Carol A. Egnatoff
Assistant Attorney General
Charleston, West Virginia
Attorney for the Appellee
Lawrence E. Sherman, Jr.
Romney, West Virginia
Attorney for the Appellant
The Opinion of the Court was delivered PER CURIAM.
JUSTICE BROTHERTON did not participate.
JUDGE FOX sitting by temporary assignment.
1. "For evidence of the guilt of someone other than the
accused to be admissible, it must tend to demonstrate that the
guilt of the other party is inconsistent with that of the
defendant." Syl. Pt. 5, State v. Frasher, 164 W. Va. 572, 265
S.E.2d 43 (1980).
2. "In a criminal case, the admissibility of testimony
implicating another party as having committed the crime hinges on
a determination of whether the testimony tends to directly link
such party to the crime, or whether it is instead purely
speculative. Consequently, where the testimony is merely that
another person had a motive or opportunity or prior record of
criminal behavior, the inference is too slight to be probative, and
the evidence is therefore inadmissible. Where, on the other hand,
the testimony provides a direct link to someone other than the
defendant, its exclusion constitutes reversible error." Syl. Pt.
1, State v. Harman, 165 W. Va. 494, 270 S.E.2d 146 (1980).
Charles Atlas Malick appeals from the March 8, 1993, judgment
order of the Circuit Court of Hampshire County, West Virginia,
finding him guilty of first degree sexual assault following a jury
verdict returned that same date. Having examined the record in
full, we conclude that no reversible error was made and
accordingly, affirm the decision of the lower court.
The factual allegations surrounding the sexual assault charge
indicate that Appellant abused his then nine-year-old stepdaughter,
Melissa T.,See footnote 1 on one occasion on an unspecified date between August
1 and 31, 1991. Mrs. Malick, Appellant's wife and the mother of
Melissa, was taking a walk with her son, the biological child of
Appellant, at the time of the alleged incident. The parties are in
agreement that at the time of the alleged incident Melissa was
being punished for having ventured unaccompanied down to a small
lake near the family's trailer. For this particular transgression
Melissa had lost certain privileges, including the use of her
bicycle, her hula hoop, and the right to attend the county fair.
In addition, she was confined to her room.
What happened next was in dispute at trial. Melissa testified
that Appellant called her to come into his bedroom. Upon entering
the master bedroom, Appellant allegedly told Melissa that if she
would perform what constitutes oral sex on him that he would return
all the privileges she had lost plus give her a quarter. Melissa
then allegedly performed the act of oral sex on Appellant and her
privileges were reinstated as a result of complying with
Appellant's directive. Within a short time after Melissa's mom
returned from the walk, Melissa testified that she told her about
the incident. Reportedly, Mrs. Malick and Appellant had a fight
with regard to the incident as a result of Melissa's discussion
with her mother. Mrs. Malick did not report the incident of sexual
assault to any authorities at this time.See footnote 2
Melissa testified that she immediately asked her mom to take
her away from Appellant following the alleged sexual assault. Mrs.
Malick and her children continued to live with Appellant until
March 1992, purportedly due to the fact that Mrs. Malick was
without sufficient financial means to accomplish a change of
residence until March. In May 1992, Mrs. Malick informed her
father, John Fields, that she had taken her two children and moved
to Winchester, Virginia. When Mr. Fields suggested that she undergo marriage counseling to try to patch things up with
Appellant, Mrs. Malick stated that she could "never go back,
because this is what . . . [Appellant] . . . did to . . . [her]
daughter" and then proceeded to describe the assault.
It was Mr. Fields who first informed the authorities regarding
the alleged assault. He initially called an "800" number in
Richmond, Virginia, where he resides and was told to contact
officials in Frederick County, Maryland, where Melissa was then
residing. He followed this directive and ultimately spoke with
West Virginia State Police Trooper C. J. Ellison. Trooper Ellison
contacted Mrs. Malick on July 15, 1992, to advise her of the report
made by Mr. Fields. Mrs. Malick and Melissa met with Trooper
Ellison on October 10, 1992, at which time a statement was obtained
from Melissa regarding the subject assault.
Appellant assigns as error: (1) exclusion of all evidence
about a separate instance of sexual abuse involving another
defendant and Melissa; (2) denial of his motion in limine to
exclude Mrs. Malick's testimony under the spousal immunity
doctrine; and (3) denial of his motion seeking a psychological
evaluation of the alleged victim.See footnote 3
Appellant's primary assignment of error involves the
granting of the State's motion in limine to prohibit any evidence
from being admitted at trial regarding another sexual assault
perpetrated against Melissa in August 1991. On the morning of
trial, the State made a motion to exclude all evidence pertaining
to the case of State v. Wagner,See footnote 4 a case which resulted in the entry
of a guilty plea by John Wagner. The court fully considered the
motion as the record demonstrates:
THE COURT: Is it [the Wagner case] in any way connected with this defendant or the charges against this defendant?
[STATE]: No, Your Honor, not to our
. . . .
THE COURT: Why would the State, or why would
the defense use this?
[APPELLANT]: We feel that using this case is
extremely important to our case. The alleged
act that took place in the Wagner case took
place in August of '91 the same month that the alleged act took place with Mr. Malick. The
worst part about it, in the case of State v.
Wagner, part of the plea was that the mother
would take money that was given by the
defendant and let the child [obtain]
counsel[ing]. The mother took the money and
bought herself a new car with it. The child
never got the counselling that she needed for
the incident that took place in August of '91
with Mr. Wagner; therefore, basically, Your
Honor, we're trying the first case today. We
feel that is . . ., one of our biggest
defenses, that she never received -
THE COURT: The Court believes it would be
improper to use that in this case. It has no
bearing upon the guilt or innocence of this
In syllabus point five of State v. Frasher, 164 W. Va. 572,
265 S.E.2d 43 (1980), we recognized that "[f]or evidence of the
guilt of someone other than the accused to be admissible, it must
tend to demonstrate that the guilt of the other party is
inconsistent with that of the defendant." Id. at 573, 265 S.E.2d
at 45. We expanded upon this concept in syllabus point one of
State v. Harman, 165 W. Va. 494, 270 S.E.2d 146 (1980), in holding
In a criminal case, the admissibility of testimony implicating another party as having committed the crime hinges on a determination of whether the testimony tends to directly link such party to the crime, or whether it is instead purely speculative. Consequently, where the testimony is merely that another person had a motive or opportunity or prior record of criminal behavior, the inference is too slight to be probative, and the evidence is therefore inadmissible. Where, on the other hand, the testimony provides a direct link to someone other than the defendant, its exclusion constitutes reversible error.
Id., 270 S.E.2d at 148.
Appellant failed to meet the standard established for
introducing evidence that another party--Mr. Wagner--was the
perpetrator of the sexual abuse incident at issue. First and
foremost, is the fact that the commission of a sexual crime against
the same victim in this case by Mr. Wagner in the same month as the
crime alleged against Appellant is in no way inconsistent with the
guilt of Appellant. See Frasher, 164 W. Va. at 573, 265 S.E.2d at
45, syl. pt. 5. As sad as it is that the nine-year-old victim may
had to endure two sexual offenses in one month of her young life,
it is certainly not an impossibility.See footnote 5 But more importantly, the
entering of a guilty plea by Mr. Wagner to committing a sexual
offense charge against Melissa in August 1991 does not contraindicate the guilt of Appellant with regard to the crime at
Just as Appellant failed to meet the Frasher test, he
similarly cannot meet the Harman test of establishing a direct link
between Mr. Wagner and the crime at issue. The factual nature of
the crime charged against Appellant includes specified allegations
regarding the location of the occurrence and the identity of the
perpetrator. Appellant has never disputed that he was alone with
Melissa in the trailer at the time of the alleged crime; he merely
denies that he "did that type thing to any person."See footnote 6 The record is
completely devoid of any evidence that would provide the requisite
direct link between Mr. Wagner and the sexual assault on Melissa
that occurred in August 1991 in Appellant's trailer. Appellant
does not even come close to meeting the Harman test of direct
linkage as there is not a single shred of evidence in the record
which implicates Mr. Wagner as being the individual who committed
the assault against Melissa that occurred inside Appellant's
trailer. See 165 W. Va. at 494, 270 S.E.2d at 148, syl. pt. 1.
Accordingly, we conclude that the trial court correctly ruled that any evidence regarding the John Wagner case "ha[d] no bearing upon the guilt or innocence of this [Appellant] . . . ."
Appellant also asserts as error the court's denial of his
motion in limine to prevent Mrs. Malick from testifying at trial.
In support of this motion, he cites the spousal immunity doctrine.
The common law against spousal testimony has been modified
legislatively. West Virginia Code § 57-3-2 (1966) provides that
"[h]usband and wife shall be competent witnesses to testify for or
against each other in all cases, civil and criminal, except as
otherwise provided." Id. The parameters of permitting one spouse
to testify against another in a criminal proceeding are
specifically addressed by West Virginia Code § 57-3-3 (1966), which
In criminal cases husband and wife shall be allowed, and, subject to the rules of evidence governing other witnesses, may be compelled to testify in behalf of each other, but neither shall be compelled, nor, without the consent of the other, allowed to be called as a witness against the other except in the case of a prosecution for an offense committed by one against the other, or against the child, father, mother, sister or brother of either of them. The failure of either husband or wife to testify, however, shall create no presumption against the accused, nor be the subject of any comment before the court or jury by anyone.
Id. (emphasis supplied).
The State correctly argues that the exception set forth in
West Virginia Code § 57-3-3, which permits a spouse to testify
against the other when an offense against a "child . . . of either
of them," is being prosecuted is dispositive of this issue. Id.
Appellant suggests that this exception should not apply because
Melissa is his stepchild and not his natural child. We find it
unnecessary to address the issue of whether the statute encompasses
stepchildren as Melissa is the biological child of Mrs. Malick and
the statute is couched in terms of a child of "either" spouse, not
both of them. See W. Va. Code § 57-3-3 (emphasis supplied).
Furthermore, Appellant failed to identify any specific portion
of Mrs. Malick's testimony that should have been excluded under the
spousal immunity doctrine. Upon examination, the record indicates
that Mrs. Malick did not offer any testimony regarding
communication between herself and Appellant; she testified only as
to the communication between herself and Melissa and the actions
she took following her apprisal of the alleged assault.See footnote 7 Given the
clear applicability of the prosecution involving a child exception
found in West Virginia Code § 57-3-3, we find no error as to this
The final assignment of error which we address is Appellant's
claim that he was wrongfully denied the opportunity to have a
psychological evaluation performed on Melissa. Appellant waited
until the morning of trial to orally request the psychological
examination. As grounds for his motion, Appellant stated only that
"based upon my interview of her [Melissa] at that particular date
[Friday before trial],See footnote 8 it was my impression that a psychological
examination of the victim might be in order."See footnote 9 The Court delayed
ruling on the motion until just prior to the time when Melissa took
the stand. In denying Appellant's motion, the Court explained that
believes, in observing the young lady, that she is capable and confident, for one of her age, to relate what she has seen, and we'll see more when she testifies. You can inquire in your cross examination concerning matters that you think might be pertinent, but she is a capable witness.
When Appellant renewed his motion once more upon moving for a
directed verdict, the trial judge opined, "The Court has observed
the child while she was testifying, and the Court does not believe
there's any indication that that [psychological evaluation] is
needed or would be helpful."
Appellant states in his brief that Melissa "lacked the mental
capacity to testify in this case" and further, "that she did not
possess sufficient mental capacity to receive, remember and relate
with reasonable accuracy the facts in question and . . . that she
did not understand the difference between the truth and falsehood
and . . . that she did not understand the moral importance of
telling the truth." Upon examination, however, this amounts to
nothing more than a boldfaced assertion which the record fails to
The record reveals that Melissa, who was eleven years old at
the time of trial, accurately responded to the introductory factual
questions posed to her on direct examination. She stated her name,
age, date of birth, current and past addresses, school and grade,
as well as the names of her teacher and counselor. She was
questioned as to her understanding of the importance of telling the
truth and indicated that she understood that "telling the truth"
was the most important thing about coming to court. Melissa fully
responded to questions about the events preceding, during, and
post-assault. Melissa's testimony regarding the events following
the assault were corroborated by Mrs. Malick's testimony.
Appellant, himself, corroborated Melissa's testimony concerning
Mrs. Malick's confrontation of Appellant on the date of the alleged
Appellant failed to note any inaccuracies, inconsistencies, or
any difficulty on Melissa's part in comprehending or responding to
the questions posed. On the contrary, the petition for appeal
recognizes that Melissa "was quite articulent [sic] and showed
enormous amount of intelligence . . . ." The record indicates that
Appellant never challenged Melissa's comprehension or accuracy as
it related to any part of her testimony except that portion which
The law is clear that a trial judge has great latitude and discretion in determining whether a minor is competent to testify. As we held in State v. Daggett, 167 W. Va. 411, 280 S.E.2d 545 (1981), "The trial judge was in the best position to evaluate the infant's competence. The infant's demeanor and his understanding of the nature and effect of the oath are far better determined through live examination by the trial judge than by appellate review of the trial record." Id. at 426-27, 280 S.E.2d at 555.
Quite simply, Appellant failed to meet his burden of demonstrating that the court abused its discretion in denying the requested psychological evaluation. See Daggett, 167 W. Va. at 426, 280 S.E.2d at 554. Finding no abuse of discretion as to the denial of Appellant's motion for such an evaluation, we conclude that no reversible error was committed by the trial court.
Based on the foregoing, the decision of the Circuit Court of
Hampshire County is hereby affirmed.
Footnote: 1 Consistent with previous cases in which we wish to protect the identity of the victim, we use initials to identify the victim. See In re Jonathan P., 182 W. Va. 302, 303, 387 S.E.2d 537, 538 n.1 (1989).
Footnote: 2 Mrs. Malick testified that she did not notify the authorities because she did not want her daughter to have to go through the ordeal of testifying in open court about the incident.
Footnote: 3 Appellant assigned additionally the following errors: (1) denial of his motion for acquittal; (2) failure to use his jury instruction; (3) permitting leading testimony of the alleged
victim; and (4) allowing the State to inquire about his alcoholism. After reviewing the record in conjunction with these alleged errors, we find no merit to these assignments and accordingly do not address these issues.
Footnote: 4 In response to the court's granting of the State's motion to exclude all evidence regarding the Wagner case Appellant's counsel argued, "We do feel that it would substantially take away from our case. Basically, that is our case." Additionally, Appellant includes in his brief--"There is no question that this assignment of error is certainly the Appellant's most serious assignment of error and basically is the assignment of error that the Appellant . . . is hanging his hat [on]." This is the extent of Appellant's legal argument.
Footnote: 5 Appellant states in his brief,
[y]our Appellant would argue that he passes
the Frasher test in that his guilt would be
inconsistent with that of John Wagner as it
appears from the evidence of the Wagner case
that it is plausible to believe that only one
act took place in August, [sic] 1991, and that
it involved only John Wagner and that such act
is inconsistent with the Appellant and that
the jury should have been able to decide, in
taking into account, the evidence of the
This argument is stated without any further support and appears to be baseless.
Footnote: 6 Mr. Fields testified at trial that when he confronted Appellant regarding the alleged incident, Appellant stated, "If something like that happened, it had to be the old Atlas, it couldn't be me." The old versus the new Atlas refers apparently to the fact that Appellant became "born again" at some point during hospitalization for alcohol abuse.
Footnote: 7 The only testimony provided by Mrs. Malick that related specifically to Appellant was elicited on cross-examination.
Footnote: 8 The record indicates that this was the first time Appellant's counsel interviewed Melissa.
Footnote: 9 Just prior to Melissa taking the stand, Appellant renewed his motion for a psychological examination "in order to tell the Court whether, indeed, she was relaying this particular incident that took place with Mr. Wagner to Mr. Malick[.]"