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In re D.M.

Supreme Court of West Virginia

November 22, 2017

In re: D.M.

         Barbour County 16-JD-1

          MEMORANDUM DECISION

         Petitioner D.M., by counsel George J. Cosenza, appeals the Circuit Court of Barbour County's September 27, 2016, order sentencing him to a term of commitment until the age of twenty-one for his first degree sexual assault conviction.[1] The State, by counsel David A. Stackpole, filed a response and a supplemental appendix. On appeal, petitioner argues that the circuit court erred in denying his motion for a mistrial and abused its discretion by committing him to a juvenile detention facility.

         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 January of 2016, the State filed a juvenile criminal petition against petitioner, then age fourteen, alleging that he sexually abused two younger children. According to the petition, in March of 2015 and May of 2015, petitioner provided babysitting services for P.W. and D.W. While providing babysitting services, petitioner forced P.W. to perform oral sex on him. After the sexual assault, petitioner sent the children's mother, B.W., a message on Facebook asking her to forgive him for "everything he had done to P.W." and stated that he "hoped that [she] could forgive him." The children's mother telephoned the police department to report the sexual assault of P.W. Following a police investigation by Sergeant Brad Miller ("Sergeant Miller") and forensic interviews of the children, petitioner was charged with four counts of first degree sexual assault and two counts of first degree sexual abuse.

         In August of 2016, petitioner's jury trial commenced. At trial, the State asked Sergeant Miller on direct exam if he attempted to obtain a statement from petitioner. Petitioner's counsel immediately objected to the State's line of questioning and moved the circuit court for a mistrial, as follows:

The State: Did you attempt to get a statement from [petitioner]?
Sergeant Miller: On September -
Petitioner's Counsel: Objection.
The Circuit Court: Just a second. Come Forward.
Petitioner's Counsel: Motion for mistrial.
The State: The answer was going to be no, he didn't get a statement from him.
The Circuit Court: It's against the rules. You cannot even inquire. The problem is if you do this then he's going to be sitting in a detention center for months.

         The circuit court then called the State, petitioner, petitioner's mother, and petitioner's counsel into chambers.

The Circuit Court: This is in chambers on the record. Mr. Curry, you have just asked for a mistrial as a result of [the State's] inquiry that goes ...

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