| Michael C. Alberty
Wheeling, West Virginia
Attorney for Appellant
| Shawn R. Turak
Joseph E. Barki, III
Ohio County Prosecutor's Office
Wheeling, West Virginia
Attorneys for Appellee
James Robert Harris (hereinafter referred to as Mr. Harris) appeals from an order of the Circuit Court of Ohio County sentencing him to imprisonment for life and to an aggregate sentence of not less than thirty-one nor more than eighty years. A jury convicted Mr. Harris of abduction with intent to defile; conspiracy to commit abduction with intent to defile; two counts of aiding and abetting sexual assault in the second degree; and sexual assault in the second degree. Here, Mr. Harris has assigned as error: (1) exclusion of evidence under the rape shield statute, (2) the manner in which he was sentenced, and (3) failure to sever charges. (See footnote 1) After a careful review of the briefs, listening to the arguments of the parties, and consideration of the record submitted on appeal, we affirm.
[a]s a general matter, W. Va. Code § 61-8B-11(b) (1986) bars the introduction of evidence, in a sexual assault prosecution, concerning (1) specific instances of the victim's sexual conduct with persons other than the defendant, (2) opinion evidence of the victim's sexual conduct and (3) reputation evidence of the victim's sexual conduct.
Syl. pt. 1, State v. Guthrie, 205 W. Va. 326, 518 S.E.2d 83 (1999). We also have indicated that,
W. Va. Code § 61-8B-11(b) (1986) provides an exception to the general exclusion of evidence of prior sexual conduct of a victim of sexual assault. Under the statute, evidence of (1) specific instances of the victim's sexual conduct with persons other than the defendant, (2) opinion evidence of the victim's sexual conduct and (3) reputation evidence of the victim's sexual conduct can be introduced solely for the purpose of impeaching the credibility of the victim only if the victim first makes his or her previous sexual conduct an issue in the trial by introducing evidence with respect thereto.
Syl. pt. 2, Guthrie, 205 W. Va. 326, 518 S.E.2d 83. (See footnote 10) Finally, this Court held in Guthrie that
[t]he 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.
Syl. pt. 6, Guthrie, id.
The problem we have with Mr. Harris' rape shield argument is that his brief, as pointed out by the State, fails to indicate exactly what evidence was excluded. As previously noted, the jury acquitted Mr. Harris of all charges involving D.M. Consequently, we must assume that Mr. Harris is complaining about evidence involving J.L. We make this assumption because his brief does not even acknowledge this point. The following is the sum total of Mr. Harris' argument:
The trial Court made numerous rulings to exclude relevant evidence under what the court referred to as Rape Shield Act. This is nomenclature for § 61-8B-11. Sexual Offenses. Evidence. As the trial court judge explained to the jury, the word rape, does not appear in West Virginia law. In West Virginia, the law refers to sexual offenses as either Sexual Assault or Sexual Abuse. The trial Court Judge largely based his decision regarding admissibility under the case of State of West Virginia v. James Quinn, (490 S.E. 2d 42 W. Va. (1997)).[ (See footnote 11) ]
It is irrefutable that the trial court judge in the case at bar did the exact same thing it did in the Barbe case. The trial court judge did not consider any of the relevant factors in conducting the Rock-Lucas assessment. The trial court did not (1) consider the strength vel non of the state's interests that weigh against admission of the excluded evidence, (2) consider the importance of the excluded evidence to the presentation of an effective defense nor did he (3) consider the scope of the effective ban applied against the accused. Therefore, the trial court abused his discretion to the detriment of Defendant James Robert Harris denying him his constitution rights [sic] to due process and a fair trial. Therefore, the same trial court judge mishandled the same rape shield act over the same objections of the same defense counsel. What occurred at the case at bar is almost identical to what occurred in the Barbe case. Therefore, the conviction of James Robert Harris must be reversed.
Nowhere in the above argument has Mr. Harris mentioned the evidence of prior sexual conduct by J.L. that the trial court purported to exclude. Further, there is no reference to any place in the record where the issue was raised in the trial court as it pertained to J.L. (See footnote 12)
Additionally, during oral arguments before this Court, counsel for Mr. Harris was unable to inform this Court of any evidence that the trial court had excluded under the rape shield statute, that involved J.L. (See footnote 13) In the absence of supporting [facts], we decline further to review this alleged error because it has not been adequately briefed. State v. Allen, 208 W. Va. 144, 162, 539 S.E.2d 87, 105 (1999). See also State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996) (Although we liberally construe briefs in determining issues presented for review, issues which are . . . mentioned only in passing but are not supported with pertinent authority, are not considered on appeal.); State v. Lilly, 194 W. Va. 595, 605 n.16, 461 S.E.2d 101, 111 n.16 (1995) ([A]ppellate courts frequently refuse to address issues that appellants . . . fail to develop in their brief.). As we recently stated, [a] skeletal 'argument,' really nothing more than an assertion, does not preserve a claim. . . . Judges are not like pigs, hunting for truffles buried in briefs. State v. Day, 225 W. Va. 794, ___ n.21, 696 S.E.2d 310, 322 n.21 (2010) (internal quotations and citations omitted).
When it is determined, as provided in section nineteen [§ 61-11-19] of this article, that such person shall have been twice before convicted in the United States of a crime punishable by confinement in a penitentiary, the person shall be sentenced to be confined in the state correction facility for life.
W. Va. Code § 61-11-18(c) (2000) (Repl. Vol. 2005). Pursuant to W. Va. Code § 61-11-19
(1943) (Repl. Vol. 2005), in order to invoke the recidivist statutes, the State is required, prior
to sentencing, to file an information setting forth one or more previous felony convictions
by the defendant. If the jury finds or the defendant admits, after waiving the right to jury
determination, that he/she is the same person named in the conviction or convictions set forth
in the information, the trial court must sentence the defendant as provided for under W. Va.
Code § 61-11-18. See Syl. pt. 3, State ex rel. Cobb v. Boles, 149 W. Va. 365, 141 S.E.2d 59
In the instant proceeding, the State contends, and Mr. Harris does not contest, that a jury determined that Mr. Harris was the person named in an information as having been previously convicted of committing two prior felony offenses. (See footnote 14) Although Mr. Harris was convicted of committing five offenses in this case, the trial court relied upon only one of those convictions, abduction with intent to defile, in order to impose a life sentence under W. Va. Code § 61-11-18(c). The trial court thereafter imposed separate sentences for the remaining four convictions. Mr. Harris appears to now argue that the trial court had no authority to impose sentences for the remaining four convictions, and that the sentences could not be imposed consecutively. The argument made by Mr. Harris was addressed by this Court in State v. Housden, 184 W. Va. 171, 399 S.E.2d 882 (1990).
In Housden, the defendant was convicted of burglary and grand larceny. The State filed a recidivist information in the case, showing that the defendant had at least two prior felony convictions. After a jury determined that the defendant was the person named in the information, the trial court used the burglary charge to impose a life sentence on the defendant under the recidivist statutes. The trial court also imposed a separate sentence for the grand larceny conviction. Finally, the trial court held that the sentences were to be served consecutively. One of the issues raised by the defendant on appeal was that the trial court had no authority to sentence him to both life imprisonment on the burglary conviction, and to impose a consecutive sentence for grand larceny. This Court rejected the argument as follows:
Finally, regarding appellant's contention that the lower court erred in imposing consecutive sentences upon the appellant, while we have not directly addressed this issue, we have implicitly upheld such a consecutive imposition of sentence.
. . . .
The facts in the present case reflect that only the appellant's conviction for burglary was enhanced pursuant to the recidivist statute. We find no reason to restrict a sentencing judge's discretion in imposing sentences which are to run consecutively on the basis that one of those sentences was enhanced to life imprisonment under the recidivist statute.
Housden, 184 W. Va. at 176, 399 S.E.2d at 887. Accordingly, this Court went on to hold in Syllabus point 3 of Housden:
A trial judge may impose sentences which run consecutively for multiple convictions rendered on the same day in which one of the convictions is subject to enhancement pursuant to W. Va. Code § 61-11-19 (1943).
184 W. Va. 171, 399 S.E.2d 882.
Under the decision in Housden, the trial court in the instant case properly used one of Mr. Harris' convictions to impose a life sentence under the recidivist statute, to further impose sentences on the remaining convictions, and to have all sentences run consecutively.
See Turner v. State, 957 A.2d 565 (Del. 2008) (defendant given two life sentences under state recidivist statute and sentenced separately for seven other convictions).
Even where joinder or consolidation of offenses is proper under the West Virginia Rules of Criminal Procedure, the trial court may order separate trials pursuant to Rule 14(a) on the ground that such joinder or consolidation is prejudicial. The decision to grant a motion for severance pursuant to W. Va. R. Crim. P. 14(a) is a matter within the sound discretion of the trial court.
Further, this Court held in Syllabus point 2 of State v. Milburn, 204 W. Va. 203, 511 S.E.2d
828 (1998) that [a] defendant is not entitled to relief from prejudicial joinder pursuant to
Rule 14 of the West Virginia Rules of Criminal Procedures [sic] when evidence of each of
the crimes charged would be admissible in a separate trial for the other.
In the instant proceeding, the State contends that the circuit court ruled that it would not sever the charges because evidence of the crimes involving D.M. would be admissible in a trial involving J.L. and vice versa. It is further argued by the State that, insofar as the jury acquitted Mr. Harris of all charges involving D.M., there was no prejudice from a single trial.
In looking at the issue presented, we cannot focus on the fact that a jury ultimately found Mr. Harris innocent of all charges involving D.M. We must focus on what the facts were at the time the trial court made its decision to deny the motion to sever. (See footnote 15) The trial court conducted a hearing pursuant to State v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516 (1994), to determine whether the evidence of crimes against D.M. would be admissible in a trial involving J.L. and vice versa. (See footnote 16) During the McGinnis hearing, D.M. and Megan Mangino provided testimony regarding the crimes. Ms. Mangino provided testimony regarding the crimes against J.L. because J.L. had no recollection of the events. At the conclusion of the hearing, the trial court entered an order stating that the evidence of the crimes against D.M. would be admissible in the prosecution of the crimes involving J.L. and vice versa. Mr. Harris has not challenged the sufficiency of the trial court's McGinnis hearing. We therefore find that the trial court did not abuse its discretion in denying Mr. Harris' motion to sever the charges.