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State v. Paul H.

Supreme Court of West Virginia

April 10, 2017

State of West Virginia, Plaintiff Below, Respondent
v.
Paul H., Defendant Below, Petitioner

         Wirt County 14-F-23

          MEMORANDUM DECISION

         Petitioner Paul H., by counsel Eric K. Powell, appeals the Circuit Court of Wirt County's December 14, 2015, order sentencing him to a cumulative prison term of twenty to fifty years following his conviction for first-degree sexual assault, second-degree sexual assault, and incest.[1]The State of West Virginia, by counsel Benjamin F. Yancey III, filed a response in support of the circuit court's order. On appeal, petitioner argues that the circuit court (1) violated Rule 404(b) of the West Virginia Rules of Evidence by admitting evidence of a separate sexual assault committed by petitioner against his oldest sister, S.H.; and (2) erred in allowing a supervised psychologist to offer an opinion about whether a sexual assault occurred and to testify to extrajudicial statements made by the victim.[2]

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         In June of 2014, the Grand Jury of Wirt County returned a four-count indictment charging petitioner with first-degree sexual assault, second-degree sexual assault, third-degree sexual assault, and incest. The victim in each count was one of petitioner's younger sisters, K.H.[3]

         Shortly before trial, the State filed a motion, pursuant to Rule 404(b) of the West Virginia Rules of Evidence, to admit evidence that petitioner sexually abused S.H. in a similar manner to that of his sexual assault of the victim in the instant case. Prior to trial, the circuit court conducted a hearing on the State's 404(b) motion. At that hearing, it was shown that S.H. gave three statements regarding petitioner sexually assaulting her when she was a child-the first statement was on May 13, 2015, to police; the second statement was to petitioner's private investigator on May 14, 2015; and the third statement was again to police on August 25, 2015. In line with her third statement in August of 2015, S.H. testified at the hearing that petitioner began sexually assaulting her when she was six years old. She stated that it continued until she was twelve years old. At the hearing, S.H. explained that the first time petitioner assaulted her they were sitting outside when petitioner put his finger in her vagina. She claimed that, some days later, he forced her to have sexual intercourse for the first time inside their house.

         At the pretrial hearing, petitioner's counsel asked S.H. to explain certain differences between her testimony (which reflected her August 25, 2015, statement) and her statements in May of 2015. Petitioner's counsel cited four reported inconsistencies: (1) that in her May 13, 2015, statement, she claimed to be eight years old when the sexual assaults began, as opposed to her testimony and August 25, 2015, statement that she was six years old; (2) that in her May 13, 2015, statement, she claimed that the first time petitioner sexually assaulted her they were outside and "had sex, " whereas in her testimony and August 25, 2015, statement, she claimed that the first time was outside and he put his finger in her vagina; (3) that in her May 13, 2015, statement, she claimed that the last time petitioner sexually assaulted her, she kicked him and ran away, whereas in her testimony and August 25, 2015, statement, she claimed that he threw her on a bed and forced her to have sexual intercourse; and (4) that she told petitioner's private investigator on May 14, 2015, that petitioner never touched her. S.H. explained that she was "scared and excited" during her May statement to police, and her testimony at the hearing was the accurate version of events. The circuit court granted the State's 404(b) motion, noting that S.H.'s testimony was credible and that the evidence demonstrated petitioner's "lustful disposition." The circuit court also noted that a child victim is "unlikely to disclose to the investigators for the defendant."

         Trial commenced in mid-September of 2015. At trial, the State established that petitioner began sexually assaulting K.H. between 2008 to 2010 when K.H. was ten or eleven years old and petitioner was twenty or twenty-one years old. According to the State's evidence, during that time, there was an incident in which petitioner trapped K.H. in his bedroom, threw her on his bed over her protests, forcibly removed her clothes, and engaged in vaginal intercourse with her. The sexual assaults reportedly occurred three or four times per month for some time.

         K.H. eventually disclosed these sexual assaults to authorities, and the West Virginia State Police investigated. During its investigation, the West Virginia State Police interviewed S.H. on the two occasions noted above. S.H. testified at trial that petitioner sexually assaulted/abused her regularly when she was a child. S.H. claimed that petitioner digitally penetrated her; forced her to engage in vaginal intercourse; and, on one occasion, "stuck an air compressor nozzle in me" and then activated the compressed air, which "really hurt."

         Sandra Walls, a supervised psychologist working under the supervision of Dr. Timothy Saar, also testified at trial. Ms. Walls stated that she has a bachelor's degree and a master's degree in psychology and was approved by the West Virginia Board of Examiners for Psychologists to practice psychology under supervision of an independently licensed psychologist. According to Ms. Walls, the victim was referred to Dr. Saar's office for a "general psychological evaluation for treatment purposes to determine diagnosis and provide treatment recommendations." As part of the evaluation, Ms. Walls interviewed the victim. Ms. Walls explained that the victim told her during their interview that she was "raped by her brother and forced to perform oral sex on him." Petitioner objected to Ms. Walls testimony about the victim's statement as inadmissible hearsay because Ms. Walls conducted a forensic interview. Ms. Walls noted that she accidentally included the word "forensic" evaluation in her written report, but she claimed that the word "forensic" was inadvertently included in the written report as an oversight in the editing process. Ms. Walls maintained that her evaluation of K.H. was therapeutic and not forensic in nature.

         Ms. Walls testified that K.H.'s symptoms, including "the depression, the withdrawal, the intrusive thoughts, [and] the avoidance, " are consistent with a child who has been subjected to sexual assault. Over petitioner's objection, Ms. Walls further testified that, in her opinion, the victim was sexually assaulted. The State also introduced the testimony of Dr. Joan Phillips, a pediatrician specializing in child abuse and neglect. Dr. Phillips testified that a physical examination of the victim showed evidence of penetration by sexual contact or trauma and supported the victim's claims of sexual assault.

         At the conclusion of trial, petitioner was found guilty of first-degree sexual assault, second-degree sexual assault, and incest. In December of 2015, the circuit court held a sentencing hearing. At the conclusion of that hearing, by order entered on December 14, 2015, the circuit court sentenced petitioner to a cumulative prison term of twenty to fifty years. This appeal followed.

         We have previously held as follows:

"In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review." Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).

Syl. Pt. 1, State v. Blevins, 231 W.Va. 135, 744 S.E.2d 245 (2013). We further held that "[a] trial court's evidentiary rulings, as well as its application of the Rules of Evidence, are subject to a review under an abuse of discretion standard." Syl. Pt. 1, State v. Varlas, 237 W.Va. 399, 787 S.E.2d 670 (2016) (citing Syl. Pt. 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998)). Indeed, "[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. ...


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