Berkeley County 17-F-58
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.
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.
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. 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
who was dating the children's mother at the time, would
care for the children when their mother was at work.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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