January 2003 Term
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
ROGER PAUL PARSONS,
Defendant Below, Appellant
Appeal from the Circuit Court of Kanawha County
Honorable Paul Zakaib, Jr., Judge
Civil Action No. 96-F-305
Submitted: January 15, 2003
Filed: June 27, 2003
John W. Swisher, Esq.|
Special Prosecuting Attorney
Charleston, West Virginia
Lonnie C. Simmons, Esq.
Special Prosecuting Attorney
Charleston, West Virginia
Attorneys for Appellee
James M. Cagle, Esq.|
Charleston, West Virginia
Attorney for Appellant
action of a trial court in admitting or excluding evidence in the exercise
of its discretion will not be disturbed by the appellate court unless it appears
that such action amounts to an abuse of discretion.' Syllabus point 10, State v. Huffman, 141 W.
Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds, State ex rel. R.L. v. Bedell, 192
W. Va. 435, 452 S.E.2d 893 (1994). Syl. pt. 1, State v. Calloway, 207 W. Va. 43, 528
S.E.2d 490 (1999).
2. 'The West Virginia Rules of Evidence . . . allocate significant discretion to the trial court in making evidentiary . . . rulings. Thus, rulings on the admissibility of evidence . . . are committed to the discretion of the trial court. Absent a few exceptions, this Court will review evidentiary . . . rulings of the circuit court under an abuse of discretion standard.' Syllabus Point 1, in part, McDougal v. McCammon, 193 W. Va. 229, 455 S.E.2d 788 (1995). Syl. pt. 9, Smith v. First Community Bancshares, Inc. 212 W. Va. 809, 575 S.E.2d. 419 (2002).
3. Collateral acts or crimes may be introduced in cases involving child sexual assault or sexual abuse victims to show the perpetrator had a lustful disposition towards the victim, a lustful disposition towards children generally, or a lustful disposition to specific other children provided such evidence relates to incidents reasonably close in time to the incident(s) giving rise to the indictment. To the extent that this conflicts with our decision in State v. Dolin, 176 W. Va. 688, 347 S.E.2d 208 (1986), it is overruled. Syl. pt. 2, State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
4. Where an offer of evidence is made under Rule 404(b) of the West Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West Virginia Rules of Evidence, is to determine its admissibility. Before admitting the evidence, the trial court should conduct an in camera hearing as stated in State v. Dolin, 176 W. Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and arguments of counsel, the trial court must be satisfied by a preponderance of the evidence that the acts or conduct occurred and that the defendant committed the acts. If the trial court does not find by a preponderance of the evidence that the acts or conduct was committed or that the defendant was the actor, the evidence should be excluded under Rule 404(b). If a sufficient showing has been made, the trial court must then determine the relevancy of the evidence under Rules 401 and 402 of the West Virginia Rules of Evidence and conduct the balancing required under Rule 403 of the West Virginia Rules of Evidence. If the trial court is then satisfied that the Rule 404(b) evidence is admissible, it should instruct the jury on the limited purpose for which such evidence has been admitted. A limiting instruction should be given at the time the evidence is offered, and we recommend that it be repeated in the trial court's general charge to the jury at the conclusion of the evidence. Syl. pt. 2, State v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516 (1994).
5. Generally, the sufficiency of an indictment is reviewed de novo. An indictment need only meet minimal constitutional standards, and the sufficiency of an indictment is determined by practical rather than technical considerations. Syl. pt. 2, State v. Miller, 197 W. Va. 588, 476 S.E.2d 535 (1996).
6. The formulation of jury instructions is within the broad discretion of a circuit court, and a circuit court's giving of an instruction is reviewed under an abuse of discretion standard. A verdict should not be disturbed based on the formulation of the language of the jury instructions so long as the instructions given as a whole are accurate and fair to both parties. Syl. pt 6, Tennant v. Marion Health Care Foundation, Inc., 194 W. Va. 97, 459 S.E.2d 374 (1995).
7. When the mental health records of a prospective witness are sought for the purpose of impeaching the witness' credibility, the circuit court should first examine the records ex parte to determine if the request is frivolous. If the court finds probable cause to believe that the mental health records contain material relevant to the credibility issue, counsel should be allowed to examine the records, after which an in camera hearing should be held in which the requesting party's counsel designates the parts of the records he believes relevant, and both sides present arguments on the relevancy of those parts. Syl. pt. 3, Nelson v. Ferguson, 184 W. Va. 198, 399 S.E.2d 909 (1990).
Former teacher and school administrator Roger Paul Parsons appeals his
conviction on 21 counts of third degree sexual assault stemming from his interaction with a
junior high school student in the late 1970's. After thorough review of the record and due
consideration of his numerous assignments of error, we affirm the conviction.
At the trial the victim, now in her 30's, testified to a series of events from 1977 to 1980, beginning with inappropriate touching and culminating in multiple sexual acts of various kinds. More specifically, C.S. testified that her sexual interactions with Mr. Parsons began when he would call her out of class and then, alone with her in his office, kiss her, fondle her, and demand she fondle him. Over time, Mr. Parsons met many times with C.S., often taking her to a park or to his home in his car, making her conceal herself on the way there and back. During these visits, the two engaged in oral sex, and eventually sexual intercourse, all before C.S. had reached the age of 16. (See footnote 1)
C.S. also testified that on several occasions Mr. Parsons threatened her, or implicitly threatened her. She testified that once, when Mr. Parsons was shooting at some birds in his yard, he turned the gun on C.S. and speculated on how the birds felt being shot at. She testified that, on another occasion, Mr. Parsons allegedly told C.S. that he could slit her wrists a certain way that could not be treated and make it look like a suicide. C.S. claimed that on yet another occasion when chopping wood, Mr. Parsons allegedly told her to put her head on the chopping block and then swung the axe toward her neck, catching it with his other hand. C.S. testified that Mr. Parsons made other threats against her, and her family, and that she feared for her life, and theirs, if she had told anyone of the relationship.
In 1982, some time after the incidents charged, when C.S. was a junior in high school, she went to her minister and told him of her interactions with Mr. Parsons. The minister met with Mr. Parsons, who claimed to care deeply for C.S., and, according to the minister's testimony, did not expressly deny having a sexual relationship with her. Although the minister advised both to tell the parents of C.S., nothing further happened for several years. Then in 1984, C.S., accompanied by the minister, sought a meeting with the then- principal of the junior high school, in an effort to get Mr. Parsons out of the school system. C.S. was advised that without going public with all her claims, nothing could be done. Finally, in September 1992, C.S. reported her claims to the police, setting in motion the criminal prosecution of Mr. Parsons.
At the end of the 1992-1993 school year, Mr. Parsons resigned as an employee of the Kanawha County Board of Education. At about the same time, Mr. Parsons agreed to enter a guilty plea to a one count information of violating W. Va. Code § 61-8B-9, for a misdemeanor offense of sexual abuse in the third degree. Mr. Parsons was to enter this plea before former Judge John Hey on January 7, 1994, but Judge Hey refused to accept the plea agreement. Subsequently, C.S. wrote the court and requested the appointment of a special prosecutor to pursue additional charges against Mr. Parsons. Judge Zakaib appointed attorney John Swisher as special prosecutor and later ordered the calling of a special grand jury to hear the allegations against Mr. Parsons.
The grand jury handed down a 35 count indictment, the first 21 charges of which were in relation to C.S., with the other charges relating to acts committed by Mr. Parsons against several other females, ranging in time from 1959 through 1972. As noted above, Mr. Parsons was tried, on all 35 counts, from May 5 to May 21, 1997, but the discovery of a newspaper in the jury room lead to a mistrial. Before the next trial began, the lower court ruled that only the first 21 counts of the indictment, all concerning C.S., were valid and the other counts violated the ex post facto clause of our Constitution. The court found that, because the statute allegedly violated by Mr. Parsons was not in force until 1976, and the other counts concerned events that occurred before that time, he could not be tried for those counts. However, the other alleged victims were permitted to testify in the second trial pursuant to Rule 404(b) of the West Virginia Rules of Evidence, discussed infra.
The second trial began on January 6, 2000 and ended on January 26 with the jury finding Mr. Parsons guilty of all 21 counts. The court sentenced Mr. Parsons to 1 to 5 years in prison for each of the first ten counts, with the sentences to run consecutively, and then 1 to 5 years on the remaining counts, with those sentences to run concurrently with the forgoing 10 counts. The lower court denied his motion for a judgment of acquittal and/or a new trial on March 9, 2001. On appeal, Mr. Parsons makes numerous assignments of error, which we shall discuss in turn. Because we find each of these assignments unpersuasive, we affirm the decision of the lower court.
This Court has explained that it affords great deference to evidentiary rulings
made by a trial court.
The action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion. Syllabus point 10, State v. Huffman, 141 W. Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds, State ex rel. R.L. v. Bedell, 192 W. Va. 435, 452 S.E.2d 893 (1994).
Syl. pt. 1, State v. Calloway, 207 W. Va. 43, 528 S.E.2d 490 (1999); accord, syl. pt. 4, Riggle v. Allied Chem. Corp., 180 W. Va. 561, 378 S.E.2d 282 (1989); State v. Copen, 211 W. Va. 501, 566 S.E.2d 638 (2002) (per curiam). Stated another way:
The West Virginia Rules of Evidence . . . allocate significant discretion to the trial court in making evidentiary . . . rulings. Thus, rulings on the admissibility of evidence ... are committed to the discretion of the trial court. Absent a few exceptions, this Court will review evidentiary . . . rulings of the circuit court under an abuse of discretion standard. Syllabus Point 1, in part, McDougal v. McCammon, 193 W. Va. 229, 455 S.E.2d 788 (1995).
Syl. pt. 9, Smith v. First Community Bancshares, Inc. 212 W. Va. 809, 575 S.E.2d. 419 (2002). As the Court in McDougal noted of the Rules of Evidence: As the drafters of the rules appear to recognize, evidentiary and procedural rulings, perhaps more than any others, must be made quickly, without unnecessary fear of reversal, and must be individualized to respond to the specific facts of each case. McDougal v. McCammon, 193 W. Va. 229, 235, 455 S.E.2d 788, 794 (1995). Bearing these standards in mind, we turn to a discussion of the case at hand.
Mr. Parsons assigns a large number of errors, arguing that each should be
sufficient to reverse his conviction. While we find some more meritorious than others,
ultimately we conclude that Mr. Parsons' conviction should stand. We examine his
arguments in turn.
(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.
W. Va. Code § 61-8B-11 (1986). Based upon this statute, the circuit court refused to allow a great deal of the testimony Mr. Parsons wished to introduce regarding the sexual relationship that allegedly existed between the two of them after C.S. had turned 16.
Mr. Parsons alleges that the court's exclusion of his proffered evidence of this relationship effectively denied him any meaningful defense to the charges against him. The State argues that any evidence of such a relationship should have been excluded. It argues that, because a victim's age makes consent impossible with any partner, the issue of whether or not a victim had sex with other partners, or with a defendant, prior to the alleged incident, is irrelevant.
Mr. Parsons points out that the second portion of the statute (presumptively dealing with victims who have reached the age of consent), allows evidence of a victim's prior consensual sex acts with a defendant, to show that a victim actually consented to the sex act in question. Clearly such evidence could be relevant to the issue of consent in those cases where a victim and a defendant had engaged in a consensual sexual relationship prior to the act in question.
As the State observed, an underage victim's consent cannot technically be at issue, because the law deems the underaged victim utterly incapable of consent. Thus it logically follows that evidence of prior, allegedly consensual acts would be of no help to a defendant (since the victim would have been even younger), and should be excluded. However, Mr. Parsons, who denied any pre-16 sexual contact, claims that he should have been permitted to argue that later consensual acts occurred with C.S. after she turned 16, and that it is because of this post-16 consensual relationship that C.S. knew certain things about Mr. Parsons, his house, his cars, and other information.
While it is true that the trial court excluded the majority of the evidence that Mr. Parsons wished to introduce, we note that the court did allow Mr. Parsons to testify that he and the minister discussed the possibility of Mr. Parsons and C.S. getting married. Mr. Parsons also testified that C.S. was in his home at some point when his ex-wife or children were present when C.S. was no longer in junior high. He testified that C.S. visited him at his office in 1989 or 1990, when she would have been 25 or 26 and married, to ask him for money for therapy she was undergoing. He testified that during this visit she told him that she was having problems with her sex life with her husband. Finally he testified that she called him in 1992, when she would have been 27 or 28 in order to, in his words talk about she and I [sic].
The Court has described the decisions a judge must make when excluding
evidence under our rape shield statute:
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.
Syl pt. 6, State v. Guthrie, 205 W. Va. 326, 518 S.E.2d 83 (1999). We note that the statute is arguably silent on the very narrow issue raised by Mr. Parsons, and can imagine a case where this logic might be more persuasive. However, we believe in this case that, right or wrong, Mr. Parsons did have an opportunity to introduce evidence on this subject. The court did allow significant testimony on this issue; the jury heard his testimony and was unmoved. In summation, we are unable to say that the court committed a clear abuse of discretion in excluding the remainder of the testimony Mr. Parsons wished to offer. Thus we reject this assignment of error.
The alleged victims all testified to suggestive comments, and some kind of
inappropriate conduct, all when they were junior high school-aged, or younger. Ordinarily,
our law does not permit the introduction of evidence concerning a defendant's other sexual
offenses to show that the defendant was more likely to have committed the crime in question.
It is impermissible for collateral sexual offenses to be admitted into evidence solely to show
a defendant's improper or lustful disposition toward his victim. Syl. pt. 7, State v. Dolin,
176 W. Va. 688, 347 S.E.2d 208 (1986). However, when considering a sexual offense
committed against one below the age of consent, the Court has stated:
Collateral acts or crimes may be introduced in cases involving child sexual assault or sexual abuse victims to show the perpetrator had a lustful disposition towards the victim, a lustful disposition towards children generally, or a lustful disposition to specific other children provided such evidence relates to incidents reasonably close in time to the incident(s) giving rise to the indictment. To the extent that this conflicts with our decision in State v. Dolin, 176 W. Va. 688, 347 S.E.2d 208 (1986), it is overruled.
Syl. pt. 2, State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990). Thus it is clear that the evidence in question was admissible, unless some other factor should have prevented its admission.
In the instant case, the judge began selecting a jury on January 6, 2000, and the January term of court began that year on the 10th, which was the second Monday in January 2000. The jurors were sworn on January 12, 2000, and the jury had rendered its verdict by January 26, 2000. Mr. Parsons suggests that the fact that several jurors indicated on their questionnaires that they were concerned about serving for a long trial, coupled with the fact that these jurors were technically from the prior court term, together amounts to a serious error. We disagree. We note that the statute on which Mr. Parsons relies allows for an extension of juror service to complete an on-going case. While the actual trial of this case did not begin until the next term of court, we do not believe the time these jurors served beyond January 10 in any way affected Mr. Parsons' defense; thus we reject this assignment of error.
Mr. Parsons also suggests that the court erred in not striking certain jurors for cause. It is clear that [t]he decision to grant a motion to strike a juror for cause is within the sound discretion of the trial court. Wheeler v. Murphy, 192 W. Va. 325, 331, 452 S.E.2d 416, 422 (1994) (citations omitted). Moreover, [t]he trial court has broad discretion in determining whether to strike jurors for cause, and we will reverse only where actual prejudice is demonstrated. State v. Miller, 197 W. Va. 588, 605, 476 S.E.2d 535, 552 (1996) (footnote and citation omitted); accord, State v. Swims, 212 W. Va. 263, 268, 569 S.E.2d 784, 789 (2002). (See footnote 3)
Specifically Mr. Parsons claims that potential juror Gunno should have been struck by the court because her brother was a Charleston police officer and she was a school teacher and had apparently heard some rumors within the school system regarding the defendant. We note that the juror indicated that she could still be fair and impartial, and that the trial court considered this in its decision to not strike her for cause. We do not believe the trial court abused its discretion in not striking this juror.
Mr. Parsons argues that the court should have granted his motion to strike for
cause potential juror Thomas because she had experienced some sort of abuse by a doctor
years earlier. Again, we do not believe the trial court abused its discretion in this regard, and,
moreover, events mooted this issue the next day when the State chose to strike potential juror
Thomas. Finally, Mr. Parsons argues that potential juror Lipscomb should have been
eliminated from the jury pool because she was a clinical social worker who had treated
victims of sexual abuse. Given the record before us, we are unable to say that the court
abused its discretion in denying Mr. Parsons' motions to strike. In sum, we find none of Mr.
Parsons' arguments related to jury composition persuasive.
Our judges are not shipped into West Virginia from some remote location to
hear cases, and then shipped back every evening. Judges live in the communities where they
preside, and quite naturally may occasionally run into parties, witnesses, counsel, or jurors
outside the courtroom. See, In the Matter of Kaufman, 187 W. Va. 166, 416 S.E.2d 480
(1992) (Neely J., dissenting). Our judicial system relies upon judges to follow their ethical
obligation to recuse themselves when appropriate. We believe that the judge in this case
made an adequate record of the event and then properly determined that grounds for recusal
did not exist.
Mr. Parsons also claims that the indictment should have been dismissed due
to the passage of time between the relevant events and his prosecution. While it appears that
Mr. Parsons did not preserve this argument in his second trial, we may dispense with it
briefly. The Court has noted that West Virginia has no statute of limitations affecting
felony prosecutions. State v. Carrico, 189 W. Va. 40, 43, 427 S.E.2d 474, 477 (1993).
Citing a U.S. Supreme Court case, we have observed:
It was said in Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 417, 17 L.Ed.2d 374 (1966), that [t]here is no constitutional right to be arrested. The police are not required to guess at their peril the precise moment at which they have probable cause to arrest a suspect. . . . Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction.
State v. Davis, 205 W. Va. 569, 578, 519 S.E.2d 852, 861 (1999). In those cases that have found that a defendant was prejudiced by delay, usually the State had known of the crime, and the defendant's identity and whereabouts. See, State ex rel. Leonard v. Hey, 269 S.E.2d 394 (1980) (delay of eleven years between the commission of crime and indictment is presumptively prejudicial to defendant and violates due process, when State knew of defendant's location and identification). However, the State may still rebut that presumption. Id. Moreover, the Court has explained that:
To rebut the presumption of prejudice established in Leonard, we held in Hundley v. Ashworth, 181 W. Va. 379, 383, 382 S.E.2d 573, 576-77 (1989) that the State need only demonstrate the delay was not orchestrated to gain a tactical advantage over the defendant. If the State is able to make such a showing, the delay in obtaining the indictment does not violate federal or state due process.
State v. Davis, 205 W. Va. 569, 579, 519 S.E.2d 852, 862 (1999). (See footnote 4)
We believe that Mr. Parsons cannot show that the State knew of the crime at issue in this case before the early 1990's at best. We do not believe he would, in any event, be able to prove that the State deliberately delayed indicting him to gain some advantage; thus we reject this argument. (See footnote 5)
The formulation of jury instructions is within the broad
discretion of a circuit court, and a circuit court's giving of an
instruction is reviewed under an abuse of discretion standard.
A verdict should not be disturbed based on the formulation of
the language of the jury instructions so long as the instructions
given as a whole are accurate and fair to both parties.
Syl. pt 6, Tennant v. Marion Health Care Foundation, Inc., 194 W. Va. 97, 459 S.E.2d 374 (1995); accord, syl. pt. 7, Foster v. Sakhai, 210 W. Va. 716, 559 S.E.2d 53 (2001). Mr. Parsons' battery instruction would have defined the term according to W. Va. Code § 61-2- 9(c) (1978) and would have informed the jury that battery is a misdemeanor for which the statute of limitations had run. He suggests that this would have allowed the jury to find that Mr. Parsons had committed an insulting touching but not a sexual act. We agree with the State that this instruction was confusing, and do not believe the trial court erred in not giving it.
Mr. Parsons' second instruction would have explained the concept of jury nullification, as described in the case of State v. Morgan Stanley & Co., Inc., 194 W. Va. 163, 459 S.E.2d 906 (1995). As stated in that case, the Court suggested that there remains an abiding respect for the power of the jury to nullify oppressive law, even if there is no express right on the part of the jury to do so. Id. 194 W. Va. at 173, 459 S.E.2d at 916. Taking no position on the legitimacy of such an instruction, had it been offered, we do not believe that the lower court's decision not to allow it could be considered an abuse of its discretion.
The Court has held that: A prosecution that withholds evidence which if made
available would tend to exculpate an accused by creating a reasonable doubt as to his guilt
violates due process of law under Article III, Section 14 of the West Virginia Constitution.
Syl. pt. 4, State v. Hatfield, 169 W. Va. 191, 286 S.E.2d 402 (1982). The State also read
portions of this report into the record. When the portion cited by Mr. Parsons is reviewed in
the context of the other statements, we believe that the report cannot be said to be
exculpatory. It contains the therapist's conclusion that C.S.'s depression is a direct result of
the sexual abuse she received from Mr. Parsons. We note that Mr. Parsons had multiple
opportunities to cross-examine C.S. regarding her memory of the assaults and her recent
mental state. She provided very specific details about Mr. Parsons, his home, his car, and the
activities that took place. In light of these factors, we do not believe that, had Mr. Parsons
seen the Loeb report prior to trial, that the outcome would have differed. That is, we do not
feel that the report contained any novel information that would have created a reasonable
doubt as to his guilt. Hatfield, supra. Thus we do not believe the lower court erred in this
The Due Process Clause of the Fifth Amendment to the United States Constitution and Article III, Section 10 of the West Virginia Constitution require the dismissal of an indictment, even if it is brought within the statute of limitations, if the defendant can prove that the State's delay in bringing the indictment was a deliberate device to gain an advantage over him and that it caused him actual prejudice in presenting his defense.