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State v. Shelby C.

Supreme Court of Appeals of West Virginia

September 13, 2019

State of West Virginia, Plaintiff Below, Respondent
Shelby C., Defendant Below, Petitioner

          (Harrison County 17-F-103-1)


         Petitioner Shelby C., by counsel Bryan D. Church, appeals the Circuit Court of Harrison County's January 22, 2018, order following her convictions of child abuse creating substantial risk of death or serious bodily injury and child abuse resulting in bodily injury.[1] The State, by counsel Holly M. Flanigan, filed a response. On appeal, petitioner alleges that the circuit court erred in excluding evidence of abuse of the minor victim's sibling, not requiring the State to issue a bill of particulars prior to trial, denying her various motions for a judgment of acquittal, and instructing the jury regarding the doctrine of principal in the second/aider and abettor.

         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.

         On July 7, 2016, petitioner transported her then three-year-old son, D.H., to the emergency room at United Hospital Center in Bridgeport, West Virginia, for an issue with the child's penis and a facial rash. Petitioner's boyfriend and mother accompanied petitioner and the child to the hospital. Nurse Andrew Grogg was the first medical provider to examine the child. The child's injuries included a petechial rash to his face and neck; significant bruising to his neck, jawline, and face; swelling around his eyes; a cough commonly associated with strangulation; severe bruises on the inside and outside of his ears; significant and symmetrical bruising to his thighs; and severe bruising and swelling to his penis and groin area. According to petitioner, the child had what she believed to be an erection for approximately two days and she suggested the swelling could have been caused by a hair being wrapped around the child's penis. Petitioner reported that the only accident the child had in the preceding days was a fall from a swing. Petitioner explained that the child had not been vomiting or coughing, and she had no explanation for the petechial rash other than he had "little red dots" on his face and was "paler than usual" when he awoke from his nap that day.

         Later, at trial, Mr. Grogg testified that the child's injuries suggested that an amount of pressure was applied to the child's neck and lower jaw. Mr. Grogg also explained that petechial rashes are rare in children and are caused by an increase in venous pressure. He also explained that activities such as strangulation, severe and prolonged coughing, "horrendous vomiting," and a "sleeper hold" amongst wrestlers can cause a petechial rash. No such illnesses or wrestling moves were reported by petitioner to explain the child's injuries. Because of the "fingertip-like" bruising to the child's neck, face, and jaw, and the petechial rash, Mr. Grogg suspected child abuse and consulted with Nurse Practitioner John Huber. Once Mr. Huber examined the child, he immediately suspected child abuse and later testified at trial that "[i]t's not normal to see petechiae on a child." After Mr. Huber examined the child, Child Protective Services ("CPS") was notified. Dr. Stuart Godwin examined the child and also suspected child abuse. Dr. Godwin noted that the bruising around the child's face, eyes, chest, shoulders, and neck were at various stages of healing, which indicated that the injuries were nonaccidental. The medical professionals ordered testing to rule out possible medical causes for the child's injuries. Blood work, IV fluids, x-rays, urinalysis, and other physical examinations ruled out medical causes for the bruising, petechiae, and injured penis, and revealed that the child's jaw was dislocated.

         CPS worker Caryn Woofter responded to the call from the medical professionals on July 7, 2016. Mr. Grogg reported to her that the child's injuries were not consistent with explanations from petitioner and her boyfriend. Ms. Woofter then went to the child's hospital room and asked petitioner for permission to see the injuries. At that time, petitioner's boyfriend became irate, hostile, and verbally aggressive. Ms. Woofter turned on the light in the hospital room and immediately noticed the bruises to the child's neck, jawline, and legs, and saw red "pock marks" on the child's face. Petitioner and her boyfriend told Ms. Woofter that the bruises were from the child "face planting" off a swing at the playground. The Department of Health and Human Resources later took emergency custody of the child after determining that the child had been in the sole custody of petitioner and her boyfriend.

         Sergeant Dixon Pruitt of the Harrison County Sheriff's Department arrived at the hospital during the early morning hours on July 8, 2016, in response to the hospital's report of suspected child abuse. Mr. Grogg informed Sergeant Pruitt that petitioner's explanation for the child's bruising was that the child fell off of a swing, but the bruises were inconsistent with that type of injury. While still in the hospital under observation, the child's appearance changed. The medical professionals explained at trial that the child's bruises grew darker and more prominent under their watch, however, the swelling under the child's eyes and the petechial rash reduced. Because the bruises were changing over time, Mr. Grogg and Mr. Huber felt it was crucial to photograph the injuries. When the medical professionals asked petitioner and her boyfriend for permission to photograph the child's injuries, petitioner and her boyfriend "screamed" and "yelled." Petitioner's boyfriend became hostile and immediately instructed petitioner that it was her right to refuse to allow photographs, which petitioner then did.

         On July 11, 2016, Sergeant Pruitt interviewed petitioner at the sheriff's department. Chief Deputy Pat McCarty of the Harrison County Sheriff's Department was in a separate room and watched the interview. According to Chief Deputy McCarty, petitioner's interview made "absolutely no sense. She was changing her story. It was-she would change it if Sergeant Pruitt said this doesn't match up, she would change her story." According to the law enforcement officers, petitioner gave a variety of explanations for the child's injuries, including that she tickled the child's thighs, the child fell on a slide, the child fell off a bed and struck the nightstand, the child held his breath, the child fell off a swing, and that a hair wrapped around the child's penis. She repeatedly denied intentionally causing any injuries to the child and denied that her boyfriend harmed the child. Petitioner's boyfriend initially agreed to speak with the law enforcement officers, but after receiving a Miranda[2] warning, he refused to answer questions and left the police station.

         The Harrison County Grand Jury indicted petitioner in May of 2017. Petitioner was indicted for the following felony offenses: child abuse creating substantial risk of death or serious bodily injury in violation of West Virginia Code § 61-8D-3(c); conspiracy to commit child abuse creating substantial risk of death or serious bodily injury in violation of West Virginia Code § 61-8D-3(c) and West Virginia Code § 61-10-31; strangulation in violation of West Virginia Code § 61-2-9d; child abuse resulting in bodily injury in violation of West Virginia Code § 61-8D-3(a); and conspiracy to commit child abuse resulting in bodily injury in violation of West Virginia Code § 61-8D-3(a) and West Virginia Code § 61-10-31. Prior to trial, petitioner moved the circuit court to direct the State to file a bill of particulars, which the circuit court denied.

         Petitioner's jury trial commenced on November 6, 2017, and continued until November 12, 2017. In regard to when the child was injured, the child's grandparents and petitioner both testified that the child did not have any injuries on July 4, 2016. Further, testimony established that petitioner and her boyfriend were the sole caregivers of the child after the July 4, 2016, celebration until they took the child to the hospital on July 7, 2016. In fact, petitioner testified that she was the only person who cared for the child for approximately thirty hours prior to taking the child to the emergency room. Medical testimony established that the child's injuries occurred just before his admission to the hospital on July 7, 2016. According to the medical professionals, the presence and dissipation of petechiae, which generally disappear within twenty-four hours, and the bruising that darkened during the initial hours in the emergency room indicated to Dr. Paul Davis that there "was a very recent traumatic event, prior to-just prior to his coming to the hospital." Mr. Huber likewise testified that the petechiae "had to be fairly fresh . . . it would have to be within a few hours." Concerning the injury to the child's penis, medical testimony established that the injury occurred one or two days prior to the child's admission to the hospital. The medical professionals refuted petitioner's theories that the child had an erection or that a hair caused the injury to the child's penis and explained that someone without medical training should have been able to differentiate between an erection and a bruised, injured penis.

         Furthermore, both the medical professionals and law enforcement testified at trial that it was highly unusual for a parent to refuse to allow photographs to document injuries to her child. Chief Deputy McCarty became involved in the case after petitioner and her boyfriend refused to allow photographs to be taken of the child. Chief Deputy McCarty applied for and obtained a warrant authorizing the photographs of the child. He testified at trial that he saw "the hand mark on [the child's] face. The bruises on one side, the bruises on the other . . . I recognized it as it appeared to be a hand. You've got a thumb on one side, you've got fingers on the other." Dr. Paul Davis, the child's physician, also testified that the bruises on the child's cheeks were consistent with a person grabbing his cheeks. Dr. Davis further explained that he could not "conceive of an injury to the penis that wasn't it being grabbed." According to Dr. Davis, someone inflicted the injuries on the child. Mr. Huber testified that the abuse that the child suffered could have caused substantial health problems, or even death. Mr. Huber's testimony also refuted the possibility that tickling, prolonged tickling, playful pinching over a period of time, swings, or diapers caused the child's bruising.

         Following the presentation of testimony, when discussing jury instructions, petitioner objected to the circuit court instructing the jury regarding principal in the second/aider and abettor. The circuit court noted petitioner's objection. Petitioner was ultimately convicted of child abuse creating substantial risk of death or serious bodily injury and child abuse resulting in bodily injury. She was acquitted of the charges relating to strangulation and conspiracy. Following the verdict, petitioner filed timely post-trial motions seeking relief in the form of a judgment of acquittal, as well as a new trial, which the circuit court denied. The court suspended the imposition of a sentence and placed petitioner at the Anthony Correctional Center for Youthful Offenders for a period of no less than six months and no more than two years. It is from the circuit court's January 22, 2018, order that petitioner appeals.

         We have previously held as follows:

"In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review." Syl. Pt. 2, Walker v. West Virginia Ethics Comm'n, 201 W.Va. 108, 492 S.E.2d 167 (1997).

         Syl. Pt. 2, State v. Bruffey, 207 W.Va. 267, 531 S.E.2d 332 (2000). Upon our review, we find no error in the circuit court's proceedings.

         First, petitioner argues that the circuit court erred in excluding "any mention of, inquiry into or introduction of evidence" regarding alleged sexual abuse of the minor victim's sibling, G.C. According to petitioner, G.C. revealed during a forensic interview that she had been sexually abused by a friend of a relative in her grandparents' home. Petitioner contends that the evidence was relevant to identifying the actual perpetrator and that its probative value was not substantially outweighed by any danger of unfair prejudice, confusing the issues, or misleading the jury. Specifically, petitioner asserts that the State had "no direct evidence that the [p]etitioner actually caused any harm to the minor victim, that the identity of the perpetrator was a significant issue at trial, [and] the existence of other potential sources of injury to the child is significantly probative." We disagree.

         We review "[a] trial court's evidentiary rulings, as well as its application of the Rules of Evidence, . . . under an abuse of discretion standard." Syl. Pt. 4, in part, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998). "The action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion." Syl. Pt. 10, State v. Huffman, 141 W.Va. 55, 87 ...

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