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State ex rel. Harvey v. Yoder

Supreme Court of West Virginia

October 19, 2017

STATE OF WEST VIRGINIA, EX REL. MATTHEW HARVEY, PROSECUTING ATTORNEY, Petitioner
v.
HONORABLE JOHN C. YODER, CIRCUIT JUDGE, TWENTY-THIRD JUDICIAL CIRCUIT, AND GERALD G. RANKIN, JR, Respondents

          Submitted: October 4, 2017

         PETITION FOR WRIT OF PROHIBITION

          Timothy D. Helman Assistant Prosecuting Attorney Charles Town, West Virginia Attorney for Petitioner

          J. Daniel Kirkland Arnold & Bailey, PLLC Charles Town, West Virginia Attorney for Gerald G. Rankin

          CHIEF JUSTICE LOUGHRY concurs and reserves the right to file a concurring opinion.

          JUSTICE WORKMAN concurs and reserves the right to file a concurring opinion.

         SYLLABUS BY THE COURT

         1. "The test used to determine whether a trial court's exclusion of proffered evidence under our rape shield law violated a defendant's due process right to a fair trial is (1) whether that testimony was relevant; (2) whether the probative value of the evidence outweighed its prejudicial effect; and (3) whether the State's compelling interests in excluding the evidence outweighed the defendant's right to present relevant evidence supportive of his or her defense." Syllabus point 6, State v. Guthrie, 205 W.Va. 326, 518 S.E.2d 83 (1999).

         2. In order to rebut evidence on an evidentiary fact under Rule 412(b)(1)(C) of the West Virginia Rules of Evidence, (1) the original evidence must be inadmissible under Rule 412; (2) the rebuttal evidence must be similarly inadmissible; and (3) the rebuttal evidence must be limited to the same evidentiary fact as the original inadmissible evidence.

          OPINION

          DAVIS, JUSTICE

         This matter was filed as a petition for a writ of prohibition, under the original jurisdiction of this Court, by the Office of the Prosecuting Attorney of Jefferson County (hereinafter "the State"). In this proceeding, the State seeks to have this Court prohibit enforcement of an order of the Circuit Court of Jefferson County[1] that allows the Respondent, Gerald G. Rankin, Jr. (hereinafter "Mr. Rankin"), to testify at his criminal trial about the sexual history of his adolescent victim, M.Y.[2] After carefully reviewing the briefs, the arguments of the parties, the legal authority cited, and the record presented for consideration, the writ is granted, in part, and denied, in part.

         I. FACTUAL AND PROCEDURAL HISTORY

         In the 2016 April term of court, a grand jury indicted Mr. Rankin on eight felony counts of sexual assault in the third degree, and eight felony counts of sexual abuse by a parent, guardian, or person in position of trust to a child. The crimes allegedly took place between June 12, 2015, and July 17, 2015. The victim, M.Y., was fourteen years old at the time. Mr. Rankin was about fifty years old. M.Y.'s mother and Mr. Rankin had a romantic relationship for an undisclosed period of time. At some point after that relationship ended, Mr. Rankin expressed an interest in renewing his friendship with M.Y. and her mother.[3] It was after this overture that M.Y. was permitted to stay at Mr. Rankin's residence on several occasions between June 12, 2015, and July 17, 2015.

         M.Y. first disclosed the sexual relationship with Mr. Rankin to a family friend with whom she was staying while her mother was on her honeymoon. The family friend reported the matter to M.Y.'s mother. The mother promptly reported the matter to the police. The police launched an investigation that included an interview of M.Y. During the interview, M.Y. stated that she had engaged in consensual sex with Mr. Rankin between eight and twelve times. M.Y. also informed the police that, because the first encounter had been unprotected sex, Mr. Rankin purchased her a "Plan B" emergency contraceptive pill to prevent her from getting pregnant.[4] The police obtained cell phone records of M.Y. and Mr. Rankin. Those records revealed conversations between them on a social media messenger app called "KiK." The messenger app disclosed M.Y. and Mr. Rankin texting numerous times that they loved each other. The messenger app also revealed them making remarks about their anatomy. In one conversation, M.Y. stated to Mr. Rankin "I think my mother would be okay with me exploring my sexual desires with you to be honest."

         After Mr. Rankin was arrested, he was interviewed by the police. During that interview, he admitted to spending time with M.Y. but denied ever having a sexual relationship with her. Mr. Rankin admitted to purchasing the Plan B pill for M.Y., explaining that she asked him to purchase it because she had had unprotected sex with someone else. Mr. Rankin provided no explanation when asked why M.Y. would accuse him of engaging in sex with her on numerous occasions.

         Subsequent to Mr. Rankin's indictment, he filed two motions seeking to introduce evidence of M.Y.'s sexual history. In the first motion, Mr. Rankin sought to introduce evidence that M.Y. accused another man of sexual assault when she was eleven years old.[5] Mr. Rankin contended in the first motion that this evidence was critical because M.Y. had asked him to physically harm that defendant if his prosecution did not go her way. Mr. Rankin asserted further that he refused to agree to the request and that, as a result of his refusal, M.Y. retaliated by falsely accusing him of sexual assault.

         In the second motion, Mr. Rankin sought to introduce evidence of M.Y.'s sexual history as it related to the Plan B pill. The State opposed both motions on the ground that Rule 412 of the West Virginia Rules of Evidence prohibited the introduction of such evidence. The trial court ruled, as to the first motion, that if Mr. Rankin took the stand to testify he could introduce evidence involving M.Y.'s sexual assault claims when she was eleven years old. As to the second motion, the trial court ruled that Mr. Rankin could cross-examine M.Y. about whether she told him she had engaged in sex with anyone during the seventy-two hour period prior to the purchase of the Plan B pill.

         The State filed the instant proceeding to prohibit enforcement of the circuit court's order permitting Mr. Rankin to introduce of evidence M.Y.'s sexual history.

         II.

         STANDARD OF REVIEW

         In this case, the State seeks a writ of prohibition to prevent enforcement of a pretrial order of the circuit court. There are limited instances in which the State may seek a writ of prohibition in a criminal matter. We have held that

[t]he State may seek a writ of prohibition in this Court in a criminal case where the trial court has exceeded or acted outside of its jurisdiction. Where the State claims that the trial court abused its legitimate powers, the State must demonstrate that the court's action was so flagrant that it was deprived of its right to prosecute the case or deprived of a valid conviction. In any event, the prohibition proceeding must offend neither the Double Jeopardy Clause nor the defendant's right to a speedy trial. Furthermore, the application for a writ of prohibition must be promptly presented.

Syl. pt. 5, State v. Lewis, 188 W.Va. 85, 422 S.E.2d 807 (1992), superseded by statute on other grounds as recognized in State v. Butler, 239 W.Va. 168, 799 S.E.2d 718 (2017). In Syllabus point 4 of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996), we set forth the following standard for issuance of a writ of prohibition:

In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.

         With the foregoing in mind, we turn to the issues presented.

         III.

         DISCUSSION

         In this proceeding we are called upon to address two issues. First, we are asked to decide if the circuit court properly ruled that Mr. Rankin could testify about M.Y.'s sexual assault claims against another defendant when she was eleven years old. Second, we have been asked to determine whether the circuit court correctly found that Mr. Rankin could cross-examine M.Y. about her sexual history seventy-two hours before the purchase of the Plan B pill. We will address each issue separately below.

         A. Evidence about a Prior Sexual Assault of the Victim

         The first issue presented involves the circuit court's ruling that Mr. Rankin could testify about M.Y.' s sexual history with another person when she was eleven years old. The State argues that admission of this evidence violates the rape shield law as set fourth under Rule 412 of the West Virginia Rules of Evidence.[6] Mr. Rankin contends, and ...


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