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State v. Gates

Supreme Court of West Virginia

November 21, 2018

State of West Virginia, Plaintiff Below, Respondent
Matthew Gates, Defendant Below, Petitioner

          Ohio County 16-F-49


         Petitioner Matthew Gates, by counsel Brent A. Clyburn, appeals the Circuit Court of Ohio County's September 18, 2017, order sentencing him following his conviction of seven counts of sexual abuse by a custodian. Respondent State of West Virginia, by counsel Shannon Frederick Kiser, filed a response. On appeal, petitioner asserts that impermissible "other acts" evidence was admitted at trial and that insufficient evidence was adduced to establish that he was the victim's "custodian."

         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, law enforcement officers began an investigation following D.S.'s disclosure of sexual abuse by petitioner.[1] During its investigation, evidence of certain of petitioner's sexual proclivities came to light. Namely, petitioner was accused of inserting bottles, cans, and other objects into D.S., a minor, in a fetishistic practice known as "stretching." The victim's mother, who previously had been in a consensual relationship with petitioner, reported that petitioner practiced this act on her as well. On May 9, 2016, petitioner was indicted on seven counts of sexual abuse by a custodian arising from his abuse of D.S.

         Prior to trial, pursuant to Rule 404(b) of the West Virginia Rules of Evidence, the State filed a notice of its intent to introduce evidence from the victim's mother of petitioner's insertion of various objects into her orifices for his sexual gratification.[2] The State argued that the "fetish or type of sexual preferences enjoyed by the [petitioner] is extremely relevant evidence in light of the allegations made by D.S. in that the types of sex acts at issue are very unusual." Following a McGinnis hearing on December 1, 2016, the circuit court deemed the 404(b) evidence admissible for the limited purpose of establishing petitioner's identity as the perpetrator of certain acts described in the indictment.[3]

         Subsequent to the court's determination that the Rule 404(b) evidence was admissible, petitioner proposed stipulating that he had sexual contact with the victim. Petitioner argued that such a stipulation would render the evidence concerning the nature of the sexual encounters irrelevant. The State indicated it would not enter into such a stipulation, and, on July 5, 2017, the court found that it could not force the State to do so.

         Petitioner's trial began on July 10, 2017, and lasted four days. Although no stipulation was entered into by the parties, petitioner nonetheless admitted to the sexual conduct charged in the indictment and focused his defense on arguing that he was not D.S.'s custodian. At the conclusion of the trial, the jury found petitioner guilty of all seven counts of sexual abuse by a custodian charged in the indictment.

         On September 7, 2017, the parties appeared for sentencing. The court sentenced petitioner to not less than ten nor more than twenty years for each conviction, and it ordered that the sentences run consecutively for an aggregate sentence of not less than seventy nor more than one hundred forty years in prison. The court memorialized these rulings in its September 18, 2017, sentencing order, and it is from this order that petitioner appeals.

         Petitioner first argues on appeal that the circuit court erred in permitting the Rule 404(b) evidence when he conceded identity. Petitioner argues that his admission of sexual contact with the victim rendered evidence of the sex acts in which he engaged with the victim's mother irrelevant. Petitioner also argues that he was unfairly prejudiced by the evidence, and that it confused the issues and potentially misled the jury.

         We review a circuit court's decision to admit evidence pursuant to Rule 404(b) under an abuse of discretion standard. State v. McGinnis, 193 W.Va. 147, 159, 455 S.E.2d 516, 528 (1994). "Our function . . . 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." Id. Further, "we review [the admission of Rule 404(b) evidence] in the light most favorable to the party offering the evidence, . . . maximizing its probative value and minimizing its prejudicial effect." Id.

         We find no abuse of discretion in the circuit court's admission of the Rule 404(b) evidence. The Supreme Court of the United States has noted the "familiar, standard rule that the prosecution is entitled to prove its case by evidence of its own choice, or, more exactly, that a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the Government chooses to present it." Old Chief v. U.S., 519 U.S. 172, 186-87 (1997). This Court quoted approvingly Old Chief in State v. Harris, 230 W.Va. 717, 742 S.E.2d 133 (2013), in observing the expectations jurors have in hearing cases. Id. at 722, 742 S.E.2d at 138. Specifically, we agreed that

[p]eople who hear a story interrupted by gaps of abstraction may be puzzled at the missing chapters, and jurors asked to rest a momentous decision on the story's truth can feel put upon at being asked to take responsibility knowing that more could be said than they have heard. A convincing tale can be told with economy, but when economy becomes a break in the natural sequence of narrative evidence, an assurance that the missing link is really there is never more than second best.

Id. (quoting Old Chief, 519 U.S. at 189). Thus, petitioner's concession aside, the evidence was relevant to establish the perpetrator's identity.

         Petitioner also argues that admission of the mother's testimony unfairly prejudiced him and "confused the issues and, potentially, misled the jury." Aside from his bare assertions of such, however, he offers no explanation of how he was unfairly prejudiced, how the issues were confused, or how the jury was misled. See Syl. Pt. 10, in part, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994) ("The Rule 403 balancing test is essentially a matter of trial conduct, and the trial court's discretion will not be overturned absent a showing of clear abuse."). Indeed, petitioner admitted to the conduct alleged, choosing to focus his defense ...

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