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State v. Richard F.

Supreme Court of Appeals of West Virginia

January 13, 2020

State of West Virginia, Plaintiff Below, Respondent
v.
Richard F., Defendant Below, Petitioner

          Marion County CC-24-2014-F-34

          MEMORANDUM DECISION

         Petitioner Richard F., [1] by counsel Sara B. Hall, appeals his conviction in the Circuit Court of Marion County on two counts of sexual abuse by a parent, guardian, or custodian under West Virginia Code § 61-8D-5.[2] Respondent State of West Virginia, by counsel Elizabeth Grant, 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.

         On February 4, 2014, a grand jury indicted petitioner on five counts of sexual abuse by a parent, guardian, or custodian under West Virginia Code § 61-8D-5. The victim, A.H., was a close friend of petitioner's daughters and spent significant time, including overnights, at petitioner's house. The indictment alleged that the crimes occurred between January 1, 2003, and March 14, 2006.

         On March 16, 2016, two weeks before petitioner's trial, the State discovered Facebook messages between petitioner and A.H. that it wished to admit during its case-in-chief. The messages documented petitioner's offer to give A.H. $5, 000 to help her pay for college. The State immediately disclosed the messages to petitioner's counsel and then supplemented its exhibit list. At a subsequent pretrial hearing, petitioner did not object to the messages, nor did he move for a continuance due to the timing of the disclosure of the messages.

         Petitioner's trial commenced on March 30, 2016. Following jury selection, petitioner objected to the admission of the Facebook messages on the ground that the State disclosed the messages two weeks prior to trial and that authentication of the messages would be impossible. The circuit court asked petitioner's counsel why he had not objected to the Facebook messages at the pre-trial hearing. The circuit court then ruled that it would allow the messages if the State properly authenticated them.[3] However, the circuit court gave petitioner's counsel the option of continuing the trial until the next term of court. Petitioner's counsel did not request a continuance.

         During its case-in-chief, the State called A.H. who was then twenty-four years old. A.H. testified that petitioner first abused her when she was about nine years old. She said that the abuse occurred when she and petitioner were sitting alone together. Petitioner gave her a foot rub and then slid his hands underneath her bra and touched her breasts. Petitioner also slid his hands down her pants, held onto the sides of her underwear, and asked what kind of underwear she was wearing. A.H. further testified that, thereafter, whenever she spent the night at petitioner's house with petitioner's daughters, petitioner would approach her while she was sleeping, touch her vagina with his fingers, and insert his fingers into her vagina. A.H. testified this happened so many times, she "lost count." A.H. testified that when she was fourteen years old, she told a school counselor about the abuse, and the counselor referred the case to Child Protective Services ("CPS"). The police and a CPS worker interviewed A.H.; however, petitioner was neither arrested nor charged with any crimes.

         A.H. further testified that in 2010, when she was eighteen years old, she messaged petitioner on Facebook, and later met with him face to face. She testified that she told petitioner that his actions hurt her and that petitioner apologized. She also testified that petitioner "started to tell [her] the things he was thinking when he was doing what he did to me. About how developed I was. How pretty I was." A.H. said she "couldn't handle it so she turned and left."

         A.H. then testified that she reported the abuse again in 2012 to West Virginia State Police Trooper Horne. The Trooper investigated the case, but explained to A.H. that it would be difficult to prove given that the crimes allegedly occurred between 2003 and 2006. In response, A.H. suggested she meet petitioner in person while wearing a recording device in an attempt to gather evidence. A.H. then messaged petitioner via Facebook and arranged to meet him at a local park on May 16, 2012. At the meeting, A.H. was equipped with audio and visual recording equipment provided by the police, and she recorded her discussion with petitioner.

         At trial, the State played the recording of A.H. and petitioner's May 16, 2012, meeting for the jury. The recording reveals the following: Initially, A.H. told petitioner she hoped to move to New York to study music, but that the school was very expensive. Petitioner responded with a joke about having his checkbook with him and writing out a check for the money she needed to go to school. After some general discussion, A.H. broached the subject of petitioner's sexual abuse and asked "why me?" Petitioner replied, "why you, why did we have the relationship we did?" Petitioner then labeled his interaction with A.H. as "abuse" and said it was "impulsive" and "the wrong thing." A.H. inquired, "did you ever stop and think I shouldn't do this to her?" Petitioner responded, "yes, but not at that moment." Petitioner ultimately confessed: "Yea. I did. I touched you." Petitioner also offered that if A.H. wanted to "blow off steam" she could contact him and call him a "raper [sic], child abuser, destroyer of my life." Petitioner also said, "you got me by the cojones"; you could "put me in prison." A.H. concluded her testimony on direct by stating that petitioner's sexual abuse caused her to suffer from post-traumatic stress disorder and anxiety, that she did not like to touch other people or to have other people touch her, and that she has difficulty in trusting people and in building relationships.

         Finally, the State entered evidence through A.H. that, following the recorded meeting between A.H. and petitioner, petitioner via Facebook messages offered to give A.H. $5, 000 to help her pay for college.

         On cross-examination, petitioner sought to admit through A.H. more than seven[4] of A.H.'s recent Facebook and Instagram social media posts, including photographs, that A.H. posted nine years after petitioner's last alleged instance of abuse. In some of the photographs, A.H. is alone; in one photograph, A.H. is kissing her boyfriend; and, in another photograph, she is face-to-face with a male friend. Petitioner's counsel argued that the photographs constituted prior inconsistent statements regarding A.H.'s claim that she did not like to touch other people or to have other people touch her, and that she had difficulty in trusting people and in building relationships. The State objected on relevance grounds. The circuit court examined the posts under Rule 608 (oath/affirmation to testify truthfully) and Rule 613 (witness's prior statement) of the West Virginia Rules of Evidence, but did not set forth its reasoning in limiting the number of social media posts to seven. Petitioner's counsel then published the seven photographs to the jury as he questioned A.H. about each of them.

         During petitioner's case-in-chief, his counsel called Trooper Horne to testify. Petitioner also testified on his own behalf. Petitioner denied sexually abusing A.H., but testified that he had given A.H. foot massages. He also admitted apologizing to A.H. when they met in 2012, but said he was apologizing for the foot massages and that he believed A.H. was referencing the foot massages during their recorded May 16, 2012, conversation.

         On April 1, 2016, the jury convicted petitioner of two counts of sexual abuse by a parent, guardian, or custodian. By order entered October 14, 2016, the trial court sentenced petitioner to ten to twenty years in prison on each count, with the sentences to run consecutively. The circuit court ...


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