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State v. Perrine

Supreme Court of West Virginia

April 28, 2017

State of West Virginia, Plaintiff Below, Respondent
v.
John Lee Perrine, II, Defendant Below, Petitioner

         Harrison County 15-F-138-3

          MEMORANDUM DECISION

         Petitioner John Lee Perrine, II, by counsel Rocco E. Mazzei, appeals his conviction of three counts of first-degree sexual abuse following a jury trial. The Circuit Court of Harrison County denied petitioner's two motions for a new trial on April 13, 2016, and entered his sentencing order on April 18, 2016. The State of West Virginia, by counsel Zachary Aaron Viglianco, filed a response.

         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 order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

         At approximately 6:50 p.m. on the evening of February 2, 2014, petitioner and a friend entered a fast food restaurant in Harrison County. Petitioner ordered food at the counter. While the food was being prepared, petitioner conversed with the female cashier. Eight to ten minutes after petitioner arrived, the cashier indicated she needed to retrieve cups from a storage shed located behind the restaurant. As she was walking out of the restaurant to retrieve the cups, petitioner asked the cashier, "Do you need help with that?" The cashier replied that she did not need assistance and then exited the restaurant.

         When the cashier arrived at the shed, she struggled with the door and could not find a working light inside. She nevertheless went inside and attempted to locate the cups. At that point, she heard a man's voice say, "Hey, do you need help?" The cashier turned toward the open door, saw petitioner, and said, "No, I have this." Despite the cashier's reply, petitioner entered the shed and then pinned the cashier against a shelf; groped her crotch, buttocks, and breasts over her clothing; and kissed her neck. However, the cashier managed to push petitioner off her when he attempted to undo the zipper on his pants. She ran out of the shed and to the restaurant where she pounded on the locked back door. A coworker heard the cashier and opened the door. The cashier entered the restaurant and when she saw petitioner's friend, who was still in the restaurant, she said, "[this man's] friend tried to rape me." At that point, petitioner's friend, who had petitioner's food on a tray, asked for a to-go bag and left the restaurant. Thereafter, the police were called.

         Petitioner was indicted on three counts of first-degree sexual abuse for the attack on the cashier. Petitioner's two-day trial commenced on December 7, 2015. During the State's case-in-chief, the State entered surveillance footage from the restaurant's security cameras taken on the night of the crime. The footage showed that petitioner engaged in conversation with the cashier, that petitioner watched the cashier leave the store, and that he followed the cashier outside shortly thereafter. The State also entered testimony from petitioner's friend, by way of impeachment, that he (the friend) told the police that petitioner admitted he "grabbed the butt of [the cashier]." The State also called the cashier who testified that petitioner was the person who had assaulted her in the shed. On cross-examination, petitioner's counsel asked the cashier the following question: "Now . . . [more than a year before the crime at issue in this case], you were using the powerful drug Prozac?" The State objected. At the ensuing bench conference, the circuit court ruled that defense counsel had to limit his questions to the drugs the cashier was taking at the time of the crime. Accordingly, defense counsel questioned the cashier as follows:

DEFENSE COUNSEL: On February 2, 2014, this is the date of these allegations, what prescription medications were you on?
THE CASHIER: None.
DEFENSE COUNSEL: Okay. And during that time, were you addicted to any drugs?
THE CASHIER: I've been clean for eleven years, so no.
DEFENSE COUNSEL: Eleven years?
THE CASHIER: Yes.

         Thereafter, petitioner attempted to cross-examine the victim regarding her prior attendance at Narcotics Anonymous ("NA") meetings; however, the circuit court sustained the State's objection to this question.

         During his case-in-chief, petitioner admitted that he was in the restaurant on the evening of February 2, 2014, and that he spoke with the cashier; however, he asserted that he had not assaulted her. Petitioner also admitted to leaving the restaurant before he got his food, but claimed he did so to alleviate his back ...


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