### STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

State of West Virginia, 

### FILED Plaintiff Below, Respondent 

### October 10, 2018 vs) No. 17-0646 (Harrison County 16-F-140-3) EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA R.M., Defendant Below, Petitioner



### MEMORANDUM DECISION

Petitioner R.M. 1 , by counsel Jason T. Gain and Ryan C. Shreve, appeals the judgment
order of the Circuit Court of Harrison Count y, entered on June 23, 2017, sentencing him to consecutive terms of imprisonment in the West Virg inia State Penitentiary of ten to twenty-five years upon his conviction of second-degree sexual assault and twenty-five to one-hundred years upon his conviction of first-degr ee sexual assault, with the second of those terms to run concurrently with terms of impr isonment of ten to twenty year s for each conviction of five counts of sexual abuse by a parent, guardian, or custodian; five to fifteen years for each
conviction of five counts of in cest; and terms of imprisonment of twenty-five to one hundred years for each of conviction of three additional counts of first-degree sexu al assault. Respondent State of West Virginia app ears by counsel Scott E. Johnson.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affirming the orde r of the circuit cour t is appropriate under Rule 21 of the Rules of Appellate Procedure.

Petitioner was indicted in the Circuit C ourt of Harrison County in 2016 for long-term misconduct against his minor daughter s, K.M. and M.M. Prior to tr ial, petitioner filed a motion in limine seeking to exclude cumulative tes timony. Specifically, he argued that psychologist Tammy Hamner, child advocate Anne Sheehan, inve stigating officer Cpl. Martin Bailey, nurse Margaret Howe-White, and school counselor Jessica McGlumphy—all witn esses identified by the State—and a letter written by K.M., the fore nsic interview of M.M. and K.M., and a “book”

1 Consistent with our long-standing practice in cases with sensitive facts, we use initials where necessary to protect the identiti es 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).

1written by M.M. in the course of treatment, would be used in attempt to bolster M.M.’s and K.M.’s testimony. The circuit court denied that motion.

At trial, the testimony of the w itnesses listed above, together w ith that of the two victims, established that petitioner forced sexual contact, includ ing oral, anal, and vaginal penetration, on his daughters on multiple occasions over several year s. Pertinent to this appeal, defense counsel elicited testimony from Ms. Sheehan that M.M. reported during her interview at the Harrison County Child Advocacy Center that petitioner also sexually abused the girls’ younger brother, A.M., and that he forced at least M.M. to en gage in sexual acts with A.M. However, Ms. Sheehan acknowledged that A.M. denied having been abused by petitioner. M.M. testified after Ms. Sheehan, but she did not testify about abuse involving her brother. Ne vertheless, petitioner sought to impeach her credibility with her report of A.M.’s abuse to Ms. Sheehan during her interview. The circuit court pr ohibited defense counsel from asking M.M. about her reported allegation concerning her brother. No crimes against A.M. were charged in the indictment, and petitioner thus was convicted only of abuse inflicted on his daughters.

Petitioner was sentenced as described above. On appeal, he asserts three assignments of
error. He asserts that the circuit court er red in: (1) excluding “impeachment” evidence of inconsistencies in M.M.’s testimony; (2) deny ing petitioner’s motion in limine to exclude cumulative testimony; and (3) qualifying certa in expert testimony. As we explained in State v.
Guthrie , 205 W. Va. 326, 332, 518 S.E.2d 83, 89 (1999):

“‘Rulings on the admissibility of evidence are largely within a trial court’s
sound discretion and should not be disturbe d unless there has been an abuse of
discretion.’ State v. Louk , 171 W.Va. 639, [643,] 301 S.E.2d 596, 599, (1983).” Syl. pt. 2, State v. Peyatt , 173 W.Va. 317, 315 S.E.2d 574 (1983). However, “to the extent the circuit court’s ruling turns on an interpretation of [the] West Virginia Rules of Evidence , our review is plenary.” State v. Quinn , 200 W.Va. 432, 435, 490 S.E.2d 34, 37 (1997) (citing State v. Sutphin , 195 W.Va. 551, 560, 466 S.E.2d 402, 411 (1995)).

We begin with petitio ner’s first assignment of error, wherein he argue s that he was denied the right to impeach M.M. with her report of A.M.’s abuse. He argues that the circuit court wrongly foreclosed his inquiry because he failed to provide pretrial notice pursuant to Rule 412(c) of the West Virginia Rule s of Evidence. He argues that Rule 412(c) requirements should not have been imposed on him because the evidence he wished to elicit does not fall within the specific prohibitions of Rule 412. 2 We disagree. M.M. reported that she was forced to engage in

2 Rule 412 provides, in part:

(a) Prohibited Uses. The following evidence shal l not be admissible in a civil or criminal proceeding involving alleged sexual misconduct: (1) evidence offered to prove that a vi ctim engaged in other sexual behavior; (2) evidence offered to prove a vi ctim’s sexual predisposition; or (continued . . .)

2sexual relations with her brothe r. Thus, the evidence petitioner sought to introduce directly implicated her sexual history, and it is irrelevant that it was a history that she did not choose. We have applied Rule 412 broadly to protect abuse victims from the disclo sure of prior abuse perpetrated against them. As we have explained:

This evidence strikes at the heart of what Rule 412(a)(1) and Rule 412(a)(3) are designed to prevent fr om being introduced at a trial . See United
States v. Bordeaux , 400 F.3d 548, 558 (8th Cir. 2005)(not ing that “the purpose of [Rule 412(a)] is to protect the alleged vi ctims of sexual assault from harassment or embarrassment”); United States v. Gardner , No. 16-cr-20135, 2016 WL 5404207, at *2 (E.D. Mich. Sept. 28, 2016)(“MV-1 was under 18 in October 2015, and thus qualifies as an underage victim to whom Rule 412’s protections are especially important.”); People v. Arenda , 416 Mich. 1, 13, 330 N.W.2d 814, 818 (1982) (“These children and others ar e the ones who are most likely to be adversely affected by unwarranted and unr easonable cross-examination into these areas. They are among the persons whom th e [rape shield] statute was designed to protect.”). Indeed, in the context of this case “[t]here is nothing more intimate than childhood sexual abuse, and nothing as potentially devastating to a [victim] than to have that abuse public ly exposed.” Andrea A. Curcio , Rule 412 Laid Bare: A Procedural Rule That Cannot Adequatel y Protect Sexual Harassment Plaintiffs from Embarrassing Exposure , 67 U. Cin. L. Rev. 125, 155-56 (1998).

State ex rel. Harvey v. Yoder , 239 W. Va. 781, 785, 806 S.E.2d 437, 441 (2017).

(3) evidence of specific instances of the vi ctim’s sexual conduct, opinion evidence of the victim’s sexual conduct and reputation eviden ce of the victim’s sexual conduct in any prosecution in which the victim’s lack of c onsent is based solely on the incapacity to
consent because such victim was below a criti cal age, mentally defective, or mentally incapacitated. (b) Exceptions. (1) Criminal Cases. The court may admit the following evidence in a criminal case: . . . (C) evidence of specific instances of th e victim’s sexual conduct with persons other than the defendant, opinion evidence of the victim’s sexual conduct and reputation evidence of the victim’s sexual conduct solely for the purpose of impeaching credibility, if the victim first makes his or her previ ous sexual conduct an issue in the trial by introducing evidence with respect thereto; . . . . (c) Procedure to determine admissibility. (1) Motion. If a party intends to offer ev idence under Rule 412(b), the party must: (A) file a motion that specifically describes the evidence and states the purpose for which it is to be offered; (B) do so at least 14 days before trial unless the cour t, for good cause, sets a different time; (C) serve the motion on all parties; and (D) notify the victim or, when appropriate, the victim’s guardian or representative. . . .

3Under the provisions of Rule 412(b) and (c), however, petitioner could have sought the circuit court’s permission to use evidence of M.M.’s earlier report for impeachment purposes. To do so, he was required to file a motion with the c ourt fourteen days before trial “that specifically describe[d] the evidence and state[d] the purpose fo r which it [was] to be offered.” He did not do so. Petitioner argues that he should have be en relieved of this obligation for good cause. Petitioner has not demonstrated good cause. Petitio ner was aware prior to trial that M.M. had reported her brother’s abuse to Ms. Sheehan, and he was aware that A.M. denied to Ms. Sheehan that he was abused. In fact, it was defense counsel who raised the question of M.M.’s report of her brother’s abuse when cross-examining Ms. Sheeh an at trial. Under these circumstances, we
find no error.

We turn to petitioner’s second assignment of error, wherein he argues that the circuit court allowed the State to presen t cumulative evidence. Rule 403 of the West Virginia Rules of Evidence permits a trial court to exclude relevant evidence that is more prejudicial than probative because the evidence constitutes a “needless presen tation of cumulative evidence.” In reviewing
a trial court’s decision to admit or exclude evidence pursuant to Ru le 403, we apply an abuse of
discretion standard:

“The action of a trial court in adm itting or excluding evidence in the
exercise of its discretion will not be disturbed by the appe llate court unless it appears that such action amounts to an abuse of discretion.” Syllabus point 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).

Syl. Pt. 2, State v. Doonan , 220 W. Va. 8, 640 S.E.2d 71 (2006). We disagree that the State’s
evidence from its various witnesses was cumulati ve. K.M. and M.M. were victims of long-term, ongoing sexual abuse, and the investigation of such abuse is multi-faceted a nd sequential. In this case, the victims’ mother testifie d that she became aware of the abuse through a letter written to her by K.M. Her receipt of that letter prompted her to contact the Department of Health and Human Resources, which in turn referred the gi rls to the Child Advocacy Center, where they were interviewed by Ms. Sheehan. Corporal Bailey was present for that interview, and information he gathered there led him to collect medical records that were pertinent to his investigation. K.M.’s letter and each of these witnesses represent a link in the investigation explaining the progression of events. Furthe rmore, the testimony of Ms. McGlumphy (the victim’s school counselor) was brief and relate d no details about the sexual abuse allegations, and the testimony of Ms. Hamner (the child psyc hologist) was offered, as explained below, to
show that the victims exhibited characterist ics common to abuse victims. Ms. Hamner’s testimony was thus unique from that of the fact ual witnesses. Accordi ngly, we find that the
circuit court did not abuse its discretion.

Finally, we address petitioner’s third assignment of error, wherein he argues that the circuit court failed to ensure that the testimony of Ms. Hamner, a child psychologist who testified
that M.M. and K.M. exhibited characteristics common to victims of childhood sexual abuse, was soundly based in accepted scientific methodology. Petitioner argues that Ms. Hamner’s testimony is problematic in that he was denied voir di re concerning the sc ientific methodology

4underlying her opinion. This denial , he argues, is contrary to Gentry v. Mangum , 195 W. Va. 512, 515, 466 S.E.2d 171, 174 (1995). In syllabus point 4 of that case, we held:

When scientific evidence is proffere d, a circuit court in its “gatekeeper”
role under Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Wilt v. Buracker , 191 W.Va. 39, 443 S.E.2d 196 (1993), cert. denied , [511] U.S. [1129], 114 S.Ct. 2137, 128 L.Ed.2d 867 (1994), must engage in a tw o-part analysis in regard to the expert testimony. First, the circuit court must determin e whether the expert testimony reflects scientific knowledge, whet her the findings are derive d by scientific method, and whether the work product amounts to good sc ience. Second, the circuit court must
ensure that the scientif ic testimony is relevant to the task at hand.

We also have held, however:

Expert psychological tes timony 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 beha vioral profile of a child sexual abuse victim, and may offer an opinion based on objective findings that the child has been sexually abused.

Syl. Pt. 7, in part, State v. Edward Charles L. , 183 W. Va. 641, 398 S.E.2d 123 (1990). The State conducted voir dire, and Ms. Hamn er was qualified as an expert in the field of child psychology, particularly with respect to ch ildhood sexual abuse. Ms. Hamner’s demonstrated qualifications, together with our long-held acceptance of expert psychological testimony in these cases, satisfied the presumption that Ms. Hamner had the approp riate knowledge and derive d her opinions from “good science” as required by Gentry

. 3 With respect to the second task, it is apparent that the testimony was relevant. We find that the circuit c ourt met its obligations, a nd there is no error.

3 We note that petitioner did not request a pr etrial hearing to ev aluate the methodology, and that the issue was first raised by counsel during voir dire, after the State assessed Ms. Hamner’s qualifications. At that point, counsel informed the circuit court only that he would “object to her qualifications.” He stated that he did not believe “the proper foundation [was] laid” for Ms. Hamner’s testimony. Because psychol ogical testimony is widely accepted for the purposes it was offered here, thes e circumstances would not prompt the circuit court to go further in its gate-keeping function.

Daubert / Wilt does not advise a circuit cour t as to what circumstances trigger in limine screening pursuant to Rule 104(a) and (c) or the nature of an in
limine hearing. To be clear, we do not suggest that every time an issue of scientific evidence appears in a case, a lengthy in limine hearing should be held. Actually, most scientific validity issues will be re solved under judicial notice pursuant to Rule 201.11. Indeed, most of th e cases in which expert testimony is offered involve only qualified experts disagr eeing about the interpretation of data
that was obtained throu gh standard methodologies. Daubert / Wilt is unlikely to (continued . . .)

5For the foregoing reasons, we affirm.

Affirmed.

ISSUED: October 10, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Paul T. Farrell sit ting by temporary assignment
Justice Tim Armstead
Justice Evan H. Jenkins

Justice Allen H. Loughry II suspended and therefore not participating.

impact upon those cases. Therefore, circuit courts are right to admit or exclude evidence without “reinventing the wheel” every time by requiring parties to put on full proof of the validity or invalidity of scientific princi ples. Where judicial notice is appropriate, the ci rcuit court should use it.

Gentry , 195 W. Va. at 522, 466 S.E.2d at 181.

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