                     COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Humphreys
Argued By teleconference


RONDALPH HILLY NIDIFFER
                                         MEMORANDUM OPINION * BY
v.   Record No. 0861-00-1              JUDGE ROBERT J. HUMPHREYS
                                              JULY 3, 2001
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF YORK COUNTY
                     Thomas B. Hoover, Judge

          Charles E. Haden (Alfred O. Masters, Jr., on
          brief), for appellant.

          Virginia B. Theisen, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Rondalph Hilly Nidiffer appeals from his convictions, after a

bench trial, of two counts of animate object sexual penetration,

in violation of Code § 18.2-67.2; two counts of taking indecent

liberties with a child by a person in a custodial or supervisory

relationship, in violation of Code § 18.2-370.1; and three counts

of aggravated sexual battery, in violation of Code § 18.2-67.3.

Nidiffer contends that the trial court erred in quashing his

subpeonas duces tecum requesting certain medical, counseling and

school records of the victims, in refusing to allow him to submit

psychological evidence, and in finding the evidence sufficient as


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
a matter of law to support the convictions.    Because this opinion

has no precedential value and because the parties are conversant

with the facts, we do not recite them in detail here.

     Prior to trial, Nidiffer issued subpoenas duces tecum

requesting the school records for both victims, Ashley and Amanda,

as well as records from Dr. Cathleen Rhea, Ashley's psychologist.

The Commonwealth moved to quash the subpoenas.   With regard to the

request for the psychological records, the Commonwealth contended

that Nidiffer's affidavit averred only that the records "may be

material to these proceedings," without a proffer of the

necessary, relevant supporting facts.

     The court conducted a hearing on the motions to quash on

November 2, 1999.   During the hearing, Nidiffer proffered that the

school records would show that the girls had been doing well in

school since the incident occurred, which he felt would have some

bearing on whether the incident actually took place as the girls

alleged.   Nidiffer also proffered that the psychologist's records

pertaining to Ashley would demonstrate Ashley had been under a

psychologist's care for three to five years, that Ashley had been

in therapy because she would hear voices and that she had reported

seeing her deceased grandmother in the sky.    The trial court

agreed to allow Nidiffer to inspect the school records, but

ordered that he not be allowed to copy them.   The trial court

ordered the psychological records sealed and conducted an in

camera review of the documents.   By memorandum dated November 2,

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1999, the court ruled that the records would remain sealed, as

they contained "no exculpatory information nor any relevant

information regarding the child's veracity or credibility."

     Subsequently, on January 4, 2000, after having reviewed the

school records, Nidiffer filed a pretrial motion in limine

requesting permission to introduce evidence at trial concerning a

1997 psychological evaluation of Ashley that was prepared by

Dr. Rhea and included with the school records.   Nidiffer contended

that the evaluation described Ashley as suffering from clinically

significant attention problems, thought problems, social problems,

withdrawal tendencies, somatic complaints, anxious/depressed

behavior, gross mood swings, strange thoughts and otherwise

compulsive thoughts.   Ashley indicated to the doctor that

sometimes voices had told her to do bad things, that she could not

control her thoughts, and that she was afraid she would hurt

someone.

     Apparently, a hearing on the motion was attempted on January

20, 2000.   However, the defendant, the special prosecutor and the

judge were not present.   Accordingly, there was no action taken

with regard to the motion, nor does the record reflect any attempt

by Nidiffer to pursue the motion further.

     Nidiffer contends the trial court erred by depriving him of

his constitutional right to call for evidence in his favor when it

quashed his subpoenas for certain medical, counseling and school

records pertaining to Amanda and Ashley.    Nidiffer also contends

                               - 3 -
that the trial court erroneously refused to allow him to present

psychological evidence.

     We first note that the record demonstrates that Nidiffer only

requested counseling/psychological records for Ashley, as well as

school records for both girls.    Nidiffer made no request during

the circuit court proceedings for medical records.   Moreover,

since the trial court allowed Nidiffer access to the girls' school

records, we address only the issue of Ashley's

counseling/psychological records.

     Nidiffer is correct in stating that Article I, § 8 of the

Virginia Constitution provides that an accused has a right "to

call for evidence in his favor."    To foster this right, Rule 3A:12

provides that a criminal defendant may apply for a subpoena duces

tecum to obtain documents in the possession of third parties.     See

Gibbs v. Commonwealth, 16 Va. App. 697, 432 S.E.2d 514 (1993).

Nevertheless, there is no general constitutional right to

discovery in a criminal case.    See Spencer v. Commonwealth, 238

Va. 295, 303, 384 S.E.2d 785, 791 (1989).   Thus, a subpoena duces

tecum for production of documents may only be issued on affidavit

that such writings or other objects are material to the

proceedings.   See Rule 3A:12(b).   Indeed, a trial court shall

issue a subpoena duces tecum for documentary evidence only when

the defendant provides under oath a substantial basis that the

documents or objects sought are material.   See Cox v.

Commonwealth, 227 Va. 324, 328, 315 S.E.2d 228, 230 (1984).

                                 - 4 -
     On appeal, in order to establish that a trial court's failure

to enforce such discovery is reversible error, an appellant must

demonstrate that the information sought was material to the case.

See id.   For a failure to order discovery to justify reversal of a

judgment, a "reasonable probability [must exist] that, had the

evidence been disclosed to the defense, the result of the

proceeding would have been different."    Patterson v. Commonwealth,

3 Va. App. 1, 8, 348 S.E.2d 285, 289 (1986).

     Based on the record before us, we do not find that the

trial court erred in determining that Nidiffer had failed to

make the requisite showing that the documents requested were

material and/or "relevant" to his case.    In fact, none of the

information cited by Nidiffer bore any relationship to Ashley's

credibility, nor did it relate in any manner to sexual abuse

and/or the event that had allegedly occurred.    Instead,

Nidiffer's request for these privileged and highly confidential

records centered on his conjecture and surmise as to their

potential bearing on his defense.   This will not support a

defendant's discovery request seeking documents from a third

party.    See Farish v. Commonwealth, 2 Va. App. 627, 630, 346

S.E.2d 736, 738 (1986).

     In addition, upon our review of the psychological records

which the trial court considered in camera, we find no abuse of

discretion in the trial court's determination that the records

demonstrated no material, relevant and/or exculpatory

                                - 5 -
information which would have related to Nidiffer's defense of

this matter.

     We also find no merit in Nidiffer's contention that the

trial court refused to allow him to present psychological

evidence.   First, there was no hearing conducted with regard to

Nidiffer's motion in limine.     Thus, there was no ruling issued

by the trial court in response to his request to submit evidence

concerning Dr. Rhea's 1997 psychological evaluation of Ashley.

In addition, Nidiffer failed to pursue this motion further.

Moreover, at trial, Nidiffer did ask the girls about whether

they were currently in counseling and/or had been to counseling,

as well as about the time frame of the counseling.    The trial

court allowed these questions.    Nidiffer asked no further

questions, nor presented any additional evidence of this nature.

Therefore, we see no evidence in the record to suggest that the

trial court in any way restricted Nidiffer's ability to present

any such bona fide and relevant evidence.

     Finally, despite Nidiffer's argument with regard to the

issue of penetration, we do not find that the trial court was

plainly wrong in finding the evidence sufficient as a matter of

law to support Nidiffer's convictions. 1   As the trial court

recognized, both victims testified to the events with striking


     1
       We note that Nidiffer avers to medical evidence concerning
the penetration issue on his brief on appeal. However, no such
evidence was submitted at trial. Accordingly, we do not
consider this evidence on appeal.

                                 - 6 -
similarity.   Both victims also testified that penetration indeed

occurred.   Furthermore, Nidiffer's older granddaughter testified

that he had also victimized her in a similar manner, on an

entirely different occasion.

     For the reasons set forth above, we affirm the judgment of

the trial court.

                                                         Affirmed.




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