State of West Virginia v. Nicholas Varlas , 237 W. Va. 399 ( 2016 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2016 Term FILED
_______________
June 16, 2016
released at 3:00 p.m.
No. 15-0037 RORY L. PERRY II, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Respondent
v.
NICHOLAS VARLAS,
Petitioner
____________________________________________________________
Appeal from the Circuit Court of Brooke County
The Honorable Martin J. Gaughan, Judge
Criminal Action No. 13-F-63
REVERSED AND REMANDED
____________________________________________________________
Submitted: March 1, 2016
Filed: June 16, 2016
Carl A. Frankovitch, Esq. Patrick Morrisey
M. Eric Frankovitch, Esq Attorney General
Frankovitch, Anetakis, Colantonio David A. Stackpole
& Simon Assistant Attorney General
Weirton, West Virginia Charleston, West Virginia
Counsel for the Petitioner Counsel for the State
CHIEF JUSTICE KETCHUM delivered the Opinion of the Court.
JUSTICE BENJAMIN concurs, in part, dissents, in part, and reserves the right to
file a separate opinion.
SYLLABUS BY THE COURT
1. “A trial court’s evidentiary rulings, as well as its application of the
Rules of Evidence, are subject to review under an abuse of discretion standard.” Syllabus
Point 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).
2. “Assessments of harmless error are necessarily content-specific.
Although erroneous evidentiary rulings alone do not lead to automatic reversal, a
reviewing court is obligated to reverse where the improper exclusion of evidence places
the underlying fairness of the entire trial in doubt or where the exclusion affected the
substantial rights of a criminal defendant.” Syllabus Point 4, State v. Blake, 197 W.Va.
700, 478 S.E.2d 550 (1996).
3. Rule 412 of the West Virginia Rules of Evidence provides the
standard for the introduction at trial of a victim’s sexual history, and it supersedes W.Va.
Code § 61-8B-11 [1986] to the extent that the statute is in conflict with the rule.
i
Chief Justice Ketchum:
In this appeal from the Circuit Court of Brooke County, defendant Nicholas
Varlas appeals an order convicting him of second-degree sexual assault and of attempting
to commit first-degree sexual abuse. Because the circuit court erred in excluding relevant
evidence critical to Varlas’s defense, we reverse its order of conviction and remand the
case for a new trial.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant Varlas lived in Follansbee, West Virginia. According to the
prosecution’s evidence at trial, at about 11:00 p.m. on August 12, 2012, a group of people
drove to Varlas’s residence so that some of them could “hang out and drink.” The
visitors arrived at the same time, but in separate vehicles. In one car rode Varlas’s friend,
Jeremy Smith; Smith’s girlfriend, Jena Lindsey; and Lindsey’s two young children.
Alone in her own car was Lindsey’s friend, N.S.1 Lindsey had previously given N.S.’s
cell phone number to Varlas, and, the day before, Varlas and N.S. had exchanged a brief
series of friendly, flirtatious text messages. After the group had socialized for two hours
or longer, Lindsey left to drive her elder child around for a while so that he might fall
asleep.
1
We identify the victim in this sensitive matter by referring to her
exclusively by her initials. See W.Va.R.App.P. 40(e)(1); State v. Lewis, 235 W.Va. 694,
698 n.2, 776 S.E.2d 591, 595 n.2 (2015); see also W.Va.R.Evid. 412(e) (specifying that a
“victim” of sexual misconduct “includes an alleged victim”).
1
At 2:08 a.m., as N.S. sat in the den on a sofa, Varlas, from elsewhere in the
house, began to send her text messages of an explicit nature suggesting that they engage
in certain sexual acts. N.S. responded to those texts with one-word negatives. At about
the same time, N.S. was conversing via text with her boyfriend, Travis Shepard, to let
him know where she was. Shepard initiated the final three exchanges in that
conversation:
2:16: You promised no other guys, and now you two
[Lindsey and N.S.] are with a different guy, not cool at all.
2:16: He’s 33.
2:17: Why did you guys go there?
2:17: Idk [probably “I don’t know.”]
2:18: Well, I’m gonna trust you, just remember, if you do
something with someone else, I’m gone for good.
2:19 I knoww [sic].
After a while, Lindsey returned with her son still awake, then left again
with Smith and both of her children to drive around for a bit longer. N.S. admitted some
discomfort at the prospect of being alone with Varlas and conveyed her trepidation to
Lindsey, but she nonetheless remained behind.
According to the prosecution, after Lindsey and Smith’s exit, N.S.
accompanied Varlas to the living room and sat down on the couch. Varlas played a
pornographic movie on the television; he then removed his shirt, sat down next to N.S.,
and began to kiss her. N.S. tried to fend off Varlas, but—the prosecution contended—his
kisses and gropes became more insistent. N.S. told the jury that Varlas pushed her shorts
2
and underwear aside, forcing sexual intercourse. After Varlas finished and vacated the
room, Lindsey and Smith returned for a bit before the entire group departed the residence
for the evening. N.S. did not tell Lindsey or Smith that she had been assaulted.
N.S. met Shepard in person to tell him what had happened, and then she
went home to sleep. From shortly after 6:00 a.m. until almost 8:00 a.m., a period of
slightly less than two hours, Shepard sent the following twenty-nine texts to N.S.:
[6:03]:You need to call the cops!
[6:26]:Where are you?
[6:42]:[N.], you need to go to the hospital and you need to
file charges. If you don’t file charges, that just shows me you
wanted to have sex with him.
[6:45]:Then why can’t you go to the hospital and file
charges? You need to have justice served on him.
[6:46]:So you just let it happen? That’s real [expletive] nice.
[H]e’s getting his ass beat tomorrow.
[6:49]:You still need to file charges. Please [N.], do this for
me.
[6:51]:The cops will keep it private, no one will know, just
the cops and court. The news won’t get your name or
anything, I promise.
[6:52]:You don’t have to, they’ll keep it down low, I promise.
Just please, go to the cops with me.
[6:54]:You need to, this guy needs to go to jail for what he
did to you, he [expletive] raped you, who knows if he has any
[sexually transmitted diseases]. If he [ejaculated], if he’s a
sex offender you need to file charges.
[6:55] (1): Are you going to file charges?
[6:55] (2): No, I swear I didn’t.
3
[6:57]:No, I didn’t tell your parents, but [i]f you don’t press
charges, I will.
[6:59]:You need to press charges [N]. [I]t pissed me off more
than anything that someone [expletive] you tonight, all I
asked was no other guys, then I find out you went along with
him to watch a movie? Wtf.
[7:02]:It just bothers me that you won[’]t file charges, did you
have sex with [him] then regret [i]t afterw[a]rds? Tell me
what really happened.
[7:04]:You need to file charges on him, he [expletive] raped
you, you can’t let him get away with it.
[7:07]:Time is a big factor in rape cases [N]. [Y]ou need to
talk to the cops soon.
[7:10]:Because, they need to see if they can collect a semen
sample, check you for STDs, and internal injuries, and get
you help.
[7:14]:Then whatever, I’m done trying, obviously there’s
something more than you[’re] telling me, I told you, if you
had sex with him, and it wasn’t rape just tell me now, because
if it was rape, [you] wouldn’t be keeping it to yourself, and
not getting yourself [expletive] tested. Goodnight.
[7:23]:All I wanted to do was help, and you wanna let him get
away with it.
[7:34]:I told you, have sex with anyone else. I’m gone.
[7:35]:You shouldn’t [have] ever went there. Goodnight.
[7:36]:Nor should you [have] walked away with him by
yourself to watch a movie.
[7:41]:Apparently, you were next to him on the [expletive]
couch and [expletive], and left his hand on your leg for a long
time. I don’t know what to [expletive] believe, if you
honestly got raped, or you just [expletive] him. I[‘]m going
to bed.
4
[7:44]:I told you before you [expletive] went, no other boys,
or I’m gone, you say you got raped but won’t file charges,
seems like you’re hiding something and trying to keep me
from not getting mad. [B]ut until you press charges, I’m
done. Bye.
[7:48]:It was such a simple [expletive] request, no other boys,
or I’m gone, you say you got raped but won’t file charges,
seems like you’re hiding something and trying to keep me
from not getting mad. [B]ut until you press charges, I’m
done. Bye.
[7:51]:I’m done until you prove to me that it was rape and not
just you [expletive] him and regretting it, if you go file
charges by the time I wake up, but until then, I’m going with
you [expletive] him. [G]oodnight.
[7:52]:I’m done until you prove to me that it was rape and not
just you [expletive] him and regretting it, if you go file
charges by the time I wake up, then I’ll believe you and do
everything I can to make you happy, but until then, I’m going
with you [expletive] him. [G]oodnight.
[7:54]:First of all, you never should [have] went there,
secondly, you should of hit or bit him if you didn’t wanna
[expletive] him, and thirdly, you should have called the cops
by now. That’s why I don’t believe you. That’s why I think
you [expletive] him on your own will.
[7:56]:Good job at whoring around. This just shows me how
you really are. If it was rape, you would [have] already called
the cops.
To the extent that N.S. may have responded to the foregoing texts, her responses are not
in the record.
Shortly thereafter, Shepard arrived at N.S.’s residence, and she agreed to
accompany him to the police station and report the incident. Varlas was later interviewed
by the police and denied having had sexual contact with N.S. Laboratory analysis,
however, revealed Varlas’s sperm on N.S.’s shorts, and an accompanying fluid sample
5
disclosed mixed DNA from N.S. and Varlas. On November 4, 2013, the grand jury
returned a two-count indictment against Varlas, charging him in Count One with sexual
assault in the second degree, see W.Va. Code § 61-8B-4 [1991], and in Count Two with
attempting to commit sexual abuse in the first degree, see id. § 61-8B-7(a)(1) [2006].2
On the first morning of the defendant’s jury trial, on September 3, 2014, the
circuit court asked the lawyers whether there was any “rape shield evidence,” referring to
a particular type of evidence whose admissibility is specifically governed by West
Virginia Rule of Evidence 412. This Rule provides, in pertinent part:
(a) Prohibited Uses. The following evidence shall not
be admissible in a civil or criminal proceeding involving
alleged sexual misconduct:
(1) evidence offered to prove that a victim engaged in
other sexual behavior; [or]
2
West Virginia Code § 61-8B-4(a)(1) provides, in pertinent part, that “[a]
person is guilty of sexual assault in the second degree when . . . such person engages in
sexual intercourse . . . with another person without the person’s consent, and the lack of
consent results from forcible compulsion.” The offense is distinguished from sexual
assault in the first degree in this instance by the absence of serious bodily injury or the
use of a deadly weapon in committing the act. Cf. id. § 61-8B-3(a) (2006). Pursuant to
West Virginia Code § 61-8B-7(a)(1), the offense of sexual abuse in the first degree is
committed when the perpetrator “subjects another person to sexual contact without their
consent, and the lack of consent results from forcible compulsion.” The term “sexual
contact” is defined as “any intentional touching, either directly or through clothing, of . . .
any part of the sex organs of another person . . . where the victim is not married to the
actor and the touching is done for the purpose of gratifying the sexual desire of either
party.” Id. § 61-8B-1(6) (2007). The indictment here alleged that Varlas “attempted to
place his finger in the vagina of N.S. without the consent of N.S.” See also id. § 61-11­
8(2) (2002) (setting forth punishments applicable to “[e]very person who attempts to
commit an offense, but fails to commit or is prevented from committing it”).
6
(2) evidence offered to prove a victim’s sexual
predisposition . . . .
(b) Exceptions.
(1) Criminal Cases. The court may admit the
following evidence in a criminal case: . . .
(B) . . . evidence of specific instances of a victim’s
sexual behavior with respect to the person accused of the
sexual misconduct, if offered by the defendant to prove
consent or if offered by the prosecutor;
(C) evidence of specific instances of the victim’s
sexual conduct with persons other than the defendant . . . if
the victim first makes his or her previous sexual conduct an
issue in the trial by introducing evidence with respect thereto;
and
(D) evidence whose exclusion would violate the
defendant’s constitutional rights.
W.Va. R. Evid. 412 [2014]. Rule 412 (which revised and recodified former Rule
404(a)(3)) took effect on September 2, 2014, the day before Varlas’s trial, and it was
therefore the controlling authority with respect to the circuit court’s query.
In response to the circuit court’s inquiry about rape shield evidence,
counsel for Varlas responded, “There’s a number of text messages between the alleged
victim[] and her on-again-off-again boyfriend,” including “after the alleged assault . . .
where she told him she was assaulted and he doesn’t necessarily believe her and says, ‘If
you don’t report this you’re a whore and I don’t believe you.’” The prosecutor opposed
admitting the texts, though acknowledging that N.S.’s “reluctance to report the crime, the
fact that she discussed it with the boyfriend and the boyfriend pushed her to report the
crime, I think that’s relevant.”
7
The conversation concerning the texts continued in general terms, as neither
party had yet produced them to be scrutinized in detail. The circuit court pondered that
part of the text messages may be admissible. Anything that
has to do with her prior sexual behavior is [barred] by the
rape shield statute. The allegation that he put pressure on her
to bring the charge is admissible. I don’t think that’s covered
by the rape shield at all . . . . I don’t know if her alleged
argument with the boyfriend is an issue in this case. So that
might come in after we hear some testimony. But if it’s
related directly to sex, I just think that it comes out as it
relates only to her alleged boyfriend.
After further discussion, the court expressed doubt that the text messages
would be admissible, but equivocated that “[i]t will depend on the testimony. Do not
hesitate to approach the bench if you think the door is opened. . . . These are rulings on
motions in limine, it’s subject to what happens in trial, whether it becomes more relevant
and more likely to come in.”
The subject was next broached, again in generalities, not long after defense
counsel had begun his opening statement to the jury:
[DEFENSE COUNSEL]: You’ll also hear about a series of
text messages from an on-again-off-again boyfriend of the
victim immediately after this, later that night into the
morning. You will hear that this gentleman is the father of
her child. They’re in an on-again-off-again relationship. You
will hear that he does not believe her and indicates that he
will not—
[PROSECUTOR]: Objection, Your Honor. Can we
approach? . . . .
(at the bench) First off, I don’t know if this man has been
subpoenaed to testify, number one. And number two, we
touched on the fact that his opinion, whether she was telling
the truth or not is inadmissible in trial. He just opened that
8
door. Whether or not he believes the victim is not an
appropriate question (inaudible)—
[DEFENSE COUNSEL]: —(inaudible) why he did not
believe her. He would not believe her until she reported it.
That is why he tells her to report it.
THE COURT: As I indicated before, I think it’s admissible,
but whatever else might come out of your mouth may not be.
But that is.
[PROSECUTOR]: It’s admissible to ask a witness whether
they do or do not believe allegations made by a victim?
THE COURT: No. Did he pressure her to testify or report
this incident to the police is admissible.
[PROSECUTOR]: I agree with what you just said. He just
said here how this man didn’t believe her. That’s completely
different than where he pressures her. I disagree that that’s
admissible.
[DEFENSE COUNSEL]: If I can get the exact text message
he sent, that message said that I would believe you if you
report this. He calls her a vulgar name and says until you
report this—
THE COURT: Okay. I don’t think that you’re permitted to
get into all that. You are able to get into the fact of the
pressure he applied to her, that I’m going [to] find admissible
evidence.
(emphasis added). Later, during the State’s examination of N.S., the prosecutor elicited
that she had received text messages in which Shepard had used “very vulgar terms” to
pressure her to report the assault to the police. At that point, counsel for Varlas asked to
approach the bench, where the following colloquy ensued:
[DEFENSE COUNSEL]: Your honor, I wanted to get a
clarification I believe the text messages from Mr. Shepard are
not hearsay, because I’m not going to be offering them for the
truth. They’ll be offered for why she may have reported it. I
9
believe I should be able to get into the exact substance of
those text messages and I wanted to get a ruling on that before
we did that. . . .
THE COURT: He wants to go further.
[PROSECUTOR]: Yes. He wants put in specifically that
he’s calling her a slut and that he’s saying things like that in
the text message, which is blatantly being done to try to
embarrass and to—which is the whole point of this evidence
not coming in. She already answered that he was putting
pressure on her. If he wants to follow up and ask a question
that she doesn’t want to answer—the only reason [you] did
this was because he pressured you, that’s one thing. The text
messages don’t add any light to that.
[DEFENSE COUNSEL]: It does to the amount of pressure
that he was putting on her.
THE COURT: I think that there’s already been testimony to
the effect that he used foul language when he was putting the
pressure on her. I think that’s enough.
[DEFENSE COUNSEL]: Okay. Note my objection, please.
(emphasis added).
Among the other witnesses testifying for the prosecution was Timothy
Robertson, Jr., the police officer assigned to investigate the matter by the Follansbee
Police Department. Officer Robertson’s testimony had adhered strictly to the facts of the
investigation until the prosecutor asked him, “In your experience and training in handling
these types of matters, is it unusual for sexual assault victims to be reluctant in reporting
of sexual assault?” Defense counsel objected to the question, contending that no
evidentiary foundation had been established concerning the officer’s experience and
training that would permit him to answer.
10
The circuit court acknowledged the objection and invited the prosecutor to
have the witness elaborate. The prosecutor complied by eliciting from Officer Robertson
that he had received relevant training from the West Virginia State Police, and that he had
previously investigated one other sexual assault. Defense counsel renewed the objection
challenging Officer Robertson’s expertise, but the circuit court determined that “he can
testify as an expert as to what he has learned in class, and I’m going to permit that.
Keeping in mind this is not his personal experience. It’s what he’s been told by someone
during training.” Thereafter, Officer Robertson told the jury that “[i]n the training we
were administered, they advised us that most sexual assault victims never come forward,
they’re too ashamed or embarrassed.”
Varlas testified in his own defense, admitting that he had sexual intercourse
with N.S., but insisting that the entire encounter was consensual. At the close of all the
evidence admitted during the two-day trial, the jury was instructed and deliberated for
about two hours before finding Varlas guilty of both counts as alleged in the indictment.
Varlas timely moved for a new trial, maintaining that Shepard’s text messages had
erroneously been excluded. The motion set forth the messages in their entirety for the
first time.
The circuit court declined to grant Varlas’s motion, explaining in its
sentencing order of January 5, 2015, “that the denial of the admission of the text
messages into this trial, as outlined on the record, was appropriate, reaffirming its
previous rulings and denying the defendant’s request for a new trial based upon the
failure to admit the same.” Varlas was thereafter sentenced to one to three years in prison
11
on his conviction of attempted first-degree sexual abuse, as set forth in Count Two of the
indictment, with a consecutive term of ten to twenty-five years on the Count One
conviction of second-degree sexual assault. The circuit court suspended the longer term,
however, instead imposing five years’ probation and requiring Varlas to register as a
sexual offender for ten years.
Varlas now appeals his convictions, contending that Shepard’s text
messages were excluded in error, and that Officer Robertson was improperly permitted to
offer expert testimony concerning rape trauma syndrome.3
II. STANDARD OF REVIEW
“A trial court’s evidentiary rulings, as well as its application of the Rules of
Evidence, are subject to review under an abuse of discretion standard.” See Syllabus
Point 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998). An evidentiary
ruling exceeding the circuit court’s discretion does not require that the defendant’s
conviction be disturbed, however, if the resulting error is harmless. See W.Va. R. Crim.
P. 52(a) (“Any error, defect, irregularity, or variance which does not affect substantial
rights shall be disregarded.”). An error impinges on the defendant’s substantial rights if it
is prejudicial, that is, if it “affected the outcome of the proceedings in the circuit court,
3
In State v. McCoy, 179 W.Va. 223, 226, 366 S.E.2d 731, 734 (1988), we
explained that “rape trauma syndrome” is a term used to “describe certain physical and
emotional symptoms experienced by rape victims,” the acute phase of which is
“characterized by certain physical and emotional reactions, including fear, humiliation,
anger, revenge, and self-blame.”
12
and the defendant rather than the prosecutor bears the burden of persuasion with respect
to prejudice.” Syllabus Point 9, in part, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114
(1995). Further, we held in Syllabus Point 4 of State v. Blake, 197 W.Va. 700, 478
S.E.2d 550 (1996) that:
Assessments of harmless error are necessarily content-
specific. Although erroneous evidentiary rulings alone do not
lead to automatic reversal, a reviewing court is obligated to
reverse where the improper exclusion of evidence places the
underlying fairness of the entire trial in doubt or where the
exclusion affected the substantial rights of a criminal
defendant.
III.
ANALYSIS
A. Shepard’s Texts
Constitutionally, “[t]his Court has plenary authority to promulgate rules of
procedure, which have the force and effect of law.” State v. Wallace, 205 W.Va. 155,
160, 517 S.E.2d 20, 25 (1999). See also, W.Va. Const., Art. VIII, § 3 (“The court shall
have power to promulgate rules for all cases and proceedings, civil and criminal, for all
of the courts of the state[.]”); Louk v. Cormier, 218 W.Va. 81, 93, 622 S.E.2d 788, 800
(2005) (“Promulgation of rules governing litigation in the courts of this State rests
exclusively with this Court.”). Because of this constitutional power, “[t]he West Virginia
Rules of Evidence remain the paramount authority in determining the admissibility of
evidence in circuit courts.” Syllabus Point 7, in part, State v. Derr, 192 W.Va. 165, 451
S.E.2d 731 (1994). A rule of evidence promulgated by this Court “has the effect of a
statute in matters of procedure and supersedes any procedural statute which conflicts with
13
the rule.” State ex rel. Wilson v. County Court of Barbour County, 145 W.Va. 435, 442,
114 S.E.2d 904, 909 (1960).
This appeal concerns Rule 412 of the West Virginia Rules of Evidence.
Rule 412 “is intended to provide the standard for the introduction of evidence of a
victim’s sexual history.” W.Va. R. Evid. 412 cmt. The comments to the Rule state it was
adopted by this Court to “supersede[] the rape shield statute, W.Va. Code § 61-8B-11, to
the extent that the statute is in conflict with the rule.” Id.4 Accordingly, we now hold
4
W.Va. Code § 61-8B-11 [1986] provides:
(a) In any prosecution under this article in which the
victim's lack of consent is based solely on the incapacity to
consent because such victim was below a critical age,
evidence of specific instances of the victim's sexual conduct,
opinion evidence of the victim's sexual conduct and
reputation evidence of the victim's sexual conduct shall not be
admissible. In any other prosecution under this article,
evidence of specific instances of the victim's prior sexual
conduct with the defendant shall be admissible on the issue of
consent: Provided, That such evidence heard first out of the
presence of the jury is found by the judge to be relevant.
(b) In any prosecution under this article evidence of
specific instances of the victim's sexual conduct with persons
other than the defendant, opinion evidence of the victim's
sexual conduct and reputation evidence of the victim's sexual
conduct shall not be admissible: Provided, That such evidence
shall be admissible solely for the purpose of impeaching
credibility, if the victim first makes his or her previous sexual
conduct an issue in the trial by introducing evidence with
respect thereto.
(c) In any prosecution under this article, neither age
nor mental capacity of the victim shall preclude the victim
from testifying.
(continued . . .)
14
that Rule 412 of the West Virginia Rules of Evidence provides the standard for the
introduction at trial of a victim’s sexual history, and it supersedes W.Va. Code § 61-8B­
11 [1986] to the extent that the statute is in conflict with the rule.
The primary purpose of Rule 412 is “to safeguard the alleged victim against
the invasion of privacy, potential embarrassment and sexual stereotyping that is
associated with public disclosure of intimate sexual details and the infusion of sexual
innuendo into the factfinding process.” Id. See also, State v. Guthrie, 205 W.Va. 326,
339, 518 S.E.2d 83, 96 (1999) (observing that rape shield law is designed “to protect the
victims of sexual assault from humiliating and embarrassing public fishing expeditions
into their sexual conduct; to overcome victims’ reluctance to report incidents of sexual
assault; and to protect victims from psychological or emotional abuse in court as the price
of their cooperation in prosecuting sex offenders”). The Rule excludes “evidence offered
to prove that a victim engaged in other sexual behavior.” W.Va. R. Evid. 412(a)(1).
None of the text messages at issue detail N.S.’s past sexual history.
Shepard’s statements in those text messages do relate to sexual conduct, but between N.S.
and defendant Varlas; Rule 412 expressly permits the introduction of that evidence. See
W.Va. R. Evid. 412(b)(1)(B) (permitting, except where otherwise prohibited by section
(a)(3), “evidence of specific instances of a victim’s sexual behavior with respect to the
(d) At any stage of the proceedings, in any prosecution
under this article, the court may permit a child who is eleven
years old or less to use anatomically correct dolls,
mannequins or drawings to assist such child in testifying.
15
person accused of the sexual misconduct, if offered by the defendant to prove consent or
if offered by the prosecutor”); cf. Syllabus Point 1, Guthrie, 205 W.Va. at 330, 518
S.E.2d at 87 (observing that, pursuant to the rape shield statute, only the victim’s sexual
conduct “with persons other than the defendant” is excluded). We therefore find that
under Rule 412, the circuit court abused its discretion when it prevented defendant Varlas
from admitting and using the text messages.
We further conclude that the circuit court’s exclusion of the text messages
warrants a new trial. The analysis boils down to whether the erroneous exclusion of so
much relevant evidence can be ignored as not prejudicing the defendant. In that vein, the
number of messages must be considered along with their substance, as an important part
of Varlas’s defense was to illustrate the intensity of the barrage that Shepard directed at
N.S. to report the incident. Of course, even had the twenty-nine messages been admitted,
the jury could still have found Varlas guilty based solely on the testimony of N.S.
Beyond the mere sufficiency of the evidence, however, we are required by the applicable
standard of review, as expressed in Blake, to gauge the prejudice to Varlas attendant to
the exclusion.
We find that the circuit court’s exclusion of the subject text messages
placed the underlying fairness of the entire trial in doubt, because Varlas was entitled to
have the jury informed of the extent to which Shepard may have pressured N.S. to report
the incident as a crime. On direct examination, N.S. agreed with the prosecutor’s leading
questions that Shepard had sent her “a series of text messages,” that he was “putting
pressure” on her to report what had occurred, and that he was “using very vulgar terms”
16
toward that end. From such a vague account, the jury could hardly have divined the
avalanche of twenty-nine texts and their insistent tone; the circuit court’s ruling thus
resulted in an important aspect of the case being grossly deemphasized. Where a
defendant’s conviction depends predominantly on the jury’s assessment of the victim’s
credibility and the excluded evidence bears on that issue, the potential for prejudice is at
its zenith. See State v. Jonathan B., 230 W.Va. 229, 240–41, 737 S.E.2d 257, 268–69
(2012) (exclusion of victim’s notebook in which she documented prior sexual intercourse
without mentioning defendant was not harmless given that State’s case relied “almost
completely” on the victim’s testimony).
Because the essential evidence at issue was improperly excluded from the
jury’s consideration at the first trial of this matter, a new trial is necessary.
B. Officer Robertson’s Testimony
While not strictly necessary to our decision to reverse Varlas’s convictions,
we briefly address the issue of Officer Robertson’s testimony insofar as it is reasonably
likely to recur at retrial. The prosecution did not offer Officer Robertson as an expert.
Still, the circuit court remarked in front of the jury that he could “testify as an expert as to
what he has learned in class.” To the contrary, Officer Robertson’s minimal training and
his prior experience amounting to a single case was insufficient as a matter of law to
qualify him to offer expert testimony regarding rape trauma syndrome. See State v.
M.M., 163 W.Va. 235, 242, 256 S.E.2d 549, 554 (1979) (“limited and superficial contact”
with subject area failed to evidence requisite “significant skill and knowledge” required
17
to testify as an expert). Additionally, unless a witness has been qualified as an expert, the
witness is specifically precluded from offering an opinion “based on scientific, technical,
or other specialized knowledge[.]” W.Va. R. Evid. 701.
Officer Robertson was thus left to testify as a lay witness to give his
account of what he had been told in police training about sexual assault victims in
general. That testimony was unadorned hearsay. It was also irrelevant to the situation at
hand, given the lack of any specific evidence that N.S. herself had suffered severe
emotional trauma from the rape, or that the trauma had manifested itself in her reluctance
to report the same. See M.M., 163 W.Va. at 242, 256 S.E.2d at 554 (remarking that even
testimony by qualified experts is inadmissible where opinions are “not founded on a
sufficient knowledge of [the subject’s] background”). To be sure, and as we have
recognized time and again, our rape shield protections were devised in part to overcome
the demonstrated phenomenon that victims of sexual assault are often reluctant to come
forward and notify the authorities. In individual prosecutions, however, due process
demands that courts necessarily deal with specifics and not with generalities.
Ordinary jurors, in view of their collective experience and the exercise of
their common sense, would almost certainly be familiar with the general reticence of
sexual assault victims, even had Officer Robertson not testified on the subject.
Moreover, the prosecutor did not overtly attempt to link the general proclivities of sexual
assault victims to N.S.’s particular reaction, a conclusion that necessarily can be drawn
only by an expert. We are nonetheless troubled by the apparent efforts to imply such a
connection to explain N.S.’s hesitation in reporting the particular conduct on trial. If, on
18
retrial, the State wishes to demonstrate that the incident itself played a significant role in
N.S.’s reluctance to report, it must do so through competent, expert evidence derived
from and pertinent to N.S. herself.
IV. CONCLUSION
We reverse the circuit court’s order of January 5, 2015, convicting Varlas
of the two charges set forth in the indictment. The matter is remanded to the circuit court
for a new trial and such other proceedings as may be consistent with this opinion.
The Clerk is further directed to issue the mandate in this action forthwith.
Reversed and Remanded.
19