                        COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Benton and Annunziata
Argued at Alexandria, Virginia


WILLIAM DEXTER LANSBERRY
                                           MEMORANDUM OPINION * BY
v.   Record No. 2296-99-4         CHIEF JUDGE JOHANNA L. FITZPATRICK
                                              NOVEMBER 14, 2000
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF WARREN COUNTY
                      Dennis L. Hupp, Judge

          Joseph R. Winston (Elwood Earl Sanders, Jr.;
          Public Defender Commission, on brief), for
          appellant.

          H. Elizabeth Shaffer, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     William Dexter Lansberry (appellant) was convicted in a

jury trial of aggravated sexual battery, in violation of

Sections 18.2-67.3 and 18.2-67.10.6 of the Code of Virginia,

1950, as amended.   On appeal, appellant contends that the trial

court erred in:   (1) failing to appoint a DNA expert to aid

defense counsel; (2) permitting the prosecutor to ask leading

questions of the child witness; and (3) denying defense

counsel’s motion for a new trial due to the late disclosure of

exculpatory evidence.    We disagree and affirm his conviction.



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                                 I.

       Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

the prevailing party below, granting to that evidence all

reasonable inferences fairly deducible therefrom.     See Juares v.

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

So viewed, the evidence established that appellant lived as a

guest in a home with Dana Dove Houston (Houston), Houston's

current husband Jerry Houston, and her two minor children, DD

and BD, from a previous marriage.     In November 1998, Houston and

her husband were working numerous jobs while appellant took care

of her children.

       On November 23, 1998, while Houston was at work, DD, the

nine-year-old victim, went into appellant’s room and sat on his

bed.   DD testified that while he was there, appellant "was

touching my privates . . . with his hands and his mouth," and

that DD touched appellant "the same way he did me."    Later that

night, according to Houston’s testimony, DD told her that "Mr.

Lansberry was messing with him," and that the child was "nervous

and upset and rocking back and forth in the chair stating that

he didn't want to live in my house . . . because of Mr.

Lansberry."   The next day DD told his therapist, Lisa Rader

(Rader), what had occurred.   Rader and Houston then contacted

Investigator Richard Kurzenknabe (Kurzenknabe) at the Front

Royal Police Department.   Kurzenknabe learned from DD that "Mr.

                                - 2 -
Lansberry orally sodomized [the victim] and then requested that

[the victim] reciprocate and orally sodomize him."   Kurzenknabe

searched appellant's residence for evidence of sexual abuse,

collecting both DD's and appellant’s clothing and bed sheets

from the home, and collecting DNA samples from the home and from

appellant's person.

     Based upon the investigation, William Dexter Lansberry was

indicted by a grand jury on two counts of oral sodomy, in

violation of Code § 18.2-67, and one count of aggravated sexual

battery, in violation of Code § 18.2-67.3 and § 18.2-67.10.6.

     On February 12, 1999, the Commonwealth filed a pretrial

"Notice of Intent to Offer DNA and Profile Evidence."   Attached

to the pretrial notice was a certificate of analysis prepared by

DNA expert Karolyn Tontarski (Tontarski).   At trial, the

Commonwealth intended to offer evidence that samples taken from

the "interior front fly area" of DD's underwear matched

appellant's DNA structure.   On February 16, 1999, appellant's

counsel filed a "Motion for Funds for Forensic Expert."     Counsel

alleged that (1) he had no expertise in DNA profiling and needed

expert assistance to properly prepare his defense; (2) the

Commonwealth's report was ambiguous and confusing; and (3) the

DNA material was mixed, contained no semen, and was not "subject

to understanding by lay persons."

     At a pretrial motions hearing on March 1, 1999, appellant's

counsel argued that that he "just [did] not have the expertise"

                               - 3 -
to understand DNA evidence.   Counsel admitted that he had not

attempted to communicate with Tontarski to review the

certificate of analysis, assist his understanding of the

analysis or ask any questions regarding the preparation of the

report.

            COURT: You are saying you are having
            difficulty understanding the report. It
            seems like the first step towards
            understanding it is to talk to the expert
            and say, "Explain it to me." Not
            necessarily help you challenge the report.
            That would be the second step, seems to me.

                 Just because you have a report from
            someone at the State Lab does not
            necessarily mean that it would have to be
            challenged. I mean, it doesn't mean that it
            is wrong.

Counsel argued that "I need expert advice on how to present this

material.   That is all there is to it.   I have to have it."   The

trial court denied appellant’s request for the appointment of a

DNA expert.

     Then counsel moved to withdraw from the case, stating that

"I am certainly not going to call down to the Commonwealth's

Laboratory whose findings may be suspect in any case, which is

one reason you need an [sic] DNA expert of your own, to look and

make sure that they did it right.   Not that they do it wrong,

except probably five or ten percent of the time."   "There are

other lawyers who have had plenty of experience with this who

can possibly do it."   Appellant's counsel indicated that he

would attempt to talk to the Commonwealth's expert to understand

                                - 4 -
the report.   The trial court denied counsel's motion to withdraw

but granted appellant a one-month continuance "to do what

investigation and study [was needed] to bring [counsel] up to

speed."

     At trial, the Commonwealth's DNA expert testified that

there could possibly be other people with the same DNA as

appellant, but that it was 240,000 times more likely that the

DNA on DD’s underpants originated from appellant than from some

other Caucasian male.    Tontarski could not state that the fluid

in which the DNA was found was in fact saliva and she thought it

"highly unlikely" that there was any body fluid other than

saliva.

     During its case-in-chief, the Commonwealth called DD, the

victim, to testify.   DD stated that he was a little scared that

morning, he spoke softly and had problems remembering even the

name of the appellant, who had lived with DD for about five

months.    The Commonwealth asked DD several questions which

required a "yes or no" answer, such as "Now, did you touch Mr.

Lansberry in any way?"   Appellant objected to these questions as

leading.   However, the trial court overruled appellant's

objections, concluding that these were "proper question[s]."

The Commonwealth's attorney also asked DD a couple of leading

questions.    Appellant's counsel objected to the leading nature

of the Commonwealth's questions.   The trial court overruled the

objection and ordered the prosecutor to "refrain" from asking

                                - 5 -
leading questions in the future.   Upon a subsequent objection to

leading questions the trial court overruled the objection,

finding that the leading questions were permissible with this

child witness.

     In his defense, appellant testified that he was never alone

with DD in his room on the day of the offense, that he did not

commit the acts alleged by the Commonwealth, and that DD was an

aggressive child acting out against appellant for disciplining

him on previous occasions.

     In rebuttal, the Commonwealth called Lisa Rader (Rader),

DD's therapist.   The Commonwealth gave the defense a copy of her

case notes including DD's statements regarding the incident with

appellant.   Appellant had not received these notes prior to

Rader's testimony.   Rader testified that based on her report of

her conversation with DD, the incident involved only DD touching

appellant and not appellant touching DD, as the other witnesses

had testified.

     Appellant made no objection or motion concerning Rader's

testimony or the use of Rader's notes during the trial.

Appellant was given time to read the notes prior to Rader's

testimony and cross-examined Rader about the contents.

Appellant also used Rader's notes, which showed some

inconsistencies in DD's statements, to support his motion to

strike the evidence and in his closing arguments to the jury.



                               - 6 -
     At the conclusion of the trial, the jury acquitted

appellant of the two sodomy charges and convicted him of

aggravated sexual battery.   After trial, appellant moved to set

aside the jury's verdict or, in the alternative, for a new

trial.   For the first time, appellant argued that he was

prejudiced by the Commonwealth's late disclosure of Rader's

notes.   The trial court denied the motion for a new trial,

finding that while the evidence was exculpatory, appellant was

able to effectively use the evidence and was not prejudiced by

late disclosure of the evidence.   Appellant also renewed his

objections to the trial court’s failure to appoint a DNA expert

and to the use by the Commonwealth's attorney of leading

questions.   The trial court overruled the objections on these

issues and denied the motion to set aside the verdict and the

motion for a new trial.

                          II.   DNA EXPERT

     On review, the denial of a motion to appoint an expert will

not be reversed absent an abuse of discretion.   See Simerly v.

Commonwealth, 29 Va. App. 710, 718, 514 S.E.2d 387, 391 (1999)

(citing Elkins v. Commonwealth, 208 Va. 336, 337, 157 S.E.2d

243, 244 (1967)).   Although the right to expert assistance "is

not absolute," due process requires that an indigent "who seeks

the appointment of an expert witness, at the Commonwealth’s

expense, must demonstrate that the subject which necessitates

the assistance of an expert is likely to be a significant factor

                                - 7 -
in his defense."    Husske v. Commonwealth, 252 Va. 203, 211-12,

476 S.E.2d 920, 925 (1996), cert. denied, 519 U.S. 1165 (1997)

(quoting Ake v. Oklahoma, 470 U.S. 68, 82-83 (1985)).

     In Husske, the defendant was charged with breaking and

entering with intent to commit rape, forcible sodomy, rape, and

robbery.    At trial, the defendant requested the trial court to

appoint an expert to help him challenge the Commonwealth's DNA

evidence.   The trial court denied the defendant's request.      See

id. at 208, 476 S.E.2d at 923.    On appeal, the Virginia Supreme

Court affirmed and held that:

            [a]n indigent defendant who seeks the
            appointment of an expert, at the
            Commonwealth’s expense, must show a
            particularized need for such services and
            that he will be prejudiced by the lack of
            expert assistance. The defendant failed to
            meet these requirements. At best, the
            defendant asserted, inter alia, that DNA
            evidence is 'of a highly technical nature;'
            he thought it was difficult for a lawyer to
            challenge DNA evidence without expert
            assistance; and he had concerns about the
            use of DNA evidence because 'the Division of
            Forensic Science [was] no longer
            [conducting] paternity testing in [c]riminal
            cases.' The defendant’s generalized
            statements in his motions simply fail to
            show a particularized need.

Id. at 213, 417 S.E.2d at 926 (emphasis added).

     In the instant case, appellant’s request tracks the

"generalized statements" of Husske.      He stated that he was

incapable of defending the case without expert assistance

because the DNA evidence was "confusing" and "ambiguous" in


                                 - 8 -
nature, and he lacked "expertise" with DNA evidence.       Counsel

also alleged that the DNA evidence was "not subject to

understanding by laypersons."       Such "generalized statements

. . . simply fail to show a particularized need."      Id. at 213,

417 S.E.2d at 926.

                          III.   LEADING QUESTIONS

        While leading questions on direct examination are generally

improper, reversible error occurs only if the appellant can show

prejudice.      See Belton v. Commonwealth, 200 Va. 5, 7, 104 S.E.2d

1, 3 (1958).      A question is not rendered a leading question

merely because it is framed to require an answer of "yes" or

"no."       See Charles E. Friend, The Law of Evidence in Virginia

§3-5 (4th ed. 1993).      The trial court has "large discretion" in

the matter of leading questions.       See Flint v. Commonwealth, 114

Va. 820, 823, 76 S.E. 308, 310 (1912).

        The trial court may properly permit leading questions where

the witness is reluctant to answer, slow to understand, or is

under some incapacity such as infancy.       See Hausenfluck v.

Commonwealth, 85 Va. 702, 708, 8 S.E. 683, 686 (1889); see also

Charles E. Friend, The Law of Evidence in Virginia §3-5 (4th ed.

1993). 1     Here, DD is a young (nine-year-old) boy, and the nature


        1
       According to The Law of Evidence in Virginia §3-5 (4th ed.
1993), leading questions

               . . . may also be asked where the witness
               proves reluctant to answer or slow to
               understand. Leading questions should be

                                    - 9 -
of the charges reasonably caused his hesitancy in testifying.

For example, at the beginning of his testimony, the child

testified that he did not remember appellant's name, although

appellant had lived with DD for approximately five months.

Indeed, DD stated on the morning of the trial that he was "a

little scared" and spoke softly in responding to questions.

Under these circumstances, we find no error in the use of some

leading questions by the Commonwealth. 2

     Furthermore, appellant failed to demonstrate any prejudice

resulting from the Commonwealth's use of leading questions.    In

response to proper questioning by the Commonwealth's attorney,

the child witness testified in detail about the elements of the

charged offenses, including where the offense occurred and the


          permitted where the witness is under some
          incapacity, such as infancy or mental
          deficiency; or does not speak English well.
          Leading is also available as a means of
          refreshing memory, and is frequently used
          where the matter is not one in any real
          dispute.

               It should be noted that allowance of
          leading questions is a matter largely within
          the discretion of the trial judge.
          Ordinarily, the allowance of such a question
          is not grounds for reversal. Even if the
          judge’s ruling is erroneous, the error is
          harmless where other testimony confirms the
          answer to the leading question, or it is
          otherwise obvious that no harm has been done
          to the objecting party.
     2
       Additionally, many of the "leading questions" appellant
objected to were simply not leading questions. They merely
required a "yes" or "no" response.

                              - 10 -
specific manner in which appellant "touched" him.    Absent any

prejudice alleged by appellant, the trial court did not err.

                    IV.   MOTION FOR A NEW TRIAL

     Appellant next contends that the trial court erred in

denying his motion for a new trial because the Commonwealth's

attorney did not turn over statements made by the victim to

Rader, the victim's therapist, until Rader was called to the

stand.   We find that appellant is procedurally barred from

raising this issue on appeal by Rule 5A:18.

     When the Commonwealth's attorney called Rader to the stand,

he handed Rader's notes to appellant.    Appellant had not been

provided a copy of the notes prior to Rader being called to the

witness stand.   The trial court provided appellant time to

examine the notes prior to allowing Rader to begin testifying.

However, appellant did not object to the testimony or use of the

notes at any time during the trial.     Appellant did not request a

continuance or mistrial based upon this evidence.    Appellant

cross-examined Rader, using the notes.    At the end of the trial,

appellant made a motion to strike the evidence based in part

upon the inconsistencies in the victim's statements and Rader's

notes.   When the motion was denied, appellant used Rader's notes

in his argument to the jury that the victim's statements

contained inconsistencies.   However, appellant never objected to

the use of Rader's notes until after the jury reached a verdict.



                               - 11 -
     The primary purpose of Rule 5A:18 is to inform the trial

judge of possible error so that he or she can consider the issue

intelligently and take any corrective actions necessary to avoid

unnecessary appeals, reversals, mistrials and retrials.      See

Campbell v. Commonwealth, 12 Va. App. 476, 479, 405 S.E.2d 1, 2

(1991) (en banc); Rule 5A:18.      When appellant was handed the

previously-undisclosed notes he made a decision to proceed with

the trial with the evidence instead of attempting to seek a

mistrial or pursue other remedies.       The appellant failed to

object and provide the trial judge an opportunity to rectify the

problem when he decided to proceed to a verdict.      See Tickel v.

Commonwealth, 11 Va. App. 558, 563, 400 S.E.2d 534, 537 (1991).

The fact that this argument was raised initially in a post-trial

motion to set aside the verdict and for a new trial does not

preserve the issue for appeal. 3    See Bobblett v. Commonwealth, 10

Va. App. 640, 651, 396 S.E.2d 131, 137 (1990).      The trial judge

lacks a chance to remedy the situation once the jury has reached

a verdict.   Thus, appellant failed to meet the mandates of Rule

5A:18 by waiting until after the verdict to present the problem


     3
       Although the trial court considered and denied appellant's
objection to the "late disclosure" of Rader's notes in
appellant's post-trial motions, it was not required to do so.
The timing of the appellant's objection prevented the trial
court from taking corrective action during the trial.
     Furthermore, even if appellant had properly preserved this
issue for appeal, we note that he has failed to offer any
evidence of "prejudice" to his case derived from the "late
disclosure" of Rader's notes.


                                - 12 -
to the trial judge.   Since no timely and proper objection to the

"late disclosure" of Rader's notes was presented to the trial

court, we do not address the merits of this argument on appeal.

Rule 5A:18.

     Accordingly, we hold that appellant did not make the

requisite showing of a particularized need for a DNA expert, the

trial court did not abuse its discretion in allowing the

Commonwealth to ask the child victim some leading questions and

appellant is barred from appealing the late disclosure of

Rader's notes.

                                                   Affirmed.




                              - 13 -
Benton, J., concurring and dissenting.

     I concur in Parts I, III, and IV of the opinion.    I

dissent, however, from Part II, which affirms the trial judge's

refusal to appoint a DNA expert to assist William Lansberry in

his defense.

     Principles the United States Supreme Court reaffirmed in

Ake v. Oklahoma, 470 U.S. 68 (1985), bear repeating:

             This Court has long recognized that when
          a State brings its judicial power to bear on
          an indigent defendant in a criminal
          proceeding, it must take steps to assure
          that the defendant has a fair opportunity to
          present his defense. This elementary
          principle, grounded in significant part on
          the Fourteenth Amendment's due process
          guarantee of fundamental fairness, derives
          from the belief that justice cannot be equal
          where, simply as a result of his poverty, a
          defendant is denied the opportunity to
          participate meaningfully in a judicial
          proceeding in which his liberty is at stake.

               *     *     *      *      *   *     *

          We recognized long ago that mere access to
          the courthouse doors does not by itself
          assure a proper functioning of the adversary
          process, and that a criminal trial is
          fundamentally unfair if the State proceeds
          against an indigent defendant without making
          certain that he has access to the raw
          materials integral to the building of an
          effective defense. Thus, while the Court
          has not held that a State must purchase for
          the indigent defendant all the assistance
          that his wealthier counterpart might buy, it
          has often reaffirmed that fundamental
          fairness entitles indigent defendants to "an
          adequate opportunity to present their claims
          fairly within the adversary system." To
          implement this principle, we have focused on
          identifying the "basic tools of an adequate

                               - 14 -
           defense or appeal," and we have required
           that such tools be provided to those
           defendants who cannot afford to pay for
           them.

Id. at 76-77 (citations omitted).   Most courts that have

considered the issue, now including Virginia, have held that

these principles apply when an accused makes a particularized

showing of need for the assistance of an expert when the

prosecutor intends to rely upon DNA evidence.     See Husske v.

Commonwealth, 252 Va. 203, 211-12, 476 S.E.2d 920, 925 (1996).

     In Husske, the Court "h[e]ld that an indigent defendant who

seeks the appointment of an expert witness . . . 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. (citation omitted).     Denying Husske's request,

the Court ruled (1) that his counsel only made "generalized"

statements about his need and (2) that he could make no showing

of prejudice "because . . . he confessed to the crimes" in great

detail.   Id. at 213, 476 S.E.2d at 926.

     Lansberry's counsel, however, made a sufficiently

particularized showing to justify his request.     In addition to

asserting that he had "no expertise in DNA profiling," he stated

that he needed "expert investigation to provide . . . sufficient

information to properly defend . . . Lansberry," that the

laboratory DNA analysis report "is ambiguous and confusing


                              - 15 -
concerning its findings," and "that the DNA material is minor

and mixed and that there is no semen found at all; therefore,

the evidence . . . is very minimal and not subject to

understanding by lay persons."   Lansberry's counsel attached to

his motion the report of DNA analysis that the Commonwealth

tendered.   That report was conclusory, ambiguous in its

description of the "genetic material" tested, and provided

statistics based on "assuming only one foreign contributor to

the mixture."

     Refusing the request for an expert witness, the trial judge

suggested to defense counsel that the Commonwealth's DNA expert

could answer his questions about the report.   Counsel advised

the judge that such a discussion would reveal to the

Commonwealth's witness the nature of his defense and was "not

going to lead me to understand how [he] may be able to view this

toward[] innocence."   The United States Supreme Court "has often

reaffirmed that fundamental fairness entitles indigent

defendants to 'an adequate opportunity to present their claims

fairly within the adversary system.'"   Ake, 470 U.S. at 77

(citation omitted).    The notion that Lansberry would have a fair

opportunity to present his defense based upon his counsel's

informal pre-trial discussion with the scientific expert the

Commonwealth proposed to use in its effort to convict Lansberry

cannot be a serious proposition.   Such a procedure gives the

Commonwealth "a strategic advantage over the defense . . .

                               - 16 -
[that] cast[s] a pall on the accuracy of the verdict obtained."

Id. at 79.

     Expert witnesses are permitted to offer opinions about

facts they or others have gathered and about their own

examination of evidence.    Those opinions are often judgments

that are subject to reasonable dispute by other experts.    When

issues are complex, as with DNA and the interpretation of DNA

results, expert witnesses aid parties in many ways, not the

least of which is identifying "the probative questions to ask of

the opposing party's [experts] and . . . interpret[ing] their

answers."    Id. at 80.   Recognizing the complexities of the

underlying methodology supporting DNA analysis and the

complexities of the interpretation of results, the National

Academy of Sciences through its Committee on DNA Technology in

Forensic Science recommended the following:

             Defense counsel must have access to adequate
             expert assistance, even when the
             admissibility of the results of analytical
             techniques is not in question, because there
             is still a need to review the quality of the
             laboratory work and the interpretation of
             results. When the prosecutor proposes to
             use DNA typing evidence or when it has been
             used in the investigation of the case, an
             expert should be routinely available to the
             defendant. If necessary, he or she should
             be able to apply for funds early in the
             discovery stages to retain experts without a
             showing of relevance that might reveal trial
             strategy. Whenever possible, a portion of
             the DNA sample should be preserved for
             independent analysis by the defense.



                                - 17 -
Report of the Committee on DNA Technology in Forensic Science,

National Research Counsel, DNA Technology in Forensic Science,

p. 147 (April 1992).

     I would hold that counsel's motion, memorandum, and

statements at the hearing particularized his need for expert

assistance to provide Lansberry an adequate defense at trial.

Inherent in the particularized showing that he made is a showing

that the absence of expert assistance would be prejudicial to

Lansberry's defense.

     The ambiguity of the DNA report is evidenced by the jury's

acquittal of Lansberry on both charges of sodomy.    However, the

Commonwealth used that same evidence to support its charge that

Lansberry was "guilty of fondling [the child's] genitals," the

basis of the aggravated sexual battery conviction.   Relying upon

its expert's testimony that the deposit of the unspecified

genetic material she found "is more consistent . . . with a

primary transfer than with a secondary transfer," the prosecutor

argued to the jury:    "I defy anyone to come up with a

reasonable, rational explanation why a 54 year old man's genetic

material gets inside a nine year old boy's underpants

accidentally."

     The record in this case adequately demonstrates that an

expert in this matter would have been of significant assistance

to Lansberry in his defense and that Lansberry was prejudiced by



                               - 18 -
the lack of that assistance.   Thus, I would reverse the

conviction and remand for a new trial.




                               - 19 -
