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