Floyd Martin Lane, s/k/a Floyd M. Lane, Sr. v. CW ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Senior Judge Hodges
Argued at Richmond, Virginia
FLOYD MARTIN LANE, SOMETIMES KNOWN AS
FLOYD MARTIN LANE, SR.
MEMORANDUM OPINION * BY
v. Record No. 2161-98-2 JUDGE LARRY G. ELDER
SEPTEMBER 28, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
William H. Ledbetter, Jr., Judge
Andrea C. Long (Charles C. Cosby, Jr.; Boone,
Beale, Cosby & Long, on brief), for
appellant.
Jeffrey S. Shapiro, Assistant Attorney
General (Mark L. Earley, Attorney General;
John H. McLees, Jr., Assistant Attorney
General, on brief), for appellee.
Floyd Martin Lane, Sr., (appellant) appeals from his jury
trial convictions for rape and forcible sodomy of the victim,
who was his stepdaughter. Appellant contends that the trial
court erred in admitting the testimony of an expert concerning
victim recantation, as well as the testimony of the victim's
mental health counselor. Appellant also challenges the
sufficiency of the evidence to support his convictions. Finding
no error, we affirm.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I.
ADMISSIBILITY OF LANZAFAMA'S TESTIMONY
Appellant contends that the trial court erred in ruling
that Detective Lanzafama was qualified to testify as an expert
witness on the subject of recantation by alleged victims of
sexual abuse. 1 We disagree and affirm the ruling of the trial
court.
"In any proper case, an expert witness may be permitted to
express his opinion upon matters not within common knowledge or
experience." Cartera v. Commonwealth, 219 Va. 516, 518, 248
S.E.2d 784, 786 (1978). "The record must show that the
proffered expert possesses sufficient knowledge, skill, or
experience to render him competent to testify as an expert on
the subject matter of the inquiry." King v. Sowers, 252 Va. 71,
78, 471 S.E.2d 481, 485 (1996). A witness need not have
specialized training in a particular field and may gain his
expertise solely through work experience. See Wileman v.
Commonwealth, 24 Va. App. 642, 647-48, 484 S.E.2d 621, 624
1
Appellant's only contention in his petition for appeal,
and on brief, was that the trial court erred in qualifying
Lanzafama as an expert on recantation in child abuse cases.
Under Rule 5A:12(c), "[o]nly questions presented in the petition
for appeal will be noticed by the Court of Appeals." See Cruz
v. Commonwealth, 12 Va. App. 661, 664 n.1, 406 S.E.2d 406, 407
n.1 (1991). Further, unlike Rule 5A:18, Rule 5A:12 contains no
"good cause" or "ends of justice" exception. See Thompson v.
Commonwealth, 27 Va. App. 620, 626, 500 S.E.2d 823, 826 (1998).
Therefore, no appeal was granted on any other aspect of
Lanzafama's testimony, and we may not consider any other
challenges to it on appeal.
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(1997) (qualifying bank official as expert in comparing
signatures to determine authenticity). "Whether a particular
witness is qualified to testify as an expert is 'largely a
matter in the discretion of the trial court, and its rulings
allowing a witness to testify will not be disturbed unless it
clearly appears that [the expert] was not qualified.'" Id. at
647, 484 S.E.2d at 624 (citation omitted).
Lanzafama testified that, in his six years as a detective,
he had investigated approximately three hundred sexual assault
cases. In addition, he had undergone many hours of training in
the area of alleged sexual abuse, which had incorporated about
ten hours of specialized training on the issue of a child's
recanting allegations of abuse. Finally, he testified that he
had read about twelve articles on the subject of recantation in
conjunction with his formal training. We cannot say from the
evidence in this record that the trial court abused its
discretion in permitting Detective Lanzafama to give an expert
opinion on the likelihood of recantation based on a hypothetical
question.
II.
ADMISSIBILITY OF HOBBS' TESTIMONY
Appellant contends the trial court erred in allowing Karen
Hobbs to testify that J.D. suffered from post-traumatic stress
disorder (PTSD) and that it could result from sexual abuse. He
contends that Hobbs was not competent to testify on these
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issues; that her testimony was more prejudicial than probative;
and that her testimony constituted impermissible "bolster[ing]"
of J.D.'s testimony. Again, we disagree.
We note first that appellant raised no objection at the
trial level to Hobbs' competency to give expert testimony. In
fact, even after the trial court specifically pointed out that
appellant had not objected to Hobbs' competency to testify,
appellant articulated no objection on these grounds. Appellant
also did not contend that Hobbs' testimony was more prejudicial
than probative. Therefore, Rule 5A:18 bars our consideration of
these issues on appeal. Further, under the principles
enunciated above regarding the admissibility of expert
testimony, we hold that neither the good cause nor the ends of
justice exception to Rule 5A:18 justifies our consideration of
these issues.
Appellant properly preserved for appeal his argument that
Hobbs' testimony regarding J.D.'s PTSD diagnosis and the
possible link between sexual abuse and PTSD constituted
impermissible bolstering of J.D.'s testimony. However, this
objection is without merit. Under settled principles,
"[e]vidence is relevant if it has any logical tendency, however
slight, to establish a fact at issue in the case." Ragland v.
Commonwealth, 16 Va. App. 913, 918, 434 S.E.2d 675, 678 (1993).
As we held in Taylor v. Commonwealth, 21 Va. App. 557, 565, 466
S.E.2d 118, 122 (1996), "evidence of an emotional or
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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."
For these same reasons, Hobbs' testimony that sexual
assault is one of several traumatic events that could trigger
PTSD also was proper. Hobbs did not opine that J.D. had been
sexually abused. 2 See Jenkins v. Commonwealth, 254 Va. 333,
338-40, 492 S.E.2d 131, 134 (1997) (reversing conviction for
sexual battery on ground that trial court erroneously permitted
expert witness to opine that victim had been sexually abused and
2
Hobbs also testified that J.D. reported having been
sexually assaulted "[b]y her stepfather," but Hobbs provided no
further details. At trial, prior to Hobbs' testifying, the
Commonwealth asserted that the fact of J.D.'s report to Hobbs
was "admissible as a fresh complaint." Appellant registered no
objection to the admissibility of such statements at that time,
and he made no contemporaneous objection to their admissibility
when Hobbs testified to them before the jury. Finally, he did
not challenge this portion of Hobbs' testimony in his petition
for appeal, on brief, or in oral argument to this Court.
Therefore, assuming without deciding that admission of Hobbs'
testimony regarding J.D.'s statements to her was error, see
Jenkins v. Commonwealth, 254 Va. 333, 338-40, 492 S.E.2d 131,
134 (1997) (in reversing conviction for sexual battery on other
grounds, noting that trial court erroneously permitted expert
witness to repeat hearsay statement of non-testifying child
victim "that he had been 'sexed'"), this issue is not properly
before this Court on appeal. See Rule 5A:12(c); Cruz, 12 Va.
App. at 664 n.1, 406 S.E.2d at 407 n.1 (noting that issue was
not raised in petition for appeal and, therefore, that no appeal
was granted by this Court on that issue); see also Thompson, 27
Va. App. at 626, 500 S.E.2d at 826 (noting that Rule 5A:12,
unlike Rule 5A:18, contains no "good cause" or "ends of justice"
exception).
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that erroneous admission of opinion was not harmless). Hobbs'
testimony amounted, at most, to an opinion that the victim's
PTSD diagnosis was consistent with sexual abuse, and it did not
exclude the possibility that some other stressor had triggered
the PTSD. See Hussen v. Commonwealth, 257 Va. 93, 99, 511
S.E.2d 106, 109 (1999) (in affirming rape conviction, holding
that expert testimony that victim's injury was "not consistent
with consensual, first time intercourse" was not comment on
ultimate issue of whether encounter occurred "against the
victim's will"); see also Jenkins v. Commonwealth, 22 Va. App.
508, 517-18, 471 S.E.2d 785, 790 (1996) (en banc) (holding that
expert testimony on PTSD was improper comment on ultimate issue
because expert "opined not as to what could have been the
causative stressor but rather what was the causative stressor"),
rev'd on other grounds, 254 Va. 333, 492 S.E.2d 131 (1997).
Therefore, we hold the trial court did not err in admitting
the challenged portions of Hobbs' testimony.
III.
SUFFICIENCY OF THE EVIDENCE
Appellant's last contention is that J.D.'s testimony was
uncorroborated and inherently incredible, rendering the evidence
to support his convictions insufficient as a matter of law.
Again, we disagree and affirm appellant's convictions.
On appellate review, we must examine the evidence in the
light most favorable to the Commonwealth, and we may not disturb
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the jury's verdict unless it is plainly wrong or without
evidence to support it. See Traverso v. Commonwealth, 6 Va.
App. 172, 176, 366 S.E.2d 719, 721 (1988). The conclusions of
the fact finder on issues of witness credibility "may only be
disturbed on appeal if this Court finds that [the witness']
testimony was 'inherently incredible, or so contrary to human
experience as to render it unworthy of belief.'" Robertson v.
Commonwealth, 12 Va. App. 854, 858, 406 S.E.2d 417, 419 (1991)
(quoting Fisher v. Commonwealth, 228 Va. 296, 299-300, 321
S.E.2d 202, 204 (1984)). In all other cases, we must defer to
the conclusions of "the fact finder[,] who has the opportunity
of seeing and hearing the witnesses." Schneider v.
Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985).
These same principles apply in cases involving rape and sodomy
convictions, which may be sustained solely upon the testimony of
the victim, even in the absence of corroborating evidence. See
Fisher, 228 Va. at 299, 321 S.E.2d at 203.
Here, the victim testified very specifically that on
October 17, 1997, appellant had sexual intercourse with her
against her will and forced her to perform fellatio on him. The
jury clearly believed her testimony, as it was entitled to do,
despite its knowledge that she previously had made and recanted
allegations that appellant sexually abused her. Contrary to
appellant's assertion, the medical evidence did not disprove the
victim's allegations, for medical evidence established that her
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hymen, due to its shape, would permit sexual intercourse without
any tearing. Further, although no corroboration was necessary,
other evidence supported J.D.'s testimony. First, she made a
tape recording of the incident and explained to the jury what
was happening as the tape played. Second, she reported that
appellant had a distinctive mole just above his pubic hairline,
a fact confirmed by police. Although appellant attempted to
provide an innocent explanation for J.D.'s knowledge of the
mole's location, the jury was free to reject his testimony and
conclude he was lying to conceal his guilt. Third, J.D.
received a diagnosis of PTSD, which was consistent with her
allegations of ongoing abuse. Although the jury, as the finder
of fact, was free to reject the victim's testimony, it also was
free to believe the victim's testimony, for no evidence
compelled the conclusion that she was lying.
Appellant contends that his convictions must be reversed
because the Commonwealth failed to exclude all reasonable
hypotheses of appellant's innocence. Appellant misconstrues the
law applied on appellate review. This principle applies only
when the Commonwealth attempts to prove its case with
circumstantial evidence. See, e.g., Burrows v. Commonwealth,
224 Va. 317, 319, 295 S.E.2d 893, 894 (1982) (evidence
insufficient to prove accused was criminal agent in robbery and
malicious wounding because victim could not affirmatively
identify his assailant and circumstantial evidence did not
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exclude all reasonable hypotheses of appellant's innocence).
When the Commonwealth offers direct evidence from an eyewitness
whose testimony is not inherently incredible, the jury may
accept that testimony as credible and reject all conflicting
evidence, thereby determining, in essence, that no reasonable
hypotheses of innocence remain.
For these reasons, we hold that the trial court did not err
in admitting the challenged testimony of Lanzafama or Hobbs or
in concluding that the evidence was sufficient to prove
appellant committed rape and sodomy. Therefore, we affirm
appellant's convictions.
Affirmed.
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