### STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

FILED State of West Virginia, Plaintiff Below, Respondent 

### May 14, 2018

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS vs.) No. 17-0550 (Marion County 16-F-161)
OF WEST VIRGINIA
Robert T., Defendant Below, Petitioner



### MEMORANDUM DECISION

Petitioner Robert T., by counsel Christ opher M. Wilson, appe als the May 18, 2017, sentencing order of the Circuit Court of Mari on County following his conviction of multiple sex
crimes. 1 The State of West Virginia (“the State”), by counsel Scott E. Johnson, filed a response in support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred by not considering the totality of the circumstances when determining whether his inculpatory statements to the police were voluntarily made.

The Court has considered the parties’ briefs and the record on appe al. 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 affi rming the circuit court’s order is appropriate under Rule 21
of the Rules of A ppellate Procedure.

In October of 2016, petitioner was charged with two counts of first-degree sexual assault; three counts of sexual abuse by a parent, guardian, custodian, or pe rson in a position of trust; and one count of first-degree sexual abuse. The State alleged that petitioner ma de inappropriate sexual contact with the minor child, K.L ., while petitioner was living with the child and her mother. Later that same month, the State filed a “Motion to Dete rmine Admissibility of Evidence” that related to petitioner’s recorded inculpatory statem ent taken by the investigating officer.

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).

1The circuit court held an evidentiary hearing on the St ate’s motion in December of 2016. The investigating officer testified that he went to petitioner’s home and requested that petitioner come to the police detachment to provide a statement. Petitioner acted upset, denied the allegations, and then refused to come to the stati on. Petitioner indicated that he would speak to the officer on the porch where they stood. Th e officer orally gave petitioner his Miranda 2 warnings and petitioner gave an oral statement. This firs t interaction was not recorded because he did not expect petitioner to give a statement while at the home and did not have his digital recording device on his person. During the statement, pe titioner threatened self-harm and he placed petitioner under arrest to ensure petitioner’s safet y, as well as the safety of others. The officer testified that he placed petitione r in his police car and turned on his digital recording device. The officer then informed petitioner of his Miranda rights again, but petitione r interrupted by stating that he knew his rights. Nevertheless , the officer reread petitioner the Miranda rights in full. (This interaction is plainly heard in th e recording.) Petitioner made further inculpatory statements. At no point did petitioner ask for an attorney or request that the interrogation end. The officer’s testimony was supported by th e audio recording of pe titioner’s statement in the police cruiser. Petitioner offered no testimony or evidence in opposition to the State’s motion.

In January of 2017, the circuit court entered an order finding that petitioner’s recorded inculpatory statements were voluntarily given and that the Miranda warnings were properly
administered. Pursuant to the circuit court’s ruling, the recorded statement was played during petitioner’s jury trial. The jury convicted petitio ner of all six counts. In a May 18, 2017, order, the circuit court sentenced petitioner to 25 to 100 years for each of hi s convictions of first-degree sexual assault as contained in Count 1 and 2; 10 to 20 years for his conviction of sexual abuse by a parent, guardian, custodian, or person in a position of trust as contained in Count 3; 10 to 20 years for his conviction of sexual abuse by a parent, guardian, custodian, or person in a position of trust as contained in Count 4; 10 to 20 years for hi s conviction of sexual abuse by a parent, guardian, custodian, or person in a position of trust as contained in Count 5; and 5 to 25 years for his conviction of first-degree sexual abuse as contained in Count 6. The circuit court ordered that
Counts 1 and 3 be served conc urrently; that Counts 2 and 4 be served concurrently, but consecutive to Counts 1 and 3; and that Counts 5 a nd 6 be served concurrently, but consecutive to
Counts 1 and 3 and Counts 2 and 4. Petit ioner now appeals that order.

This Court has held that “[a] trial cour t’s decision regarding the voluntariness of a
confession will not be disturbed unl ess it is plainly wrong or clea rly against the weight of the evidence.” Syl. Pt. 3, State v. Vance , 162 W.Va. 467, 250 S.E.2d 146 (1978). More recently, we
held:
This Court is constitutionally obligated to give plenary, independent, and de

novo review to the ultimate question of whet her a particular conf ession is voluntary and whether the lower court applied the correct legal standard in making its determination. The holdings of prior West Virginia cases suggesting deference in this area continue, but that deference is limited to factual findings as opposed to legal conclusions.

2 Miranda v. Arizona , 384 U.S. 436 (1966).

2Syl. Pt. 2, State v. Farley , 192 W.Va. 247, 452 S.E.2d 50 (1994).

On appeal, petitioner argues th at the circuit court erred in finding that his confession was voluntarily given because th e circuit court did not c onsider the totality of the circumstances at the time the confession was given. Spec ifically, petitioner argues that the circuit court should have considered his state of mind, his background, and his lack of experience with law enforcement, yet the circuit court made no specific factual findi ngs regarding those factors. This Court has previously held that “[i]n circ umstances where a trial court adm its a confession without making specific findings as to the totality of the circumstances, the admission of the confession will nevertheless be upheld on appeal, but only if a reasonable review of the evidence clearly supports
voluntariness.” Id , 192 W.Va. at 250, 452 S.E.2d at 53, Syl. Pt. 3.

Having fully reviewed the record on appeal, we conclude that the circuit court’s finding that petitioner’s statement was voluntarily given was not plainly wrong or clearly against the weight of the evidence.

This Court has held that

[t]he burden is on the State to prove by a preponderance of the evidence that extrajudicial inculpatory statements were made voluntarily before the statements can be admitted into evidence against one charged with or suspected of the
commission of a crime. Absent a knowi ng and intelligent waiver of the Fifth Amendment right against se lf-incrimination, a statemen t made by a suspect during in-custody interrogation is inadmissible. Even when a suspect has made a valid waiver, an inculpatory statement is in admissible if it appears it was made involuntarily. Whether such a statement was voluntary or the result of coercive police activity is a legal question to be dete rmined from a review of the totality of
the circumstances.

State v. Bradshaw , 193 W.Va. 519, 527, 457 S.E.2d 456, 464 ( 1995) (citations omitted). “In examining the totality of the circumstances, a [cir cuit court] must consider a myriad of factors, including the defendant’s age, intelligence, back ground and experience with the criminal justice system, the purpose and the flagrancy of any poli ce misconduct, and the length of the interview.”
Id

.
In petitioner’s case, it is clear from the record that his inculpatory statements were voluntarily made. Petitioner was read his Miranda rights before he gave a statement to the officer, and there is no assertion in the record that pe titioner ever attempted to enforce those rights. Additionally, in petitioner’s audio statement, he inte rrupts the officer as the Miranda rights are given, stating that he already know s his rights. Nevertheless, the o fficer repeated the rights before he began questioning. Following the recitation of the Miranda rights, the officer asked petitioner simple questions in a non-threat ening manner and without promises of leniency or coercion. The recording reveals that petitioner answered the questions calmly.

Petitioner argues that his thre ats self-harm before his reco rded confessions should have

3been considered in the totality of the circumstan ces regarding the voluntariness of his statements. We reject this claim given that petitioner did not c ontinue to threaten himself or others, he did not act irrationally during the interv iew and he did not appear ups et when answering questions. Moreover, the officer testified that it is co mmon for suspects to threaten self-harm when confronted with allegati ons of sexual nature. Accordingly, peti tioner’s actions indi cate he was of sufficiently sound mind to provi de a voluntary statement.

Petitioner also argues that hi s background and inexperience with the police should have
been considered in the circum stances surrounding petitioner’s inculpatory statements. However, no evidence was presented on this issu e in the record or on appeal to consider in the totality of the circumstances. We refuse to speculate on wh at petitioner’s background and experience may be. Accordingly, we find that the circuit court’s fi nding that petitioner’s statement was voluntarily given was not plainly wrong or clearly ag ainst the weight of the evidence.

Accordingly, for the foregoing reasons, we affirm the circuit court’s May 18, 2017, final sentencing order.

Affirmed.

ISSUED : May 14, 2018

CONCURRED IN BY :

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum Justice Allen H. Loughry II
Justice Elizabeth D. Walker

4