STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia, Plaintiff Below, FILED
Respondent February 27, 2015
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
vs) No. 14-0439 (Harrison County 13-F-75) OF WEST VIRGINIA
Frank A., Defendant Below,
Petitioner
MEMORANDUM DECISION
Petitioner, Frank A., by counsel, Dennis E. Kelley, appeals the order of the Circuit Court
of Harrison County, entered March 6, 2014, sentencing him for his convictions for the offenses
of two counts of sexual assault in the first degree, and two counts of sexual abuse by a parent,
guardian, or custodian. Respondent, State of West Virginia, filed a response by counsel, Julie
Warren.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
In May of 2013, petitioner was indicted in a multi-count indictment for two counts of first
degree sexual assault against a minor child, J.A.;1 two counts of sexual abuse by a parent,
guardian, or custodian against a minor child, J.A.; two counts of second degree sexual assault
against a minor child, S.A.; two counts of sexual abuse by a parent, guardian, or custodian
against a minor child, S.A.; two counts of first degree sexual assault against a minor child, A.A.
(petitioner’s daughter); and two counts of sexual abuse by a parent, guardian, or custodian
against a minor child, A.A.
In December of 2013, at trial, A.A. testified that her father lived with her family from
2003 to 2004. Over the course of those two years, when A.A. was between the ages of thirteen
and fifteen, petitioner repeatedly attempted to sexually assault her by dragging her into the
laundry room and fondling her. A.A. testified that she fought back. When she was fifteen, A.A.
told her mother about the assaults. Her mother immediately took her to a police station and filed
charges. A.A. further testified that the charges were ultimately dismissed because she recanted
1
Consistent with our practice in cases involving sensitive matters, we use initials to
protect the identity of the child victims in this case. See W.Va. R.A.P. 40(e)(1); State v. Edward
Charles L., 183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
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her story as she did not want to face petitioner in court.
In petitioner’s presentation of evidence, petitioner presented the testimony of Ms. Terry
Walker, of the West Virginia Department of Health and Human Resources, Child Protective
Services (CPS). At the time of the trial, Ms. Walker testified she had been employed with CPS
for twenty-nine years. While Ms. Walker originally interviewed A.A. in 2003, she was not
present when A.A. recanted, and was aware that the prior charges were dismissed. She testified
that in her tenure with the CPS she conducted hundreds of investigations of sexual assault, and
sexual abuse, and her work at CPS included working with children who were victims of sexual
abuse and assault. On cross-examination, Ms. Walker was asked whether it was “normal for a
victim of sexual assault and sexual abuse to recant.” Petitioner’s counsel first objected, stating
that Ms. Walker would need to be qualified as an expert to offer such an opinion, but then
withdrew the objection and informed the circuit court that petitioner would stipulate to her expert
qualifications. Upon the stipulation of counsel, Ms. Walker went on to testify that in her
experience, there were situations where children recanted allegations of sexual assault and abuse,
and that children recant for different reasons. Ms. Walker further opined that just because a child
recants that does not mean the sexual assault or abuse did not happen.
Petitioner testified in his defense. On cross-examination, petitioner was asked if he
recalled seeing the witness statement of J.G. in the investigation report. J.G. was not called to
testify and did not testify. Petitioner was not questioned regarding the substance of the report. At
another time during cross-examination, the State questioned petitioner regarding petitioner’s
prior direct testimony that S.A. never previously accused him of sexual abuse. Petitioner denied
that S.A. had accused him of sexual abuse prior to the instant charges, and the prosecutor
questioned him regarding testimony by S.A. at a family court hearing in which the child
previously alleged he was abused by petitioner. Petitioner’s counsel did not object during the
cross-examination to these questions.
The jury found petitioner guilty of two counts of first degree sexual assault against a
minor child, A.A. (counts ten and twelve), and two counts of sexual abuse by a parent, guardian,
or custodian against a minor child A.A. (counts nine and eleven). Petitioner was sentenced to ten
to twenty years for each of the two counts of sexual abuse by a parent, guardian, or custodian,
which were to run consecutively to each other. Petitioner was also sentenced to one to five years
for each of the counts of sexual abuse in the first degree, which were to run concurrently to his
sentence of ten to twenty years for his conviction of count twelve. Petitioner now appeals.
Petitioner raises several grounds on appeal including petitioner alleges (1) that the circuit
court erred by allowing the complaining officer to respond to a question from a grand juror
regarding petitioner’s prior record; (2) that the circuit court erred in going forward with a trial,
when it was clear that petitioner did not understand a plea offer, and that petitioner was of
limited mental status; (3) that the circuit court erred in admitting evidence of a prior arrest
without a West Virginia Rule of Evidence 404(b) hearing; (4) that the circuit court erred by
allowing improper expert testimony without foundation or qualification; and (5) that the circuit
court erred in permitting the prosecutor to ask petitioner about statements made against him by
individuals who were not called as witnesses or available for cross-examination. Because these
alleged errors concern different principles of law, the applicable standards of review will be
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incorporated into the discussion of each issue. We note initially, however, that “‘[a] reviewing
court should not reverse a criminal case on the facts which have been passed upon by the jury,
unless the court can say that there is reasonable doubt of guilt and that the verdict must have
been the result of misapprehension, or passion and prejudice.’ Syllabus point 3, State v. Sprigg,
103 W.Va. 404, 137 S.E. 746 (1927).” Syl. Pt. 1, State v. Easton, 203 W.Va. 631, 510 S.E.2d
465 (1998).
Petitioner first alleges that the circuit court erred by allowing the complaining officer to
respond to a question from a grand juror regarding petitioner’s prior record. Before the grand
jury, the arresting officer testified that petitioner had been charged previously for a crime related
to sexual assault or abuse, but that the charges were dismissed. Petitioner asserts that this
evidence was improper and required a hearing to be held pursuant to West Virginia Rule of
Evidence 404(b), before the evidence could be found to be admissible, and that the statements
“clearly poisoned” the grand jury panel against him.
This Court has long held that “[e]xcept for willful, intentional fraud the law of this State
does not permit the court to go behind an indictment to inquire into the evidence considered by
the grand jury, either to determine its legality or its sufficiency.” Syl., Barker v. Fox, 160 W.Va.
749, 238 S.E.2d 235 (1977). Furthermore, “[t]his Court reviews indictments only for
constitutional error and prosecutorial misconduct.” State v. Adams, 193 W.Va. 277, 284, 456
S.E.2d 4, 11 (1995). We find no merit to this assignment of error because petitioner has not
alleged any constitutional error or prosecutorial misconduct.
Petitioner next asserts, under a plain error analysis2 that the circuit court erred in allowing
the case to proceed to trial, when it was clear that petitioner was of limited mental status and did
not understand a plea offer. Petitioner offers no argument on this issue, but simply attaches a
portion of the trial transcript, in which the circuit court asked petitioner about the nature and
status of plea negotiations with the State, and petitioner’s response indicated that he had
forgotten the details of the most recent plea offer. The circuit court then asked petitioner if there
was a reason why he had forgotten the substance of the plea offer, and petitioner replied that he
had forgotten the exact terms of the plea offer. The court then sought clarification from
petitioner’s counsel. After the circuit court recited the terms of the plea agreement to petitioner,
petitioner indicated to the circuit court that he understood the agreement, but chose to decline it.
The matter then went to trial.
We find the circuit court did not commit error by failing to order a mental competency
evaluation of petitioner. “Because a trial court is able to observe the demeanor of the defendant
and consequently has a better vantage point than this Court to make determinations regarding
mental competency, we will disturb a lower court’s ruling denying a psychiatric examination and
related proceedings only where there has been an abuse of discretion.” State v. Saunders, 209
W.Va. 367, 379, 549 S.E.2d 40, 52 (2001) (citing State v. Arnold, 159 W.Va. 158, 163, 219
2
“To trigger application of the “plain error” doctrine, there must be (1) an error; (2) that is plain;
(3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public
reputation of the judicial proceedings.” Syl. Pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114
(1995).
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S.E.2d 922, 925 (1975) (overruled on other grounds)). Counsel for petitioner did not present any
evidence to the circuit court that petitioner engaged in irrational behavior, had a mental illness,
exhibited any behavioral abnormalities, or had previously been confined due to mental issues,
nor was there any testimony of incompetence. There was no motion for a mental competency
evaluation prior to or during the jury trial, and it appears from the record below that neither the
circuit court, the prosecutor, nor trial counsel had noticed any concerning behavior during the
trial or the hearings prior to trial. In addition, petitioner clearly indicated to the circuit court that
he understood and did not wish to accept the plea offer of the State of West Virginia.
Further, we find the trial court did not err in proceeding to trial despite petitioner’s
temporary confusion regarding the plea offer from the State of West Virginia. There is no
absolute right under either the West Virginia or the United States Constitutions to a plea bargain.
See Myers v. Frazier, 173 W.Va. 658, 664 n. 5, 319 S.E.2d 782, 788 n.5 (1984). (A defendant
has “no constitutional right to have his case disposed of by way of a plea bargain.”) (Citations
omitted.) Furthermore, in the very excerpt from the transcript which petitioner cites in his brief,
petitioner told the circuit court that he understood the plea offer and chose not to accept it. As
petitioner was not entitled to a plea bargain in this matter, and explicitly told the circuit court that
he understood the proposed plea agreement and rejected the agreement, we find this assignment
of error has no merit.
Petitioner’s third and fourth assignments of error relate to the admission of evidence
during trial. Petitioner argues, under a plain error analysis, that the circuit court erred by
admitting evidence of a prior arrest without a hearing pursuant to West Virginia Rule of
Evidence 404(b)3. Petitioner asserts that the prosecuting attorney improperly mentioned in his
3
This Court has held with regard to 404(b) evidence:
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.
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opening statement criminal charges filed by A.A. against petitioner in 2003, which were
dismissed. Petitioner also alleges that subsequently, while questioning J.A., another trial witness,
the prosecutor elicited from J.A. that he had not seen petitioner, his father, since a previous court
hearing. Petitioner asserts that this line of questioning indicated to the jury that petitioner was
previously the subject of different court proceedings, and that this information was prejudicial to
petitioner.
Likewise, petitioner argues that the circuit court allowed improper expert testimony of
Ms. Walker of CPS, without foundation or qualification. We find the trial court did not err in
admitting the testimony of Ms. Walker. At trial, petitioner initially objected to the opinion
testimony of Ms. Walker solicited by the State of West Virginia, regarding the frequency of child
victims recanting their testimony. However, petitioner’s trial counsel not only withdrew the
objection, but stipulated to the qualifications of Ms. Walker, and elicited Ms. Walker’s expert
opinion on re-direct examination.
We note that “[a] trial court’s evidentiary rulings, as well as its application of the Rules
of Evidence, are subject to review under an abuse of discretion standard.” Syl. Pt. 3, State v.
Larry M., 215 W.Va. 358, 559 S.E.2d 781 (2004) (citation omitted). It is clear from the record
that petitioner did not object in either instance to the opening statement or subsequent
questioning of the prosecuting attorney. Additionally, petitioner withdrew his objection to the
expert testimony of Ms. Walker, and stipulated to her qualifications as an expert. “Errors
assigned for the first time on appeal will not be regarded in any matter of which the trial court
had jurisdiction or which might have been remedied in the trial court had objection been raised
there.” State v. Dennis, 216 W.Va. 331, 350, 607 S.E.2d 437, 456 (2004). Therefore, we find
petitioner waived any objection to the statements of the prosecuting attorney and the testimony
of Ms. Walker and find the circuit court did not abuse its discretion in allowing the subject
evidence.
Petitioner’s final assignment of error claims that the circuit court erred by allowing the
prosecuting attorney to ask the defendant about statements made against him by individuals who
were not called as trial witnesses and who were unavailable for cross-examination. During cross-
examination, the prosecutor twice asked the petitioner about statements made by witnesses who
did not testify at trial. Petitioner contends this was a violation of the Sixth Amendment of the
United States Constitution, section 14, article III of the West Virginia Constitution and the
United States Supreme Court decision Crawford v. Washington, 541 U.S. 36 (2004). In one
instance, the prosecutor mentioned a witness, J.G., who gave a statement regarding prior
Syl. Pt. 2, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994). While a hearing was not
held on the evidence in question, we decline petitioner’s assignment of error. Petitioner did not
object in either instance to the statements of the prosecuting attorney. Further, “‘[a] judgment of
conviction will not be reversed because of improper remarks made by a prosecuting attorney in
his opening statement to a jury which do not clearly prejudice the accused or result in manifest
injustice.’ Syllabus Point 1, State v. Dunn, 162 W.Va. 63, 246 S.E.2d 245 (1978).” Syl. Pt. 1,
State v. Holland, 178 W.Va. 744, 364 S.E.2d 535 (1987). The prior accusations by A.A.
mentioned by the prosecuting attorney in opening statement were a part of the current indictment
for which petitioner was going to trial. In addition, the prior charges were referenced by
petitioner’s counsel in his cross examination of A.A.
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allegations against petitioner not contained in the indictment. In the other, the prosecutor
referenced statements given to police by S.A., and asked the defendant upon cross-examination if
S.A., had previously accused him of sexual assault or abuse.
This Court finds no merit to petitioner’s claim. “Pursuant to Crawford v. Washington,
541 U.S. 36, 124 S. Ct. 1354, 158 L.Ed.2d 177 (2004), the Confrontation Clause contained in 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.” Syl. Pt. 6, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311
(2006). However, in this case, petitioner’s counsel raised the issue of S.A.’s prior allegations of
sexual abuse during the presentation of petitioner’s evidence. Therefore, petitioner’s counsel
opened the door for questions regarding these previous allegations on cross-examination. This
Court has held, “[t]he curative admissibility rule allows a party to present otherwise inadmissible
evidence on an evidentiary point where an opponent has ‘opened the door’ by introducing
similarly inadmissible evidence on the same point.” Syl. Pt. 10, in part, State v. Guthrie, 194
W.Va. 657, 461 S.E.2d 163 (1995). Further, we have ruled that, “[a]n appellant or plaintiff in
error will not be permitted to complain of error in the admission of evidence which he offered or
elicited, and this is true even of a defendant in a criminal case.” Syl. Pt. 2, State v. Bowman, 155
W.Va. 562, 184 S.E.2d 314 (1971). Consequently, we find that petitioner’s counsel “opened the
door” to the questioning and the circuit court committed no error.
Additionally, we find that the circuit court did not err by allowing questions regarding the
statement of the witness, J.G. A review of the record reveals that the prosecuting attorney did not
inquire into the substance of the statement, nor was the statement introduced into evidence. The
prosecuting attorney simply asked petitioner if he had seen the particular witness statement. This
inquiry was not testimonial in nature, and therefore does not trigger the application of the
Confrontation Clause of the United States Constitution or Section 14, Article III of the West
Virginia Constitution. See Mechling, 219 W.Va. at 373, 633 S.E.2d at 318 (stating that “Non
testimonial statements by an unavailable declarant, . . . are not precluded from use by the
Confrontation Clause.”).
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: February 27, 2015
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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