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.
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.
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.
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.
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.
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.
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 ...