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State v. Hicks

Supreme Court of West Virginia

June 15, 2018

State of West Virginia, Plaintiff Below, Respondent
Alexander Hicks, Defendant Below, Petitioner

          Berkeley County 17-F-58


         Petitioner Alexander Hicks, by counsel Ben J. Crawley-Woods, appeals the Circuit Court of Berkeley County's May 30, 2017, order sentencing him to an effective term of incarceration of six to thirty years following his conviction for multiple counts of child abuse resulting in bodily injury. The State of West Virginia, by counsel Gordon L. Mowen, II, filed a response in support of the circuit court's order. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in refusing to permit a defense witness to testify regarding an investigation into a third party, refusing to permit petitioner to testify as to why he believed someone else could have committed the crimes in question, and denying his motion for judgment of acquittal.

         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 October of 2015, petitioner was indicted on three felony counts of child abuse resulting in bodily injury. In February of 2017, a superseding indictment against petitioner charged him with eight felony counts of child abuse resulting in injury. These charges were related to incidents involving two children, B.M., who was four years old at the time of the crimes, and P.M., who was two years old at the time of the crimes.[1] Specifically, the indictment alleged that on at least two occasions in December of 2014, petitioner abused the children by striking or biting them on various areas of their bodies, including their faces, heads, and ears.

         Petitioner, who was dating the children's mother at the time, would care for the children when their mother was at work.

         At trial, it was established that on or about December 6, 2014, the children's father noticed bruising on B.M.'s buttocks after he spent the weekend at petitioner's home. After the child's school contacted Child Protective Services ("CPS"), the Berkeley County Sheriff's Department eventually initiated an investigation. During an interview with petitioner and the children's mother, petitioner informed the investigating detective that B.M.'s bruising was caused when the child fell repeatedly during a shower. At that time, the detective chose to end the investigation, although the same was reopened upon later receipt of information of subsequent abuse to the children.

         The children's father testified that they spent Christmas of 2014 with him and, aside from a small bruise on B.M.'s leg, they exhibited no injuries or bruising at that time. In fact, pictures of the children from Christmas Day were admitted into evidence at trial to illustrate their condition. On December 26, 2014, the children were taken to petitioner's home, where he assumed custody of them while the mother was at work. A state trooper later informed the father that the children were taken to a hospital and that B.M.'s face was so bruised that his eyes were almost swollen shut and P.M. suffered serious physical injuries.

         The children's mother testified that she and petitioner lived together for approximately two years. Additional testimony established that a number of other individuals lived in the home with petitioner and the mother. The mother further testified that petitioner would watch the children when she was at work. Having spent time with the children on Christmas Day, the mother corroborated the fact that they did not have any injuries at that time. According to the mother, she was at work when the children were brought back to her home the day after Christmas, so petitioner provided their care. When she eventually got home from work, the children were already asleep. The mother checked on the children when she got home and noticed a bruise on B.M.'s face. According to the mother, the bruising worsened over the next few days, at which point she noticed that B.M. "had . . . bruises all over him[, ]" in addition to the bruising to his face. She also noticed bruising to P.M. and took both children to the hospital on December 30, 2014. According to the mother, petitioner later told her that B.M. had some bruises on his groin when he was dropped off, but he did not indicate that the child had bruises on his face.

         The jury also heard testimony from Betty Fisher, an expert in forensic nursing, who evaluated the children at the hospital on December 30, 2014. According to Ms. Fisher, both children had "a lot of bruising." Specifically, B.M. exhibited bruising to both sides of his face, his jaw, his shoulder, and his ear. According to Ms. Fisher, the nature of the bruising indicated that it was the result of non-accidental trauma and was consistent with blunt force trauma from "multiple strikes" amounting to more than "four or five blows." Moreover, Ms. Fisher explained that the bruising to the child's ear was a "red flag for child abuse[, ]" given how difficult it is to bruise that area. Ms. Fisher also testified that the bruising to P.M.'s face and abdomen was the result of non-accidental trauma. Moreover, Ms. Fisher testified that the mother's explanation that the injuries appeared overnight is referred to as "magical injuries[, ]" an explanation common for concealing non-accidental injuries. Based on the coloring of the children's bruises, Ms. Fisher testified that they likely occurred around the same time. Further testimony established that neither child was interviewed because neither were verbal; B.M. due to his autism and P.M. due to her age.

         Additionally, other family members who saw the children at the relevant time testified that the children did not exhibit injuries, other than minor bruising on an ankle or leg, on Christmas Day when they arrived at the home.

         Following the State's case-in-chief, petitioner moved for judgment of acquittal and argued that the State's circumstantial evidence was insufficient to support a conviction. The circuit court denied the motion. Thereafter, the circuit court held a sidebar to address the testimony of Constance Hooe, a witness petitioner wished to call to establish the criminal record of the mother's sister's boyfriend (hereinafter referred to as "the acquaintance"). According to petitioner, this acquaintance had prior criminal convictions for acts similar to the abuse the children suffered herein, including charges of domestic violence that involved biting an individual's face and abusing children. Moreover, petitioner argued that the acquaintance was dating petitioner's sister, who also lived in the home with the children. The circuit court had earlier held petitioner's motion on this evidence in abeyance. However, upon petitioner's admission that he had no evidence placing the acquaintance in the home when the abuse was alleged to have occurred, the circuit court excluded the testimony as too speculative. Petitioner then called several witnesses who either lived in the home or visited frequently to provide testimony in support of his defense.

         Petitioner then took the stand and testified that he did not know who perpetrated the abuse, but indicated that he suspected the children's father. He also indicated that at least some of the children's bruising occurred before they were left in his custody on December 26, 2014, although he later testified that he believed the children were injured after their return to the residence when he was absent. Despite his assertions that the father perpetrated the abuse, petitioner further indicated that he had "a list" of "people in mind" that could have abused the children. This list included the mother and the acquaintance. However, petitioner admitted that he was not certain that the acquaintance was present in the home during the applicable time period.

         Ultimately, the jury convicted petitioner on six counts of child abuse resulting in bodily injury related to the injuries sustained on or about December 26, 2014, and acquitted him of the remaining two counts, one of which was related to the injuries from December 6, 2014, and one of which was related to the injuries from December 26, 2014. Following the trial, petitioner filed a motion for judgment of acquittal or, alternatively, a new trial. In support, petitioner argued that the State's circumstantial evidence was insufficient to support his conviction. He further argued that his constitutional right to present a defense was violated by the circuit court's refusal to allow him to introduce evidence of the acquaintance's prior convictions. The circuit court denied this motion.

         In May of 2017, the circuit court sentenced petitioner to six terms of incarceration of one to five years each and ordered the sentences to be served consecutively. The circuit court also ordered petitioner to register on the abuse and neglect registry for a period of ten years and submit to thirty years of supervised release. It is from the circuit court's sentencing order that petitioner appeals.

         On appeal, petitioner first argues that the circuit court erred in refusing to permit Ms. Hooe to testify about her investigation into the acquaintance, an individual petitioner alleges is a potentially culpable third party. According to petitioner, the investigation of the acquaintance revealed prior arrests for child abuse against two children and assault against an adult, who the acquaintance bit. Petitioner further argues that this acquaintance dated the mother's sister, an individual who lived in the home at the time of the crimes. As such, he argues that it was error to deny Ms. Hooe the ability to testify to her investigation. Upon our review, we find no error.

         "'A trial court's evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review under an abuse of discretion standard.' Syl. pt. 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998)." State v. Trail, 236 W.Va. 167, 179, 778 S.E.2d 616, 628 (2015). Moreover, this Court has specifically ...

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