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Mohajer v. Commonwealth9/17/2002
l activities, the body will automatically change to adapt to the consensual relationship. The labia . . . the labia minora . . . will become engorged, so they'll get larger and flatten out a little bit to prevent injuries to those areas." She further testified that " any times with object penetration you can see injuries more on the lateral aspects of the vaginal area, lateral being on the sides of the vagina. With penile penetration, typically you see injuries more posteriorly on the bottom of the hymen or the labia."
When questioned by Mohajer's counsel on cross-examination as to whether the injury she observed could have been sustained in a consensual encounter, Brown stated, " sually not these injuries that are these large. Usually its macro-trauma, which is what I saw, is visual to the naked eye." Brown conceded that injuries can occur in consensual situations, but that such injuries are " sually small micro-trauma that you can't see with the naked eye, just under magnification." Brown finally testified that in rare cases, one can see an injury caused by a consensual encounter with the naked eye and that in rare cases, even with proper lubrication, an individual can sustain injury.
In his case-in-chief, Mohajer testified in his own defense, conceding that he had lied to Detective Hepler. However, Mohajer claimed that the incident with Ward was entirely consensual.
At the close of the Commonwealth's case and again at the close of the evidence, Mohajer moved to strike, arguing that the Commonwealth had failed to establish that the acts occurred against Ward's will by threat, force or intimidation. The trial court denied the motion, finding the evidence sufficient on both counts for the jury to consider.
The jury ultimately convicted Mohajer on both counts. Mohajer was sentenced to five years, with four years suspended on the count of animate object penetration, and five years, with two years suspended on the count of forcible sodomy.
II. ANALYSIS
A. ADMISSIBILITY OF EXPERT OPINION
On appeal, Mohajer contends the trial court erred in allowing the SANE nurse to "state an expert medical opinion regarding the cause of Ward's injuries." " hether a witness is qualified to render an expert opinion is a question submitted to the sound discretion of the trial court." Combs v. Norfolk and Western Ry. Co., 256 Va. 490, 496, 507 S.E.2d 355, 358 (1998) (citations omitted). Nevertheless, " he record must show that the proffered expert witness has sufficient knowledge, skill, or experience to render competent to testify as an expert on the subject matter of the inquiry." Id. (citations omitted).Mohajer does not contest Brown's qualifications to testify concerning matters of "medical evidence gathering in sexual assault cases." Instead, Mohajer argues that Virginia law prohibits Brown from providing expert testimony in a sexual assault case, because such testimony constitutes the practice of medicine, citing Code §§ 54.1-2900 through 54.1-2973. Further, Mohajer states that "diagnosis of the victim's injuries" does not fall within the non-discretionary tasks that registered nurses in the Commonwealth are able to perform pursuant to Code §§ 54.1-3000 and 54.1-2901.
Contrary to Mohajer's assertion, the Supreme Court of Virginia has recently held that testimony of a SANE nurse regarding the causation of physical injuries to a victim of a sexual assault is not the practice of medicine as contemplated by Code § 54.1-2900. Velazquez v. Commonwealth, 263 Va. 95, 103, 557 S.E.2d 213, 218 (2002). Accordingly, a SANE nurse need not be licensed to practice medicine to express an expert opinion on the causation of the injuries in
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