State v. Erik K.

State of West Virginia, Plaintiff Below, Respondent v. Erik K., Defendant Below, Petitioner

No. 19-0988

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

October 13, 2020

(Berkeley County CC-02-2019-F-85)

MEMORANDUM DECISION

Petitioner Erik K., by counsel B. Craig Manford, appeals the Circuit Court of Berkeley County's September 27, 2019, conviction and sentencing order adjudging him convicted of two counts of sexual abuse by a parent, guardian, custodian, or person in a position of trust to a child and sentencing him to consecutive terms of incarceration of not less than ten nor more than twenty years for each conviction.¹ Respondent State of West Virginia, by counsel Mary Beth Niday, filed a response. Petitioner filed a reply.

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 June of 2017, the mother of a then-ten-year-old boy, D.C., reported to law enforcement that D.C. had possibly been the victim of sexual abuse by petitioner. Petitioner, who was a friend of D.C.'s uncle, was enrolled in college with the uncle. During breaks from school, petitioner would accompany the uncle to the uncle's home rather than return to his own home in Tennessee.² During these visits, a relationship developed between petitioner and D.C.'s family, such that thefamily members began referring to petitioner as "Uncle Erik." Petitioner was alleged to have sexually abused D.C. during those breaks from school on various occasions between November of 2012 and January of 2017. Specifically, petitioner was alleged to have compelled D.C to both kiss his genitalia and to perform oral sex on him.

During the ensuing investigation, D.C. was interviewed. D.C. disclosed that, beginning when he was approximately five years old, petitioner would force D.C. to place his mouth on petitioner's genitals. Although D.C. could not recount a specific number of times the sexual abuse occurred, he stated that it occurred at least five times. On one occasion, D.C.'s sisters witnessed the sexual abuse. Accordingly, D.C.'s sisters were also interviewed, and one recalled observing petitioner lying on his back with his pants down and D.C. looking at petitioner's genitals. D.C.'s sister also witnessed D.C. touch petitioner's genitals.

Petitioner was indicted on six counts of first-degree sexual assault in October of 2017.³ Following discovery, the filing of various motions, and the granting of several continuances, the parties reached a plea agreement on February 13, 2019. Under the terms of this agreement, petitioner agreed to plead guilty to two counts of sexual abuse by a parent, guardian, custodian, or person in a position of trust to a child, which were to be charged by information, in exchange for the State's dismissal of the first-degree sexual assault charges on which he was indicted.⁴ The parties further agreed that sentencing would be left in the court's discretion, but each party was free to argue for any lawful sentence.

Prior to sentencing, petitioner underwent a psychosexual evaluation by Elisha Agee, Psy.D., to, among other things, determine petitioner's sexual offense recidivism risk and outline an appropriate treatment plan. Dr. Agee administered the Static-99R test to assess petitioner's sexual recidivism risk. Petitioner's score on that test placed him in the "above average" category for risk of being charged or convicted of another sexual offense, and this score was based on his relatively young age, never having lived with an intimate partner, and having had an unrelated male victim. Dr. Agee stated that 10.1% of men with petitioner's score on this test went on to sexually reoffend during a five-year follow-up period; therefore, about 90% of men with petitioner's score were not known to reoffend. Dr. Agee qualified her assessment by stating that,

[o]f course, a score from the Static-99R (or any measure) does not indicate whether the individual who received that score will or will not sexually reoffend . . . . Therefore, the score is a reasonable starting point in assessment and can be used to place the person in a risk category, but it is not a prediction specific to thatindividual, who must be considered in the context of his own circumstances, characteristics, and resources.

Dr. Agee further noted that there are two broad sets of risk factors associated with sexual-offense recidivism: one, an impulsive, antisocial lifestyle; and two, sexual deviance. Dr. Agee concluded that petitioner "does not appear to manifest th[e] broad risk factor [of an impulsive, antisocial lifestyle] to any meaningful extent." Also, Dr. Agee explained that psychopathy is a personality style included within the broader category of antisocial lifestyle, and she saw "no indication that psychopathy is a risk factor that elevates his risk for sexual re-offense to any meaningful extent." Concerning sexual deviance, Dr. Agee found that available data warrants a diagnosis of pedophilic disorder, which is indicative of sexual deviance. But, she continued,

[a]lthough there is evidence of a broader pattern of sexual interest in minors (based on his offenses against the present victim), there is no indication to suggest that children or minors are his primary sexual preference, or that [petitioner] has ever had any other form of sexual contact with minors aside from what is outlined in this report.⁵

In terms of treatment, Dr. Agee recommended sex-offender specific treatment, mental health treatment with a clinician who has expertise with sexual offenders, and restricted contact with minors.

Dr. Agee also detailed that, approximately ten minutes after her eight-hour evaluation of petitioner ended, petitioner returned to her office "crying while he shared that he was not entirely forthcoming with me." During the evaluation, petitioner claimed to have sexually abused D.C. four times. But upon returning to the doctor's office, he said that he abused D.C. "around [ten] [times]." Petitioner also disclosed that "he engaged in intercrural sex (i.e., non-penetrative sex during which the penis is placed between the receiving partner's thighs and thrusts to create friction and stimulation) with D.C. by laying him down on his stomach and initiating intercrural sex." Petitioner repeatedly apologized for not providing that information earlier and stated that "[i]t's what I'm most ashamed of." Ultimately, Dr. Agee found that petitioner

came across as forthright in most respects . . . . Indeed, he appeared quite candid, providing information that might be construed negatively by others. Perhaps most telling of his transparency and desire to be forthcoming is that he returned to myoffice about [ten] minutes after I completed the evaluation to provide more information regarding the alleged offenses.

The court held a plea and sentencing hearing on August 27, 2019, at which the court accepted petitioner's guilty pleas to two counts of sexual abuse by a parent, guardian, custodian, or person in a position of trust to a child and adjudged him convicted of those crimes. The court proceeded to sentencing. Petitioner argued for probation or home confinement, while the State, the victim's mother, and the victim's guardian ad litem argued for consecutive terms of incarceration. In finding that incarceration was warranted, the court considered five factors: 1. The "generous concessions already provided by the State" in dismissing the charges on which petitioner was indicted under the parties' plea agreement; 2. Petitioner's decision to return to the victim's family's home during breaks from school instead of traveling to visit his own family; 3. That petitioner's actions were the result of personal choice rather than, as he claimed, an addiction to sex; 4. The determination that petitioner was at an "above average" risk for reoffending; and 5. Petitioner's initial reluctance to fully disclose the number of times he abused D.C.⁶ Accordingly, the court sentenced petitioner to consecutive terms of not less than ten nor more than twenty years of incarceration. The court also imposed fifty years of supervised release upon petitioner's release from incarceration and ordered restitution. The court entered its conviction and sentencing order memorializing its rulings on September 27, 2019, and this appeal followed.

Petitioner raises two assignments of error on appeal, both of which concern his sentence. In his first assignment of error, he asserts that the circuit court erred in imposing consecutive sentences rather than concurrent sentences or probation. Incorporated within this assignment of error is an assertion that the court based its sentence on impermissible factors. In petitioner's second assignment of error, he argues that his sentence was unconstitutionally disproportionate. We review sentencing orders "under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands." Syl. Pt. 1, in part, State v. Adams, 211 W. Va. 231, 565 S.E.2d 353 (2002) (citation omitted).

In support of petitioner's first assignment of error, petitioner argues that the court's decision to impose consecutive sentences and deny his request for probation was based on "flawed reasoning." First, the court considered petitioner's favorable plea bargain. Because the court was not privy to the parties' plea negotiations or the strengths and weaknesses of the State's case, petitioner contends that characterizing the plea agreement as favorable amounts to an assumption of petitioner's guilt. Second, the court dismissed petitioner's assertion...