State of West Virginia v. Benny W. ( 2019 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
SEPTEMBER 2019 TERM
_____________ FILED
October 18, 2019
No. 18-0349 released at 3:00 p.m.
_____________ EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Respondent
V.
BENNY W.,
Petitioner
____________________________________________________________________
Appeal from the Circuit Court of Ritchie County
Honorable Timothy L. Sweeney, Judge
Criminal Action No. 17-F-8
AFFIRMED
____________________________________________________________________
Submitted: October 1, 2019
Filed: October 18, 2019
Kyle G. Lusk, Esq. Patrick Morrisey, Esq.
Matthew A. Bradford, Esq. Attorney General
Brandon L. Gray, Esq. Scott E. Johnson, II, Esq.
Lusk & Bradford, PLLC Assistant Attorney General
Beckley, West Virginia Charleston, West Virginia
Attorneys for Petitioner Attorneys for Respondent
JUSTICE HUTCHISON delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “A trial court’s ruling on authenticity of evidence under Rule 901(a)
of the West Virginia Rules of Evidence will not be disturbed on appeal unless there has
been an abuse of discretion.” Syllabus point 12, State v. Boyd, 238 W. Va. 420, 796 S.E.2d
207 (2017).
2. Under Rule 901(a) of the West Virginia Rules of Evidence, social
media text messages may be authenticated in numerous ways including, for example, by a
witness who was a party to sending or receiving the text messages, or through
circumstantial evidence showing distinctive characteristics that link the sender to the text
messages.
3. “A conviction for any sexual offense may be obtained on the
uncorroborated testimony of the victim, unless such testimony is inherently incredible, the
credibility is a question for the jury.” Syllabus point 5, State v. Beck, 167 W. Va. 830, 286
S.E.2d 234 (1981).
i
4. “Only when testimony is so unbelievable on its face that it defies
physical laws should the court intervene and declare it incredible as a matter of law.”
Syllabus point 8, State v. Smith, 178 W. Va. 104, 358 S.E.2d 188 (1987).
5. In reviewing the qualifications of a jury to serve in a criminal case,
we follow a three-step process. Our review is plenary as to legal questions such as the
statutory qualifications for jurors; clearly erroneous as to whether the facts support the
grounds relied upon for disqualification; and an abuse of discretion as to the reasonableness
of the procedure employed and the ruling on disqualification by the trial court.
6. “A trial court’s failure to remove a biased juror from a jury panel, as
required by W. Va. Code § 62–3–3 (1949) (Repl.Vol.2010), does not violate a criminal
defendant’s right to a trial by an impartial jury if the defendant removes the juror with a
peremptory strike. In order to obtain a new trial for having used a peremptory strike to
remove a biased juror from a jury panel, a criminal defendant must show prejudice. The
holding in Syllabus point 8 of State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75 (1995), is
expressly overruled.” Syllabus point 3, State v. Sutherland, 231 W. Va. 410, 745 S.E.2d
448 (2013).
ii
7. Under Rule 404(a)(2)(A), of the West Virginia Rules of Evidence, a
defendant in a criminal prosecution may offer evidence of the defendant’s pertinent
character trait.
8. Under Rule 404(a)(2)(A), of the West Virginia Rules of Evidence,
“honesty” is not a pertinent character trait of a criminal defendant who is being prosecuted
on a sexual offense charge.
9. “Sentences imposed by the trial court, if within statutory limits and if
not based on some [im]permissible factor, are not subject to appellate review.” Syllabus
point 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).
iii
HUTCHISON, JUSTICE:
This appeal was brought by Benny W. (hereinafter “Petitioner”) from the
April 4, 2018, order of the Circuit Court of Ritchie County sentencing him to a total of 131
to 295 years in prison.1 Petitioner was convicted by a jury of six counts of sexual assault
in the second degree, seven counts of sexual abuse by a custodian, and one count of sexual
abuse in the first degree. In this appeal, Petitioner set out nine of assignments of error and
asks this Court to reverse his convictions and sentences and award him a new trial. Upon
careful review of the briefs, the appendix record, the arguments of the parties, and the
applicable legal authority, we affirm.
I.
FACTUAL AND PROCEDURAL HISTORY
This case involves the sexual assault of two female juveniles, H.A. and J.L.,
by the Petitioner.2 H.A. and J.L. were friends with Petitioner’s juvenile daughter, A.W.
During the period of June to July of 2016, H.A. alleged that she was sexually assaulted by
the Petitioner on five occasions while she was at his home visiting A.W., J.L. alleged that
she was sexually assaulted by the Petitioner on one occasion during the same time period.
1
Consistent with our long-standing practice in cases involving juveniles and
sensitive facts, we use the initials where necessary to protect the identities of those
involved in this case. See In re K.H., 235 W. Va. 254, 256 n.1, 773 S.E.2d 20, 22
n.1 (2015).
2
H.A. was born in 2002, and J.L. was born in 2003.
1
The first time that Petitioner sexually assaulted H.A. at his home, A.W.
approached H.A. and informed her that Petitioner wanted to have sex with her. 3 According
to H.A., A.W. took her into Petitioner’s bedroom, which was dark, and left her there.4
Petitioner, who apparently was already in the bedroom, took off H.A.’s pants and
penetrated her vagina with his hand and penis.5 H.A. visited A.W. on four more occasions
and during each visit the Petitioner sexually assaulted her. When the third sexual assault
of H.A. took place, J.L. was also visiting the home. H.A. alleged that during this visit A.W.
told her and J.L. that the Petitioner wanted to see them. A.W. escorted both girls into
Petitioner’s bedroom and left. Both girls got on Petitioner’s bed and he sexually assaulted
them. J.L. was sexually assaulted first. The Petitioner penetrated J.L.’s vagina with his
fingers. J.L. left the room after being sexually assaulted in that manner. After J.L. left the
room, Petitioner sexually assaulted H.A. by penetrating her with his penis.
In the fall of 2016, H.A. reported to a high school counselor that she was
sexually assaulted multiple times by Petitioner. The high school counselor reported the
incident to the county prosecutor. A police investigation followed, during which it was
3
It appears that the Petitioner was in his bedroom when he sent a text message to
A.W. making the request to have sex with H.A.
4
The record indicates that the Petitioner had been married to A.W.’s mother. It is
not clear if the couple divorced or separated. The record does indicate that A.W.’s
mother was not living with Petitioner.
5
Petitioner put on a condom.
2
learned that the Petitioner also sexually assaulted J.L. Subsequent to the investigation, a
grand jury returned a twenty-four count indictment against the Petitioner on January 23,
2017.
The case was tried before a jury over two days, beginning on December 4,
2017. During the trial the State presented testimony from the victims, H.A. and J.L.6 Both
victims testified to being sexually assaulted by the Petitioner. The State also called the
Petitioner’s daughter, A.W. During the trial A.W. testified that on two occasions she told
H.A. that Petitioner wanted to have sex with her. A.W. also identified Facebook text
messages she had with Petitioner, in which Petitioner appears to be asking her to tell H.A.
or J.L. to come over to have sex with him. At the close of the State’s case-in-chief the
circuit court granted a motion by Petitioner to dismiss two of the counts on insufficient
evidence. The Petitioner testified during his case-in-chief and denied having any sexual
contact with the victims.7 The jury ultimately found the Petitioner guilty of fourteen counts
of the indictment and not guilty of eight counts.8 This appeal followed.
6
The State called a total of seven witnesses.
7
The Petitioner also called six character witnesses.
8
Additional relevant facts about the trial of the case are brought out under specific
assignments of error.
3
II.
STANDARD OF REVIEW
The Petitioner has set out nine assignments of error that have different review
standards. Consequently, we will set out the standard of review for each issue as it is
addressed below. See State v. Boyd, 238 W. Va. 420, 428, 796 S.E.2d 207, 215 (2017)
(“We will dispense with our usual standard of review section because each of the
assignments of error has its own review criteria.”); State v. Dunn, 237 W. Va. 155, 158,
786 S.E.2d 174, 177 (2016) (“Therefore, we dispense with setting out a general standard
of review. Specific standards of review will be discussed separately as we address each
assignment of error.”).
III.
DISCUSSION
A.
Authentication of Facebook Messenger Text Messages
The first two assignments of error by the Petitioner are overlapping, insofar
as they both require this Court to determine whether the circuit court committed error in
finding the State properly authenticated its only exhibit, Facebook Messenger text
messages. Consequently, we will combine the two assignments of error and address the
4
issues raised together.9 The State contends that the text messages exhibit was authenticated
by A.W. and properly admitted into evidence.10
We have held that “[t]he action of a trial court in admitting or excluding
evidence in the exercise of its discretion will not be disturbed by the appellate court unless
it appears that such action amounts to an abuse of discretion.” Syl. pt. 10, State v. Huffman,
141 W. Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds by State ex rel. R.L. v.
Bedell, 192 W. Va. 435, 452 S.E.2d 893 (1994). With respect to a trial court’s ruling on
authentication of evidence, this Court has held that “[a] trial court’s ruling on authenticity
of evidence under Rule 901(a) of the West Virginia Rules of Evidence will not be disturbed
9
In the first assignment of error the Petitioner couches the issue of the text messages
in the context of the circuit court committing error by “provisionally and
conditionally” rejecting his objection to the admission of the text messages. See Syl.
pt. 4, State v. Nixon, 178 W. Va. 338, 359 S.E.2d 566 (1987) (“The trial court may
conditionally admit [evidence] subject to the laying of a proper foundation.”). In the
second assignment of error the Petitioner asks this Court to address the
authentication of the text messages under plain error, in order to impose the
procedures set out in a 2016 Memorandum Decision by this Court. (The decision is
discussed infra.)
10
The Petitioner’s brief makes reference to the text messages being double hearsay
and should not have been admitted for that reason. See State v. Golden, 175 W. Va.
551, 554, 336 S.E.2d 198, 202 (1985) (“The general rule is that multiple hearsay
evidence is admissible into evidence only if each level of hearsay comes within a
recognized exception to the exclusionary rule.”). The issue of hearsay within
hearsay has not been briefed with any legal authority nor legal arguments by
Petitioner. Therefore, we decline to address the merits of the issue. See State v.
LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996) (“Although we liberally
construe briefs in determining issues presented for review, issues which are not
raised, and those mentioned only in passing but are not supported with pertinent
authority, are not considered on appeal.”).
5
on appeal unless there has been an abuse of discretion.” Syl. pt. 12, State v. Boyd,
238 W. Va. 420, 796 S.E.2d 207 (2017). See Syl. pt. 3, State ex rel. Smith v. McBride,
224 W. Va. 196, 681 S.E.2d 81 (2009) (“A trial judge’s ruling on authenticity will not be
disturbed on appeal unless there has been an abuse of discretion.”).
It is provided under our rules of evidence that “[t]o satisfy the requirement
of authenticating . . . an item of evidence, the proponent must produce evidence sufficient
to support a finding that the item is what the proponent claims it is.” W. Va. R. Evid.
901(a). We have recognized that “the standard of admissibility under Rule 901(a) is rather
slight, i.e., is the evidence sufficient ‘to support a finding’ that the object is authentic.”
State v. Boyd, 238 W. Va. 420, 443, 796 S.E.2d 207, 230 (2017) (citation omitted). Courts
have acknowledged that “[t]he authentication of social media poses unique issues regarding
what is required to make a prima facie showing that the matter is what the proponent
claims.” Smith v. State, 136 So. 3d 424, 432 (Miss. 2014). One court addressed the issue
as follows:
The need for authentication arises in this context because an electronic
communication, such as a Facebook message, an e-mail or a cell phone text
message, could be generated by someone other than the named sender. This
is true even with respect to accounts requiring a unique user name and
password, given that account holders frequently remain logged into their
accounts while leaving their computers and cell phones unattended.
Additionally, passwords and website security are subject to compromise by
hackers. Consequently, proving only that a message came from a particular
account, without further authenticating evidence, has been held to be
inadequate proof of authorship.
6
State v. Eleck, 130 Conn. App. 632, 638-39, 23 A.3d 818, 822 (2011). A general procedure
for authenticating social media evidence has been summarized as follows:
[A]uthentication [of] social media evidence is to be evaluated on a case-by-
case basis to determine whether or not there has been an adequate
foundational showing of its relevance and authenticity. Additionally, the
proponent of social media evidence must present direct or circumstantial
evidence that tends to corroborate the identity of the author of the
communication in question, such as testimony from the person who sent or
received the communication, or contextual clues in the communication
tending to reveal the identity of the sender.
Commonwealth v. Danzey, 210 A.3d 333, 338 (Pa. 2019) (citation omitted). See State v.
Bitner, No. 51179-7-II, 2019 WL 2598731, at *3 (Wash. Ct. App. June 25, 2019) (“[T]ext
message evidence can be authenticated based on its contents and substance, ‘taken in
conjunction with the circumstances.’”); Commonwealth v. Davis, No. 1055 MDA 2018,
2019 WL 2323815, at *5 (Pa. Super. Ct. May 31, 2019) (finding text message authenticated
because “there was first-hand corroborating testimony from ... [the] recipient”); People v.
Ziemba, 100 N.E.3d 635, 648 (Ill.App. 2018) (finding text messages authenticated by
“undercover officer who personally sent and received the text messages contained in
People’s exhibit No. 2”); State v. Roseberry, 197 Ohio App. 3d 256, 270, 967 N.E.2d 233,
244 (2011) (“[I]n most cases involving ... texts, instant messaging, and e-mails, the
photographs taken of the print media or the printouts of those conversations are
authenticated, introduced, and received into evidence through the testimony of the recipient
of the messages.”).
7
The decision in In re T.P.D.C., 440 P.3d 634 (Mont. 2019) (unpublished)
illustrates the minimal requirement for authenticating text messages between two people.
In that case the mother of a child filed a petition to terminate the parental rights of the father
of the child. The petition was denied. On appeal one of the issues raised by the mother was
that text messages between her and the father of the child were not properly authenticated.
The appellate court disagreed as follows:
Finally, Mother argues that the District Court erroneously admitted copies of
text message conversations between Mother and Father into evidence.
Mother first argues that there was insufficient foundation, because Mother
stated she could not remember the texts. Second, she maintains that the
printouts of the texts were not originals under M. R. Evid. 1001, and the court
could not admit a duplicate because she had raised a question as to the
authenticity of the original messages. Mother is mistaken that her testimony
was required to authenticate the text messages. Father, as one party to the
conversation, had firsthand knowledge of their authenticity and provided
sufficient testimony that the printouts of the text messages were what he
claimed them to be. Any questions regarding Father’s credibility would go
to the weight of the evidence, not to its admissibility.
In re T.P.D.C., 440 P.3d 634.
The decision in Commonwealth v. Murray, 174 A.3d 1147 (Pa. Super. 2017)
fashioned a general test for authenticating text messages. In Murray the defendant was
convicted, following a bench trial, of possession of a firearm by a prohibited person. One
of the issues raised on appeal by the defendant was that the State failed to authenticate text
messages attributed to him. The appellate court disagreed with the defendant and
concluded, as did the trial court, that the text messages were authenticated based upon the
8
contextual clues in the messages. In rendering this conclusion, the opinion applied the
following test for authenticating text messages:
text messages may be authenticated by: (1) testimony from either the author
or the sender; (2) circumstantial evidence, including distinctive
characteristics like information specifying the author-sender or reference to
or correspondence with relevant events preceding or following the message;
or (3) any other facts or aspects of the [message] that signify it to be what its
proponent claims.
Murray, 174 A.3d at 1156-57 (internal quotations and citations omitted). See Tyler v. State,
No. 05-15-00354-CR, 2016 WL 280032, at *2 (Tex. App. Jan. 22, 2016) (internal
quotations and citations omitted) (“As with other types of evidence, text messages may be
authenticated by evidence sufficient to support a finding that the matter is what its
proponent claims. This can be accomplished in myriad ways, depending upon the unique
facts and circumstances of each case, including through the testimony of a witness with
knowledge or through evidence showing distinctive characteristics.”); Rodriguez v. State,
128 Nev. 155, 162, 273 P.3d 845, 849 (2012) (“[W]hen there has been an objection to
admissibility of a text message … the proponent of the evidence must explain the purpose
for which the text message is being offered and provide sufficient direct or circumstantial
corroborating evidence of authorship in order to authenticate the text message as a
condition precedent to its admission.”).
In light of the foregoing authorities, we now hold that under Rule 901(a) of
the West Virginia Rules of Evidence, social media text messages may be authenticated in
numerous ways including, for example, by a witness who was a party to sending or
9
receiving the text messages, or through circumstantial evidence showing distinctive
characteristics that link the sender to the text messages.
In the instant case the Petitioner characterizes the Facebook text messages as
photographs and argues that a proper foundation was not laid as required by the procedures
used in State v. Palmer, No. 14-0862, 2016 WL 3176472 (W. Va. June 3, 2016)
(Memorandum Decision).11 According to Petitioner, under Palmer the trial court was
required, among other things, to conduct an in-camera review of the text messages and
other documents subpoenaed from Facebook.12 Palmer does not impose such a
11
The Petitioner appears to characterize the text messages as photographs that
require an authentication independent of the text messages. However, the
Petitioner’s brief does not set out any argument, along with legal authority,
addressing the issue of admissibility of photographs. We therefore decline to
address the photograph issue independent of the text messages. See State v. Lilly,
194 W. Va. 595, 605 n.16, 461 S.E.2d 101, 111 n.16 (1995) (finding that “casual
mention of an issue in a brief is cursory treatment insufficient to preserve the issue
on appeal”) (internal quotations and citation omitted). We will note simply in
passing that, under the facts of this case, it would appear that no special
authentication procedure was necessary for authenticating the photographs
independent of the text messages. See People v. Cotto, 164 A.D.3d 826, 827, 79
N.Y.S.3d 535, 536 (2018) (“The complainant’s testimony that the photographs of
the text messages fairly and accurately depicted the text message conversation
between her and the defendant was sufficient to authenticate the photographs.”);
United States v. Davis, 918 F.3d 397, 403 (4th Cir. 2019) (affirming authentication
of photographs of test messages); Duvall v. State, 2018 Ark. App. 155, 12, 544
S.W.3d 106, 113–14 (2018) (finding sufficient circumstantial evidence to
authenticate photographs of text messages).
12
The Petitioner briefed the procedures used in Palmer in his first assignment of
error and argued that they should have been used. However, the Petitioner set out
the same argument in his second assignment of error and asked this Court to address
the matter under plain error. See State v. Miller, 194 W. Va. 3, 18, 459 S.E.2d 114,
10
requirement. The defendant in Palmer appealed from his conviction for first degree murder
of his father-in-law. One of the issues raised was that the State did not properly
authenticate an e-mail containing a reference to a Facebook post and comments about the
post. In the Facebook post the defendant essentially stated that he had a mental list of
people he was going to “strike” because they did him and his wife wrong. This post was
authenticated by a witness who had a conversation with the defendant on Facebook and
believed that the statement in the Facebook post was made by the defendant based on the
manner of speech used in the post, the Facebook profile picture of defendant, and the fact
that the content of the post was something only the witness and defendant had knowledge
of, the decision in Palmer indicated that in addition to having the witness authenticate the
post, the circuit court did the following:
In the instant case, the circuit court completed an appropriate analysis of the
authenticity of the document prior to its admission at trial. Additionally, the
circuit court, prior to admission of the document, conducted an in camera
review of the exhibit and other corresponding documents subpoenaed from
Facebook and jail telephone calls between petitioner and his family
members, which substantiated the information contained within the exhibit.
Moreover, the circuit court permitted petitioner to proffer the testimony of
an expert witness regarding the ability to easily fabricate a Facebook page to
rebut this exhibit.
129 (1995) (“The ‘plain error’ doctrine grants appellate courts, in the interest of
justice, the authority to notice error to which no objection has been made.”). The
State properly notes that application of the Palmer procedures is not properly before
this Court, because the Petitioner did not object below to the procedure used by the
circuit court in admitting the text messages. Our analysis of Palmer on the merits
of that case disposes of the need to address the plain error argument.
11
Palmer, 2016 WL 3176472, at *5. The procedures used by the circuit court in Palmer,
before it admitted the Facebook post, were procedures the circuit court believed should be
followed under the unique facts of that case. The mere fact that the Memorandum Decision
in Palmer outlined the authenticity procedures used by the circuit court, did not render
those procedures mandatory for authenticating all future social media exhibits. Moreover,
this Court does not create new and binding principles of law in Memorandum Decisions.
See Syl. pt. 1, State v. McKinley, 234 W. Va. 143, 764 S.E.2d 303 (2014) (“Signed opinions
containing original syllabus points have the highest precedential value because the Court
uses original syllabus points to announce new points of law or to change established
patterns of practice by the Court.”). 13
In contrast to Palmer, where there was simply a Facebook post that was
traced to the defendant, in the instant case the Facebook Messenger text messages involved
communication between two people—the Petitioner and his daughter A.W.14 During the
trial A.W. authenticated the text messages based upon the following questioning by the
State:
13
See also Syl. pt. 5, in part, McKinley (“While memorandum decisions may be
cited as legal authority, and are legal precedent, their value as precedent is
necessarily more limited.”).
14
During the trial the investigating officer, Trooper A.M. Pringle, testified that he
executed a search warrant to examine the Facebook Messenger database, and that
he took the photographs of the text messages between Petitioner and A.W.
12
Q. Do you recognize this message to be a conversation between you and your
dad, correct?
A. Yeah
***
Q. Let me ask you this: If you could take a look at the top line, what you said,
and the pink that is what you said, right? Don’t say it out loud.
A. (Indicated yes)
Q. Do you recall saying that to your dad?
A. Yes.
Q. Do you recall his response?
A. I guess.
Q. And what you see on the rest of that, could you recall the rest of that?
Y. Yes.
Q. What about this second page? It has a little bit of overlap from the first,
right, but then the rest of that page, do you recall that?
A. Yes.
Q. What about the third page?
A. Yes.
Q. And the fourth page?
A. Yes.
Q. That up there, does that indicate you were talking to your dad?
A. Yes.15
15
The following is the Facebook Messenger text messages between the Petitioner and
A.W.
[A.W.] He said he couldn’t come so we are just gonna wait
[Petitioner] I still want it tonight or it ain’t going to happen at all.
[A.W.] When jr. Leaves
[Petitioner] What I want
[A.W.] When jr. Leaves she will[.] It has to be dark, she feels uncomfortable when it’s
daylight.
[Petitioner] It’s dark in my room anyway
13
We find that A.W.’s identification of the content of the Facebook Messenger text messages
as a conversation she had with Petitioner was sufficient to authenticate the text messages.16
Consequently, we find no error in the circuit court’s admission of the text messages.17
B.
Denial of Motion for Judgment of Acquittal
[A.W.] True[.] But can we at least wait till jr. Leaves?
[Petitioner] Hey
[A.W.] Not tonight[.] [H.A.] is upset n [J.L.] said not tonight
[Petitioner] I need it tonight[.] Oh bull
[A.W.] U had some last night Ur fine
[Petitioner] I ain’t going to argue over it[.] Whatever
[A.W.] Ok night love you
[Petitioner] Whatever[.] Tell her please I just ask for a few minutes of something
and I can’t even get that
16
The Petitioner also argued that the text messages should not have been admitted
because the circuit court initially ruled that a foundation had not been laid to admit
the text messages. The circuit court’s initial ruling is of no moment, because the
circuit court later determined that a foundation for admission was made after further
questioning of A.W. It has been appropriately noted that “[i]n ascertaining whether
[a] foundation has been established, we can … consider all the evidence …
regardless of the order of proof.” United States v. Miranda-Uriarte, 649 F.2d 1345,
1349 (9th Cir. 1981).
17
During jury deliberations the jury requested to see the text messages. The trial
judge allowed the text messages to be sent to the jury, without objection by the
Petitioner. In this appeal the Petitioner appears to be asking this Court to invoke
plain error to find that it was improper for the jury to view the text messages during
its deliberations. We decline to do so. See Syl. pt. 5, First Nat. Bank v. Barker, 75
W. Va. 244, 83 S.E. 898 (1914) (“The jury may, by leave of the court, take to their
room all papers properly put in evidence on the trial.”); W. Virginia Dep’t of
Transp., Div. of Highways v. Parkersburg Inn, Inc., 222 W. Va. 688, 700, 671
S.E.2d 693, 705 (2008) (“It has been recognized that [i]tems of documentary or real
evidence that were admitted into evidence may be taken into closed sessions during
[jury] deliberations.”) (internal quotation marks and citation omitted).
14
The Petitioner contends that the circuit court erred in denying his motion for
judgment of acquittal, at the close of the State’s case-in-chief, because the evidence was
insufficient in view of the “inherently incredible” testimony of the two victims. The State
argues that “[t]he Petitioner misunderstands the law of inherent incredibility and, as such,
has failed to show his entitlement to relief.” We agree.
This “Court applies a de novo standard of review to the denial of a motion
for judgment of acquittal based upon the sufficiency of the evidence.” State v. Juntilla,
227 W. Va. 492, 497, 711 S.E.2d 562, 567 (2011). We have further explained:
The function of an appellate court when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence
admitted at trial to determine whether such evidence, if believed, is sufficient
to convince a reasonable person of the defendant’s guilt beyond a reasonable
doubt. Thus, the relevant inquiry is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime proved beyond a reasonable
doubt.
Syl. pt. 1, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). Finally, we held in
Guthrie,
A criminal defendant challenging the sufficiency of the evidence to support
a conviction takes on a heavy burden. An appellate court must review all the
evidence, whether direct or circumstantial, in the light most favorable to the
prosecution and must credit all inferences and credibility assessments that
the jury might have drawn in favor of the prosecution. The evidence need not
be inconsistent with every conclusion save that of guilt so long as the jury
can find guilt beyond a reasonable doubt. Credibility determinations are for
a jury and not an appellate court. Finally, a jury verdict should be set aside
15
only when the record contains no evidence, regardless of how it is weighed,
from which the jury could find guilt beyond a reasonable doubt.
Syl. pt. 3, Guthrie.
We have recognized that “[a] conviction for any sexual offense may be
obtained on the uncorroborated testimony of the victim, unless such testimony is inherently
incredible, the credibility is a question for the jury.” Syl. pt. 5, State v. Beck, 167 W. Va.
830, 286 S.E.2d 234 (1981). It has been recognized that the bar has been set extremely
high for declaring testimony inherently incredible. See Rea v. Suthers, 402 F. App’x 329,
331 (10th Cir. 2010) (“[T]he standard for establishing that witness testimony is incredible
as a matter of law is exceptionally high.”). To establish inherent incredibility, a defendant
must show “more than contradiction and lack of corroboration.” State v. McPherson, 179
W.Va. 612, 617, 371 S.E.2d 333, 338 (1988). It is “[o]nly when testimony is so
unbelievable on its face that it defies physical laws should the court intervene and declare
it incredible as a matter of law.” Syl. pt. 8, State v. Smith, 178 W. Va. 104, 358 S.E.2d
188 (1987). See McPherson, 179 W.Va. at 617, 371 S.E.2d at 338 (“[W]hen a trial court is
asked to grant a motion for acquittal based on insufficient evidence due to inherently
incredible testimony, it should do so only when the testimony defies physical laws.”).
In this appeal Petitioner argued that “the testimony of the girls, H.A., J.L.,
and A.W., contained contradictions making their testimony inherently incredible.” The
Petitioner does not cite to testimony in the record that was inherently incredible. Instead,
16
the Petitioner merely cites to, and quotes from, defense counsel’s closing argument. We
find that defense counsel’s summation of the evidence was not completely accurate, and
even if it was, Petitioner needed to cite to the specific testimony in the record that he
believed was inherently incredible. See State v. Prophet, 234 W. Va. 33, 46, 762 S.E.2d
602, 615 (2014) (“[A]nything said by the lawyers during the trial is not to be considered
evidence.”); Crum v. Ward, 146 W. Va. 421, 465, 122 S.E.2d 18, 42 (1961) (Haymond, P.,
dissenting) (“[T]he argument of counsel is not evidence and may not be considered as
such[.]”). In our independent review of the testimony of the victims and A.W., we found
some inconsistencies in their recollection of events, but nothing remotely bordering on
inherently incredible testimony. H.A. testified to being sexually assaulted by Petitioner on
five occasions and that she saw Petitioner sexually assault J.L. J.L testified that H.A. was
in the room when Petitioner sexually assaulted her. A.W. testified that Petitioner sent her
the text messages asking to have sex with H.A. or J.L. The jury heard the testimony of the
victims, and A.W., and found that testimony to be credible. See Guthrie, 194 W. Va. at
669 n.9, 461 S.E.2d at 175 n.9. (“An appellate court may not decide the credibility of
witnesses or weigh evidence as that is the exclusive function and task of the trier of fact.”).
When viewed in the light most favorable to the State, the evidence clearly supports the
jury’s verdict beyond a reasonable doubt. As such, we find no error in the trial court’s
denial of Petitioner’s motion for judgment of acquittal at the close of the State’s case-in-
chief.
17
C.
The Use of Peremptory Strikes to Remove Three Potential Jurors
The Petitioner argues next that the circuit court committed error in denying
his motion to strike three potential jurors for cause. The State contends that this issue has
no merit because the Petitioner used peremptory strikes to remove the three potential jurors.
As a general matter we have held that a “trial court has broad discretion in
determining whether to strike jurors for cause, and we will reverse only where actual
prejudice is demonstrated.” State v. Miller, 197 W. Va. 588, 605, 476 S.E.2d 535, 552
(1996). In Miller this Court formulated, and we now hold, a three-part standard of review
of a trial court’s ruling on juror qualifications.
In reviewing the qualifications of a jury to serve in a criminal case, we follow
a three-step process. Our review is plenary as to legal questions such as the
statutory qualifications for jurors; clearly erroneous as to whether the facts
support the grounds relied upon for disqualification; and an abuse of
discretion as to the reasonableness of the procedure employed and the ruling
on disqualification by the trial court.
Miller, 197 W. Va. at 600-01, 476 S.E.2d at 547-48. In syllabus point 3 of State v.
Sutherland, 231 W. Va. 410, 745 S.E.2d 448 (2013) we held the following regarding the
use of a peremptory strike to remove a potential juror:
A trial court’s failure to remove a biased juror from a jury panel, as required
by W.Va. Code § 62–3–3 (1949) (Repl.Vol.2010), does not violate a criminal
defendant’s right to a trial by an impartial jury if the defendant removes the
juror with a peremptory strike. In order to obtain a new trial for having used
a peremptory strike to remove a biased juror from a jury panel, a criminal
defendant must show prejudice. The holding in Syllabus point 8 of State v.
Phillips, 194 W.Va. 569, 461 S.E.2d 75 (1995), is expressly overruled.
18
Finally, in State v. Rollins, 233 W. Va. 715, 760 S.E.2d 529 (2014) we pointed out the type
of prejudice that is required under Sutherland:
the test that must be satisfied when a defendant has removed a biased juror
… has been stated in different ways, but essentially, a challenge must show
that the appellant was forced to accept a juror who should have been excused
for cause. That is, appellate courts will not find reversible error based on the
trial court’s refusal to remove that juror for cause unless the resulting jury
was not fair and impartial.
Rollins, 233 W. Va. at 729, 760 S.E.2d at 543 (internal quotation marks and citations
omitted).
The Petitioner states that based upon the responses to questions by three
potential jurors, D. Hodge, D. Sparks, and S. Harper, they should have been struck for
cause. During jury voir dire Juror Hodge stated that she had a friend who was sexually
assaulted and that she knew staff in the prosecutor’s office. Juror Sparks stated that she
knew the prosecutor and that she worked with his mother; that she was a former teacher of
a witness, A.W.; and that her daughter was sexually assaulted. Juror Harper stated that she
knew the victims and that she was sexually assaulted as a child. Petitioner argues that the
responses of these three jurors were grounds for removal for cause.18 Petitioner contends
that by utilizing peremptory strikes to remove the jurors, he was “prejudiced by being
unable to properly utilize his peremptory strikes to obtain a fair and balanced jury free from
other individuals seating [sic] on the jury with whom Petitioner would have otherwise
18
The record indicates that the trial court refused to strike the jurors for cause after
they each ultimately stated that they could fairly and impartially decide the case.
19
struck with his peremptory strikes.” The State correctly asserts that Petitioner has not
shown prejudice as required by Sutherland and its progeny. Petitioner has simply made an
unsupported statement that he would have struck other jurors who sat on the jury.
Petitioner failed to allege any facts to show that a juror who sat on the jury was biased, and
thereby prejudiced his right to a fair trial. Consequently, we find no merit to this
assignment of error. See State v. Younkins, No. 17-0962, 2018 WL 5099641, at *3 (W. Va.
Oct. 19, 2018) (Memorandum Decision) (defendant failed to present evidence of bias or
prejudice in jury that heard case); State v. Mullins, No. 17-0391, 2018 WL 2928096, at *4
(W. Va. June 11, 2018) (Memorandum Decision) (same); State v. Redman, No. 15-1039,
2017 WL 678854, at *7 (W. Va. Feb. 21, 2017) (Memorandum Decision) (same); State v.
Thompson, No. 15-0292, 2016 WL 4611128, at *5 (W. Va. Sept. 6, 2016) (Memorandum
Decision) (same); State v. White, No. 15-0344, 2016 WL 2977322, at *4 (W. Va. May 23,
2016) (Memorandum Decision) (same); State v. Lewis, No. 14-1234, 2015 WL 5125476,
at *2 (W. Va. Aug. 31, 2015) (Memorandum Decision) (same); State v. Fannin, No. 14-
0797, 2015 WL 2364295, at *3 (W. Va. May 15, 2015) (Memorandum Decision) (same);
State v. Jerry R., No. 13-1107, 2014 WL 6634307, at *2 (W. Va. Nov. 24, 2014)
(Memorandum Decision) (same); State v. Parsons, No. 13-0615, 2014 WL 629419, at *3
(W. Va. Feb. 18, 2014) (Memorandum Decision) (same); State v. Bowling, 232 W. Va.
529, 539, 753 S.E.2d 27, 37 (2013) (same).
20
D.
Two Jurors were Facebook Friends with Prosecutor
The next issue raised by Petitioner concerns an alleged Facebook “friends”
relationship between the prosecutor and two jurors who sat on the case. The State argues
that this issue is not properly before this Court, because there is nothing in the record to
show that the issue was presented to the circuit court. 19 The State correctly cites to
authorities that recognize “[a] party can not establish facts in a case by asserting them in a
brief. Those are nothing more than an attorney’s statements, which are not evidence.” City
of Helena v. Whittinghill, 353 Mont. 131, 137, 219 P.3d 1244, 1248 (Mont. 2009) (citation
omitted). See United States v. Diaz, 533 F.3d 574, 578 (7th Cir. 2008) (“Counsel’s
unsupported statements are, of course, not evidence.”).
We disposed of a similar type of issue in State v. Rager, 199 W. Va. 294, 484
S.E.2d 177 (1997). The defendant in that case was convicted of robbery and brandishing.
On appeal the defendant sought a new trial based upon newly discovered evidence. The
problem presented for this Court in Rager was that “the question of the newly discovered
evidence was never presented to the circuit court.” Rager, 199 W. Va. at 296-97, 484
S.E.2d at 179-80. We declined to address the issue based upon the following:
19
The procedurally troubling aspect of this issue is that Petitioner failed to set out
any facts as to how and when he learned that two jurors were Facebook friends with
the prosecutor.
21
We begin our discussion by noting that the question of the newly discovered
evidence was never presented to the circuit court. This Court has before it
only the allegations of newly discovered evidence contained in the
defendant’s brief and supplemental brief…. Without an adequate record, this
Court lacks the information necessary to decide. We have long held that we
will not consider assignments of error presented for the first time on appeal
or which might had been remedied by the circuit court upon proper objection.
Syllabus Point 17 of State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974)
states:
As a general rule, proceedings of trial courts are presumed to
be regular, unless the contrary affirmatively appears upon the
record, and errors assigned for the first time in an appellate
court will not be regarded in any matter of which the trial court
had jurisdiction or which might have been remedied in the trial
court if objected to there.
We find that the assignment of error based on newly discovered evidence is
not ripe for direct appellate review…. A habeas corpus proceeding appears
to be the appropriate procedure for the defendant to have the newly
discovered evidence considered by the circuit court.
Rager, 199 W. Va. at 296-97, 484 S.E.2d at 179-80 (citations omitted).
Consistent with Rager, we find the issue of two jurors being Facebook
friends with the prosecutor is not ripe for review on direct appeal. The Petitioner may raise
this issue in a habeas corpus proceeding. See Syl. pt. 2, Sands v. Sec. Tr. Co., 143 W. Va.
522, 102 S.E.2d 733 (1958) (“This Court will not pass on a nonjurisdictional question
which has not been decided by the trial court in the first instance.”).
E.
Limiting Testimony of Character Witnesses
22
The Petitioner contends that the trial court committed error in refusing to
permit him to introduce evidence of his character for honesty. 20 The State argues that the
circuit court properly excluded the evidence because it was not relevant to the offenses
brought against the Petitioner. We agree.
This Court has held that “[t]he action of a trial court in admitting or
excluding evidence in the exercise of its discretion will not be disturbed by the appellate
court unless it appears that such action amounts to an abuse of discretion.” Syl. pt. 10,
State v. Huffman, 141 W. Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds by
State ex rel. R.L. v. Bedell, 192 W. Va. 435, 452 S.E.2d 893 (1994). See Syl. pt. 4, State v.
Rodoussakis, 204 W. Va. 58, 511 S.E.2d 469 (1998) (“A trial court’s evidentiary rulings,
20
The Petitioner argued in his brief that the circuit court erred in not allowing him
to introduce evidence of his honesty and trustworthiness. Although Petitioner
argued below that he should be allowed to introduce evidence of his honesty and
trustworthiness, the trial court actually only prohibited the Petitioner from
presenting evidence of his honesty. Specifically, the circuit court ruled:
The defendant has requested that he be able to … discuss the
issue of honesty. The Court would believe that would be
improper to bring up in the context of character evidence;
believing that honesty is not necessarily a character trait which
is relevant to the offense for which the defendant stands
charged.
For the purpose of this appeal, we will treat the terms honesty and trustworthiness
as being synonymous. See Black’s Law Dictionary Tenth Edition (2014) (defining
honesty to mean, “The character or quality of being truthful and trustworthy.”).
23
as well as its application of the Rules of Evidence, are subject to review under an abuse of
discretion standard.”).
Prior to the adoption of our rules of evidence, this Court followed the general
rule that “[i]n a criminal prosecution, evidence of the previous good character of the
defendant is always admissible; but it should be confined to the trait of character at issue.”
Syl. pt. 5, State v. Moyer, 58 W. Va. 146, 52 S.E. 30 (1905). That is, character evidence
“should bear some analogy and reference to the charge.” State v. Padgett, 93 W. Va. 623,
117 S.E. 493, 495 (1923). See State v. Scalf, 254 Iowa 983, 988, 119 N.W.2d 868, 870
(1963) (“There is no value in a question relating to a trait not pertinent to the issue in the
case on trial.”); State v. Quinn, 344 Mo. 1072, 1078, 130 S.W.2d 511, 515 (1939)
(“[C]haracter evidence must be limited to proof of the existence of the particular trait, or
group of traits involved in the doing of an act like the one which is the subject of the
investigation in which the evidence is offered.”); People v. Haydon, 18 Cal. App. 543, 566,
123 P. 1102, 1112 (1912) (“[T]he true rule as to character evidence is that such testimony
ought always to be confined to the trait of character which is in issue, or ought to bear some
analogy and reference to the nature of the charge.”). This common law rule is now
embodied in Rule 404 of the West Virginia Rules of Evidence. See State v. Marrs, 180
W. Va. 693, 696, 379 S.E.2d 497, 500 (1989) (“W.Va R. Evid. 404 codifies the common
law rules on the admission of character evidence.”).
24
Rule 404 generally prohibits the use of character evidence to prove that a
person acted in conformance with his or her character, unless such evidence satisfies one
of its enumerated exceptions. One of the exceptions in the rule is contained in Rule
404(a)(2)(A), which states that “a defendant may offer evidence of the defendant’s
pertinent trait[.]”21 The commentators on our Rules of Evidence have explained the
meaning and limitations of the phrase “pertinent trait” found in Rule 404(a)(2)(A):
The term “pertinent trait” in Rule 404(a)(2)(A) means that the trait or traits
are relevant to the offense charged or any other issue of consequence to the
case. For example, in a trial for murder, defense evidence of good character
of the accused as to honesty is not admissible, because an honest person may
be as likely to commit murder as a dishonest person. On the other hand,
evidence of good character as to peacefulness would be admissible in any
prosecution for an offense involving violence, but it would be inadmissible
in a prosecution for a nonviolent theft offense because it is irrelevant.
Louis J. Palmer, Jr., et al., Vol. 1, Handbook on Evidence for West Virginia Lawyers, §
404.03[2][a], pgs. 336-37 (6th ed. 2015). In the final analysis, “relevant traits of character
will vary according to the offense being submitted and are distinguishable from evidence
admissible to impeach a witness.” State v. Gateley, 907 S.W.2d 212, 219 (Mo. Ct. App.
1995). See Mark Lynn J. v. Ballard, No. 15-1034, 2017 WL 700852, at *35 (W. Va. Feb.
21, 2017) (Memorandum Decision) (in habeas proceeding it was held that evidence that
defendant, who was convicted of sexual offenses, was not a danger to children “would not
have been admissible during the trial, because it is not evidence of a pertinent trait”);
21
It should be noted that “[u]nlike an affirmative defense, character evidence is
never legally sufficient to render a defendant not guilty. Standing alone, however,
character evidence may create a reasonable doubt regarding guilt.” United States v.
John, 309 F.3d 298, 303 (5th Cir. 2002).
25
Guthrie, 194 W. Va. at 681, 461 S.E.2d at 187 (“Quite clearly, evidence that the defendant
was a ‘Bible-reading man’ and his religious beliefs are not admissible under the same rule
because they simply do not concern a pertinent character trait.”); Marrs, 180 W. Va. at
697, 379 S.E.2d at 501 (evidence of defendant having “reputation … for not selling illegal
drugs is not admissible character evidence under Rule 404”).22
22
Federal courts are in accord with the meaning of “pertinent trait” found in federal
Rule 404(a)(2)(A). See United States v. Al Asai, No. 3:16-CR-00149-01-RGJ, 2018
WL 5816769, at *4 (W.D. Ky. Nov. 6, 2018) (“‘Pertinence’ is generally defined as
relevance, meaning that the offered trait must have some tendency to prove or
disprove an element of the offense charged or of a claimed defense.”); United States
v. Navedo-Ramirez, 781 F.3d 563, 569 (1st Cir. 2015) (“[T]he district court
permissibly concluded that the character trait that the evaluations purport to show—
general competence at her job as a police officer—is not ‘pertinent’ to the drug and
gun possession crimes of which Navedo–Ramirez was convicted.”); United States
v. Williams, No. 6:14-CR-10, 2014 WL 12634962, at *1 (S.D. Ga. Sept. 18, 2014)
(“‘[P]ertinent’ apparently is synonymous with ‘relevant,’ and the relevance of
evidence regarding a character trait is to be determined with reference to the
characteristics of the proffered trait and the elements of the charged offense.”);
John, 309 F.3d at 303 (“In the criminal context, a pertinent character trait is one that
is relevant to the offense charged.”); United States v. Han, 230 F.3d 560, 564 (2d
Cir. 2000) (“Thus, Rule 404(a)(1) requires only that the proffered evidence of a
character trait relate to some element at issue in the case.”). See also,
Commonwealth v. Nuttall, No. 1647 WDA 2015, 2016 WL 6996350, at *13 (Pa.
Super. Ct. Nov. 30, 2016) (“Under Pa.R.E. Rule 404(a)(2)(A), a criminal defendant
may introduce evidence of a ‘pertinent’ character trait. ‘Pertinent’ means relevant
to the crimes charged.”); People v. Yee, No. G027598, 2002 WL 31661266, at *15
(Cal. Ct. App. Nov. 26, 2002) (“In other words, the character or trait of character
must be relevant to the charge.”); State v. Enakiev, 175 Or. App. 589, 595, 29 P.3d
1160, 1163 (2001) (“[A] ‘pertinent’ character trait is one that is relevant to the
offense charged.”); State v. McGraw, 204 Conn. 441, 448, 528 A.2d 821, 824 (1987)
(“To be admissible, the character evidence that a defendant seeks to introduce must
be limited to specific traits and relevant to the offense charged.”).
26
It has been recognized that “an accused’s character for … honesty is not
pertinent in every case.” People v. Miller, 862 P.2d 1010, 1012 (Colo. App. 1993), rev’d
on other grounds, 890 P.2d 84 (Colo. 1995). The issue of whether honesty is a pertinent
character trait in a prosecution for sexual offenses was addressed in People v. Edgin, No.
H043305, 2018 WL 3031767 (Cal. Ct. App. June 19, 2018). In that case the defendant was
convicted of two counts of sexual intercourse with a child, three counts of lewd or
lascivious acts on a child, and one count of continuous sexual abuse of a child. On appeal
one of the issues raised by the defendant was that the trial court committed error in
excluding testimony about his honesty. The appellate court disagreed as follows:
Amanda, Melody, and Justin opined that defendant was honest. But a
character trait for honesty is not directly relevant to the charges of sexual
molestation. The Supreme Court held … that character evidence is relevant
if it is inconsistent with the offense charged—e.g., honesty, when the charge
is theft—and hence may support an inference that the defendant is unlikely
to have committed the offense. Here, a character trait for honesty would not
be inconsistent with the offenses charged, making such evidence
irrelevant…. The trial court therefore did not abuse its discretion by
excluding opinions about defendant’s honesty.
Edgin, 2018 WL 3031767, at *10 (internal quotations and citation omitted). See United
States v. Al Asai, 2018 WL 5816769, at *4 (W.D. Ky. Nov. 6, 2018) (“Further, evidence
of character traits for truthfulness and honesty have been held admissible when the
defendant is charged with an offense in which fraud is one of its statutory elements.”); State
v. Ross, No. 22958, 2010 WL 761323, at *9 (Ohio Ct. App. March 5, 2010) (“Relevant
character traits include a defendant’s reputation for sobriety in a driving-while-intoxicated
case, a defendant’s reputation for honesty and fair dealing in a fraud case, and a defendant’s
27
reputation for being peaceful and law-abiding in a sexual-assault case.”); State v. Mizell,
332 S.C. 273, 281, 504 S.E.2d 338, 343 (1998) (“[A] defendant charged with criminal
sexual conduct would not be allowed to produce evidence of his good character for honesty
in order to prove that he did not commit criminal sexual conduct.”) (internal quotation
marks and citation omitted); State v. Vogel, 247 Neb. 209, 214, 526 N.W.2d 80, 84 (1995)
(“Rule 404 forbids introduction of a character trait unless the trait is pertinent to the crime
charged. Therefore, the character traits of honesty or truthfulness would not be admissible
to the charge of sexual assault or murder.”); State v. Culkin, 791 S.W.2d 803, 812 (Mo. Ct.
App. 1990) (“Unlike larceny and robbery, rape and sodomy are physical crimes committed
against another person for which there is no financial motive. We, therefore, find that
defendant’s reputation for honesty does not require an instruction on character in a
prosecution for rape and sodomy.”); Wiggins v. State, 778 S.W.2d 877, 893 (Tex. App.
1989) (“Unless evidence of the trait of honesty is pertinent to the charge of aggravated
sexual assault, rule 404 forbids its introduction as circumstantial evidence of innocence of
that offense. We conclude that … the character trait of honesty is not involved in the
offense of aggravated sexual assault. Consequently, we conclude that it was inadmissible
evidence[.]”); State v. Case, 247 Iowa 1019, 1025, 75 N.W.2d 233, 237 (1956) (“For
example, upon a charge of homicide the traits of character usually involved are whether
accused is peaceable and law-abiding. In larceny and robbery the traits involved are
honesty and integrity. Upon a charge of perjury the traits are truth and veracity. In sex
crimes, at least where (as here) force and violence are absent, the trait involved is
28
morality.”); Palmer, Handbook on Evidence, § 404.03[2][a], pg. 339 (citing honesty as a
character trait pertinent to a theft charge). But see, People v. Robinson, No. 329755, 2017
WL 603563, at *3 (Mich. Ct. App. Feb. 14, 2017) (relying on codified jury instruction that
permits character testimony of defendant’s honesty in sexual assault cases); State v. Allen,
193 N.C. App. 455, 667 S.E.2d 340 (2008) (permitting character evidence of honesty in
sexual assault case).
In view of the foregoing, we hold that under Rule 404(a)(2)(A), of the West
Virginia Rules of Evidence, a defendant in a criminal prosecution may offer evidence of
the defendant’s pertinent character trait. Further, under Rule 404(a)(2)(A), of the West
Virginia Rules of Evidence, “honesty” is not a pertinent character trait of a criminal
defendant who is being prosecuted on a sexual offense charge.
In the instant case, the Petitioner was precluded from introducing character
evidence of his honesty. Insofar as all of the charges against the Petitioner involved sexual
offenses, the character trait of honesty was not relevant. Consequently, there was no error
in the circuit court’s ruling excluding such evidence.
F.
Proportionality of Sentence
29
The Petitioner argues that his consecutive aggregate sentence of 131 to 295
years in prison shocked the conscience and was disproportionate.23 The State contends
that the sentences imposed were lawful and are not reviewable on appeal.
This Court “reviews sentencing orders ... under a deferential abuse of
discretion standard, unless the order violates statutory or constitutional commands.” Syl.
pt. 1, in part, State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997). It was held in syllabus
point five of State v. Cooper, 172 W. Va. 266, 304 S.E.2d 851 (1983) that:
Punishment may be constitutionally impermissible, although not cruel or
unusual in its method, if it is so disproportionate to the crime for which it is
inflicted that it shocks the conscience and offends fundamental notions of
human dignity, thereby violating West Virginia Constitution, Article III,
Section 5 that prohibits a penalty that is not proportionate to the character
and degree of an offense.
The test for determining whether a sentence is constitutionally infirm was set out in
syllabus point 5 of Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981) as
follows:
23
The Petitioner also argued under this assignment of error that the circuit court
failed to consider a forensic psychological evaluation that he submitted. This issue
was presented without citation to any legal authority or analysis. Merely citing to
some of the facts involved with an issue does not satisfy the requirements of West
Virginia Rule of Appellate Procedure 10(c)(7), which requires that the brief
“contain an argument exhibiting clearly the points of fact and law presented, the
standard of review applicable, and citing the authorities relied on[.]” For this
reason, we decline to address the merits of this issue. See State v. Trail, 236 W. Va.
167, 186, 778 S.E.2d 616, 635 (2015) (“This Court previously has found issues
asserted on appeal to have been waived as a result of a petitioner’s failure to comply
with Rule 10(c)(7).”).
30
In determining whether a given sentence violates the proportionality
principle found in Article III, Section 5 of the West Virginia Constitution,
consideration is given to the nature of the offense, the legislative purpose
behind the punishment, a comparison of the punishment with what would be
inflicted in other jurisdictions, and a comparison with other offenses within
the same jurisdiction.
We further explained in syllabus point 4 of Wanstreet that “[w]hile our constitutional
proportionality standards theoretically can apply to any criminal sentence, they are
basically applicable to those sentences where there is either no fixed maximum set by
statute or where there is a life recidivist sentence.”
We need not engage in an extended analysis of the Wanstreet factors for two
reasons. First, the Petitioner has inadequately briefed the issue. Other than cite to the per
curiam decision in State v. David D. W., 214 W. Va. 167, 588 S.E.2d 156 (2003), the
Petitioner has not briefed the sentencing issue in the framework set out in syllabus point 5
of Wanstreet.24 The Petitioner has provided a “skeletal” argument that is unsupported by
legal analysis and pertinent authorities. We have held that “a skeletal argument, really
nothing more than an assertion, does not preserve a claim.” State v. Fleming, 237 W. Va.
24In David D.W. this Court set aside a sentence of 1,140 to 2,660 years in prison as
disproportionate. The Petitioner’s citation to David D.W. is misplaced in light of
this Court’s disapproval of that case in Slater. See Slater, 222 W. Va. at 508 n.11,
665 S.E.2d at 683 n.11 (commenting that David D.W. was a “per curiam opinion in
which established law was disregarded in order to find that a sentence within
statutory limits was unconstitutional”); Carl T. v. Ballard, No. 15-0649, 2016 WL
3193467, at *2 (W. Va. June 3, 2016) (Memorandum Decision) (observing that in
Slater “we disapproved of David D.W.”). We once again note that the sentencing
analysis in David D.W. is of no precedential value, as it was inconsistent with well
established principals of law.
31
44, 58, 784 S.E.2d 743, 757 (2016) (internal quotations and citations omitted). Second, and
more importantly, the individual sentences imposed on Petitioner have fixed maximums,
and it did not involve a recidivist sentence.25 As a general rule, we have held that
“[s]entences imposed by the trial court, if within statutory limits and if not based on some
[im]permissible factor, are not subject to appellate review.” Syl. pt. 4, State v. Goodnight,
169 W. Va. 366, 287 S.E.2d 504 (1982). Finally, as we stated in Slater, “[w]e deem it
generally to be the better practice to decline to review sentences that are within statutory
limits and where no impermissible sentence factor is indicated in accord with Syllabus
Point 4 of State v. Goodnight.” Slater, 222 W. Va. at 508, 665 S.E.2d at 683. See State v.
Edward H., No. 17-1116, 2019 WL 181476, at *4 (W. Va. Jan. 14, 2019) (Memorandum
Decision) (“declin[ing] to undertake a proportionality analysis” of a sentence of 168 to 465
years in prison); State v. Mullins, No. 17-0391, 2018 WL 2928096, at *5 (W. Va. June 11,
2018) (Memorandum Decision) (finding it “unnecessary to address petitioner’s argument
25
The minimum/maximum sentence for sexual assault in the second degree under
W. Va. Code § 61-8B-4(b) (1991) is not less than ten nor more than twenty-five
years incarceration. The minimum/maximum sentence for sexual abuse in the first
degree under W. Va. Code § 61-8B-7(b) (2006) is not less than one nor more than
five years of incarceration. The minimum/maximum sentence for sexual abuse by
a custodian under W. Va. Code § 61-8D-5(a) (2010) is not less than ten nor more
than twenty years of incarceration. As we mentioned earlier in this opinion, the
Petitioner’s sentences were ordered to run consecutively. See Syl. pt. 3, Keith v.
Leverette, 163 W. Va. 98, 254 S.E.2d 700 (1979) (“When a defendant has been
convicted of ... separate crimes, before sentence is pronounced ..., the trial court
may, in its discretion, provide that the sentences run concurrently, and unless it does
so provide, the sentences will run consecutively.”); W. Va. Code § 61-11-21 (1923)
(providing for concurrent and consecutive sentences).
32
regarding the allegedly disproportionate nature of his [8 to 120 years] sentences, because
the same are not subject to appellate review”); State v. Krise, No. 16-0814, 2017 WL
2493288, at *3 (W. Va. June 9, 2017) (Memorandum Decision) (finding “petitioner’s
sentence [of 24 to 60 years] is not subject to challenge on appeal”); Robert J. M. v. Ballard,
No. 14-1315, 2016 WL 3369556, at *12 (W. Va. June 17, 2016) (Memorandum Decision)
(“declin[ing] to apply our proportionality standards in this case” because a sentence of 31
to 75 years was within statutory limits).26
IV.
CONCLUSION
26
Petitioner’s last two assignments of error are not properly before this Court. First,
Petitioner contends that one of the jurors was asleep during the trial and the jury
foreman was seen standing with the victims at the sentencing hearing. This alleged
jury misconduct was not presented to the circuit court. As a general rule, “[t]his
Court will not pass on a nonjurisdictional question which has not been decided by
the trial court in the first instance.” Syl. pt. 7, State v. Garrett, 195 W. Va. 630, 466
S.E.2d 481 (1995) (internal quotations and citations omitted). In the last issue
raised, Petitioner asserts that he received ineffective assistance of counsel during his
trial. The Petitioner’s brief set out numerous incidents of alleged ineffective
assistance of counsel. We have held that “[i]t is the extremely rare case when this
Court will find ineffective assistance of counsel when such a charge is raised as an
assignment of error on a direct appeal.” Syl. pt. 10, in part, State v. Triplett, 187
W. Va. 760, 421 S.E.2d 511 (1992). As we have explained, “the preferred way of
raising ineffective assistance of … counsel is to file a subsequent petition for a writ
of habeas corpus raising the issue in the court below.” Watts v. Ballard, 238 W. Va.
730, 735 n.7, 798 S.E.2d 856, 861 n.7 (2017) (internal quotations and citation
omitted). Consequently, “we decline to address an alleged ineffective assistance of
counsel claim in this direct appeal. The record has not been developed on this issue.
This is an issue that must be developed in a habeas corpus proceeding.” State v.
Richardson, 240 W. Va. 310, 319 n.13, 811 S.E.2d 260, 269 n.13 (2018).
33
In view of the foregoing, we affirm the April 4, 2018, order of the circuit
court sentencing the Petitioner for his convictions on six counts of sexual assault in the
second degree, seven counts of sexual abuse by a custodian, and one count of sexual abuse
in the first degree.
Affirmed.
34