                                             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UNPUBLISHED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.
                                                        ‐ 2 ‐ 
       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

                                                 ‐ 3 ‐ 
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.

                                               ‐ 4 ‐ 
       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.

                                                ‐ 5 ‐ 
       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).




                                                 ‐ 6 ‐ 
       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.

                                                 ‐ 7 ‐ 
       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

                                                ‐ 8 ‐ 
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.
                                                        ‐ 9 ‐ 
       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.




                                               ‐ 10 ‐ 
