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State v. Douglas N.

Supreme Court of Appeals of West Virginia

November 8, 2019

State of West Virginia, Plaintiff Below, Respondent,
Douglas N., Defendant Below, Petitioner

          Cabell County 15-F-371


         Petitioner Douglas N., [1] by counsel Jason Goad, appeals the Circuit Court of Cabell County's April 5, 2018, order resentencing him to a cumulative sentence of 65 to 210 years of incarceration following his conviction of multiple sexual crimes. Respondent State of West Virginia, by counsel Caleb A. Ellis, filed a response in support of the circuit court's order. Petitioner filed a reply. On appeal, petitioner argues that the State committed multiple Brady[2]violations and that the circuit court erred in admitting certain text messages into evidence and imposing sentence without obtaining a presentence investigation report.

         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 July of 2007, petitioner took his niece, M.M. ("the victim"), then ten years old, to his ex-wife's home to pick up his daughter. During the drive, petitioner parked the truck in a secluded location, put his hand down the victim's pants and underwear, rubbed her genitals, and inserted a finger into her vagina. Petitioner also put his hand up the victim's shirt and touched her breast. The victim told petitioner to stop, which he eventually did, but not before instructing the victim not to tell her parents about what happened. At the time, the victim "really didn't understand what happened" and, as a result, did not immediately tell anyone about the incident. However, approximately three years later the victim "came to understand . . . what had happened," although due to her embarrassment she again did not immediately tell anyone about petitioner's actions. It wasn't until sometime in 2015 that the victim told her best friend, M.G., about the incident via text message. The victim's friend encouraged her to tell her parents. In March of 2015, the victim ultimately disclosed the incident to her parents, who then reported the incident to the Milton Police Department. Milton police officers contacted the West Virginia State Police, who arranged a forensic interview with the victim.

         During the interview, the victim described petitioner's abuse to Corporal Marlene Moore of the West Virginia State Police. Following the interview, Corporal Moore took pictures of the crime scene and contacted petitioner to schedule a meeting. In April of 2015, petitioner met with Corporal Moore and denied the allegations against him. However, during questioning, Corporal Moore noticed that petitioner was sweating and an artery in his neck was palpitating quickly. After petitioner left, Corporal Moore provided all relevant information to the Cabell County Prosecutor's Office.

         In August of 2015, petitioner was indicted on one count of first-degree sexual assault, two counts of first-degree sexual abuse, and three counts of sexual abuse by a parent, guardian, or custodian. Prior to trial, petitioner filed a motion for a continuance so that he could retain an expert witness and so that the circuit court could review the victim's mental health records in camera. The State responded to the motion with the explanation that it had no basis to believe any of the victim's mental health records would be exculpatory. In July of 2016, the circuit court held a hearing on petitioner's motion, after which it ruled that the State would obtain the records in question so that the court could conduct an in camera review. On July 26, 2016, the sealed records were provided to the circuit court, which ultimately ruled that the records were irrelevant and kept them under seal.

         In August of 2016, one day prior to trial, petitioner filed a motion in limine to exclude questions by the State about a text message petitioner's daughter sent indicating that she lied to Child Protective Services ("CPS") during an investigation that was unrelated to the criminal charges at issue. Because the circuit court ruled that questioning on the issue was relevant to the daughter's character for untruthfulness, the circuit court denied petitioner's motion. The circuit court additionally ruled that to the extent he argued that the text message was taken out of context, petitioner would be in the best position to provide other text messages that would provide the needed context.

         At trial, the State presented testimony from the victim consistent with her allegations to law enforcement. The victim further testified that she attempted to limit her contact with petitioner following the incident and specifically would not go to petitioner's home alone. The State also presented testimony from the victim's best friend, M.G., who corroborated the victim's disclosure via text message. The State further presented testimony from the victim's mother and Corporal Moore and introduced the victim's recorded forensic interview into evidence. Although petitioner did not testify, he presented testimony from two of his children, who both testified that the victim continued to come to their home and interact with petitioner following the incident. During cross-examination of petitioner's daughter, the State asked if the witness sent a text message to her grandmother following an interaction with CPS in which she indicated that she lied to CPS. The daughter confirmed that she sent the text message, but indicated that she did not lie to CPS and, in fact, lied to the grandmother. Ultimately, petitioner was convicted of all six counts.

         In August of 2016, the circuit court held a sentencing hearing prior to the completion of the presentence investigation report. The circuit court sentenced petitioner to the following terms of incarceration: 25 to 100 years for his conviction of first-degree sexual assault; 5 to 25 years for each of his convictions of first-degree sexual abuse; and 10 to 20 years for each of his convictions of sexual abuse by a parent, guardian, or custodian. The circuit court ordered petitioner's sentences to be served consecutively. The circuit court also imposed fifty years of supervised release and registration as a sex offender upon petitioner's release from incarceration. At the time the circuit court imposed this sentence, it specifically ordered "that this matter be placed on the docket of the 20th day of September, 2016, . . . for Reconsideration of Sentence" and directed the probation department to complete a "Post-Sentence Investigation" prior to the hearing. The circuit court also directed that petitioner be evaluated for home incarceration. Thereafter, the circuit court held a hearing in December of 2016 to reconsider petitioner's sentence, by which point the postsentence investigation report had been completed. The circuit court ultimately imposed the same sentences. In April of 2018, the circuit court re-entered its sentencing order for purposes of this appeal. It is from the order resentencing petitioner that he appeals.

         In his first assignment of error, petitioner alleges that the State committed two Brady violations during the proceedings below.[3] Specifically, petitioner alleges that the State violated the requirements of Brady by its failure to provide him medical records from the victim's past treatment with a counselor and in failing to obtain text messages between the victim and her best friend. On this issue, the Court has previously held as follows:

There are three components of a constitutional due process violation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982): (1) the evidence at issue must be favorable to the defendant as exculpatory or impeachment evidence; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the evidence must have been material, i.e., it must have prejudiced the defense at trial.

Syl. Pt. 2, State v. Youngblood, 221 W.Va. 20, 650 S.E.2d 119 (2007).

         In regard to the first argument, we note that no Brady violation occurred because the State obtained the relevant records and provided them to the circuit court for review, pursuant to this Court's prior instructions. In fact, petitioner admits that, upon motion, his counsel was permitted to inspect the records at issue. It is true that this Court has held that "Rule 16(a)(1)(D) of the West Virginia Rules of Criminal Procedure allows discovery of all results or reports of physical or mental examinations which are material to the defense or are to be used as evidence in the prosecution's case-in-chief." Syl. Pt. 1, State v. Roy, 194 W.Va. 276, 460 S.E.2d 277 (1995). However, the Court went on to instruct that

[t]he public policy consideration which underlies the statutes preventing disclosure of confidential information held by counselors, social workers, psychologists, and/or psychiatrists is to enhance communications and effective treatment and diagnosis by protecting the patient/client from the embarrassment and humiliation that might be caused by the disclosure of information imparted during the course of consultation. Considering the existence and strength of these protections established by the Legislature, the only issue left for a trial court is whether a criminal defendant is entitled to ...

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