STATE OF WEST VIRGINIA, EX REL. MATTHEW HARVEY, PROSECUTING ATTORNEY, Petitioner
HONORABLE JOHN C. YODER, CIRCUIT JUDGE, TWENTY-THIRD JUDICIAL CIRCUIT, AND GERALD G. RANKIN, JR, Respondents
Submitted: October 4, 2017
FOR WRIT OF PROHIBITION
Timothy D. Helman Assistant Prosecuting Attorney Charles
Town, West Virginia Attorney for Petitioner
Daniel Kirkland Arnold & Bailey, PLLC Charles Town, West
Virginia Attorney for Gerald G. Rankin
JUSTICE LOUGHRY concurs and reserves the right to file a
JUSTICE WORKMAN concurs and reserves the right to file a
BY THE COURT
"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).
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.
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 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. 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.
FACTUAL AND PROCEDURAL HISTORY
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. 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.
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. 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."
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.
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. 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.
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.
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.
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
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.
the foregoing in mind, we turn to the issues presented.
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.
Evidence about a Prior Sexual Assault of 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. Mr. Rankin contends, and ...