The opinion
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia,
Plaintiff Below, Respondent FILED
April 10, 2017
vs) No. 16-0047 (Wirt County 14-F-23) RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Paul H.,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Paul H., by counsel Eric K. Powell, appeals the Circuit Court of Wirt County’s
December 14, 2015, order sentencing him to a cumulative prison term of twenty to fifty years
following his conviction for first-degree sexual assault, second-degree sexual assault, and incest.1
The State of West Virginia, by counsel Benjamin F. Yancey III, filed a response in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court (1) violated Rule 404(b)
of the West Virginia Rules of Evidence by admitting evidence of a separate sexual assault
committed by petitioner against his oldest sister, S.H.; and (2) erred in allowing a supervised
psychologist to offer an opinion about whether a sexual assault occurred and to testify to
extrajudicial statements made by the victim.2
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).
2
Petitioner implies in passing that, because he was a minor at the time of alleged prior
sexual assaults, S.H.’s testimony regarding those alleged prior sexual assaults should have been
excluded from evidence. However, petitioner does not raise this contention in a separate
assignment of error; does not cite any legal authority on this issue; and provides little discussion
of the issue other than to state that he was a minor at the relevant times. This Court has
previously cautioned parties that “[a]lthough we liberally construe briefs in determining issues
presented for review, issues which are . . . mentioned only in passing but are not supported with
pertinent authority, are not considered on appeal.” State v. LaRock, 196 W.Va. 294, 302, 470
S.E.2d 613, 621 (1996). We have further explained that “[a] skeletal ‘argument,’ really nothing
more than an assertion, does not preserve a claim[.]” State Dept. of Health and Human Res. v.
Robert Morris N., 195 W.Va. 759, 765, 466 S.E.2d 827, 833 (1995). See also W.Va. R. App.
Proc. 10 (listing requirements for briefs filed with this Court). For those reasons, we decline to
address the admissibility of S.H.’s testimony in this memorandum decision.
1
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 June of 2014, the Grand Jury of Wirt County returned a four-count indictment
charging petitioner with first-degree sexual assault, second-degree sexual assault, third-degree
sexual assault, and incest. The victim in each count was one of petitioner’s younger sisters, K.H.3
Shortly before trial, the State filed a motion, pursuant to Rule 404(b) of the West Virginia
Rules of Evidence, to admit evidence that petitioner sexually abused S.H. in a similar manner to
that of his sexual assault of the victim in the instant case. Prior to trial, the circuit court
conducted a hearing on the State’s 404(b) motion. At that hearing, it was shown that S.H. gave
three statements regarding petitioner sexually assaulting her when she was a child—the first
statement was on May 13, 2015, to police; the second statement was to petitioner’s private
investigator on May 14, 2015; and the third statement was again to police on August 25, 2015. In
line with her third statement in August of 2015, S.H. testified at the hearing that petitioner began
sexually assaulting her when she was six years old. She stated that it continued until she was
twelve years old. At the hearing, S.H. explained that the first time petitioner assaulted her they
were sitting outside when petitioner put his finger in her vagina. She claimed that, some days
later, he forced her to have sexual intercourse for the first time inside their house.
At the pretrial hearing, petitioner’s counsel asked S.H. to explain certain differences
between her testimony (which reflected her August 25, 2015, statement) and her statements in
May of 2015. Petitioner’s counsel cited four reported inconsistencies: (1) that in her May 13,
2015, statement, she claimed to be eight years old when the sexual assaults began, as opposed to
her testimony and August 25, 2015, statement that she was six years old; (2) that in her May 13,
2015, statement, she claimed that the first time petitioner sexually assaulted her they were
outside and “had sex,” whereas in her testimony and August 25, 2015, statement, she claimed
that the first time was outside and he put his finger in her vagina; (3) that in her May 13, 2015,
statement, she claimed that the last time petitioner sexually assaulted her, she kicked him and ran
away, whereas in her testimony and August 25, 2015, statement, she claimed that he threw her
on a bed and forced her to have sexual intercourse; and (4) that she told petitioner’s private
investigator on May 14, 2015, that petitioner never touched her. S.H. explained that she was
“scared and excited” during her May statement to police, and her testimony at the hearing was
the accurate version of events. The circuit court granted the State’s 404(b) motion, noting that
S.H.’s testimony was credible and that the evidence demonstrated petitioner’s “lustful
3
It is undisputed that K.H. was also the victim of sexual assaults by a second brother and
her father, both of whom were convicted of related sex crimes.
2
disposition.” The circuit court also noted that a child victim is “unlikely to disclose to the
investigators for the defendant.”
Trial commenced in mid-September of 2015. At trial, the State established that petitioner
began sexually assaulting K.H. between 2008 to 2010 when K.H. was ten or eleven years old and
petitioner was twenty or twenty-one years old. According to the State’s evidence, during that
time, there was an incident in which petitioner trapped K.H. in his bedroom, threw her on his bed
over her protests, forcibly removed her clothes, and engaged in vaginal intercourse with her. The
sexual assaults reportedly occurred three or four times per month for some time.
K.H. eventually disclosed these sexual assaults to authorities, and the West Virginia State
Police investigated. During its investigation, the West Virginia State Police interviewed S.H. on
the two occasions noted above. S.H. testified at trial that petitioner sexually assaulted/abused her
regularly when she was a child. S.H. claimed that petitioner digitally penetrated her; forced her
to engage in vaginal intercourse; and, on one occasion, “stuck an air compressor nozzle in me”
and then activated the compressed air, which “really hurt.”
Sandra Walls, a supervised psychologist working under the supervision of Dr. Timothy
Saar, also testified at trial. Ms. Walls stated that she has a bachelor’s degree and a master’s
degree in psychology and was approved by the West Virginia Board of Examiners for
Psychologists to practice psychology under supervision of an independently licensed
psychologist. According to Ms. Walls, the victim was referred to Dr. Saar’s office for a “general
psychological evaluation for treatment purposes to determine diagnosis and provide treatment
recommendations.” As part of the evaluation, Ms. Walls interviewed the victim. Ms. Walls
explained that the victim told her during their interview that she was “raped by her brother and
forced to perform oral sex on him.” Petitioner objected to Ms. Walls testimony about the
victim’s statement as inadmissible hearsay because Ms. Walls conducted a forensic interview.
Ms. Walls noted that she accidentally included the word “forensic” evaluation in her written
report, but she claimed that the word “forensic” was inadvertently included in the written report
as an oversight in the editing process. Ms. Walls maintained that her evaluation of K.H. was
therapeutic and not forensic in nature.
Ms. Walls testified that K.H.’s symptoms, including “the depression, the withdrawal, the
intrusive thoughts, [and] the avoidance,” are consistent with a child who has been subjected to
sexual assault. Over petitioner’s objection, Ms. Walls further testified that, in her opinion, the
victim was sexually assaulted. The State also introduced the testimony of Dr. Joan Phillips, a
pediatrician specializing in child abuse and neglect. Dr. Phillips testified that a physical
examination of the victim showed evidence of penetration by sexual contact or trauma and
supported the victim’s claims of sexual assault.
At the conclusion of trial, petitioner was found guilty of first-degree sexual assault,
second-degree sexual assault, and incest. In December of 2015, the circuit court held a
sentencing hearing. At the conclusion of that hearing, by order entered on December 14, 2015,
the circuit court sentenced petitioner to a cumulative prison term of twenty to fifty years. This
appeal followed.
3
We have previously held as follows:
“In reviewing challenges to findings and rulings made by a circuit court,
we apply a two-pronged deferential standard of review. We review the rulings of
the circuit court concerning a new trial and its conclusion as to the existence of
reversible error under an abuse of discretion standard, and we review the circuit
court’s underlying factual findings under a clearly erroneous standard. Questions
of law are subject to a de novo review.” Syl. Pt. 3, State v. Vance, 207 W.Va. 640,
535 S.E.2d 484 (2000).
Syl. Pt. 1, State v. Blevins, 231 W.Va. 135, 744 S.E.2d 245 (2013). We further held that “[a] trial
court’s evidentiary rulings, as well as its application of the Rules of Evidence, are subject to a
review under an abuse of discretion standard.” Syl. Pt. 1, State v. Varlas, 237 W.Va. 399, 787
S.E.2d 670 (2016) (citing Syl. Pt. 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469
(1998)). Indeed, “[t]he action of a trial court in admitting or excluding evidence in the exercise of
its discretion will not be disturbed by the appellate court unless it appears that such action
amounts to an abuse of discretion.” Syl. Pt. 10, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541
(1955), overruled on other grounds by State ex rel. R.L. v. Bedell, 192 W.Va. 435, 452 S.E.2d
893 (1994).
On appeal, petitioner first argues that the circuit court violated Rule 404(b) by admitting
evidence that he previously sexually assaulted S.H. West Virginia Rule of Evidence 404(b)
provides, in part:
(1) Prohibited uses. Evidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character. (2) . . . This evidence
may be admissible for another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.
Moreover, evidence of a defendant’s sexual assault of a child on a different occasion may be
admitted to prove his/her lustful disposition towards children. As we have held:
Collateral acts or crimes may be introduced in cases involving child sexual
assault or sexual abuse victims to show the perpetrator had a lustful disposition
towards the victim, a lustful disposition towards children generally, or a lustful
disposition to specific other children provided such evidence relates to incidents
reasonably close in time to the incident(s) giving rise to the indictment.
Syl. Pt. 2, in part, State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990).
Challenges to the admission of evidence pursuant to Rule 404(b) is subject to the
following standard of review:
4
The standard of review for a trial court’s admission of evidence pursuant
to Rule 404(b) involves a three-step analysis. First, we review for clear error the
trial court’s factual determination that there is sufficient evidence to show the
other acts occurred. Second, we review de novo whether the trial court correctly
found the evidence was admissible for a legitimate purpose. Third, we review for
an abuse of discretion the trial court’s conclusion that the “other acts” evidence is
more probative than prejudicial under Rule 403.
State v. LaRock, 196 W.Va. 294, 310-11, 470 S.E.2d 613, 629-30 (1996). Moreover,
Our function on this appeal is limited to the inquiry as to whether the trial
court acted in a way that was so arbitrary and irrational that it can be said to have
abused its discretion. In reviewing the admission of Rule 404(b) evidence, we
review it in the light most favorable to the party offering the evidence, . . .
maximizing its probative value and minimizing its prejudicial effect.
State v. McGinnis, 193 W.Va. 147, 159, 455 S.E.2d 516, 528 (1994). “The balancing of
probative value against unfair prejudice is weighed in favor of admissibility[.]” LaRock, 196
W.Va. at 312, 470 S.E.2d at 631.
In this case, contrary to petitioner’s assertion, the State filed a pre-trial motion that
adequately set forth the evidence to be considered under Rule 404(b). Thereafter, the circuit
court held a McGinnis hearing to determine the admissibility of the 404(b) evidence, at which
time counsel for petitioner was permitted to cross-examine S.H. and challenge that evidence.4
The charges in this case related to sexual assaults and incest committed against his sister, a child.
The collateral acts at issue involved petitioner’s sexual assault and incest of S.H., another of his
sisters and also a child at the time of the assaults. At the conclusion of the hearing, the circuit
court found that the evidence of petitioner’s sexual assault and incest committed against S.H.
was credible and demonstrated petitioner’s “lustful disposition.”
Given the clear relation between the collateral acts and the instant charges, we find no
error in the circuit court’s finding. S.H.’s testimony was permissible under Rule 404(b) and this
Court’s holding in Edward Charles L.5 Further, we decline to find S.H.’s testimony incredible.
“An appellate court may not decide the credibility of witnesses or weigh evidence as that is the
4
See McGinnis, 193 W.Va. at 151, 455 S.E.2d at 520, syl. pt. 2 (discussing in camera
hearings on 404(b) evidence).
5
To the extent petitioner argues that S.H. should not have been permitted to testify that
petitioner sexually assaulted her with an air compressor because no like allegation occurred here,
he fails to indicate how and when he objected to that portion of S.H.’s testimony below. See
W.Va. R. app. Proc. 10(c)(7) (permitting this Court to “disregard errors that are not adequately
supported by specific references to the record on appeal[,]”which include “citations that pinpoint
when and how the issues in the assignments of error were presented to the lower tribunal.”).
5
exclusive function and task of the trier of fact.” State v. Guthrie, 194 W.Va. 657, 669 n.9, 461
S.E.2d 163, 175 n.9 (1995). As such, we find no merit to petitioner’s first assignment of error.
Petitioner’s second assignment of error is that the circuit court erred by allowing Ms.
Walls to offer her opinion as to whether the victim was sexually assaulted. Under this assignment
of error (not set forth as a separate ground), petitioner further argues that Ms. Walls presented
inadmissible hearsay testimony by repeating the victim’s statement taken during the evaluation
that she was “raped by her brother and forced to perform oral sex on him.” The sole legal
authority cited by petitioner in his second assignment of error is State v. Pettrey, 209 W.Va. 449,
549 S.E.2d 323 (2001). In Pettrey, two children were sexually abused by their father. At the
father’s trial, a trained play therapist was allowed to testify to statements made by the children
during therapy sessions about the sexual abuse. The children in Pettrey did not testify. The father
was convicted, and he appealed to this Court on the ground that the play therapist’s testimony
was inadmissible hearsay. This Court affirmed the conviction on the theory that the play
therapist’s testimony fell under the medical treatment or diagnosis exception to the hearsay rule.
Having reviewed the record, the parties’ arguments, and pertinent legal authority, we find Pettrey
to be inapposite to the case at bar.
As to Ms. Walls’ opinion testimony, we find that Pettrey has no factual or legal relation
to petitioner’s arguments. This Court in Pettrey did not analyze the opinion testimony of an
expert. Rather, we find that Rule 702 of the West Virginia Rules of Evidence and this Court’s
holding in Edward Charles L. apply to Ms. Walls’s opinion testimony. Rule 702 provides that “a
witness qualified as an expert by knowledge, skill, experience, training, or education may testify
thereto in the form of an opinion or otherwise.” In affirming the admission of the opinion
testimony of a psychological expert, we have held as follows:
4. The following [is] . . . not excluded by the hearsay rule, even though the
declarant is available as a witness: . . . (4) Statements for Purposes of Medical
Diagnosis or Treatment. Statements made for purposes of medical diagnosis or
treatment and describing medical history, or past or present symptoms, pain, or
sensations, or the inception or general character of the cause or external source
thereof insofar as reasonably pertinent to diagnosis or treatment.
....
7. Expert psychological testimony is permissible in cases involving
incidents of child sexual abuse and an expert may state an opinion as to whether
the child comports with the psychological and behavioral profile of a child sexual
abuse victim, and may offer an opinion based on objective findings that the child
has been sexually abused. Such an expert may not give an opinion as to whether
he personally believes the child, nor an opinion as to whether the sexual assault
was committed by the defendant, as these would improperly and prejudicially
invade the province of the jury.
Edward Charles L., 183 W.Va. at 641, 398 S.E.2d at 123, syl. pts. 4 & 7.
6
In this case, Ms. Walls was qualified as an expert in the fields of psychology and clinical
psychology without objection.6 Moreover, although petitioner argues that Ms. Walls’ evaluation
of the victim was not “treatment[,]” we disagree. Ms. Walls specifically testified that the
Department of Health and Human Resources requested a “general psychological evaluation for
treatment purposes to determine diagnosis and provide treatment recommendations.” Therefore,
the evidence clearly supports a finding that Ms. Walls’ evaluation was for diagnostic and
treatment purposes.
As a psychological expert who evaluated the victim in this case for diagnostic and
treatment purposes, Ms. Walls was permitted to offer her opinion based on the evaluation “as to
whether the [victim] comport[ed] with the psychological and behavioral profile of a child sexual
assault victim” and “on objective findings that the [victim] has been sexually abused.” Ms. Walls
testified that her opinion was made to a reasonable degree of psychological certainty, and she did
not offer her opinion as to who committed the sexual assault. Given the significant discretion
afforded to circuit courts in evidentiary matters and Ms. Walls’ qualification as a psychological
expert, we find no merit to petitioner’s argument.
As to petitioner’s hearsay argument, we again find his reliance on Pettrey to be
misplaced. The facts of Pettrey are distinguishable from the facts of this case. In Pettrey, this
Court narrowly reviewed whether “the testimony of a therapist who treats child abuse clients
with play therapy should not be recognized under the [medical diagnosis or treatment] exception
[to the hearsay rule]. This is the issue we must resolve.” Pettrey, 209 W.Va. at 458, 549 S.E.2d at
332. Petitioner’s case does not involve “a therapist who treats child abuse clients with play
therapy[.]”
Rather, we again find that Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123, controls.
In Edward Charles L., a victim’s mother was permitted to testify about statements made by her
son that implicated the defendant in criminal conduct. The son also testified at the trial and was
available for cross-examination. In affirming the conviction, this Court held that the mother’s
testimony was admissible under West Virginia Rule of Evidence 803(24)—now located in Rule
807—the catch-all exception to the hearsay rule. Edward Charles L., 183 W.Va. at 657, 398
S.E.2d at 139. This Court explained that “[i]t is extremely important to recognize that in the
defendant’s trial, each child was present, testified in court, and was cross-examined by defense
counsel. Furthermore, neither the mother nor the psychologist added anything substantive to the
children’s testimony.” Id. at 656, 398 S.E.2d at 138. As in Edward Charles L., the victim in this
case testified and was available for cross-examination, and Ms. Walls’ testimony about the
6
While petitioner objected to the admission of certain portions of Ms. Walls’ testimony
based on her credentials, petitioner does not claim to have objected to her qualification as an
expert in psychology. Moreover, petitioner does not assign error to her qualification as an expert
in psychology.
7
victim’s statement did not “add[] anything substantive to the [victim’s] testimony.”7
Consequently, we find no error in the admission of Ms. Walls’ testimony.
For the foregoing reasons, the circuit court’s December 14, 2015, sentencing order is
hereby affirmed.
Affirmed.
ISSUED: April 10, 2017
CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
7
We note, as we did in Edward Charles L., that “[w]hen a child witness is present to
testify, however, it would generally seem to be a better practice not to permit [another witness] to
testify as to the child’s extrajudicial statements unless such testimony clearly falls into one of the
hearsay exceptions. But it is harmless when, viewed in the spectrum of all the evidence, it creates
no prejudice to the defendant.” Edward Charles L., 183 W.Va. at 656, 398 S.E.2d at 138.
8