist that she had been choked.

       Finally, Hudson’s actions supported the jury’s conclusion that he was guilty. A

repairman testified that he saw Hudson standing over the victim, who was lying unresponsive on

the ground, on the morning of Saturday, December 19, 2015. The repairman helped Hudson

place the victim in the car, at which time she was groaning but unable to speak. However,



       7
        Hudson did not object to the medical examiner’s consideration of hearsay in her
testimony or report.
                                             -7-
Hudson did not take the victim to the hospital until Sunday, December 20. The jury could infer

that Hudson’s delay in seeking medical treatment for the victim was because he caused her

injuries.

        We conclude that the trial court’s decision to allow references to an assault involving

manual strangulation was such that it “did not influence the jury, or had but slight effect.” Clay,

262 Va. at 260. “In sum, the accused has had a fair trial according to law, and the proof is

conclusive of his guilt; any error in admitting the expert’s testimony was utterly harmless.”

Rodriguez v. Commonwealth, 249 Va. 203, 208 (1995) (citing Code § 8.01-678).

                                           CONCLUSION

        For the foregoing reason, we affirm Hudson’s convictions.
                                                                                         Affirmed.




                                               -8-
