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State v. Keith A.

Supreme Court of West Virginia

May 11, 2018

State of West Virginia, Plaintiff Below, Respondent
v.
Keith A., Defendant Below, Petitioner

          Gilmer County 16-F-7

          MEMORANDUM DECISION

         Petitioner Keith A.[1], by counsel Robert P. Dunlap II, appeals the order of the Circuit Court of Gilmer County, entered on February 27, 2017, sentencing him to imprisonment in the state penitentiary for ten to twenty years for the conviction of each of three counts of sexual abuse by a parent, guardian, custodian, or person in a position of trust, and imprisonment in the state penitentiary for five to twenty-five years for the conviction of each of three counts of sexual abuse in the first degree, with all sentences ordered to be served concurrently, and further ordering that he register as a sex offender for the remainder of his life. Respondent State of West Virginia appears by counsel Sarah B. Massey.

         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 order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

         Petitioner was indicted in the Circuit Court of Gilmer County on three counts of sexual abuse by a parent, guardian, custodian, or person in a position of trust and three counts of sexual abuse in the first degree, all based on the State's allegations concerning petitioner's conduct toward his then ten-year-old biological daughter, P.A. Petitioner immediately moved the circuit court to dismiss the indictment based on his theory that the criminal prosecution is collaterally estopped by prior abuse and neglect proceedings arising from the same actions. The circuit court denied the motion to dismiss, and the case ultimately proceeded to trial before a jury, where the evidence, including the testimony of P.A. and her brother, showed that petitioner touched P.A.'s buttocks on multiple occasions. Petitioner was found guilty of all six counts and sentenced as set forth above. Petitioner moved the circuit court to set aside the verdict, and the court denied his motion.

         Petitioner asserts four assignments of error on appeal. He argues that: 1) the circuit court abused its discretion and was clearly erroneous in denying his motion to dismiss the indictment "because the charges arose from an abuse and neglect proceeding which collaterally estops pursuit of criminal charges for the same acts;" 2) the circuit court violated Rules 403 and 404(b) of the West Virginia Rules of Evidence by allowing testimony about disciplinary action taken by petitioner's employer in 2006; 3) the circuit court erred in denying petitioner's post-trial motion for judgment of acquittal based on insufficiency of the evidence; and 4) the circuit court allowed hearsay testimony by an investigating police officer concerning a text message that petitioner sent to his daughter, the victim, P.A.

         We begin with petitioner's assertion that the circuit court erred in denying his motion to dismiss the indictment on collateral estoppel grounds because he was absolved of the abuse or neglect of P.A. in prior proceedings. "This Court's standard of review concerning a motion to dismiss an indictment is, generally, de novo. . . ." State v. Grimes, 226 W.Va. 411, 413, 701 S.E.2d 449, 451 (2009). Because petitioner argues that his criminal prosecution was barred by collateral estoppel, we are mindful that

[c]ollateral estoppel will bar a claim if four conditions are met: (1) The issue previously decided is identical to the one presented in the action in question; (2) there is a final adjudication on the merits of the prior action; (3) the party against whom the doctrine is invoked was a party or in privity with a party to a prior action; and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.

State v. Miller, 194 W.Va. 3, 6, 459 S.E.2d 114, 117 (1995). Also, whether collateral estoppel applies in a particular case generally rests within the sound discretion of the trial court. Syl. Pt. 7, in part, Conley v. Spillers, 171 W.Va. 584, 301 S.E.2d 216 (1983).

         Petitioner's assertion of collateral estoppel fails on several grounds. See, e.g., In re: B.C., 233 W.Va. 130, 755 S.E.2d 664 (2014) and Miller, 194 W.Va. 3, 459 S.E.2d 114. Here, we particularly emphasize that the function of the abuse and neglect proceeding is fundamentally different from that of the criminal prosecution, and the issue previously decided is therefore not identical to the one now presented. The focus of an abuse and neglect proceeding is, always, the well-being of the child. See Syl. Pt. 1, in part, In re Darla B., 175 W.Va. 137, 331 S.E.2d 868 (1985). In furtherance of that goal, such a proceeding is initiated when information is produced suggesting that a child is in need of protection. Future abuse and neglect proceedings involving the same parties are not precluded; such proceedings may be instituted when new information alerts the courts, again, that a child may require protection. In contrast, the sole focus of a criminal proceeding is on the guilt or innocence of the accused. The United States Supreme Court aptly explained, "[T]he purpose of a criminal court is not to provide a forum for the ascertainment of private rights. Rather it is to vindicate the public interest in the enforcement of the criminal law while at the same time safeguarding the rights of the individual defendant." Standefer v. United States, 447 U.S. 10, 25, 100 S.Ct. 1999, 2008, 64 L.Ed.2d 689 (1980).

          Inasmuch as the purposes of the abuse and neglect proceedings and the criminal proceedings are fundamentally different, it is best that each proceed in its own due course, and not to the preclusion of the other such that the State would be faced with the decision of whether to shelter a child or to seek criminal justice.

         Petitioner's second assignment of error asserts that the circuit court violated Rules 403 and 404(b) of the West Virginia Rules of Evidence by allowing prejudicial testimony concerning disciplinary action taken by petitioner's employer in 2006. Rule 403 provides, "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Rule 404(b) provides, in part, "Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Petitioner asserts that he was prejudiced in violation of these rules because the circuit court allowed the investigating deputy and certain employees of petitioner's former employer to testify that petitioner was disciplined in his prior employment for accessing thousands of pornographic images at work. At least one of these witnesses testified that the images were "very close" to child pornography. The State argues that this evidence was intrinsic to the crime because it showed long-harbored desires that led petitioner to "groom" P.A. to carry out his fantasies. We disagree that petitioner's employment discipline for viewing pornography at inappropriate times and places is intrinsic to the crimes described herein.[2] We do however, find that the evidence would have been properly admitted to show petitioner's lustful disposition toward children, inasmuch as the investigating deputy testified at a pretrial hearing that the 2006 employment investigation revealed that petitioner had viewed various images "including father/daughter pornography." We have explained:

Collateral acts or crimes may be introduced in cases involving child sexual assault or sexual abuse victims to show the perpetrator had a lustful disposition towards the victim, a lustful disposition towards children generally, or a lustful disposition to specific other children provided such evidence relates to incidents reasonably close in time to the incident(s) giving rise to the indictment. . . .

Syl. Pt. 2, in part, State v. Edward Charles L., 183 W.Va. 641, 643, 398 S.E.2d 123, 125 (1990). We consider the evidence offered to show lustful disposition as follows:

[W]e review the trial court's decision to admit evidence pursuant to Rule 404(b) under an abuse of discretion standard. State v. Bell, 189 W.Va. 448, 453, 432 S.E.2d 532, 537 (1993); Syl. pt. 1, State ex rel. Tinsman v. Hott, 188 W.Va. 349, 424 S.E.2d 584 (1992). Our function on this appeal is limited to the inquiry as to whether the trial court acted in a way that was so arbitrary and irrational that it can be said to have abused its discretion. In reviewing the admission of Rule 404(b) evidence, we review it in the light most favorable to ...

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