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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2010 Term
STATE OF WEST VIRGINIA,
JESSICA JANE M.,
Appeal from the Circuit Court of Ohio County
The Honorable James P. Mazzone, Judge
Criminal Action No. 08-F-17
Submitted: September 8, 2010
Filed: September 16, 2010
Michael C. Alberty, Esquire
Gail W. Kahle, Esquire
Alberty Law Office Jenna Perkins Wood, Esquire
Wheeling, West Virginia Ohio County Prosecutors Office
Attorney for Appellant
Attorneys for Appellee
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. Pursuant to Crawford v. Washington
, 541 U.S. 36, 124 S.Ct. 1354,
158 L.Ed.2d 177 (2004), the Confrontation Clause contained within the Sixth
Amendment to the United States Constitution
and Section 14 of Article III of the West
bars the admission of a testimonial statement by a witness who does
not appear at trial, unless the witness is unavailable to testify and the accused had a prior
opportunity to cross-examine the witness. Syllabus Point 6, State v. Mechling
W.Va. 366, 633 S.E.2d 311 (2006).
2. A defendant who wishes to cross-examine an alleged victim of a
sexual offense about or otherwise introduce evidence about other statements that the
alleged victim has made about being the victim of sexual misconduct must initially
present evidence regarding the statements to the court out of the presence of the jury and
with fair notice to the prosecution, which presentation may in the court's discretion be
limited to proffer, affidavit, or other method that properly protects both the rights of the
defendant and the alleged victim and effectuates the purpose of our rape shield law, W.Va. Code,
§ 61-8B-11  and West Virginia Rules of Evidence
Syllabus Point 3, State v. Quinn
, 200 W.Va. 432, 490 S.E.2d 34 (1997).
3. Requiring strong and substantial proof of the actual falsity of an
alleged victim's other statements is necessary to reasonably minimize the possibility that
evidence which is within the scope of our rape shield law W.Va. Code,
§ 61-8B-11 
and West Virginia Rules of Evidence
404(a)(3), is not erroneously considered
outside of its scope. Syllabus Point 2, State v. Quinn
, 200 W.Va. 432, 490 S.E.2d 34
4. 'The question of the competency of a witness to testify is left
largely to the discretion of the trial court and its judgment will not be disturbed unless
shown to have been plainly abused resulting in manifest error.' Syllabus Point 8, State v.
, 157 W.Va. 1036, 207 S.E.2d 174 (1974). Syllabus Point 10, State v. Pettrey
209 W.Va. 449, 549 S.E.2d 323 (2001).
5. Prosecutorial disqualification can be divided into two major
categories. The first is where the prosecutor has had some attorney-client relationship
with the parties involved whereby he obtained privileged information that may be adverse
to the defendant's interest in regard to the pending criminal charges. A second category
is where the prosecutor has some direct personal interest arising from animosity, a
financial interest, kinship, or close friendship such that his objectivity and impartiality are
called into question. Syllabus Point 1, Nicholas v. Sammons
, 178 W.Va. 631, 363 S.E.2d
This is an appeal of a January 14, 2009, final order from the Circuit Court
of Ohio County sentencing the defendant/appellant Jessica Jane M. (See footnote 1)
M. or defendant) to serve not less than 101 years, nor more than 235 years in the state
penitentiary upon being convicted of three counts of first degree sexual assault, four
counts of sexual abuse by a parent, three counts of incest, and one count of conspiracy.
The defendant asserts that the trial court committed reversible error by (1) allowing the
State to introduce hearsay statements the alleged victim made to her foster mother; (2)
incorrectly applying our rape shield law by prohibiting the defendant from asking the
alleged nine-year-old victim: How many different men did you have sex with?; (3)
denying defense counsel's request to inquire as to the alleged victim's competency to
testify at trial; and (4) denying defendant's motion to disqualify the Ohio County
Prosecuting Attorney's Office due to previous contact between the defendant and certain
members of the prosecutor's office in a separate matter.
After thorough review of the briefs, the legal authority cited and the record
presented for consideration, we find that the circuit court committed no reversible error
and therefore affirm the judgment of conviction and sentencing order.
Facts & Background
The charges against the defendant stem from allegations made by her
daughter, R.M. R.M. was born on December 28, 1998, and resided with her mother until
February 28, 2006, when she and her two younger siblings were removed from her
mother's residence due to allegations of abuse and neglect unrelated to the sexual abuse
allegations that form the basis of this appeal.
R.M. and her siblings were placed in the foster home of Sally Keefer in
August 2006. (See footnote 2)
A month after the children moved into her house, Sally Keefer observed
R.M. french kissing her 18 month-old younger brother and engaging in other overt
sexual conduct that she considered abnormal behavior for a seven-year old child. During
October and November 2006, R.M. told Ms. Keefer that she had been sexually abused by
her mother and her mother's boyfriend, Jack Jones (See footnote 3)
, prior to being removed from her
mother's house. Sally Keefer recorded these disclosures in a journal, contacted a DHHR
(Department of Health and Human Resources) worker and requested that R.M. receive
therapy to deal with this abuse.
R.M. also reported these sexual abuse allegations to Michelle Hogan, the
CPS (Child Protective Services) worker assigned to handle her case. Ms. Hogan made an
audio recording of an interview she conducted with R.M. in which R.M. described being
sexually abused by her mother and her mother's boyfriend, Jack Jones. (See footnote 4)
Following these sexual abuse disclosures, R.M. underwent a physical
examination and a forensic interview on November 7, 2006. Dr. Joan Phillips performed
the physical examination and determined that a portion of R.M.'s hymen was totally
gone, which is abnormal, and further testified that the absence of the hymen is
considered clear evidence of a penetrating trauma.
Maureen Runyon, a social worker who has worked exclusively with
sexually abused children for the last eleven years, conducted the forensic interview.
While R.M. denied the sexual abuse allegations during this interview, Ms. Runyon
concluded that based on the . . . behavior and statements that she's made . . . I felt like
there had been some type of inappropriate sexual activity. In preparation for trial, Ms.
Runyon reviewed R.M.'s history of sexual abuse disclosures and found them to be
credible because of R.M.'s advanced sexual knowledge and the sensory details she
provided. Ms. Runyon stated:
[S]he also describes, again, what we call sensory details. She
can tell you what it feels like. She can't know what it feels
like to have a penis inside of her from watching it on TV. At
one point she describes the ejaculation as being wet and
sticky. Again, that's a sensory detail that tells me she had to
have experienced that to be able to describe it in the type of
detail that she does.
R.M. saw a psychologist, Dr. Sara Wyer, approximately twenty times
beginning in the fall of 2006 and continuing through 2007. R.M. repeated the same
allegations of being sexually abused by her mother and Jack Jones to Dr. Wyer. Dr. Wyer
testified that she found R.M.'s disclosures to be credible primarily based on the fact that
she gave very detailed sensory descriptives. What things tasted like, looked like, felt like
. . . I felt that she had had direct experience with that.
Based on these sexual abuse allegations, an Ohio County grand jury
returned a 14-count indictment against Jessica M. on January 14, 2008. This indictment
included one count of felony conspiracy in violation of W.Va. Code § 61-10-31, four
counts of felony sexual assault in the first degree in violation of W.Va. Code § 61-8B-
3(a)(2), five counts of felony sexual abuse by a parent or custodian in violation of W.Va.
Code § 61-8D-5(a), and four counts of felony incest in violation of W.Va. Code § 61-8-
The defendant's trial began on October 8, 2008, and lasted for three days.
R.M. testified at the trial, stating that her mother held her down while Jack Jones raped
her. R.M. also testified that her mother put her fingers inside of her vagina, made R.M.
touch her breast, performed oral sex on R.M., and made R.M. perform oral sex on her.
The State called a number of witnesses who corroborated R.M.'s testimony
including R.M.'s foster mother, Sally Keefer; R.M.'s CPS worker, Michelle Hogan; Dr.
Phillips, whose physical findings showed clear evidence of a penetrating trauma;
Maureen Runyon who conducted the forensic interview, reviewed R.M.'s history of
sexual abuse disclosures and testified that she found R.M.'s allegations to be credible;
and Dr. Sara Wyer, a psychologist who treated R.M. and found her allegations to be
The State also called Connie Roy, a Licensed Professional Clinical
Counselor at a residential treatment facility where R.M. spent five months receiving
treatment. (See footnote 5)
Both Ms. Roy and a physician employed at the facility diagnosed R.M. with
post-traumatic stress disorder, chronic, and sexual abuse of child, focus on victim. Ms.
Roy testified that the post-traumatic stress disorder was a result of the sexual abuse R.M.
suffered. Ms. Roy further testified that R.M.'s behavior and the manner in which she
made the sexual abuse disclosures were consistent with that of a child who has been
At the close of the State's case, the defendant moved for a directed verdict
of acquittal on all fourteen counts in the indictment. The court dismissed counts five, ten,
and fourteen of the indictment (See footnote 6)
and denied the defendant's motion as to the remaining
The defendant's case consisted of three witnesses. Jessica M. testified on
her own behalf and denied the allegations her daughter made against her, stating that she
never sexually abused her daughter and would not allow anyone else to sexually abuse her
daughter. The defendant next called Dr. Michael Crabtree, an expert in psychology who
testified that R.M.'s accusations were not credible and that the defendant did not fit the
profile of a sex offender. The defendant's final witness was Dr. David Mosman, a
pediatrician in Wheeling, West Virginia, who treated R.M. for a sore throat in November
2004. He testified that he only saw R.M. on one occasion and was not aware that R.M.
had been sexually abused. On cross-examination, Dr. Mosman testified that he never
performed a pelvic examination on R.M. because he was simply treating her for a sore
The jury convicted the defendant on all eleven counts remaining in the
indictment. On January 14, 2009, the circuit court sentenced the defendant to serve not
less than 101 years, nor more than 235 years in the state penitentiary. The defendant
appeals from this sentencing order.
Standard of Review
Because the issues raised in the instant appeal require the application of
separate and distinct standards of review, we incorporate such standards into our
discussion of the issues to which they pertain.
The defendant raises four issues upon which she asserts the trial court
committed reversible error: (1) allowing the State to introduce hearsay statements the
alleged victim made to her foster mother, thereby violating the defendant's Sixth
Amendment right to confrontation pursuant to Crawford v. Washington, 541 U.S. 36,
(2004); (2) incorrectly applying our rape shield law by prohibiting the defendant from
asking the alleged nine-year-old victim: How many different men did you have sex
with?; (3) denying defense counsel's request to inquire as to the alleged victim's
competency to testify at trial; and (4) denying defendant's motion to disqualify the Ohio
County Prosecuting Attorney's Office due to previous contact between the defendant and
certain members of the prosecutor's office in a separate matter.
The defendant first argues that the trial judge improperly permitted the State
to introduce hearsay statements through the testimony of Sally Keefer, R.M.'s foster
mother, about the sexual abuse disclosures R.M. revealed to her.
When reviewing a challenge to a trial court's admission of evidence, we
apply the following standard of review: '(r)ulings on the admissibility of evidence are
largely within a trial court's sound discretion and should not be disturbed unless there has
been an abuse of discretion.' State v. Louk, 171 W.Va. 639, 643, 301 S.E.2d 596, 599
(1983). Syllabus Point 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983). See
also Syllabus Point 1, State v. Pettrey, 209 W.Va. 449, 549 S.E.2d 323 (2001).
In making a determination whether the testimony in question constitutes
hearsay (See footnote 7)
, we are guided by Syllabus Point 1 of State v. Maynard
, 183 W.Va. 1, 393
S.E.2d 221 (1990), which states:
Generally, out-of-court statements made by someone
other than the declarant while testifying are not admissible
unless: 1) the statement is not being offered for the truth of
the matter asserted, but for some other purpose such as
motive, intent, state-of-mind, identification or reasonableness
of the party's action; 2) the statement is not hearsay under the
rules; or 3) the statement is hearsay but falls within an
exception provided for in the rules.
With these standards in mind, we turn to the defendant's argument. During
direct examination, the State asked R.M.'s foster mother about a November 22, 2006,
journal entry documenting R.M.'s sexual abuse disclosure and she testified as follows:
She was just going on about her business, getting a bath. I
was getting the other two out, drying them off, and she just
looked at me, and said, Sally, can I tell you something? I
said, Yes. She said, Jack did touch my privates.
Defense counsel objected to this testimony, arguing that it was
impermissible hearsay. The trial judge initially agreed and stated that if it was being
offered for the truth of the matter asserted, the objection would be sustained. The State
argued that it should be permitted to show the child's advanced sexual knowledge. The
trial judge agreed with the State and gave the jury the following instruction:
Ladies and gentlemen, please disregard the witness's last
answer. These statements regarding what's in the journal, as I
understand it, are not being offered for the truth of the matter
asserted within the statements.
Based on this ruling, the State continued asking R.M.'s foster mother
questions about the sexual disclosures R.M. made which were recorded in the foster
mother's journal. The trial judge gave defense counsel a continuing objection to these
questions, (See footnote 8)
gave two more instructions to the jury that this testimony was not to be
considered for the truth of the matter asserted and instructed them, (a)s I understand it,
they are being offered to demonstrate sexual knowledge possessed by R.M.
After reviewing the entire record, we conclude that the trial judge did not
abuse his discretion by permitting Sally Keefer to testify regarding R.M.'s sexual abuse
disclosures. In State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990), and State v. James B., Sr., 204 W.Va. 48, 511 S.E.2d 459 (1998), we addressed the
admissibility of statements a child who had allegedly been sexually abused made to their
mother or foster mother. In Edward Charles L., we upheld the admissibility of this kind
of statement under West Virginia Rule of Evidence 803(24), the catch-all exception to the
hearsay rule, stating that:
[T]he mother's testimony was properly admitted at trial by the
lower court, since the children were present to testify and be
cross-examined; the mother added nothing substantive to the
children's direct testimony, and primarily related the child's
statements not to prove the truth of the matter asserted, but to
explain why she took them to the psychologist[.]
Edward Charles L., 183 W.Va. at 657, 398 S.E.2d at 139.
We further determined in Edward Charles L., that the statements comport
to this hearsay exception and the general rules of evidence because they not only meet the
relevancy and probativeness requirements but the fact that the children testified at trial
and were subject to cross-examination ameliorates the real risks of admitting hearsay. Id. 183 W.Va. at 656, 398 S.E.2d at 138.
Similarly, in James B., Sr., we reviewed testimony by a foster mother who
testified about a child being made to perform sexual acts with his biological mother and
stepfather, James B., Sr. This Court determined that the foster mother's testimony was
not hearsay because it was offered not for the truth of the matter asserted, but to explain
why the foster mother contacted the authorities. In James B., Sr., the trial court gave a
limiting instruction to the jury and told them to consider the testimony for that limited
purpose. As in Edward Charles L., one of the main reasons this Court upheld the trial
court's ruling in James B., Sr., was that the child testified at trial, thus ameliorating the
real risk of admitting hearsay.
In the present case, R.M. testified at trial. Consistent with Edward Charles
L., and James B., Sr., this ameliorates the real risk of admitting the alleged hearsay
statements made by R.M.'s foster mother. There was a thorough cross-examination as to
the sexual abuse allegations R.M. made against her mother. We therefore find that the
trial judge did not abuse his discretion by allowing R.M.'s foster mother to testify as to
R.M.'s disclosures of sexual abuse recorded in her journal.
Alleged Crawford Violation
The defendant next argues that her Sixth Amendment right to confrontation
was violated when the State was permitted to ask R.M.'s foster mother about her journal
entries documenting R.M.'s sexual abuse disclosures. In support of her argument, the
defendant relies on Crawford v. Washington, supra.
In Crawford the defendant was convicted of assault. The evidence used to
support the conviction included a tape-recorded incriminating statement given to the
police by the defendant's wife. The defendant's wife did not testify at the trial. The
defendant argued that the statement should not have been admitted because he was not
afforded an opportunity to confront his wife regarding the statement. The trial court
allowed the statement to be introduced. On appeal, the Washington Court of Appeals
reversed on the grounds that the statement was improperly admitted into evidence.
However, the Washington Supreme Court reversed after finding the statement was
The United States Supreme Court agreed to hear the case to determine
whether introduction of the statement violated the defendant's Sixth Amendment right to
witnesses against him. The Supreme Court found that the statement should not
have been allowed into evidence,
stating [t]estimonial statements of
[are admissible] only where the declarant is unavailable, and only where the
defendant has had a prior opportunity to cross-examine. Crawford
, 541 U.S. at 59, 124
S.Ct. at 1369, 158 L.Ed.2d 177. (Emphasis added).
We interpreted Crawford in State v. Mechling, 219 W.Va. 366, 633 S.E.2d
311 (2006), finding:
Pursuant to Crawford v. Washington, 541 U.S. 36, 124
S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Confrontation Clause
contained within the
Sixth Amendment to the United States
Constitution and Section 14 of Article III of the West Virginia
Constitution bars the admission of a testimonial statement by
a witness who does not appear at trial, unless the witness is
unavailable to testify and the accused had a prior opportunity
to cross-examine the witness.
Syllabus Point 6, State v. Mechling, supra. (Emphasis added).
Mechling further explained that only 'testimonial statements' cause the
declarant to be a 'witness' subject to the constraints of the Confrontation Clause. Non-
testimonial statements by an unavailable declarant, on the other hand, are not precluded
from use by the Confrontation Clause. 219 W.Va. at 373, 633 S.E.2d at 318.
In the case sub judice, the defendant argues that the trial court erred by
failing to determine whether the statements recorded in R.M.'s foster mother's journal
were testimonial or non-testimonial. (See footnote 9) The defendant argues that these statements were
testimonial and that her Sixth Amendment right to confront a witness against her was
violated. We disagree. Assuming, as urged by the defendant, that the statements
recorded in the foster mother's journal are testimonial, the defendant's argument fails
because R.M. was the out-of-court declarant and R.M. testified at trial. Crawford and Mechling bar the admission of a testimonial statement by a witness who does not appear
at trial, unless the witness is unavailable to testify and the accused had a prior opportunity
to cross-examine the witness. The defendant's Sixth Amendment right to confront and
cross-examine R.M. was satisfied because she testified and was cross-examined.
acknowledges that R.M. testified at trial, but argues that the
trial judge severely limited her cross-examination of R.M. and would not allow defense
counsel to ask her about the sexual abuse disclosures R.M. made to her foster mother.
The trial judge limited the defendant's cross-examination of R.M. to the areas that were
brought up on direct examination. (See footnote 10) During the State's direct examination of R.M., the
following exchange took place:
State: Okay. You talked to Sally, your foster mom, about these things
that happened to you; right?
Since the State inquired about R.M.'s discussions with her foster mother
during direct examination, the defendant could have asked about these discussions during
cross-examination. We therefore find that the defendant's cross-examination of R.M.
was not substantially limited by the trial judge's ruling confining her to the areas that
were brought up on direct examination.
The defendant's next argument is that the trial court abused its discretion
when it sustained the State's objection to the following question defense counsel posed to
R.M.: How many different men did you have sex with? The trial court determined that
this question was prohibited by West Virginia's rape shield law, which encompasses both W.Va. Code
§ 61-8B-11  (See footnote 11)
and West Virginia Rules of Evidence
404(a)(3) (See footnote 12)
In this opinion we will refer to both the statute and the rule, considered in pari materia
West Virginia's rape shield law.
Our standard of review
when considering a rape shield challenge is twofold.
First, an interpretation of the West Virginia Rules of Evidence presents a question of law
subject to de novo review. Second, a trial court's ruling on the admissibility of testimony
is reviewed for an abuse of discretion, but 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.
Sutphin, 195 W.Va. 551, 560, 466 S.E.2d 402, 411 (1995).
Following the State's objection to the question, How many different men
did you have sex with? , the parties discussed the objection at the bench:
State: This violated - violates the Rape Shield
Statute. There's no - I mean, if he's - there's no reason to ask
this question of this child, and to ask it about men - or how
many she had sex with. There's no evidence in this case that
she has had sexual relations with anyone. Certainly not
consensual. Or whether she's been perpetrated by anyone else
other than her mother. It's not admissible. If there's no
claimed injury for which there has to be identification or a
disease or such - I mean, it is what it is, your Honor.
Defense Counsel: Your Honor, this child, according
to the records the prosecutor's office provided to me, has
named numerous individuals that's had sex with - that raped
State: Your Honor, that's misrepresenting the
Defense Counsel: You just cannot - you just can't
bring a child - you just can't bring a child in here and ask a
series of questions that the answer is yes, yes, yes, and then
say, whoops, I can't probe this. I still contend that this child
may be incompetent to testify. She'd look up while I'm
asking the questions - she's obviously looking to Ms. Wood
State: Oh, my. This has nothing to do with
competency. It has to do with the truthful answers. She's
The Court: The objection is going to be sustained.
You may inquire as to whatever conduct of a sexual nature
she described in her direct testimony.
State: Thank you.
Defense Counsel: I can't go into her grandfather, her
uncle, any of those people?
State: Your honor, the scope of direct.
The Court: You can - the sexual acts that she
testified to on direct.
The defendant alleges that the trial court committed error when it
prohibited defense counsel from soliciting testimony and introducing evidence of the
falsity of R.M.'s other accusations of sexual assault and abuse against different family
members. In Syllabus Point 3 of State v. Quinn, 200 W.Va. 432, 490 S.E.2d 34 (1997),
we set forth the procedure a defendant must follow in order to cross-examine an alleged
sexual assault victim regarding other statements she has made about being the victim of
A defendant who wishes to cross-examine an alleged
victim of a sexual offense about or otherwise introduce
evidence about other statements that the alleged victim has
made about being the victim of sexual misconduct must
initially present evidence regarding the statements to the
court out of the presence of the jury and with fair notice to the
prosecution, which presentation may in the court's discretion
be limited to proffer, affidavit, or other method that properly
protects both the rights of the defendant and the alleged
victim and effectuates the purpose of our rape shield law, W.Va. Code § 61-8B-11  and West Virginia Rules of
In Quinn, the appellant was convicted of sexual misconduct by a custodian
of a five-year-old child. The issue in Quinn was whether our rape shield law applied to
bar the victim's alleged false statements of abuse by other perpetrators. The appellant
sought to use this evidence to prove that the victim had falsely accused others in the same
fashion that she falsely accused him. The appellant argued that the rape shield law did
not apply to the victim's statements because they were false, and therefore were not
evidence of the child's sexual conduct. Rather, they were evidence of the child's false
statement of sexual abuse when there had been none. This Court set forth the following
standard in Syllabus Point 2 of Quinn to determine whether such evidence fell outside the
scope of our rape shield:
Requiring strong and substantial proof of the actual
falsity of an alleged victim's other statements is necessary to
reasonably minimize the possibility that evidence which is
within the scope of our rape shield law W.Va. Code § 61-8B-
11  and West Virginia Rules of Evidence 404(a)(3)
, is not erroneously considered outside of its scope.
In the case sub judice
, the defendant did not request a hearing outside the
presence of the jury, as mandated by Syllabus Point 3 of Quinn
, to present evidence
demonstrating that R.M. had previously made
statements that she had been sexually
abused by other perpetrators
. (See footnote 13)
The defendant never presented the trial court with any
evidence that R.M. made false
sexual abuse allegations against other people. Defense
counsel failed to inform the trial judge during the discussion at the bench following the
State's objection that his proposed line of questioning was intended to explore false
R.M. allegedly made. Instead, defense counsel simply stated,
according to the records the prosecutor's office provided to me, has named numerous
individuals that's had sex with - that raped her. (See footnote 14)
This assertion, with no citation to the record, no proffer, affidavit or live witness to testify
to R.M.'s alleged false prior accusations, falls far short of meeting the strong and
substantial proof of actual falsity
threshold we established in Quinn
Despite her failure to comply with the Quinn
threshold requirements, the
defendant argues that the trial judge erred in view of the holding in Barbe v. McBride
521 F.3d 443 (4th
Cir. 2008). Barbe
held that, under the Rock-Lucas (See footnote 15)
principle, a state
court ruling on the admissibility of evidence under a rape shield law must forgo the
application of any per se
rule in favor of a case-by-case assessment of whether the
relevant exclusionary rule is arbitrary or disproportionate to the State's legitimate
interests. The defendant argues that the trial judge erred by failing to consider the
specific facts of R.M.'s alleged other allegations and thereby violated Barbe
is distinguishable from the instant case because the defendant herein
failed to provide the trial court with an adequate evidentiary presentation alleging that
R.M. previously made false accusations of sexual abuse against other perpetrators. Barbe
was decided after Quinn
, discussed our ruling therein and declined to cast doubt on our
mandatory requirement that a defendant seeking to cross-examine an alleged victim about
a prior false accusation must first present the court with an adequate evidentiary
presentation outside the presence of the jury and with fair notice to the prosecution.
order for a trial court to comply with Barbe
and conduct a case-by-case assessment of the
facts to determine whether the relevant exclusionary rule is arbitrary or disproportionate
to the State's legitimate interests, it must first be presented with an adequate evidentiary
presentation. (See footnote 16)
Because the defendant in the instant case failed to make an adequate
evidentiary presentation, as mandated by Quinn, we find that the trial court did not
commit error. In view of the defendant's failure to follow Quinn, permitting defense
counsel to ask R.M., How many men have you had sex with? would defy the letter and
spirit of our rape shield law.
The defendant next alleges that the trial court abused its discretion and
created plain error when it prohibited defense counsel from questioning R.M. regarding
certain facts that would demonstrate her inability to testify as a competent witness.
Our standard of review when examining whether a witness is competent to
testify can be found in Syllabus Point 10 of State v. Pettrey, 209 W.Va. 449, 549 S.E.2d
The question of the competency of a witness to testify
is left largely to the discretion of the trial court and its
judgment will not be disturbed unless shown to have been
plainly abused resulting in manifest error. Syllabus Point 8, State v. Wilson, 157 W.Va. 1036, 207 S.E.2d 174 (1974).
Our rape shield law plainly states that, [i]n any prosecution under this
article, neither age nor mental capacity of the victim shall preclude the victim from
testifying. W.Va. Code
§ 61-8B-11(c) . (See footnote 17)
We are also guided by Wheeler v. United States, 159 U.S. 523, 16 S.Ct. 93
(1895), in which the United States Supreme Court gave direction on how courts should
evaluate the competency of a child witness:
[T]here is no precise age which determines the
question of competency. This depends on the capacity and
intelligence of the child, his appreciation of the difference
between truth and falsehood, as well as his duty to tell the
former. The decision of this question rests primarily with the
trial judge, who sees the proposed witness, notices his
manner, his apparent possession or lack of intelligence, and
may resort to any examination which will tend to disclose his
capacity and intelligence as well as his understanding of the
obligations of an oath. As many of these matters cannot be
photographed into the record, the decision of the trial judge
will not be disturbed on review unless from that which is
preserved it is clear that it was erroneous.
159 U.S. at 524-525, 16 S.Ct. at 93.
Consistent with this clearly erroneous standard, this Court has
consistently held that the decision to allow or to refuse to allow a child's testimony is
within the sound discretion of the trial judge and will not be reversed on appeal unless
there is a clear showing of abuse of discretion. (See footnote 18)
Applying these principles to the instant case, we first note that before R.M.
testified, the trial judge engaged in a conversation with her to determine if she was
competent to testify. This examination revealed that R.M. had the capacity and
intelligence to understand that she had the duty to be truthful.
Based on this conversation and a review of R.M.'s testimony, we find the
trial court did not commit error by allowing R.M. to testify. R.M. testified about being
sexually assaulted in detail, including the following exchange during cross-examination in
which she describes her mother holding her down while Jack Jones raped her:
Q. Now, R., you mentioned earlier somebody held
you down; is that correct?
Q. Okay. Who did that?
R.M. My mom.
Q. Okay. And why did she do that?
R.M. (No response).
Let me ask you another question. What
happened when she held you down?
R.M. I was screaming and kicking.
Q. Now, where were you when all this was
R.M. At my mom's place, Hil-dar. . . . It was an
apartment thing . . . the place where we lived in
Hil-dar had an upstairs and a downstairs.
This exchange illustrates that R.M. was able to describe what happened to
her, where it happened and how she responded. The only question she was unable to
answer called for her to speculate on her mother's motivation for sexually abusing her
(And why did she do that?). While there were other questions R.M. was not able to
fully answer, a review of the entirety of her testimony reveals that she was competent to
testify. On the occasions she had difficulty answering certain questions, this was an issue
of credibility for the jury to weigh, not an issue of competency. We are satisfied that the
trial judge was in the best position to evaluate R.M.'s competency and we find no abuse
of discretion on this issue.
Motion to Disqualify Ohio County Prosecutor's Office
The defendant's final assignment of error is that the trial court erred when it
denied her motion to disqualify the Ohio County Prosecutor's Office. The trial court's
order denying this motion sets forth the following facts:
The motion is based upon past dealings between the
Prosecuting Attorney's office and Jessica M. The first contact
that Jessica M. had with the Prosecuting Attorney's office in
the past was in the capacity as a victim of domestic violence.
She sought assistance and advice from that office on more
than one occasion, and was advised to seek a protection from
domestic violence order. On several occasions, Assistant
Prosecuting Attorney Gail Kahle personally met with Jessica
M. regarding her allegations of domestic violence. Attorney
Kahle is one of two Assistant Prosecuting Attorneys assigned
to the Jessica M. criminal case.
Additionally, the Prosecuting Attorney's office has
been involved in abuse and neglect proceedings involving
Jessica M. as a Respondent, as well as Respondent Jack
Jones, who is the alleged perpetrator of domestic violence
against Jessica M.
The defendant alleges that these contacts between herself and members of
the prosecuting attorney's office created an appearance of impropriety. The defendant
further alleges that the prosecuting attorney's office may have acquired evidence through
these meetings that it used against her in the present criminal matter.
In Syllabus Point 1 of Nicholas v. Sammons, 178 W.Va. 631, 363 S.E.2d
516 (1987), we stated,
Prosecutorial disqualification can be divided into two
major categories. The first is where the prosecutor has had
some attorney-client relationship with the parties involved
whereby he obtained privileged information that may be
adverse to the defendant's interest in regard to the pending
criminal charges. A second category is where the prosecutor
has some direct personal interest arising from animosity, a
financial interest, kinship, or close friendship such that his
objectivity and impartiality are called into question.
This Court has also indicated that whether a trial court should disqualify a
prosecutor, or his office, from prosecuting a criminal defendant is reviewed under an
abuse of discretion standard. State v. Keenan, 213 W.Va. 557, 584 S.E.2d 191 (2003). See also State v. Britton, 157 W.Va. 711, 203 S.E.2d 462 (1974).
The trial court conducted a hearing on this matter and issued a detailed
order, addressing each of the defendant's arguments. The trial court concluded that while
Prosecutor Kahle met with Jessica M., he never acted as her attorney. Rather, he was
acting in his capacity as an assistant prosecutor, assisting the victim of an alleged crime.
There was never an agreement stating that Prosecutor Kahle represented the defendant,
nor did he ever appear in court on her behalf. One of the reasons the trial court was
unwilling to conclude that a prosecutor advising an alleged domestic violence victim
created an attorney-client relationship was that:
To find otherwise would create a chilling effect that would
negatively impact the willingness of attorneys working in
Prosecuting Attorney's offices to assist the victims of
The trial court next determined that the defendant failed to demonstrate that
her previous meetings with Prosecutor Kahle created the appearance of impropriety. The
meetings between the defendant and the prosecutor's office resulted in domestic violence
charges against Jack Jones. The trial court found that these domestic violence charges
were unrelated to the sexual abuse charges Jessica M. faces in the instant case. Finally,
the trial court determined that the defendant failed to show that she divulged anything to
Prosecutor Kahle during her interactions with him that would be adverse to her interests
in the sexual abuse criminal proceedings.
Our review of the record indicates that the trial court did not abuse its
discretion by denying the defendant's motion to disqualify the Ohio County Prosecutor's
Office. Prosecutor Kahle assisted the defendant, an alleged domestic violence victim, in
his capacity as an assistant prosecuting attorney. He later brought criminal charges
against her when her daughter accused her of sexually abusing her. The defendant failed
to show that the prosecutor's office acquired any information in its earlier meetings that
were adverse to her interests in the instant case. In view of these circumstances, this
Court cannot find that the trial court abused its discretion by refusing to disqualify the
Ohio County Prosecutor's Office.
Based on the foregoing, the judgment of the Circuit Court of Ohio County
is hereby affirmed.
The use of the defendant's last name would make her young daughter easily
identifiable. We will therefore adhere to our usual practice and refer to the parties by
their first names and last initials only. See In re Clifford K
., 217 W.Va. 625, 619 S.E.2d
Between February and August 2006, R.M. and her siblings were placed in a
number of different foster homes.
Jack Jones was also charged with sexually assaulting R.M. He was tried and
convicted separately from the defendant herein.
Ms. Hogan did not provide the exact date upon which this recording was made,
but testified I believe the disclosures may have started in September of 2006.
R.M. was an in-patient at this facility from March through August 2008.
These three counts charge the defendant with forcing R.M. to penetrate the
sexual organ of JESSICA M. with a foreign object for the purpose of gratifying the sexual
desire of JESSICA M. . . . The State failed to present sufficient evidence that this act
occurred and conceded that these three counts were properly dismissed.
Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.
An example of this line of questioning is as follows:
Q. So she had a code word for her private area?
A. Yes. I never told her nothing and you know, if I would've referred to
anything with any of the children, it would've been their pee-bug or private
area. She used the word coochie and penis.
Q. Okay. So coochie was not a term that you came up with?
Q. So I think you said that she described her mother using her tongue?
A. Yes. And so I asked her, What did your mother do with her tongue? And
she said that she would move it up and down and she would ask her if it felt
good and did she like it. And R.M. said she said yes because she was
scared to tell her mother no.
Footnote: 9 Crawford
did not provide a clear definition of 'testimonial statements', but it did
provide examples of the types of statements that can be considered 'testimonial':
Various formulations of this core class of testimonial
statements exist: ex parte
in-court testimony or its functional
equivalent-that is, material such as affidavits, custodial
examinations, prior testimony that the defendant was unable
to cross-examine, or similar pretrial statements that declarants
would reasonably expect to be used prosecutorially[;]
extrajudicial statements . . . contained in formalized
testimonial materials such as affidavits, depositions, prior
testimony, or confessions[;] statements that were made under
circumstances which would lead an objective witness
reasonably to believe that the statement would be available for
use at a later trial. These formulations all share a common
nucleus and then define the Clause's coverage at various
levels of abstraction around it. Regardless of the precise
articulation, some statements qualify under any definition-for
example, ex parte
testimony at a preliminary hearing.
Statements taken by police officers in the course of
interrogations are also testimonial under even a narrow
, 541 U.S. at 51-52, 124 S.Ct. at 1364 (quotations and citations omitted).
The trial judge made this statement in the context of ruling on whether the
defendant could ask R.M. How many different men did you have sex with? This will
be discussed at length in section III. B. infra
Footnote: 11 W.Va. Code
§ 61-8B-11  states:
(a) In any prosecution under this article in which the victim's
lack of consent is based solely on the incapacity to consent
because such victim was below a critical age, evidence of
specific instances of the victim's sexual conduct, opinion
evidence of the victim's sexual conduct and reputation
evidence of the victim's sexual conduct shall not be
admissible. In any other prosecution under this article,
evidence of specific instances of the victim's prior sexual
conduct with the defendant shall be admissible on the issue of
consent: Provided, That such evidence heard first out of the
presence of the jury is found by the judge to be relevant.
(b) In any prosecution under this article evidence of specific
instances of the 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 shall not be admissible: Provided, That such evidence
shall be admissible solely for the purpose of impeaching
credibility, if the victim first makes his or her previous sexual
conduct an issue in the trial by introducing evidence with
(c) In any prosecution under this article, neither age nor
mental capacity of the victim shall preclude the victim from testifying.
(d) At any stage of the proceedings, in any prosecution under
this article, the court may permit a child who is eleven years
old or less to use anatomically correct dolls, mannequins or
drawings to assist such child in testifying.
Footnote: 12 West Virginia Rules of Evidence
404(a)(3) states in pertinent part;
(a) Character evidence generally
. - Evidence of a person's
character or a trait of character is not admissible for the
purpose of proving that he or she acted in conformity
therewith on a particular occasion, except: . . .
(3) Character of victim of a sexual offense. - In a case
charging criminal sexual misconduct, evidence of the victim's
past sexual conduct with the defendant as provided for in
W.Va. Code § 61-8B-11; and as to the victim's prior sexual
conduct with persons other than the defendant, where the
court determines at a hearing out of the presence of the jury
that such evidence is specifically related to the act or acts for
which the defendant is charged and is necessary to prevent
Prior to trial, the defendant requested an in camera
hearing to determine whether
R.M. was capable of testifying in a truthful, credible, reality based, factual, historically
correct, delusionary free and mentally distorted free manor [sic]. As will be discussed at
length in Section III. C., this proposed hearing was to determine whether R.M. was
competent and credible to testify at trial.
Our review of the record indicates that there is little evidentiary support for the
defendant's contention that R.M. named numerous individuals that . . . raped her. The
defendant asserts that R.M. accused her grandfather, her uncle, a boyfriend of her
mother's named David Burch, and another man named William of sexually abusing her.
The allegation against her grandfather and uncle did not come from R.M. Rather, when
the police interviewed the defendant's boyfriend and co-conspirator, Jack Jones, he stated
that R.M. had previously had sexual encounters with her uncle and her grandfather. The
defendant fails to cite anywhere in the record where R.M. personally made this claim.
The defendant also discusses an alleged dream R.M. had in which the police
officer who interviewed her handcuffed and raped her. Again, this allegation came not
from R.M., but from the statement Jack Jones made to the police.
R.M. did discuss David Burch and William (no last name given), men her
mother had previously dated. R.M. told her CPS worker that David Burch and William
would whoop my butt. When asked if these men did anything else to her, she replied
no, they would smack my butt though. R.M.'s foster mother asked her if anyone else
ever touched her privates, and she replied Yes, David Burch did. R.M. does not
elaborate on this answer and it is unclear from this exchange whether R.M. meant that
Burch had done anything more than spanking her buttocks. R.M. told her psychologist,
Sara Wyer, that Burch and William were boyfriends of her mother, but did not report that
she had been sexually abused by either of them.
By contrast, R.M. made the allegations against her mother and Jack Jones to
her foster mother, her CPS worker, her psychologist, and her counselor at the residential
treatment facility, as well as testifying to these allegations in court.
We further note that while the defendant was not permitted to cross-
examine R.M. about these alleged other individuals who raped her, the defendant
explored this issue with numerous witnesses throughout the trial and discussed it during
both opening and closing argument. The defendant explored this issue with Sara Wyer,
R.M.'s psychologist; Dr. Joan Phillips, who conducted the physical examination;
Maureen Runyon, who conducted the forensic interview; and Michelle Hogan, R.M.'s
CPS worker. During opening argument, defense counsel stated:
So there's a whole laundry list of people she's making these
allegations on. Only two are being charged with anything, my
client and her ex-boyfriend. Pap-Pap - if we're going to
believe this child, if this child is not a liar - Pap-Pap is not
charged with anything. David Burch isn't charged with
anything. Michael, whoever that is, isn't charged with
Defense counsel continued this theme in his closing argument, stating:
I agree with Mr. Kahle (prosecutor) that this is a shame and
this child should be innocent and, you know, she should be
intact. I don't know why she's unintact. Maybe she put her
own fingers in there. Maybe somebody else put fingers in
there. Maybe William, David, all these names that were
thrown around in this case had something to do with it.
Footnote: 15 Rock v. Arkansas
, 483 U.S. 44 (1987); Michigan v. Lucas
, 500 U.S. 145 (1991).
To summarize, three steps are required in determining whether a defendant may
cross-examine an alleged sexual assault victim regarding other alleged false statements
she has made about being the victim of sexual misconduct. First, the defendant must
comply with Syllabus Point 3 of Quinn
and present the court with a meaningful proffer,
affidavit, or other method that properly protects both the rights of the defendant and the
alleged victim. If the defendant fails to comply with this requirement, the court can not
perform steps two and three of this analysis.
The second step is for the court to determine whether the defendant has met
the threshold set forth in Syllabus Point 2 of Quinn
and presented strong and substantial
proof of the actual falsity of an alleged victim's other statements. If the defendant has
met that threshold, then the false statements will not be excluded pursuant to our rape
shield law. If the court determines that a defendant has not met this threshold, it must
move on to the third step of the analysis.
The third step, consistent with Barbe
, is for a court that determines the
falsity exception does not apply, to then conduct a case-by-case assessment and perform
the balancing test we set forth in Syllabus Point 6 of State v. Guthrie
, 205 W.Va. 326, 518
S.E.2d 83 (1999), to determine whether the exclusion of the proffered evidence under our
rape shield law violates a defendant's due process right to a fair trial. Syllabus Point 6 of State v. Guthrie
, 205 W.Va. 326, 518 S.E.2d 83 (1999), states:
The test used to determine whether a trial court's
exclusion of proffered evidence under our rape shield law
violated a defendant's due process right to a fair trial is (1)
whether that testimony was relevant; (2) whether the
probative value of the evidence outweighed its prejudicial
effect; and (3) whether the State's compelling interests in
excluding the evidence outweighed the defendant's right to
present relevant evidence supportive of his or her defense.
Under this test, we will reverse a trial court's ruling only if
there has been a clear abuse of discretion.
Footnote: 17 W.Va. Code
§ 61-8B-11  is quoted in full in footnote 11.
See, State v. Watson
, 173 W.Va. 553, 318 S.E.2d 603 (1984); State v. Carter
168 W.Va. 90, 282 S.E.2d 277 (1981); State v. Ayers
, 179 W.Va. 365, 369 S.E.2d 22
(1988); State v. Price
, 96 W.Va. 498, 123 S.E. 283 (1924).