Ryan Nicholas Smiley v. Commonwealth of Virginia ( 2018 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Chafin, Decker and AtLee
UNPUBLISHED
Argued at Richmond, Virginia
RYAN NICHOLAS SMILEY
MEMORANDUM OPINION* BY
v. Record No. 0054-17-2 JUDGE TERESA M. CHAFIN
MAY 1, 2018
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF POWHATAN COUNTY
Paul W. Cella, Judge
Andrew D. Meyer for appellant.
Christopher P. Schandevel, Assistant Attorney General
(Mark R. Herring, Attorney General, on brief), for appellee.
At the conclusion of a jury trial held in the Circuit Court of Powhatan County, Ryan
Nicholas Smiley was convicted of three counts of forcible sodomy and three counts of
aggravated sexual battery. On appeal, Smiley contends that the circuit court erred by denying his
motion for the appointment of an expert in the field of forensic interviewing to review relevant
materials and rebut certain testimony from the Commonwealth’s expert witness.1 For the
reasons that follow, we affirm Smiley’s convictions.
I. BACKGROUND
“In accordance with established principles of appellate review, we state the facts in the
light most favorable to the Commonwealth, the prevailing party in the trial court[, and] accord
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Although Smiley presented additional assignments of error in his petition for appeal,
this Court denied his petition as to those assignments of error. Therefore, the issues presented in
Smiley’s additional assignments of error are not before the Court.
the Commonwealth the benefit of all inferences fairly deducible from the evidence.” Riner v.
Commonwealth, 268 Va. 296, 303, 601 S.E.2d 555, 558 (2004). So viewed, the evidence is as
follows.2
T. was born on January 15, 2005. In October of 2015, T. lived with her family in a
double-wide mobile home owed by her great uncle. Thirteen members of T.’s family lived in the
home at this time, including Smiley, the nineteen-year-old stepson of T.’s great uncle. Due to
the number of people living in the home, T. and her younger sister did not have their own
bedrooms. They slept on couches or pallets in the living room area of the home. Although
Smiley shared a bedroom with his brother, he only slept in that bedroom when his brother was
not at home. When his brother was at home, Smiley slept in the living room with T. and her
sister.
On November 20, 2015, T. told Peggy Jenkins, her elementary school guidance
counselor, that Smiley had sexually abused her. T. told Jenkins that Smiley would “hump” her at
night when the other members of her family were asleep. She also said that Smiley would touch
her “privates” through her clothes. T. explained that she had not told her family about Smiley’s
actions because she was afraid that she would get in trouble for doing so.
Following her conversation with T., Jenkins reported the sexual abuse allegations to an
employee of the Powhatan County Department of Social Services, who in turn reported the
allegations to the police. Detective Marilyn Durham of the Powhatan County Sheriff’s Office
interviewed T. at school on November 23, 2015. T. told the detective that Smiley “humped” her
at night and touched her inappropriately, both above and under her clothing.
2
As 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.
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In order to obtain more information regarding the alleged sexual abuse, Durham
scheduled a forensic interview of T. Before the forensic interview occurred, however, T.’s
family had her evaluated by Elizabeth Martin, a certified sexual assault nurse examiner.
Although Martin’s examination did not reveal any physical indications of sexual abuse, T.
described Smiley’s abusive conduct in greater detail to Martin. T. told Martin that Smiley
“humped” her while she was sleeping on the couch in the living room of her great uncle’s home.
T. also told Martin that Smiley kissed her on the lips and breasts, touched her crotch, and “stuck
his D in [her] butt.” T. clarified that she referred to Smiley’s penis as his “D.” T. explained that
Smiley left her clothes on during these incidents, but that he pulled down her shorts before he
placed his penis inside of her. T. told Martin that she did not remember exactly when Smiley
started to abuse her, but that it happened frequently, “maybe two times a week.”
On December 5, 2015, a forensic interview of T. was conducted by Ian Danielson, the
director of the Child Advocacy Center of Richmond. Danielson had received extensive training
in the field of forensic interviewing and conducted approximately 250 forensic interviews of
children throughout his career. The interview was held at the Child Advocacy Center, and
Danielson recorded a video of the interview.
During the interview, T. described Smiley’s actions to Danielson. T.’s description of the
sexual abuse at issue was consistent with the description that she previously provided to Martin.
T. told Danielson, however, that she may have dreamed the incidents of sexual abuse and
explained that a family member had told her that she probably dreamed the events. Nonetheless,
T. told Danielson that the events “felt real.”
Smiley was charged with the offenses at issue in this case based on T.’s statements to
Jenkins, Durham, Martin, and Danielson. Prior to his trial, Smiley filed a motion requesting the
circuit court to appoint a private forensic interviewer to evaluate T. and the methodology used by
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Danielson during his forensic interview. As he was indigent, Smiley requested the circuit court
to authorize the payment of state funds to compensate the requested forensic interviewer for his
services.
In response to Smiley’s motion, the Commonwealth argued that Smiley was not entitled
to conduct a second forensic interview of T. Furthermore, the Commonwealth informed the
circuit court that T. would likely testify at Smiley’s trial. The Commonwealth maintained that
the jury could assess T.’s credibility based on her testimony rather than the conclusions of an
expert witness. The circuit court agreed with the Commonwealth’s argument and denied
Smiley’s motion.
Smiley filed a renewed motion for the appointment of a forensic interviewer on May 2,
2016. In his renewed motion, Smiley argued that he needed an appointed expert to assess
Danielson’s interview of T. and provide rebuttal testimony at trial. Smiley argued that an
independent forensic interviewing expert would testify that Danielson conducted a “bad, bad
interview” and that he “pretty much forced [T.] to make a one-way statement.” Smiley claimed
that the video of Danielson’s forensic interview of T. established that he “asked closed-end
questions,” and he provided several examples of allegedly improper questions from Danielson’s
interview. Smiley also argued that Danielson “did not let the interview flow” and that he failed
to ask follow-up questions regarding certain statements made by T.
The circuit court denied Smiley’s renewed motion. While the circuit court acknowledged
that Smiley disagreed with the form of the questions asked by Danielson during the forensic
interview, it concluded that Smiley had not met the standard governing the appointment of expert
witnesses to assist indigent defendants set forth in Husske v. Commonwealth, 252 Va. 203, 476
S.E.2d 920 (1996). The circuit court also questioned whether Danielson’s interview with T.
would be admissible in Smiley’s trial.
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T. testified on the first day of Smiley’s jury trial. T. testified that Smiley “put his D in
her butt” three or four times while she was sleeping on the couch in the living room of her great
uncle’s house. T. also explained that Smiley rubbed her breasts and buttocks and that he pulled
down her shorts before he put his penis inside of her. Although T. admitted that she told
Danielson that she may have dreamed the sexual abuse incidents, she expressly clarified that she
did not dream Smiley’s conduct and that the abuse “really happened.”
Jenkins, Durham, and Martin testified, without objection, regarding T.’s prior statements
pertaining to her abuse by Smiley. The Commonwealth also called Danielson to testify during
its case-in-chief. With the exception of T.’s statements regarding the possibility that she
dreamed the sexual abuse incidents, Danielson did not testify about any specific statements that
T. made during the forensic interview. Danielson, however, testified about his qualifications to
conduct forensic interviews, and the circuit court recognized him as an expert regarding the
forensic interviewing of child victims of sexual abuse. As an expert, Danielson explained that
“disclosure is a process, not a one-time event,” and that children commonly disclosed additional
details in subsequent interviews pertaining to their sexual abuse.
When Smiley questioned Danielson about his forensic interviewing technique on
cross-examination, Danielson agreed that it was important to not ask leading questions to a child
during a forensic interview because such questions could influence the child’s answers.
Following the conclusion of the Commonwealth’s evidence, Smiley called Danielson as his own
witness and questioned him more extensively regarding his forensic interview of T. Notably,
Smiley moved to admit the video of the interview into evidence. The video was admitted
without objection from the Commonwealth, and Smiley played it for the jury in its entirety.
Smiley paused the video at certain points as it was played in court and examined Danielson about
particular questions that he asked T. and additional questions that he could have asked her.
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At the conclusion of Smiley’s trial, the jury convicted him of the charged offenses. The
jury recommended the imposition of life sentences of incarceration for each of the forcible
sodomy convictions, ten-year sentences of incarceration for each of the aggravated sexual battery
convictions, and a total of $30,000 in fines. The circuit court later imposed the sentences
recommended by the jury, and this appeal followed.
II. ANALYSIS
On appeal, Smiley contends that the circuit court erred by refusing to appoint a forensic
interviewer to assist him in the preparation of his defense and testify at trial. Smiley argues that
he needed the assistance of a forensic interviewer to review and challenge Danielson’s forensic
interview of T. and provide rebuttal testimony. Upon review, we conclude that the circuit court
did not abuse its discretion by denying Smiley’s motion for the appointment of a private forensic
interviewer under the circumstances of this case.
Upon request, the Commonwealth is required to “provide indigent defendants with the
‘basic tools of an adequate defense,’ and . . . in certain instances, these basic tools may include
the appointment of non-psychiatric experts.” Husske, 252 Va. at 211, 476 S.E.2d at 925 (quoting
Ake v. Oklahoma, 470 U.S. 68, 77 (1985)). Whether an indigent defendant establishes a
sufficient need for the appointment of an expert at the expense of the Commonwealth “is
determined on a case-by-case basis, and the determination is a matter resting within a trial
court’s discretion.” Dowdy v. Commonwealth, 278 Va. 577, 595, 686 S.E.2d 710, 720 (2009).
Accordingly, a court’s decision regarding the appointment of an expert to assist an indigent
defendant will not be overturned on appeal in the absence of circumstances establishing that the
court has abused its discretion. See id.; Lawlor v. Commonwealth, 285 Va. 187, 231, 738 S.E.2d
847, 872 (2013).
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An indigent defendant’s right to the appointment of an expert “is not absolute.” Husske,
252 Va. at 211, 476 S.E.2d at 925. “[W]hile the Commonwealth is required to provide adequate
expert assistance to indigent defendants in certain circumstances, it is not required to provide
them with ‘all assistance that a non-indigent defendant may purchase.’” Juniper v.
Commonwealth, 271 Va. 362, 392, 626 S.E.2d 383, 403 (2006) (quoting Husske, 252 Va. at 211,
476 S.E.2d at 925). “[T]he mere ‘fact that a particular service might be of benefit to an indigent
defendant does not mean that the service is constitutionally required.’” Husske, 252 Va. at 212,
476 S.E.2d at 926 (quoting Watkins v. Commonwealth, 229 Va. 469, 478, 331 S.E.2d 422, 430
(1985)).
An indigent defendant is not entitled to the assistance of an expert based on a “[m]ere
hope or suspicion that favorable evidence is available.”  Dowdy, 278 Va. at 595, 686 S.E.2d at
720 (quoting Husske, 252 Va. at 212, 476 S.E.2d at 925). Rather, an indigent defendant seeking
the appointment of an expert at the Commonwealth’s expense “must show a particularized need
for such services.” Husske, 252 Va. at 213, 476 S.E.2d at 926. A defendant requesting the
appointment of an expert “must demonstrate that the subject which necessitates the assistance of
the expert is ‘likely to be a significant factor in his defense’ and that he will be prejudiced by the
lack of expert assistance.” Id. at 211-12, 476 S.E.2d at 925 (quoting Ake, 470 U.S. at 82-83).
A court considering an indigent defendant’s request for the appointment of an expert
must “determine, based on the facts of the particular case, the probable value of providing the
requested assistance and the risk of error in the criminal proceeding if such [assistance] is not
provided.” Dowdy, 278 Va. at 593, 686 S.E.2d at 719. An indigent defendant is entitled to
expert assistance when “the services of an expert would materially assist him in the preparation
of his defense and . . . the denial of such services would result in a fundamentally unfair trial.”
Husske, 252 Va. at 212, 476 S.E.2d at 925.
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In the present case, Smiley failed to establish that the services of a forensic interviewer
would have played a significant role in his defense. Smiley requested the assistance of a forensic
interviewer to review Danielson’s forensic interview of T. and discredit the methodology used in
that interview. Any assistance that could have been provided by an appointed forensic
interviewer would have been limited to issues arising from Danielson’s forensic interview. The
majority of the incriminating evidence presented by the Commonwealth in this case, however,
was not dependent on Danielson’s forensic interview of T.
Danielson’s forensic interview was only a part of the Commonwealth’s evidence against
Smiley. While T. made incriminating statements regarding Smiley’s conduct to Danielson, she
also made similar statements to Jenkins, Durham, and Martin. The requested forensic
interviewer could not have challenged these statements. As their interviews with T. were
unrecorded, a forensic interviewer could not have reviewed the interviews to determine whether
Jenkins, Durham, or Martin used inappropriate interviewing techniques. Additionally, T.’s
statements to Jenkins, Durham, and Martin were made before she was interviewed by Danielson.
Thus, an appointed forensic interviewer could not have challenged the statements that T. made to
Jenkins, Durham, or Martin by arguing that they were somehow tainted by Danielson’s allegedly
improper interview.
Furthermore, the requested forensic interviewer could not directly challenge T.’s
credibility. At the hearings regarding Smiley’s motions to appoint a forensic interviewer, the
Commonwealth informed the circuit court that T. intended to testify at Smiley’s trial. Although
an appointed forensic interviewer could have challenged the interviewing technique used by
Danielson during his interview with T. and generally impeached his credibility as an expert in
the field of forensic interviewing, the interviewer could not have challenged the credibility of
T.’s testimony at trial. “An expert witness may not express an opinion as to the veracity of a
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witness because such testimony improperly invades the province of the jury to determine the
reliability of a witness.” Pritchett v. Commonwealth, 263 Va. 182, 187, 557 S.E.2d 205, 208
(2002).
While the services offered by an appointed forensic interviewer would not have
substantially contributed to Smiley’s defense, Smiley also failed to establish that he would have
been prejudiced by the lack of the expert assistance at issue. As noted by the circuit court, the
admissibility of Danielson’s forensic interview of T. was questionable. Moreover, Smiley had
the ability to challenge Danielson’s credibility on cross-examination by questioning him
regarding his interviewing techniques. Smiley did not require the assistance of an expert
forensic interviewer to identify leading questions or issues that were not fully explored in
Danielson’s forensic interview. Smiley’s attorney was capable of examining Danielson about
any objectionable questions asked during the forensic interview and his failure to address certain
issues.
In light of the particular circumstances of this case, we conclude that the circuit court did
not err by denying Smiley’s pretrial motion for the appointment of an independent forensic
interviewer. We note, however, that the evidence presented during Smiley’s trial underscored
the rationality of the circuit court’s decision.3 At trial, T. testified about her sexual abuse by
Smiley, and Jenkins, Durham, and Martin testified regarding T.’s prior statements concerning the
sexual abuse at issue. As previously stated, the requested forensic interviewer could not have
effectively challenged the testimony of these witnesses.
3
On appeal, the Commonwealth contends (without conceding any error) that the denial
of the expert assistance at issue constituted harmless error based on the evidence presented at
Smiley’s trial and his thorough examination of Danielson. As we conclude that the circuit court
did not err by denying Smiley’s motion for the appointment of a forensic interviewer, we do not
reach the merits of the Commonwealth’s harmless error argument.
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Smiley also extensively questioned Danielson about his forensic interview of T. on both
direct and cross-examination. He played the hour-long video of Danielson’s interview of T. for
the jury, and asked Danielson numerous questions about his use of “close-ended” questions.
Smiley also questioned Danielson about his failure to ask follow-up questions regarding certain
subjects, including T.’s statements concerning the possibility that she dreamed the sexual abuse
at issue. Additionally, Smiley asked Martin about the importance of asking children open-ended
questions during medical sexual assault examinations.
In summary, we hold that the circuit court did not abuse its discretion by denying
Smiley’s request for the appointment of a private forensic interviewer. As explained by the
circuit court, Smiley failed to meet the standards set forth in Husske and other cases governing
the appointment of expert witnesses to assist indigent defendants at the Commonwealth’s
expense. The services offered by the expert at issue would not have significantly assisted Smiley
at trial or in the preparation of his defense. Further, Smiley was not prejudiced by the denial of
the expert assistance at issue because he had the ability to thoroughly examine Danielson
regarding his forensic interview of T.
III. CONCLUSION
The circuit court did not abuse its discretion by denying Smiley’s motion for the
appointment of a private forensic interviewer. Accordingly, we affirm the circuit court’s
decision and Smiley’s convictions.
Affirmed.
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