Richard F.,  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. Respondent State
of West Virginia, by counsel Elizabeth Grant, filed a
response in support of the circuit court's order.
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 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.
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.
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. 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.
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.
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
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.
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.
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.
cross-examination, petitioner sought to admit through A.H.
more than seven 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.
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.
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