1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia, Plaintiff Below, Respondent

vs.) No. 17-0905 (Ohio County 16-F-49)

Matthew Gates, Defendant Below, Petitioner



### MEMORANDUM DECISION

Petitioner Matthew Gates, by counsel Bren t A. Clyburn, appeals the Circuit Court of Ohio County’s September 18, 2017, order senten cing him following his conviction of seven counts of sexual abuse by a cust odian. Respondent State of West Virginia, by counsel Shannon Frederick Kiser, filed a response. On appeal, pe titioner asserts that impermissible “other acts”

evidence was admitted at trial and that insufficient evidence was adduced to establish that he was

the victim’s “custodian.”

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 affi rming the circuit court’s order is appropriate under Rule 21

of the Rules of A ppellate Procedure.

In October of 2015, law enforcement officer s began an investigation following D.S.’s disclosure of sexual abuse by petitioner. 1 During its investigation, evidence of certain of petitioner’s sexual proclivities came to light. Na mely, petitioner was accused of inserting bottles, cans, and other objects into D.S., a minor, in a fetishistic practice known as “stretching.” The victim’s mother, who previously had been in a c onsensual relationship with petitioner, reported that petitioner practiced this act on her as well. On May 9, 2016, petitioner was indicted on seven counts of sexual abuse by a custodian arising from his abuse of D.S.

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). 

### FILED
November 21, 2018

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 Prior to trial, pursuant to Rule 404(b) of th e West Virginia Rules of Evidence, the State

filed a notice of its inte nt to introduce evidence from the victim ’s mother of petitioner’s insertion of various objects into her orifices for his sexual gratification. 2 The State argued that the “fetish or type of sexual preferences enjoyed by the [peti tioner] is extremely rele vant evidence in light of the allegations made by D.S. in that the type s of sex acts at issue are very unusual.” Following

a McGinnis hearing on December 1, 2016, the circuit court deemed the 404(b) evidence admissible for the limited purpose of establishing petitioner’s identity as the perpetrator of

certain acts described in the indictment. 3

Subsequent to the court’s determination th at the Rule 404(b) evidence was admissible, petitioner proposed stipulating that he had sexual contact with the victim. Petitioner argued that such a stipulation would rende r the evidence concerning the na ture of the sexual encounters

irrelevant. The State indicated it would not enter into such a stipulation, and, on July 5, 2017, the

court found that it could not force the State to do so.

Petitioner’s trial began on July 10, 2017, and lasted four days. Although no stipulation was entered into by the parties, petitioner noneth eless admitted to the sexual conduct charged in the indictment and focused his defense on argui ng that he was not D.S.’s custodian. At the conclusion of the trial, the jury found petitioner gui lty of all seven counts of sexual abuse by a custodian charged in the indictment.

On September 7, 2017, the parties appear ed for sentencing. The court sentenced petitioner to not less than ten nor more than tw enty years for each conviction, and it ordered that the sentences run consecutively for an aggregate se ntence of not less than seventy nor more than one hundred forty years in pris on. The court memorialized thes e rulings in its September 18, 2017, sentencing order, and it is from th is order that petitioner appeals.

Petitioner first argues on appeal that the ci rcuit court erred in permitting the Rule 404(b) evidence when he conceded identity. Petitioner argues that his admission of sexual contact with

the victim rendered evidence of the sex acts in which he engaged with the victim’s mother

2 Rule 404(b) of the West Virginia Rules of Evidence prohibits admission of “[e]vidence of a crime, wrong, or other act . . . to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” But such evidence “may be admissible for another purpose, such as prov ing motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mi stake, or lack of accident.” Id.

3 In State v. McGinnis , 193 W.Va. 147, 455 S.E.2d 516 ( 1994), this Court outlined the steps a circuit court must take to determine the admissibility of evidence under Rule 404(b). Here, while each count in the indictment char ged sexual abuse by a custodian, petitioner was alleged to have used objects in the commission of certain counts. The circuit court noted that during the investigation into petitioner’s crimes, petitioner claimed that D. S. used the objects on

herself.3 irrelevant. Petitioner also argues that he was unfairly prejudiced by the evidence, and that it confused the issues and potentially misled the jury.

We review a circuit court’s decision to ad mit evidence pursuant to Rule 404(b) under an

abuse of discretion standard. State v. McGinnis , 193 W.Va. 147, 159, 455 S.E.2d 516, 528 (1994). “Our function . . . 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.” Id. Further, “we review [the admission of Rule 404( b) evidence] in the light most favorable to the party offering the evidence, . . . maximizing its probative va lue and minimizing its prejudicial effect.” Id.

We find no abuse of discretion in the ci rcuit court’s admission of the Rule 404(b) evidence. The Supreme Court of the United States has noted the “familiar, standard rule that the prosecution is entitled to prove its case by eviden ce of its own choice, or, more exactly, that a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the Government chooses to present it.” Old Chief v. U.S. , 519 U.S. 172, 186-87 (1997). This Court quoted approvingly Old Chief in State v. Harris , 230 W.Va. 717, 742 S.E.2d 133 (2013), in observing the expectations ju rors have in hearing cases. Id. at 722, 742 S.E.2d at 138. Specifically, we agreed that

[p]eople who hear a story interrupted by gaps of abstraction may be puzzled at the missing chapters, and jurors asked to re st a momentous decision on the story’s truth can feel put upon at being asked to take responsibility knowing that more could be said than they have heard. A convincing tale can be told with economy, but when economy becomes a break in the natural sequence of narrative evidence, an assurance that the missing link is really there is never more than second best.

Id. (quoting Old Chief , 519 U.S. at 189). Thus, petitioner’s concession aside, the evidence was

relevant to establish the perpetrator’s identity.

Petitioner also argues that admission of th e mother’s testimony unf airly prejudiced him and “confused the issues and, potentially, misled th e jury.” Aside from his bare assertions of such, however, he offers no explanation of how he was unfairly prejudice d, how the issues were confused, or how the jury was misled. See Syl. Pt. 10, in part, State v. Derr , 192 W.Va. 165, 451 S.E.2d 731 (1994) (“The Rule 403 balancing test is essentially a matter of trial conduct, and the trial court’s discretion will not be overturned absent a showing of clear abuse.”). Indeed, petitioner admitted to the conduct alleged, choosing to focus his defense on arguing he was not D.S.’s custodian. Accordingly, we find no error in the circuit court’s ad mission of the victim’s mother’s testimony.

In petitioner’s final assignment of error, he argues that there was insufficient evidence to

conclude he was the victim’s “custodian.” 4 In support, petitioner assert s that “it could be argued

4 West Virginia Code § 61 -8D-5(a) states that

(continued . . . )4 that the [p]etitioner and D.S.’s mother were roo mmates[,]” that the victim was not in need of a “babysitter,” and that the vict im often “volleyed for control of herself[,]” thereby excluding petitioner as a “custodian.”

The standard applicable to challenges to the sufficiency of the evidence to support a

conviction is well settled:

The function of an appellate court wh en reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is suffi cient to convince a reasonable person of the defendant’s gui lt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewi ng the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.

Syl. Pt. 1, State v. Guthrie , 194 W.Va. 657, 461 S.E.2d 163 (1995). In mounting a challenge to the sufficiency of the evidence, a petitioner

takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light mo st favorable to the prosecution and must credit all inferences and credibility assessm ents that the jury might have drawn in favor of the prosecution. The evidence n eed not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a ju ry and not an appella te court. Finally, a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a

reasonable doubt.

Id. at 663, 461 S.E.2d at 169, Syl. Pt. 3.

West Virginia Code § 61-8D- 1(4) defines “custodian” as

[i]f any parent, guardian or custodian of or other person in a position of trust in

relation to a child under his or her care, custody or cont rol, shall engage in or attempt to engage in sexual exploitati on of, or in sexual intercourse, sexual intrusion or sexual contact with, a child under his or her care, custody or control, notwithstanding the fact that the child ma y have willingly participated in such conduct, or the fact that the child may have consented to such conduct or the fact that the child may have suffered no appa rent physical injury or mental or emotional injury as a result of such conduct, then such parent, guardian, custodian or other person in a position of trust shall be guilty of a felony[.]

(Emphasis added.)5 a person over the age of fourteen y ears who has or shar es actual physical possession or care and custody of a child on a full-time or temporary basis, regardless of whether such person has b een granted custody of the child by any contract, agreement or legal proceeding. “C ustodian” shall also include, but not be limited to, the spouse of a parent, guardi an or custodian, or a person cohabiting with a parent, guardian or custodian in the relationship of husband and wife, where such spouse or other person shares actual physical possession or care and custody of a child with the pare nt, guardian or custodian.

Finally, we have also held that “[t]he questi on of whether a person charged with a crime under West Virginia Code § 61-8D-5 (201 0) is a custodian or person in a position of trust in relation to a child is a question of fact for the jury to determine.” Syl. Pt. 4, State v. Timothy C. , 237 W.Va. 435, 787 S.E.2d 888 (2016) (citation omitted).

At trial, the victim identified petitioner as her “stepfather.” Although petitioner did not marry the victim’s mother and, therefore, was not legally her stepfather, th e victim testified that petitioner was listed as her stepfa ther on school and medical record s. The victim recounted that she lived with petitioner and her mother, and while living with them, petitioner exercised disciplinary authority over the victim, transported her to school and appointments, and assigned her chores. The victim’s mother similarly testifie d that the victim referred to petitioner as her stepfather when speaking with friends and teachers, that petitioner disciplin ed the victim, that he served as the victim’s emergency contact alo ng with the mother, and that petitioner “called himself her stepdad.” Under Guthrie , we find that this evidence wa s sufficient to establish that petitioner was D.S.’s custodian. Accordingly, petitioner is entitled to no relief.

For the foregoing reasons, we affirm the circuit court’s September 18, 2017, sentencing

order.

Affirmed.

ISSUED: November 21, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice Evan H. Jenkins

Justice Paul T. Farrell sit ting by temporary assignment