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State v. Patrick S.

Supreme Court of Appeals of West Virginia

November 4, 2019

State of West Virginia, Plaintiff Below, Respondent
v.
Patrick S., Defendant Below, Petitioner

          Berkeley County 17-F-228

          MEMORANDUM DECISION

         In these consolidated appeals, Petitioner Patrick S.,[1] by counsel Kevin D. Mills and Shawn R. McDermott, appeals his February 16, 2018, conviction of one count of sexual abuse by a parent, guardian, or custodian (No. 18-0522), and the October 19, 2018, order that sentenced him to ten to twenty years in prison, plus forty years of extended supervision and placement on the sex offender registry for his crime (No. 18-0937). The State of West Virginia, by counsel Shannon F. Kiser, filed a response in support of the circuit court's order.

         The 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 February of 2015, petitioner, petitioner's wife S.L., and S.L.'s two daughters from another marriage were living with petitioner in his mother and father's basement.

         On February 28, 2015, S.L. called the sheriff's department to report a sexual assault against her then-eight-year-old daughter, Z.V., which allegedly occurred on the evening of February 27, 2015. In a statement to Dep. J.M. Whitehead of the Berkeley County Sheriff's Office, S.L. reported that she saw petitioner and Z.V. kissing "while using their tongues" as Z.V. lay on her bed. S.L. also reported that Z.V. used a stuffed animal to show where petitioner had touched her in the past. That same day, Dep. Whitehead interviewed petitioner, who denied S.L.'s allegations and claimed he was just kissing Z.V. goodnight. Following the interview, Dep. Whitehead scheduled a Child Advocacy Center ("CAC") interview for Z.V. and executed a search warrant at petitioner's residence. There, Dep. Whitehead seized electronic devices including a Trak phone, sex toys, some items of clothing, and bed sheets. Finally, Dep. Whitehead obtained DNA samples from petitioner, S.L., and Z.V. that he sent to the State Police Laboratory for forensic testing. Also that day, Z.V. was interviewed at the CAC. During the interview, Z.V. claimed (1) petitioner intruded on her vagina and anus with his penis and sex toys on multiple occasions; (2) the assaults occurred as recently as the previous week and while her mother was in the shower or at a doctor's appointment; and (3) petitioner had taken pictures and videos of these acts with his cell phone.

         On March 2, 2015, the police arrested petitioner and charged him with one count of first-degree sexual assault. Thereafter, Cynthia Leahy, a sexual assault nurse evaluator, examined Z.V.

         At an April 27, 2015, preliminary hearing, the State called Dep. Whitehead who testified that, on February 28, 2015, S.L. told him she saw petitioner kissing Z.V. with his tongue, and Z.V. told him that petitioner took pictures of her while he abused her. Following Dep. Whitehead's testimony, the magistrate court continued the hearing and ordered the State to produce the video recording of the CAC interview. Petitioner claims the State refused to comply with the order and, instead, presented petitioner's case to a grand jury on October 29, 2015. The resulting indictment charged petitioner with eighteen counts: six counts of sexual assault in the first degree, six counts of incest, and six counts of sexual abuse by a parent or guardian. The indictment alleged petitioner (1) touched Z.V.'s vagina with his tongue, (2) touched Z.V.'s anus with his tongue, (3) touched Z.V.'s anus with a sex toy; (4) touched Z.V.'s vagina with a sex toy; and (5) had Z.V. touch his anus with a sex toy.

         The State disclosed to petitioner that the West Virginia State Police Forensic Laboratory found no seminal fluid or DNA on any of Z.V.'s clothing or sheets, and that Z.V.'s DNA was absent from the sex toys, although the sex toys did contain DNA from both petitioner and S.L. The State also disclosed the following text messages sent between petitioner and S.L. during the early morning hours of February 28, 2015:

S.L.: Yeah. I'm just sitting here wondering what the F[--]K I'm going to do.
Petitioner: I think my next step is work, then laundry, then call Brooklane or somewhere to see if I can get an appointment to talk to someone.
Petitioner: Still there?
S.L.: Yeah. Sorry. Putting kids to bed.
S.L.: Talk to someone and say what?
Petitioner: No problem.
Petitioner: Say I don't know.
S.L.: What kind of help is this. The family's going through this.
Petitioner: I don't know. I thought they might be a place to ask.
Petitioner: I thought maybe I could get help for me to be a better person.
S.L.: I have no money, no assets, no car. I'm terrified to stay and I'm terrified to go. [Z.V.] needs therapy, though a therapist is going to report you. I still haven't decided if I'm going to report you.
Petitioner: k
S.L.: I can't trust you.
Petitioner: k
S.L.: You lied to me repeatedly.
Petitioner: Yes, I did.
S.L.: We made the home. You [made] the home I've dreamed of crumble to bits.
S.L.: Because why? I really have no idea.
S.L.: All I wanted was a life with you. But that wasn't enough.
Petitioner: I'm sorry.
Petitioner: Not that I think that's enough.
S.L.: This isn't just reckless. It's illegal. Immoral. She trusted you. I trusted you.
Petitioner: I don't know what to do. If you want a divorce, I won't fight you.
S.L.: I just know I can't feel safe with you around her. That's as far as I've gotten and you don't seem to understand why.
Petitioner: I think I understand why.
S.L.: I'm not coming home. I spoke to the police this morning.
S.L.: I'll arrange to get my things too at some point.
Petitioner: Ok.
S.L.: I can't safely do anything else.
Petitioner: Ok.
Petitioner: I expect that the police will be here today.
S.L.: Ok
S.L.: I know they are interested in interviewing you.

         Petitioner and S.L. divorced prior to petitioner's trial. Also prior to the trial, petitioner disclosed evidence of a GoFundMe.com fundraising campaign created by or for S.L. a day or two after she reported petitioner to the police. S.L. later testified that a friend set up the GoFundMe.com campaign for her, that she received about $5, 000 in donations, and that she used the money to obtain housing, household goods, and a used car.

         At an August 15, 2017, pre-trial hearing, petitioner asked the circuit court to preclude the introduction of any statements between himself and S.L., including the February 28, 2015, text messages cited above, based on the marital testimonial privilege. The State countered that the text messages did not fall within the blanket testimonial privilege because petitioner and S.L. were no longer married. The State also claimed that, by statute, it could introduce the messages in a criminal prosecution for the sexual abuse of a child. Petitioner also moved the court (1) to remand the case for a preliminary hearing; (2) to disclose the grand jury proceedings so he could investigate whether the grand jury was misled regarding spousal communications or had relied upon evidence from DNA testing that had not been resolved when the grand jury met; (3) to require the State to disclose all forensic reports and all evidence subject to Brady v. Maryland, 373 U.S. 83 (1963), including any contradictory statements made by Z.V.; (4) to suppress evidence seized from his residence; and (5) for the particularization of his indictment.

         The State sought a ruling on the admissibility of statements made by Z.V. to S.L. and Z.V.'s statement during the CAC interview. The State noted that it planned to seek a superseding indictment against petitioner to clarify the charges returned in the first indictment. The State said it intended to use the same evidence it used before, "but essentially elect[ed] through prosecutorial discretion to proceed differently." The State also produced five reports drafted by State Police Sgt. David Boober that contained the results from the forensic testing of the electronic devices seized from petitioner's residence. Regarding petitioner's request that the State disclose any Brady evidence concerning contradictory statements made by Z.V., the State affirmed that it did not have any such evidence; however, it said that if it learned of any such evidence, it would disclose it. The State objected to petitioner's request for the grand jury's transcripts, based on his inability to show that the grand jury was misled.

         By order entered on August 30, 2017, the circuit court granted petitioner's motion for particularization of the indictment, but denied petitioner's motion for remand for a preliminary hearing. Subsequently, the circuit court (1) denied petitioner's motion in limine to preclude the introduction of marital communications; (2) found Z.V.'s statement to her mother and to the CAC interviewer to be admissible; and (3) denied petitioner's motion to disclose the transcripts of the grand jury proceedings. Finally, the circuit court declined to rule on petitioner's motion for disclosure of any Brady evidence based on the State's claim that it did not have any such impeachment evidence.

         On August 31, 2017, a grand jury returned a superseding indictment against petitioner alleging thirty-one counts including seven counts of sexual assault in the first degree; seventeen counts of sexual abuse by a parent, guardian, custodian or person in a position of trust; and ...


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