Robert Jay Smith v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: October 22, 2024
• Docket: 1789232
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Decker, Judges Raphael and White UNPUBLISHED

ROBERT JAY SMITH MEMORANDUM OPINION* v. Record No. 1789-23-2 PER CURIAM OCTOBER 22, 2024 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FLUVANNA COUNTY David M. Barredo, Judge1

(Bernadette M. Donovan; Donovan & Engle, PLLC, on briefs), for appellant.

(Jason S. Miyares, Attorney General; Justin B. Hill, Assistant Attorney General, on brief), for appellee.

Robert J. Smith was convicted of rape of a child who was under the age of 13 (Code

§ 18.2-61(A)(iii)) and aggravated sexual battery of a child who was under the age of 13 (Code

§ 18.2-67.3) following a two-day jury trial.2 After the conviction on August 12, 2022, Smith

retained new counsel for sentencing and post-conviction motions. Smith filed a motion for a new

trial on July 31, 2023, almost one year after the convictions, which set forth ten allegations of error.

After a lengthy hearing, the trial court denied the motion and sentenced Smith to consecutive

sentences of life in prison on the rape conviction and 20 years of incarceration on the aggravated

sexual battery conviction.

* This opinion is not designated for publication. See Code § 17.1-413(A). 1 The Honorable David Barredo presided over the post-conviction motion and sentencing. 2 The Honorable Claude Worrell, II presided over the two-day jury trial. In his appeal, Smith alleges that the trial court erred in denying the motion for a new trial on

the grounds that he was denied the right to conflict-free counsel. He also contends that the trial

court erred in denying the motion for a new trial because he alleges that his constitutional rights

were violated by evidence presented of aggravated sexual battery that permitted a non-unanimous

jury verdict. Finally, Smith asserts that the trial court erred in denying the motion because a juror

allegedly lied during voir dire, necessitating a new trial. Having examined the briefs and the record

in this case, the panel unanimously holds that oral argument is unnecessary because “the appeal is

wholly without merit.” See Code § 17.1-403(ii)(a); Rule 5A:27(a). In addition, “the dispositive

issue or issues have been authoritatively decided,” and Smith “has not argued that the case law

should be overturned, extended, modified, or reversed.” See Code § 17.1-403(ii)(b); Rule 5A:27(b).

We affirm the convictions.

BACKGROUND

This Court reviews the evidence in “the ‘light most favorable’ to the Commonwealth, the

prevailing party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022)

(quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). We “regard as true all credible

evidence favorable to the Commonwealth and all inferences that may reasonably be drawn from

that evidence.” McGowan v. Commonwealth, 72 Va. App. 513, 516 (2020).

In the summer of 2015, R.H.3 was seven years old, turning eight in August. R.H.’s parents

were divorced. R.H. lived with his father, Jason Howell in Fluvanna while his mother Candice

lived in Greene County. During that summer and fall, Howell worked with Smith at

Commonwealth Interiors and spent time together “just about every day” or “every day” outside of

work. Smith gave Howell rides to and from work. Their friendship included a mutual struggle with

3 The victim, R.H., was assigned female at birth and presented female at the time of the offenses. His preferred name and pronouns, however, of he/him were used throughout the trial and will be used in this opinion. Initials are used to protect the identity of the minor. -2- alcohol. Howell said that Smith was the only friend who came over every day. The visits continued

until they had a disagreement because Smith refused to leave Howell’s house in December 2018,

resulting in a physical confrontation.

Howell testified that he did not see Smith again until April 2019 when he attended Smith’s

wedding. When Howell returned home from the wedding, R.H. was “very upset” that Howell had

attended the event and cried when he saw photographs of Smith and Howell hugging.

Howell related that there were times Smith was alone with R.H. inside the house when

Howell was doing yard work during the summer of 2015. He described unusual behavior from

R.H. that summer, including R.H. choosing to move from the larger bedroom he shared with his

sister to the smaller one.

R.H. testified that Smith was at their house consistently throughout the summer of 2015,

but less so, although often, in the following months. He acknowledged that Howell had a

“drinking problem” and observed that Smith did too. R.H.’s interactions with Smith were

different than those with Howell’s other friends, as Smith’s behavior was described as “more

touchy, gift giving, talking more, [and] trying to get closer.”

R.H. became uncomfortable with the conversations he had with Smith, starting before the

summer of 2015. One of the first incidents was when Smith told R.H. that “he preferred [R.H.]

over his . . . girlfriend.” In addition, Smith’s “hugs [of R.H.] were longer,” and he would “get

too close behind” R.H. when the child was alone with him. R.H. never saw Smith interact with

his sister in the same way, and none of Howell’s other friends behaved like that towards him.

Smith’s behavior escalated before the summer of 2015 when he “came up behind” [R.H.] while

he was sitting on the couch and . . . “stood there, holding [R.H.’s] shoulders.” In another

incident, Smith removed R.H.’s underwear and had him “sit on his lap” for “ten, fifteen

minutes.” Smith touched R.H. “underneath [his] skirt and [his] chest area,” “skin on skin.”

-3- Once, Smith entered R.H.’s bedroom, sat on the bed next to him after “push[ing] a hole

into” his “stuffed animals with his foot,” and put his hand up R.H.’s dress. R.H. described the

dress as “[his] favorite,” a “pink, purple, and blue sundress” with an elastic top that “flowed from

the bottom.” R.H. “realized something was wrong” when Smith moved to face him and “went

underneath [his] dress.” Smith touched “[R.H.’s] genitalia,” “took off [his]underwear,” then

“slid his hands up underneath the elastic of [the] dress and pushed [R H.] down” onto his back.

Smith began “touching [R.H.’s] genitalia,” then “flipped [R.H.] onto [his] stomach and balled the

dress up underneath [him].” R.H. said that Smith “pressed [his] head” into a “frog pillow pet,”

one of the stuffed animals R.H. kept on his bed. After feeling R.H. “everywhere,” Smith

“dropped his pants and inserted himself into [R.H.].” R.H. described feeling “terrified,” and the

specific act “disgusting, painful,” and said he was “yelling, crying.” The assault ended when

Smith “pulled out and [] ejaculated on [R.H.’s] back,” then pulled up his pants and left.

From the attack, R.H. suffered two large bruises on his shoulders where Smith had “dug

his palms in,” as well as bruises on his inner thighs. He said that his vagina hurt afterwards and

that he contracted a urinary tract infection as a result. At trial, R.H. identified the “fluffy Tinker

Bell comforter” and the “pillow pet” from his bed. He said that he told no one because “[he]

thought either [he] or the people [he] would tell would be hurt [by Smith] if [he] told.”

Following the assault, R.H. tried to cope with the trauma through art and self-harming behaviors.

He described cutting himself shallowly on his thighs and arms so that the cuts would heal

without scarring and trying to overdose with drugs.

Yet another incident occurred on the “trails beside [R.H.’s] dad’s house.” The trails were

used for “riding bikes, walking, [and] looking for bugs.” R.H. testified that “before [his] eighth

birthday,” Smith asked him to “come outside and take a walk.” They went “to the part of the

trail where the trees were the thickest,” and Smith “[took] his pants down and [guided] R.H.’s

-4- hand to touch his penis.” R.H. said that “[Smith] made [him] rub it, essentially.” The incident

ended when “[Smith] ejaculated . . . on [R.H.’s] shoulder,” then returned to the house. When

asked why he told no one, R.H. testified that “[he] was scared” because Smith had threatened

him. Although he could not remember any specifics, he remembered that he was terrified, and

thought that he would get hurt or not be believed if he reported the abuse.

R.H. first disclosed the assault to his boyfriend a few years later. Thereafter, he told

Howell about what happened by writing him two separate notes, followed by several

conversations. Howell reported the incidents to law enforcement in 2021, leading to the

investigation and ensuing indictments.

On the first day of trial, the panel was selected from a pool of 46 potential jurors. As voir

dire proceeded, counsel for Smith asked first whether anyone on the panel was employed or had

been employed as law enforcement officers. All responded in the negative. His second question

was whether “any of [their] relatives or close personal friends [were law enforcement].” Nine

responded affirmatively, including Juror 7 who stated in a straightforward exchange: “[m]y

husband, but it was many, many years ago before we were married, he was a policeman in San

Francisco.” Counsel replied, “[o]kay. Nothing recent?” She replied “no.” In response to other

jurors, counsel either thanked them for the response or followed up with a question regarding

whether the relationship would affect their judgment. Trial counsel’s final question was whether

anyone would “tend to believe the testimony of the law enforcement officer over the testimony

of the civilian? Just because the witness was a law enforcement officer.” All jurors responded in

the negative. Two jurors from that line of questioning were stricken for cause; three were

dismissed on preemptory strikes; and the other four were seated on the panel.

At the close of the trial, the court reviewed the jury instructions with counsel. One

instruction outlined the elements of aggravated sexual battery; another instruction defined the

-5- elements of rape. The verdict forms were for one count each of aggravated sexual battery and

rape. The court read the instructions to the jury, advised it of the Commonwealth’s burden to

prove each element beyond a reasonable doubt for the offenses, and directed that the verdict

must be unanimous. The jury returned guilty verdicts on both charges. Smith’s counsel

requested that the jury be polled; each juror affirmed the verdict.

Once the jury was dismissed and the trial court pronounced that the evidence was

sufficient to support the verdicts, Smith’s counsel moved to set aside the verdict. Finding no

basis in fact or in law to set aside, the motion was denied.

Smith retained substitute counsel for sentencing and post-conviction matters. Counsel

argued ten claims in Smith’s motion for a new trial. Among the claims and relevant to this

appeal are three allegations of error. First, Smith asserted that his trial counsel had a conflict of

interest in representing him leading to a violation of his Sixth Amendment rights. Second, he

alleged that the manner in which the evidence was presented permitted an unconstitutional non-

unanimous conviction of aggravated sexual battery. Finally, he claimed that Juror 7 lied during

voir dire necessitating a new trial.

The trial court denied the motion and sentenced Smith to incarceration for life on the rape

conviction and 20 years on the aggravated sexual battery conviction. This appeal followed.

ANALYSIS

The Court applies an abuse of discretion standard of review when reviewing a trial

court’s denial of a motion for a new trial. Avent v. Commonwealth, 279 Va. 175, 204 (2010).

I. Right to Conflict-free Counsel

As he claimed for the first time in his motion to set aside the verdict, Smith asserts on

appeal that his trial counsel had a conflict of interest because he had represented Howell, the

victim’s father, in a driving under the influence case in 2007. Smith argues that, because of the

-6- conflict of interest, trial counsel “failed to meaningfully cross-examine [Howell] or confront

[the] child’s accusations.” However, following the jury trial, Smith acknowledged that his trial

counsel had informed him of the prior representation, but, nonetheless, that Smith had continued

with trial counsel.

To establish a Sixth Amendment violation, “a defendant who raised no objection at trial

must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.”

Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). “The possibility of conflict is insufficient to

impugn a criminal conviction.” Id. at 350. “An actual conflict of interest exists when an

attorney engages in wrongful conduct related to the client’s trial.” Carter v. Commonwealth, 16

Va. App. 42, 47 (1993) (quoting United States v. Jones, 900 F.2d 512, 519 (1990)). “The burden

of establishing an alleged conflict of interest between an attorney and his client is upon the

person who asserts such a conflict.” Turner v. Commonwealth, 259 Va. 816, 819 (2000).

Smith fails to meet the burden of establishing that there was a conflict of interest between

Smith and his trial counsel. Counsel’s representation of the victim’s father, Howell, occurred in

2007, some 15 years before the jury trial. In fact, trial counsel had “absolutely no recollection”

of the earlier case. Furthermore, when trial counsel disclosed the previous representation, Smith

chose to continue with him as retained counsel.

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court cautioned against

second-guessing counsel’s representation through hindsight. Id. at 690. Smith’s appeal does just

that: after suffering two convictions, he second-guesses trial counsel’s decisions about trial

strategy, management, and performance. Challenging trial counsel’s performance in cross-

-7- examination is more properly characterized as alleging that Smith had ineffective assistance of

counsel.4

The sentencing court correctly opined that ineffective assistance of counsel was “not one

of the any other reasons for which the court can grant a new trial at this stage.” Here, as in

Turner, the “court ruled correctly that the issue raised by [Smith’s] claim of the ineffective

assistance of counsel should be decided in habeas corpus proceedings.” Turner, 259 Va. at 821.

Accordingly, we find no error in the trial court’s ruling concerning the alleged conflict of interest

claim.

II. Non-unanimous Verdict on Aggravated Sexual Battery

Also presented first in his motion for a new trial, Smith argues that the Commonwealth’s

evidence, if believed, presented two instances of aggravated sexual battery. He asserts that the

failure of the Commonwealth to elect which instance the indictment was based upon—and the

single instance that the conviction was supported by—permitted the jury to reach a non-

unanimous verdict. Smith did not comply with Rule 3A:9 and never challenged the non-specific

written indictment. Smith, at no time before trial, requested an election by the Commonwealth

by asking for a bill of particulars. Nor did Smith, during trial, ask for a particularized jury

instruction to be given or a special verdict form to be used.

Citing numerous cases decided in other jurisdictions, Smith urges this Court to reverse

the trial court’s denial of his motion for a new trial. However, in nearly every case relied upon,

the foreign appellate courts were faced with appellants who had raised the issue at some point in

the trial court before or during the trial proceeding. Some requested a bill of particulars; some

filed challenges to the duplicity allowed by the indictment; some moved to quash the indictment;

Smith’s motion for a new trial presented several claims alleging ineffective assistance 4

of counsel which were not included in the appeal. -8- some requested a special verdict form. Other cases clearly relied upon established foreign

jurisdiction case law to find plain error. In fact, in one case, the error analysis involved a

determination of whether the defense was a unified one or one particular to each alleged

instance, a review mandated by case law of that jurisdiction.5

Appellate jurisdiction in the Commonwealth, and its limitation, is enshrined in the Rules

of the Supreme Court of Virginia. These “are rules and not suggestions; we expect litigants

before this Court to abide by them.” Bartley v. Commonwealth, 67 Va. App. 740, 746 (2017)

(quoting Eaton v. Wash. Cnty. Dep’t of Soc. Servs., 66 Va. App. 317, 320 n.1 (2016)). Rule

5A:18 provides that “[n]o ruling of the trial court . . . will be considered as a basis for reversal

unless . . . stated with reasonable certainty at the time of the ruling.” This rule “applies to bar

even constitutional claims.” Farnsworth v. Commonwealth, 43 Va. App. 490, 500 (2004)

(quoting Ohree v. Commonwealth, 26 Va. App 299, 308 (1998). “The purpose of this

contemporaneous objection requirement is to allow the trial court a fair opportunity to resolve

the issue at trial, thereby preventing unnecessary appeals and retrials.” Creamer v.

Commonwealth, 64 Va. App. 185, 195 (2015).

Smith had at least three opportunities before the jury verdict to address the issue he now

raises. He availed himself of none of them. He never challenged the wording of the indictment,

which he could have done pursuant to Rule 3A:9; he never moved for a bill of particulars, where

he could have requested specific dates or conduct alleged to be the basis of the prosecution; he

never requested a particularized jury instruction or special verdict form. Further, it must be said

that he never raised the issue in any way until well after the jury trial was concluded–certainly

5 Cited cases included State v. Patch, 599 A.2d 1243 (N.H. 1991); State v. Saluter, 715 A.2d 1250 (R.I. 1998); Woertman v. People, 804 P.2d 188 (Colo. 1991); United States v. Karam, 37 F.3d 1280 (8th Cir. 1994); and State v. Voyles, 160 P.3d 794 (Kan. 2007). -9- not when the trial court had a “fair opportunity to resolve the issue at trial.” Id. Smith’s

argument is barred on appeal.

III. Juror Misconduct

Finally, as a basis for his argument that the trial court erred in denying his motion, Smith

challenges the impartiality of the jury, specifically contending that Juror 7 was dishonest because

she did not spontaneously offer additional information in response to trial counsel’s limited

questions about a relationship with law enforcement. Smith argues that post-conviction, new

counsel found information on the internet about Juror 7’s husband, who worked as a consultant

and salesman for firms with ties to law enforcement. Based upon this information, Smith

asserted that Juror 7 lied during voir dire.

Nine potential jurors responded affirmatively to trial counsel’s voir dire regarding

relatives or close friends who worked in law enforcement. Juror 7 truthfully disclosed that her

husband was a police officer years ago in San Francisco. Juror 7 again answered truthfully in

response to trial counsel’s only subsequent question, “[n]othing recent?” stating “no.” The

record reflects that trial counsel did not ask any juror about business ties to law enforcement.

Juror 7 stated that her husband’s previous employment would not make her more likely to

believe the testimony of a police officer over any other witness and that she would be fair and

impartial in considering the evidence.6

The Sixth Amendment of the Constitution of the United States, made available to the

states through the Fourteenth Amendment, provides that the accused is entitled to an impartial

jury at trial. In McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984), the

Court articulated a two-prong conjunctive test for determining whether an allegation of juror

6 Smith does not challenge the impartiality of the dismissals for cause and preemptive strikes for the other jurors; four of the jurors who responded that they knew law enforcement were empaneled. - 10 - dishonesty necessitated a new trial. The Court held that “a litigant must first demonstrate that a

juror failed to answer honestly a material question on voir dire, and then further show that a

correct response would have provided a valid basis for a challenge for cause.” Blevins v.

Commonwealth, 267 Va. 291, 296-97 (2004). The Court further observed that a litigant is

‘“entitled to a fair trial but not perfect a one,’ for there are no perfect trials.” McDonough, 464

U.S. at 553 (quoting Brown v. United States, 411 U.S. 223, 231-32 (1973)). “An appellate court

must give deference to a trial court’s factual finding regarding a juror’s impartiality because the

trial court ‘sees and hears the juror.’” Blevins, 267 Va. at 297 (quoting Eaton v. Commonwealth,

240 Va. 236, 246 (1990)). There must be a “showing of manifest error” for the appellate court to

reverse the trial court based on juror impartiality. Id. (quoting Weeks v. Commonwealth, 248 Va.

460, 475 (1994)).

Smith’s argument fails the first prong of the McDonough test: Juror 7 honestly answered

the voir dire question posed by trial counsel. The second prong analysis, therefore, is

unnecessary. The trial court stated that the juror “did honestly answer [trial counsel’s question]

by stating, yes, my husband was, several years ago.” The record supports the trial court’s denial

of Smith’s motion for a new trial on the grounds of juror bias, and we do not disturb it.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed.

Affirmed.

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