Ohio
County 17-F-20
MEMORANDUM DECISION
Petitioner
Lamont D., by counsel Ann Marie Morelli, appeals the February
7, 2018, sentencing order entered in the Circuit Court of
Ohio County following his convictions by a jury of one count
each of third-degree sexual assault and sexual abuse by a
custodian. The State of West Virginia, by counsel Julianne
Wisman, filed a response in support of the circuit
court's order. Petitioner submitted a reply.
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.
Petitioner
previously dated the mother of M.P. ("the victim").
After the couple broke up, petitioner continued to have
contact with the victim and the two maintained a purported
"father/daughter relationship." Indeed, at least
once a month, the victim, who lived in Morgantown with her
mother, was permitted to have overnight visits with
petitioner at his home in Wheeling. During one such visit in
the fall of 2013, when the victim was twelve years old,
petitioner gave her vodka and marijuana until she was
incapacitated. The victim woke up to petitioner touching her,
putting his hands under her clothing, and removing her
tampon. Petitioner put his fingers inside her vagina until
she got out of bed and went to the bathroom to clean up the
blood. Petitioner told her not to tell her mother. After the
victim returned to Morgantown, petitioner sent her new
clothes, a credit card with several hundred dollars on it,
and money to buy a new cell phone. According to the State,
the purpose of these gifts was to persuade the victim not to
tell her mother about what transpired in Wheeling.
At some
point, petitioner moved to Iowa but remained in contact with
the victim. During the victim's freshman year in high
school, she attempted to run away from home. The victim
contacted petitioner who then drove from Iowa to Morgantown
and picked up the victim, her cousin, and a classmate from
school. Petitioner took them to a motel room and bought them
alcohol and marijuana. The victim and her companions
eventually left petitioner and were discovered in an
abandoned apartment in Morgantown by the victim's mother
who had tracked the victim through her cell phone. The
victim's mother took her to a local hospital to be
evaluated and the victim eventually disclosed to her that
petitioner had molested her in 2013. The victim's mother
contacted police and, on January 29, 2017, petitioner was
indicted in the Circuit Court of Ohio County on two counts of
third-degree sexual assault, two counts of sexual abuse by a
custodian, and one count of third-degree sexual abuse.
Following a two-day jury trial, petitioner was convicted of
one count of third-degree sexual assault, for which he was
sentenced to one to five years in prison, and one count of
sexual abuse by a custodian, for which he was sentenced to
ten to twenty years.[1] The sentences were ordered to be served
consecutively.[2] This appeal followed.
We
first address petitioner's assignments of error related
to the testimony of Sgt. Matthew Adams of the West Virginia
State Police. Sgt. Adams investigated the victim's claims
against petitioner and was also qualified as an expert in the
field of digital forensic analysis. On appeal, petitioner
argues that Sgt. Adams should not have been permitted to
testify as an expert witness in this case because the State
failed to properly serve petitioner with notice of Sgt.
Adams's status as such, failed to produce Sgt.
Adams's curriculum vitae during discovery, and failed to
produce a report of Sgt. Adams's findings to petitioner
or the trial court prior to trial. We find no error.
Petitioner
argues that the State served notice that it would be calling
Sgt. Adams as an expert witness by electronic mail and that
this method of service is not permitted in criminal cases.
According to petitioner (but without any citation to the
record), "[w]hen the State advised the [trial] [c]ourt
that it had utilized email for service[, ] the [c]ourt should
have sustained the objection to using Mr. Adams as an expert
due to lack of notice to the defense. The [c]ourt failed to
do so." We find petitioner's argument to be without
merit. The record reveals that, at trial, when the State
called Sgt. Adams to testify, presented his qualifications as
an expert in digital forensic analysis, and moved to qualify
him as such, defense counsel objected on the ground that the
State failed to disclose Sgt. Adams's expert status prior
to trial. In particular, defense counsel argued that
my objection is based upon the fact that this expert - he was
not disclosed as an expert witness to us. We did have the
forensic report. I don't think the forensic report is
expert testimony. We have no objection if he's allowed to
testify as a lay witness with experience in the field, but
with regards to him being an expert in the field, we'd
ask that he not be permitted to do that, mainly due to the
fact that it was not disclosed to us as an expert and,
secondly, he is not giving expert testimony. He's just
giving testimony about the contents of the report, which we
have no objection to.
The
State then demonstrated that it had previously filed a final
witness and exhibit list that identified Sgt. Adams as an
expert on the forensic examination of the digital media
evidence.[3] Petitioner fails to point to anywhere in
the record where it is demonstrated that the State served, or
claimed to have served, this disclosure by electronic
mail.[4] Regardless, it is clear that defense
counsel immediately withdrew its objection and Sgt. Adams was
permitted to testify. As a result, petitioner waived his
right to now raise the notice issue as error on appeal.
See Syl. Pt. 8, in part, State v. Miller,
194 W.Va. 3, 459 S.E.2d 114 (1995) ("A deviation from a
rule of law is error unless there is a waiver. When there has
been a knowing and intentional relinquishment or abandonment
of a known right, there is no error and the inquiry as to the
effect of a deviation from the rule of law need not be
determined.") In fact, by withdrawing his objection, we
find that petitioner invited the error, which further
precludes appellate review of the merits of this issue. We
have explained that
"'[i]nvited error' is a cardinal rule of
appellate review applied to a wide range of conduct. It is a
branch of the doctrine of waiver which prevents a party from
inducing an inappropriate or erroneous [ruling] and then
later seeking to profit from that error. The idea of invited
error is . . . to protect principles underlying notions of
judicial economy and integrity by allocating appropriate
responsibility for the inducement of error. Having induced an
error, a party in a normal case may not at a later stage of
the trial use the error to set aside its immediate and
adverse consequences."
Manor Care, Inc. v. Douglas, 234 W.Va. 57, 69, 763
S.E.2d 73, 85 (2014) (quoting State v. Crabtree, 198
W.Va. 620, 627, 482 S.E.2d 605, 612 (1996)). See
also Syl. Pt. 1, Maples v. West Virginia Dep't
of Commerce, 197 W.Va. 318, 475 S.E.2d 410 (1996)
("A litigant may not silently acquiesce to an alleged
error, or actively contribute to such error, and then raise
that error as a reason for reversal on appeal.");
Shamblin v. Nationwide Mut. Ins. Co., 183 W.Va. 585,
599, 396 S.E.2d 766, 780 (1990) (finding "the appellant
cannot benefit from the consequences of error it
invited").
Additionally,
petitioner argues that the trial court erred in qualifying
Sgt. Adams as an expert witness because the State failed to
submit his curriculum vitae or otherwise provide his
qualifications prior to trial so that petitioner could
"find a comparable expert to testify or to examine [Sgt.
Adams's] training and . . . credibility in [the] area of
forensic analysis." This argument is unavailing. As
discussed above, after initially objecting to Sgt.
Adams's expert testimony based on lack of notice,
petitioner withdrew his objection. At no time did petitioner
argue that, by not receiving the witness's curriculum
vitae in advance of trial, he was foreclosed from engaging
his own forensic digital analysis expert.[5] Petitioner failed
to preserve the error about which he now complains. This
Court has explained that
[o]ur jurisprudence clearly establishes the doctrine that
preserving error is the responsibility of the parties. It is
not the role of the trial judge to present evidence; nor is
it his or her responsibility to exclude or limit evidence, as
provided by evidence law, except insofar as the party
opposing the evidence timely and specifically requests the
trial judge to do so. To be clear, the party complaining on
appeal of the admission of evidence bears sole responsibility
for adequately preserving the record for meaningful appellate
review. In this case, the responsible parties failed to meet
this critical obligation.
Tennant v. Marion Health Care Found., Inc., 194
W.Va. 97, 114, 459 S.E.2d 374, 391 (1995). Thus,
"'[w]here objections were not shown to have been
made in the trial court, and the matters concerned were not
jurisdictional in character, such objections will not be
considered on appeal.' Syllabus point 3, O'Neal
v. Peake Operating Co., 185 W.Va. 28, 404 S.E.2d 420
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