                  COURT OF APPEALS OF VIRGINIA


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


RICHARD WILLIAM WEBB, A/K/A
 RICHARD W. WEBB
                                          MEMORANDUM OPINION * BY
v.   Record No. 0122-96-2                  JUDGE MARVIN F. COLE
                                               JUNE 10, 1997
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF NORTHUMBERLAND COUNTY
                  Joseph E. Spruill, Jr., Judge
          Gordon A. Wilkins (Charles J. McKerns, Jr.;
          Wilkins & Davison; McKerns & McKerns, on
          brief), for appellant.

          Pamela A. Rumpz, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on
          brief), for appellee.



     Following a bench trial, Richard William Webb (defendant)

was found guilty of capital murder, aggravated malicious wounding

and related firearm charges.   He was sentenced to life

imprisonment on each of the greater charges and statutory

mandatory sentences on the firearms counts.   Defendant contends

that the trial court erred in permitting the prosecution's expert

medical witness to testify on the ultimate fact at issue in the

aggravated malicious wounding charge, namely, whether the victim

was severely injured and was caused to suffer permanent and

significant physical impairment.   Finding no reversible error, we

affirm the conviction.

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
        To prove aggravated malicious wounding, the Commonwealth had

the burden of proving that appellant committed an offense under

Code § 18.2-51.2 which "severely injured" the victim and caused

him "to suffer permanent and significant" physical impairment.

"On appeal, we review the evidence in the light most favorable to

the Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom."     Martin v. Commonwealth, 4 Va. App. 438,

443, 358 S.E.2d 415, 418 (1987).
        The Commonwealth's evidence is undisputed.   The defendant

did not put on any evidence to contradict the testimony of the

prosecution witnesses.    The evidence shows that on February 27,

1995, defendant shot and killed his grandmother, Peggy Webb, in

the trailer where she lived with her husband.    After murdering

his grandmother, defendant turned the rifle on his grandfather,

Julian Webb (Webb), and shot him in the left wrist.     The bullet

penetrated Webb's wrist and lodged in his cheek.     After being

shot, Webb fled the scene on foot as the defendant fired

additional shots at him.    Webb was carried to the hospital and

treated by Dr. Ronald H. Patterson for injuries to his wrist and

face.    He was discharged from the hospital on March 2, 1995, with

his arm in a cast.

        At trial, Webb testified that he threw his left arm up to

ward off the bullet and the bullet went through the left wrist

and hit his right cheek.    Webb testified that he remained under

Dr. Patterson's care, that the arm still bothered him and that



                                   2
this would continue the rest of his life.   He stated that

fragments from the shot remained in both his wrist and cheek.

Webb testified that he was a commercial fisherman and that he had

not returned to work since the shooting because his hand burns

and hurts when he moves it.   Webb was still taking pain

medication at the time of trial.

     Dr. Patterson, an orthopedic surgeon, qualified as an expert

in the field of orthopedics and testified that Webb came under

his care at MCV Hospital for a gunshot wound to the left wrist.

According to his testimony, "Webb had a through and through

gunshot wound.   Through the left wrist with an entrance and exit

wound in the distal forearm just proximate to the left wrist.

The slug from the gunshot wound continued into his right cheek

and lodged in the right maxillary sinus of his face, facial

bone."   He stated that fragments remained in both the wrist and

the face.   Dr. Patterson testified that Webb would lose some

function and motion of his left wrist and would be left with some

traumatic arthritis of his left wrist.   Dr. Patterson testified

that his prognosis was that Webb
          had several degrees of loss of motion.
          Approximately five degrees in each plane,
          which means to me five degrees of extension,
          five degrees of flexion, five degrees of
          ulnar deviation and five degrees of radial
          deviation that he had lost secondary to his
          injury. He had also lost a few degrees of
          supination . . . . A loss of about ten
          degrees of supination . . . .


     Over defendant's objection, Dr. Patterson was permitted to




                                   3
testify further that, based upon his education, training and

experience, it was his opinion that Webb would suffer permanent

injuries from the gunshot wounds and that the injuries were

significant.

     The Supreme Court has stated the following generally

accepted principle:   "In any proper case, an expert witness may

be permitted to express his opinion upon matters not within

common knowledge or experience.   Opinion testimony, however, is

not admissible 'upon the precise or ultimate fact in issue.'"

Cartera v. Commonwealth, 219 Va. 516, 519, 248 S.E.2d 784, 786

(1978) (quoting Webb v. Commonwealth, 204 Va. 24, 33, 129 S.E.2d

22, 29 (1963)).   See also Jenkins v. Commonwealth, 22 Va. App.

508, 517, 471 S.E.2d 785, 790 (1996) (en banc).
          However, it is equally as well settled that
          expert opinion and testimony are admissible
          "where the jury, or the court trying a case
          without a jury, is confronted with issues
          which require scientific or specialized
          knowledge or experience in order to be
          properly understood, and which 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."

Compton v. Commonwealth, 219 Va. 716, 726, 250 S.E.2d 749, 755-56

(1979) (citation omitted).    An expert medical witness can testify

concerning any physical evidence he observes at the crime scene

and in general he can testify as any other expert witness about

facts within his knowledge.   He can testify about his examination

and tests he performed and what medical conclusions he reached as



                                  4
a result, except that he is precluded from testifying as to the

precise ultimate issue.    See 2 Charles E. Friend, The Law of

Evidence in Virginia, § 17-17 (4th ed. 1993).

     Because of the view we take on the issue, it is unnecessary

for us to decide whether the testimony of Dr. Patterson that Webb

suffered permanent and significant physical impairment

constituted testimony upon the ultimate issue in the case.    For

this opinion, we will assume that his testimony was improper and

should not have been admitted.    We hold that the admission of

such evidence was harmless error.
     A nonconstitutional error is harmless if "it plainly appears

from the record and the evidence given at trial that the error

did not affect the verdict."     Lavinder v. Commonwealth, 12 Va.

App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc).     "An error

does not affect a verdict if a reviewing court can conclude,

without usurping the [trial court's] fact finding function, that,

had the error not occurred, the verdict would have been the

same."   Id.   An error may be harmless because other evidence of

guilt is "so overwhelming and the error so insignificant by

comparison that the error could not have affected the verdict."

Hooker v. Commonwealth, 14 Va. App. 454, 458 n.2, 418 S.E.2d 343,

345 n.2 (1992); see also Hanson v. Commonwealth, 14 Va. App. 173,

189-90, 416 S.E.2d 14, 24 (1992) (error inconsequential in

comparison to uncontradicted evidence of guilt).    An error in

admitting expert testimony is harmless where an accused "has had




                                  5
a fair trial according to law, and the proof is conclusive of his

guilt."   Rodriguez v. Commonwealth, 249 Va. 203, 208, 454 S.E.2d

725, 728 (1995).

     We find as a matter of law that the undisputed testimony of

Webb and the admissible testimony of Dr. Patterson constitute

overwhelming evidence that Webb's injuries were severe and that

he suffered permanent and significant impairment as a result.

That evidence showed that Webb continued under Dr. Patterson's

care at the time of trial, that the injured arm still caused Webb

burning and pain and that Webb's condition would continue for the

rest of his life.   The evidence showed that bullet fragments

remained in Webb's wrist and cheek, that a thumb-sized scar

remained on Webb's cheek and that, because of his condition, Webb

could no longer engage in his work as a commercial fisherman.

Dr. Patterson's admissible testimony corroborated Webb's loss of

function and motion in his wrist and his prognosis included the
                                                      1
development of traumatic arthritis in Webb's wrist.
     Dr. Patterson's inadmissible testimony was insignificant in

light of the overwhelming evidence concerning the severity of the

injury and the permanency of the impairment.   To be sure, the

trial judge's comment with respect to needing the help of a
     1
      While Dr. Patterson could not distinguish between arthritis
which he expected to develop in Webb's wrist as a result of the
gunshot and that which would develop as a result of age, his
opinion that Webb would sustain "a certain degree of traumatic
arthritis of [the] left wrist joints" and that Webb "will have
significant symptoms in that wrist . . . for the remainder of his
life at times," was unequivocal and unrebutted.



                                 6
medical expert reflects the medical complexity of the issue the

court faced.   That comment, however, does not lead us to conclude

that the trial court would have reached a different finding on

the ultimate facts at issue had Dr. Patterson not offered an

opinion with respect to them.   Indeed, it is evident from other

comments that the court considered evidence other than the

opinion erroneously admitted in making its ultimate finding.

With respect to severity, the trial judge stated, "I think to be

shot in the face would be severe in almost any circumstances,"

and in concluding that Webb's injuries were permanent, the court

noted Webb's range of motion in his wrist "was limited in almost

every sphere."    Finally, to the extent the evidence raises a

question concerning the extent of Webb's disability to work and

perform household chores, we note that the victim's disability is

not an element of the crime.
     In sum, we find that Dr. Patterson's statement that the

injuries were permanent and significant, when considered with the

other testimony, had no effect upon the decision of the trial

judge.   Accordingly, we find the error to be harmless and affirm

the conviction.

                                                    Affirmed.




                                  7
Benton, J., dissenting.

     I would hold that the trial judge erred in allowing Dr.

Ronald H. Patterson to give his expert opinion about whether

Richard Webb's grandfather "suffer[ed] permanent and significant

physical impairment," an ultimate issue of fact under Code

§ 18.2-51.2.   In addition, I disagree with the majority's

conclusion that the error was harmless.   Accordingly, I dissent.

                                I.
     To prove Webb committed the offense of aggravated malicious

wounding, the Commonwealth had to prove that Webb's grandfather,

"the victim[, was] . . . severely injured and [was] caused to

suffer permanent and significant physical impairment."    Code

§ 18.2-51.2.   The principle is well settled, however, that expert

"[o]pinion testimony . . . is not admissible 'upon the precise or

ultimate fact in issue.'"   Cartera v. Commonwealth, 219 Va. 516,

519, 248 S.E.2d 784, 786 (1978) (citation omitted).

     At trial, both the grandfather and Dr. Patterson, the

grandfather's treating physician, testified about the

grandfather's injuries.   Over defense counsel's objection, Dr.

Patterson gave the following testimony, which is at issue in this

appeal:
          COUNSEL: Based on your education, training
          and experience and on the history taken here
          and on your examination of the patient do you
          have an opinion based on reasonable medical
          probability as to two questions, A, the
          causal connection of the injuries for which
          you treated him and B, whether [the
          grandfather] will suffer permanent and
          significant physical impairment?


                                 8
          A:   Yes, sir, I do.

          COUNSEL:      All right.   And what is your
          opinion?

          A: I think his injury was due to a gunshot
          wound through and through near the left
          wrist. I think he will suffer permanent
          injury from this gunshot wound. I think he
          will lose some function and motion of his
          left wrist and I think he will be left with
          some traumatic arthritis of his left wrist.

                    *     *    *     *     *   *    *

          COUNSEL: And would you consider those items
          that you testified to as being significant?

          A:   Yes, sir, I would.


(Emphasis added.)

     These essential elements of the offense were ultimate facts

at issue in this prosecution.        See Nicholas v. Commonwealth, 91

Va. 741, 750, 21 S.E. 364, 366-67 (1895); see also Webb v.

Commonwealth, 204 Va. 24, 32-33, 129 S.E.2d 22, 29 (1963).       Thus,

the trial judge erred in allowing Dr. Patterson to testify that,

in his expert opinion, the grandfather's injuries were permanent

and significant.

                                     II.

     I disagree with the majority's conclusion that the trial

judge's error in allowing Dr. Patterson to give his expert

opinion on the ultimate issues was harmless.       The error was not

harmless because it does not "'plainly appear[] from the record

and the evidence given at the trial that' the error did not

affect the verdict."      Lavinder v. Commonwealth, 12 Va. App. 1003,



                                      9
1005, 407 S.E.2d 910, 911 (1991) (en banc) (quoting Code

§ 8.01-678).    The majority reasons that "the admissible testimony

. . . constitute[s] overwhelming evidence" that the grandfather's

injuries were permanent and significant.    I disagree.

        The severity of the grandfather's injury was disputed at

trial.    The grandfather testified that he was sixty-five years

old and had been a commercial fisherman until the shooting.       He

stated that he could no longer engage in his trade as a

commercial waterman.    He testified that his injury still bothered

him, that it still burned, and that he thought it would bother

him "as long as [he] live[d]."    He testified that his cheek bone

was broken and that the wound was still numb.    When asked whether

he thought his arm would ever return to normal, he answered,

"no."    On cross-examination, however, the grandfather testified

that he "can move [his] hands all right" but he has not tried to

pick up anything.    He also testified that he had accompanied his

son on his son's work boat since the incident.    He further

testified that there is not really anything that he is prevented

from doing around his house.
        Dr. Patterson testified and described the grandfather's

injuries as follows:
             [The grandfather] had had a through and
          through gunshot wound through the left wrist
          with an entrance and exit wound in the distal
          forearm just proximal to the left wrist. The
          slug from the gunshot wound continued into
          his right cheek and lodged in the right
          maxillary sinus of his face, facial bone.




                                  10
     Although Dr. Patterson testified that the grandfather had

lost several degrees of motion of his wrist, he also testified,

contrary to the grandfather's testimony, that the grandfather's

injuries should not prevent him from engaging in his job as a

commercial fisherman.   He further testified that the injuries

would not prevent the grandfather from performing normal

household chores.   He diagnosed the grandfather with permanent

arthritis to his wrist, but he stated that he could not

distinguish between arthritis caused by the gunshot wound and

arthritis caused by the grandfather's age. 2   Moreover, Dr.

Patterson had not determined whether the grandfather was

suffering from arthritis in other areas of his body.

     The majority discounts the importance of the conflict in the

evidence because "the victim's disability is not an element of

the crime."   That assertion is simply unsupported by the law.

See Code § 18.2-51.2 (stating that an element of aggravated

malicious wounding is a "permanent and significant physical
impairment") (emphasis added).

     Given the conflicting evidence, this is not a case in which

"the other evidence of [the permanence and significance of the

injury] was so overwhelming and the error so insignificant by

comparison that the error could not have affected the verdict."

Hooker v. Commonwealth, 14 Va. App. 454, 457 n.2, 418 S.E.2d 343,
     2
      In view of this testimony, the fact that the doctor's
opinion was unrebutted clearly does not lead to a conclusion that
the arthritis was caused by the gunshot wound.



                                 11
345 n.2 (1992).   Moreover, "[o]ther evidence of a disputed fact,

standing alone, does not establish that an error is harmless.    If

so, a harmless error analysis would be simply a sufficiency of

the evidence analysis."   Id. at 458, 418 S.E.2d at 345.    Even if

"the other evidence amply supports the . . . verdict[], the

[error is not harmless when] disputed testimony may well have

affected the . . . decision."   Cartera, 219 Va. at 519, 248

S.E.2d at 786.
     The record in this case clearly established that the

expert's opinion "carr[ied] great weight . . . and could very

well have been the decisive factor in [the trier of fact's]

mind[] in determining [Webb's] guilt."   Callahan v. Commonwealth,

8 Va. App. 135, 140, 379 S.E.2d 476, 479 (1989).    Indeed, in

overruling defense counsel's objection and admitting Dr.

Patterson's testimony, the trial judge stated "I don't think we

can make it without the help of medical experts."   Certainly, in

view of that statement alone, we cannot say that if the expert

had been prohibited from testifying that the injuries were

"significant," the trial judge would not have decided that the

injury was not "significant."

     The majority states that the judge's comments show that the

judge "considered evidence other than the opinion erroneously

admitted."   The majority cites two statements made by the judge

but fails to demonstrate that the doctor's inadmissible opinion

did not lead the judge to make those statements.    Moreover, that



                                12
the judge considered other evidence does not rule out the

possibility that the judge also considered the erroneously

admitted evidence.   Thus, we cannot "conclude, without usurping

the . . . fact finding function, that, had the error not

occurred, the verdict would have been the same."   Lavinder, 12

Va. App. at 1005, 407 S.E.2d at 911.

     For these reasons, I would hold that the trial judge erred

in allowing Dr. Patterson to give his expert opinion as to the

permanency and significance of the grandfather's injuries.

Because the error may have affected the judge's decision, I would

hold that the error was prejudicial and reverse the conviction.

Accordingly, I dissent.




                                13
