Berkeley County 17-F-228
these consolidated appeals, Petitioner Patrick
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
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.
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.
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.
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
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.
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.
S.L.: I can't trust you.
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
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
S.L.: I'll arrange to get my things too at some
S.L.: I can't safely do anything else.
Petitioner: I expect that the police will be here
S.L.: I know they are interested in interviewing
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
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.
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.
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.
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 ...