STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

In re: D.M. FILED 

November 22, 2017 

No. 16-0947 (Barbour County 16-JD-1) EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner D.M., by counsel George J. Cosenza, appeals the Circuit Court of Barbour 

County’s September 27, 2016, order sentencing him to a term of commitment until the age of 

twenty-one for his first degree sexual assault conviction.1 The State, by counsel David A. 

Stackpole, filed a response and a supplemental appendix. On appeal, petitioner argues that the 

circuit court erred in denying his motion for a mistrial and abused its discretion by committing 

him to a juvenile detention facility. 

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 January of 2016, the State filed a juvenile criminal petition against petitioner, then age 

fourteen, alleging that he sexually abused two younger children. According to the petition, in 

March of 2015 and May of 2015, petitioner provided babysitting services for P.W. and D.W. 

While providing babysitting services, petitioner forced P.W. to perform oral sex on him. After 

the sexual assault, petitioner sent the children’s mother, B.W., a message on Facebook asking her 

to forgive him for “everything he had done to P.W.” and stated that he “hoped that [she] could 

forgive him.” The children’s mother telephoned the police department to report the sexual assault 

of P.W. Following a police investigation by Sergeant Brad Miller (“Sergeant Miller”) and 

forensic interviews of the children, petitioner was charged with four counts of first degree sexual 

assault and two counts of first degree sexual abuse. 

In August of 2016, petitioner’s jury trial commenced. At trial, the State asked Sergeant 

Miller on direct exam if he attempted to obtain a statement from petitioner. Petitioner’s counsel 

immediately objected to the State’s line of questioning and moved the circuit court for a mistrial, 

as follows: 

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). 

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The State:	 Did you attempt to get a statement from 

[petitioner]? 

Sergeant Miller:	 On September – 

Petitioner’s Counsel:	 Objection. 

The Circuit Court:	 Just a second. Come Forward. 

Petitioner’s Counsel:	 Motion for mistrial. 

The State:	 The answer was going to be no, he didn’t get a 

statement from him. 

The Circuit Court:	 It’s against the rules. You cannot even inquire. The 

problem is if you do this then he’s going to be 

sitting in a detention center for months. 

The circuit court then called the State, petitioner, petitioner’s mother, and petitioner’s 

counsel into chambers. 

The Circuit Court:	 This is in chambers on the record. Mr. Curry, you 

have just asked for a mistrial as a result of [the 

State’s] inquiry that goes to the 5th amendment 

privilege. 

Petitioner’s Counsel:	 I have no choice. 

The Circuit Court:	 Well, here’s what I want to explain, first of all, to 

[petitioner] and his mother. Ms. Elkins crossed over 

the boundary line here in asking about whether 

[petitioner] made a statement. That’s totally off 

limits. It’s basically against the rules, and 

[petitioner] is entitled to a mistrial as a result. Now 

the problem is that [petitioner] will be sitting in 

detention for several more months while we wait to 

do this all over again. And I understand it puts you 

between a rock and a hard place. . . . It forces you to 

make a decision whether you basically exercise 

your right or, because he is in detention . . . . Now, I 

can go out and attempt to explain to the jury that the 

question crossed the limits . . . And [The State] has 

absolutely no right to even ask that question. If you 

want a few minutes to discuss it or consider it, I will 

allow you to do that. 

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Petitioner’s Counsel:	 You know, now that – I would advise against 

waiving this. 

The circuit court granted petitioner’s motion for a mistrial, but allowed petitioner and his 

counsel a five-minute recess to discuss how they wished to proceed. At the conclusion of this 

recess, petitioner and his counsel informed the court as follows: 

Petitioner’s Counsel:	 Well, we’re going to waive. Okay, I’ve talked to 

[petitioner]. [H]e wants to go on, his mother wants 

to go on. They have determined to disregard my 

advice, which is to take the mistrial. . . . 

Petitioner:	 I just want to get it over with. Honestly, I’ve been 

stressed for the last six months and I don’t want to 

be stressed no more. 

The Circuit Court:	 If you want a mistrial, I will grant a mistrial because 

it was inadmissible. 

Petitioner:	 Yes sir. I don’t want a mistrial, sir. I just want to get 

this over with. 

The Circuit Court:	 Then let’s go back and we’ll get started. 

Thereafter, the victim, P.W., and petitioner both testified at the trial. Petitioner denied 

that he sexually assaulted the victim and that he sent the Facebook message to the victim’s 

mother. The jury found petitioner guilty of one count of first degree sexual assault. Petitioner 

moved to set aside the jury’s verdict. 

In September of 2016, the circuit court held a dispositional hearing to consider 

petitioner’s motion to set aside the jury’s verdict. The circuit court denied petitioner’s motion 

based on his previous waiver of his right to a mistrial. The State recommended that petitioner be 

placed in a juvenile detention facility because of the severity of his crime and that a suitable 

alternative placement was not available because of community safety concerns. Petitioner’s 

therapist testified as to petitioner’s long history of psychological and emotional problems. At the 

close of the evidence, the circuit court found that 

[t]he best interests of the juvenile and the welfare of the public make the 

commitment of the juvenile to the Department of Juvenile Services (“DJS”) for 

placement in secured detention appropriate, as no less restrictive alternative than 

commitment to secured detention will accomplish the juvenile’s rehabilitation and 

will meet his needs. 

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The circuit court also found that a diagnostic evaluation would not be “helpful” because 

petitioner refused to accept responsibility for his actions. Ultimately, the circuit court committed 

petitioner to the DJS until the age of twenty-one, by order dated September 27, 2016. It is from 

the sentencing order that petitioner appeals. 

The Court has previously established the following standard of review: 

The standard of review with regard to a circuit court’s sentencing order or 

disposition under [West Virginia] Code, 49-5-13 (2002) [now West Virginia Code 

§ 49-4714 (2015)], is whether the circuit court’s ruling constitutes an abuse of 

discretion. State v. Kirk N., 214 W.Va. 730, 741, 591 S.E.2d 288, 299 (2003), 

quoting State ex rel. D.D.H. v. Dostert, 165 W.Va. 448, 471, 269 S.E.2d 401, 416 

(1980), (“discretionary” rulings of circuit courts at the dispositional stage in 

juvenile cases “should only be reversed where they are not supported by the 

evidence or are wrong as a matter of law”); In the Interest of Thomas L., 204 

W.Va. 501, 504, 513 S.E.2d 908, 911 (1998), (disposition in juvenile case held to 

be within the circuit court’s “sound discretion”); State ex rel. Department of 

Health and Human Resources v. Frazier, 198 W.Va. 678, 683, 482 S.E.2d 663, 

668 (1996), (circuit courts are “vested with discretion to select the appropriate 

disposition for a particular juvenile”). 

State v. Kenneth Y., 217 W.Va. 167, 170, 617 S.E.2d 517, 520 (2005). Upon our review, we find 

no error in the circuit court’s ruling below. 

Simply put, petitioner has provided no support for his assertion that the circuit court erred 

in this case. Contrary to petitioner’s argument on appeal, the circuit court did not deny his 

motion for a mistrial; instead petitioner made a knowing and intelligent waiver of his right to a 

mistrial. “An accused may, by declaration and conduct, waive a fundamental right protected by 

the Constitution, but it must be demonstrated that the waiver was made knowingly and 

intelligently.” State v. Eden, 163 W.Va. 370, 378, 256 S.E.2d 868, 873 (1979). “The remedial 

doctrines of knowing and intelligent waiver and harmless error are firmly established by statute, 

court rule and decisions as salutary aspects of the criminal law of this State.” Syl. Pt. 4, State v. 

Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975). 

It is clear from the record on appeal that the circuit court recognized the State’s inquiry 

into Sergeant Miller’s attempt to obtain petitioner’s statement was not appropriate and the basis 

for a mistrial. The court communicated to petitioner the same, advised him that he was entitled to 

a mistrial, and that it would grant a mistrial if petitioner so desired. Petitioner was afforded time 

to consult with both his counsel and his mother. Ultimately, petitioner decided to waive his right 

to a mistrial, against the advice of his counsel. Petitioner clearly stated that he did not want the 

circuit court to grant the mistrial because he wanted to get the trial “over with” and did not want 

to prolong the trial process any further. Following petitioner’s waiver, the circuit court instructed 

the jury to disregard the State’s question and response regarding petitioner’s right to remain 

silent. 

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Petitioner’s sole argument regarding waiver is his claim that this Court held in State ex 

rel. J.M. v. Taylor, 166 W.Va. 511, 276 S.E.2d 199 (1981), that a juvenile can never waive any 

right without the agreement of counsel. In Taylor, three juveniles waived their respective rights 

to counsel, without first having been advised by counsel. We held that a juvenile cannot waive 

any constitutional rights unless the waiver is 

secured with counsel, guardian, parent or interested adult present. An interested, 

friendly adult is supposed to protect an infant from governmental coercion or 

pressure and to allow someone capable of understanding the nature and 

consequences of the waiver to help in the decision and to protect the child from 

inaccurate accounts of his statements at proceedings in which waiver is made. 

Id. at 166 W.Va. at 517, 276 S.E.2d at 202. Thus, Taylor holds that, before a juvenile can waive 

the right to counsel, he must first be afforded the advice of counsel. Petitioner argues that the 

holding in Taylor is that a juvenile can never waive any right unless his/her counsel agrees to the 

waiver. That is simply not true. Here, and in accordance with our ruling in Taylor, petitioner had 

the benefit of the advice of counsel and his mother and chose to move forward with his trial. As 

such, we do not find that the circuit court erred in denying petitioner’s motion for a mistrial. 

Petitioner next argues that the circuit court abused its discretion by committing petitioner 

to a juvenile detention facility because it was required to have him evaluated prior to disposition. 

Petitioner also argues that the circuit court failed to consider alternate dispositions. We disagree. 

Rule 40(b) of the West Virginia Rules of Juvenile Procedure expressly states that the circuit 

court “may order a psychological examination of the juvenile prior to disposition.” As such, the 

rule does not require that an evaluation be done, but rather, places the decision within the sound 

discretion of the circuit court. “As a general rule of statutory construction, the word ‘may’ 

inherently connotes discretion and should be read as conferring both permission and power. The 

Legislature’s use of the word ‘may’ usually renders the referenced act discretionary, rather than 

mandatory, in nature.” Syl. Pt. 1, Pioneer Pipe, Inc. v. Swain, 237 W.Va. 722, 791 S.E.2d 168 

(2016). 

Additionally, there was no need for an evaluation because an evaluation would not have 

changed the outcome of petitioner’s disposition. The State recommended that petitioner be 

committed to a juvenile detention facility and that “due to the severity of the charges [the State] 

would be hard pressed to find somewhere for him to go, and a lot of places would not accept him 

[because of] his charges.” The parties attempted, before the trial, to find a suitable alternative 

placement for petitioner but community safety concerns necessitated detention. Further, 

petitioner refused to accept responsibility for his actions and the circuit court determined that he 

presented a danger to the community. Therefore, we find no error in the circuit court committing 

petitioner to a juvenile detention facility without ordering an evaluation. 

Finally, with regard to potential alternate dispositions, the circuit court made express 

findings that petitioner’s placement in a juvenile detention facility was necessary pursuant to 

West Virginia Code § 49-4-714(a)(5)(A). This Court has provided the factors to be considered 

regarding the disposition of a juvenile: 

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In a juvenile proceeding it is the obligation of a trial court to make a 

record at the dispositional stage when commitment to an industrial school is 

contemplated under [West Virginia] Code, 49-5-13(b)(5) [2012] and where 

incarceration is selected as the disposition, the trial court must set forth his 

reasons for that conclusion. In this regard the court should specifically address the 

following: (1) the danger which the child poses to society; (2) all other less 

restrictive alternatives which have been tried either by the court or by other 

agencies to whom the child was previously directed to avoid formal juvenile 

proceedings; (3) the child’s background with particular regard to whether there 

are pre-determining factors such as acute poverty, parental abuse, learning 

disabilities, physical impairments, or any other discrete, causative factors which 

can be corrected by the State or other social service agencies in an environment 

less restrictive than an industrial school; (4) whether the child is amenable to 

rehabilitation outside an industrial school, and if not, why not; (5) whether the 

dual goals of deterrence and juvenile responsibility can be achieved in some 

setting less restrictive than an industrial school and if not, why not; (6) whether 

the child is suffering from no recognizable, treatable determining force and 

therefore is entitled to punishment; (7) whether the child appears willing to 

cooperate with the suggested program of rehabilitation; and, (8) whether the child 

is so uncooperative or so ungovernable that no program of rehabilitation will be 

successful without the coercion inherent in a secure facility.” 

Syl. Pt. 5, State v. J.S., 233 W.Va. 198, 757 S.E.2d 622 (2014). The circuit court considered the 

relevant factors. Specifically, the circuit court considered petitioner’s failure to accept 

responsibility for his actions, the possibility for petitioner’s rehabilitation, the severity of his 

crime, his long history of psychological and emotional problems, the recommendation for 

placement, and the danger petitioner posed to the community. Based on these facts, the circuit 

court determined that detention was the appropriate disposition for petitioner. Accordingly, we 

find no error below. 

For the foregoing reasons, the circuit court’s September 27, 2016, sentencing order is 

hereby affirmed. 

Affirmed. 

ISSUED: November 22, 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 

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