State v. N.D.

State of West Virginia, Plaintiff Below, Respondent v. N.D., Defendant Below, Petitioner

No. 21-0040

Supreme Court of Appeals of West Virginia

April 20, 2022

Berkeley County CC-02-2019-F-63

MEMORANDUM DECISION

Petitioner N.D., by counsel Michael Santa Barbara, appeals the Circuit Court of Berkeley County's sentencing order and the denial of his motion for a new trial.^[1] Respondent the State of West Virginia, by counsel Patrick Morrisey and Lara K. Bissett filed a response in support of the circuit court's order.

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 is appropriate under Rule 21 of the Rules of Appellate Procedure.

In February of 2019, petitioner was indicted on three counts of sexual abuse by a parent, guardian, custodian, or person in a position of trust; three counts of incest; and three counts of sexual assault in the third degree. The victim, K.C., is petitioner's minor stepdaughter and niece. Petitioner entered into a plea agreement whereby he agreed to enter an Alford plea to one count of sexual abuse by a parent, guardian, custodian, or person in a position of trust and two counts of sexual assault in the third degree. However, when the plea agreement was placed on the record at a pretrial hearing, petitioner rejected the plea. Therefore the case proceeded to trial on October 21, 2020.

During the trial, Trooper First Class (TFC) Matthew Morgan testified that he received a call on May 22, 2018, regarding an alleged sexual assault that occurred in Berkeley County. TFC Morgan testified that the sexual assault involved a thirteen-year-old victim, K.C., who has a medical condition such that her mental capacity was that of an eight-year-old. TFC Morgan testified that when he arrived, K.C. was present with her mother, E.B. TFC Morgan was informed that K.C. had confided in a neighbor that petitioner had been having sex with her. He was also told that when E.B. confronted petitioner, petitioner admitted that the accusations were true. TFC Morgan also testified regarding his forensic interview of K.C., during which she disclosed that she had been sexually abused by petitioner over a period of several months. As a result, petitioner was arrested. According to TFC Morgan, during his investigation he discovered that, while incarcerated, petitioner made recorded calls to K.C. and/or E.B. so he obtained a phone log and a CDR disk of those calls. Petitioner's counsel objected to TFC Morgan's testimony, asserting that he was not a competent witness to authenticate the calls and that a jail records custodian was needed to authenticate them, in addition to time and date stamping them. The State, however, argued that the West Virginia Rules of Evidence do not specify who must authenticate those records and that the times and dates were noted on the CD. The circuit court overruled petitioner's objection, and the recorded calls were played for the jury, though they were not transcribed in the trial transcript.

E.B. testified that petitioner is her ex-husband. She also explained that, prior to marrying petitioner, she had been married to his half-brother, who is K.C.'s biological father. E.B. further testified that on May 22, 2018, a neighbor told her that K.C. had disclosed petitioner's sexual abuse to the neighbor, after which E.B. confronted petitioner. According to E.B., petitioner then turned to K.C. and instructed her to "[t]ell [her] mom the truth." After E.B. informed petitioner that she was asking him-not K.C.-he responded, "She came on to me. . . . Yes, I did it." He then apologized. At the time petitioner sexually assaulted K.C., E.B. was working from approximately 7:00 p.m. to 7:00 a.m. E.B. further testified that when petitioner called her from jail, he

kept saying that he was sorry, that he was going to make it right, that he was going to take responsibility for what he did wrong, said that [K.C.] had come into his room and felt up on him, just a repeat of saying he was sorry and that he was going to take responsibility for it.

According to E.B.'s testimony, she took "I did it" to mean that he had sex with K.C. She also testified that K.C. was "very, very upset" and scared. K.C. "disclosed that she was scared to tell [her] because she thought she was going to get in trouble."

K.C. testified that petitioner put his "pee-pee" in her "pee-pee" in her mother's bedroom while her mother was away at work; she testified that it happened multiple times in her mother's bedroom and twice in her own bedroom. K.C. further testified that petitioner also stuck his "pee-pee" in her "bottom." She stated that he put "white stuff" from a bottle that he kept in his drawer on his "pee-pee" when he had sex with her. This was consistent with testimony from TFC Morgan and E.B. that they found a bottle of lubricant in petitioner's dresser drawer. K.C. also identified a photograph of a bottle of lubricant as looking like the bottle petitioner used when petitioner had sex with her. K.C. testified that her last sexual contact with petitioner was the night before she told her neighbor what was happening and that petitioner told her not to tell anyone or she would go to jail. On cross-examination, when petitioner's counsel asked her whether her mother told her what to say in court, she replied, "Yes." However, on re-direct, the State inquired, "Did she tell you anything, how to answer my questions or what questions I am going to ask you or how to answer them or anything like that?" K.C. responded, "She said tell the truth."

At the conclusion of the State's case-in-chief, petitioner's counsel moved for a judgment of acquittal, arguing that the State failed to prove its case as to the number of times petitioner sexually assaulted K.C. and the dates upon which the assaults occurred. However, the circuit court denied the motion.

Petitioner was the sole defense witness during trial. According to petitioner's testimony, K.C. said, "Dad, you tried to stick your thing in me" and he "was like, 'Wow, really.'" With regard to the recorded calls from jail, he testified that he "basically said that I did stuff and I was trying to get money [for the commissary]." He admitted he knew that the calls were being recorded but that he "sat there and said what [he] said." At trial, he claimed he "shouldn't have said it because hindsight now I see I made a mistake in doing so, but I wasn't going to lay down that's why I'm here now." When asked to tell the jury anything he would like them to know about the allegations against him, petitioner told them that "jail was very hard . . . The conditions in there . . . are bad. I got itchy like sores in my head and everything. I was willing to do whatever it took to get the things I needed." He did not, however, deny the allegations. On cross-examination, he stated, "I am not even saying [K.C.] is lying, but I am saying she's confused right now." His counsel did not call any other witnesses.

At the conclusion of the trial, the jury found petitioner guilty of all nine counts. Thereafter, petitioner's counsel filed a motion for a new trial, arguing that he could not be convicted based upon the uncorroborated testimony of K.C. and that the recorded calls were not properly authenticated. Prior to the sentencing hearing, the circuit court denied that motion.

During the November 20, 2020, sentencing hearing, E.B. addressed the circuit court. Petitioner requested concurrent sentencing due to his age (fifty-six) and to allow for rehabilitation at the conclusion of his sentence. Petitioner did not exercise his right of allocution. The State argued that due to petitioner's relationship to the victim and the heinousness of the crime, he should receive consecutive sentences. According to the presentence investigation report, petitioner had a history of violence with thirty misdemeanor arrests and numerous convictions. The circuit court noted that it "carefully considered the arguments of counsel, the testimony and exhibits adduced at trial, the sentencing statement made by the minor victim's mother, the impact of the sexual crimes on the child victim, and the [presentence investigation]," finding that the sentences would run consecutively. "The [c]ourt notes that [petitioner] was a stepfather, uncle, and caregiver to a 13 year old special needs child; his sexual abuse of this innocent child is beyond appalling; and there is no basis for leniency in sentencing." By order entered on December 17, 2020, petitioner was sentenced to 48 to 120 years of incarceration. Upon release, petitioner was ordered to be placed on supervised release for fifty years and to register as a sexual offender for the remainder of his life. Petitioner appeals from the denial of his motion for a new trial and his sentencing order.

We review the denial of a motion for a new trial as follows:

In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).

On appeal, petitioner first argues that he was unfairly prejudiced by the admission of the recorded...