State v. Richard S.

State of West Virginia, Plaintiff Below, Respondent v. Richard S., Defendant Below, Petitioner

No. 20-0320

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

April 26, 2021

(Kanawha County 18-F-641)

MEMORANDUM DECISION

Petitioner Richard S., by counsel Matthew A. Victor, appeals the Circuit Court of Kanawha County's March 13, 2020, sentencing order.¹ Respondent the State of West Virginia, by counsel Andrea Nease Proper, filed a response.

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.

On May 13, 2018, petitioner's then-wife contacted police with information that petitioner possessed child pornography on his computer in the form of a video of petitioner touching a minor female child with his penis and fingers. On May 21, 2018, officers executed a search warrant of petitioner's home and seized numerous items, including a laptop, a hard drive, and CDs. However, they did not find evidence of a crime. On May 24, 2018, two women were in petitioner's home cleaning it and found DVDs mixed with music CDs. One of the women took the DVDs home and was able to view them; those DVDs showed petitioner and an adult female molesting a female child. The DVDs were returned to the Mason County home, and the women contacted police. Police executed a second search warrant and obtained those DVDs from petitioner's home. When officers viewed the DVDs, they saw petitioner masturbating over the child's vagina while the adult female held the child's legs apart. In addition, it depicted petitioner performing oral sex on the child. The investigation revealed that the adult female shown on that DVD was petitioner's formerlive-in girlfriend, Roseanna T., who was caring for her granddaughter, M.M., at that time. M.M. was the child in the videos and was one to two years old at the time.

Roseanna T.'s daughter, C.T., told officers that petitioner had molested her when she was approximately fourteen years old. Roseanna T. admitted to officers that petitioner made videos of their sexual encounters and stated that she may be in a video but blamed her uncertainty on a memory deficit caused by physical abuse that she suffered from petitioner. Officers told Roseanna T. that petitioner was arrested on outstanding warrants in Mason County and that he had admitted he and Roseanna T. were the people in the video. When Roseanna T. was questioned again, she admitted that petitioner had sexually abused M.M. and filmed the incident. She also admitted that both she and petitioner were on drugs at the time. Roseanna T. confessed to touching her granddaughter and watching petitioner ejaculate on M.M. Roseanna T. was placed under arrest.

On May 29, 2018, petitioner was arrested for the violation of a domestic violence protective ("DVP") order and taken to the Mason County detachment of the West Virginia State Police. After being read his Miranda rights, petitioner admitted that he was the man in the videos and that the videos were stored in his Mason County residence. He told officers that he took the videos with a phone and that they were taken in South Charleston, West Virginia. Petitioner further admitted that the child in question was approximately one year old at the time. He identified Roseanna T. as the other adult in the video, stating that the child in the video was Roseanna T.'s granddaughter. Petitioner blamed his actions on his methamphetamine use, contending that he had never been aroused by a child other than during that period. Finally, he admitted that he had taken nude photographs and videos of C.T., who was fourteen at that time.

The criminal complaint in the instant matter was filed on May 31, 2018. Petitioner was indicted by a Kanawha County grand jury during the September of 2018 term of court on twenty counts, all related to M.M.: eleven counts of first-degree sexual abuse; five counts of sexual abuse by a parent, guardian, custodian, or person in a position of trust; and four counts of first-degree sexual assault. On January 29, 2019, petitioner filed a motion to suppress his statement to police, alleging a violation of the prompt presentment rule. Following a pretrial hearing, during which investigating officer Trooper Burnem testified, petitioner's motion was denied.

Petitioner's trial began on January 6, 2020. During jury selection, the court learned that several of the potential jurors had served on a jury in a criminal trial earlier in the same term of court. The State attempted to use one of its peremptory challenges to strike one of those jurors. According to that juror's questionnaire, his race is "Asian or Pacific Islands." Petitioner challenged the strike, arguing that the juror should not be struck because he is a member of a minority group. The circuit court first stated that because petitioner is white, Batson v. Kentucky, 476 U.S.79 (1986), and its progeny do not apply. In response to petitioner's challenge, the State told the court that the juror had recently served on another jury and it "believe[d] that that juror was one of the holdouts in that case. It certainly has nothing to do with his race." According to the State, although the previous defendant was ultimately convicted, it took "hours of deliberation with a crime that had been caught on video." When the court asked petitioner about what prejudice would result from striking the juror, he responded "the prejudice is that he will not be judged by a jury of his peers that will represent the spectrum of the community, including the minority, and that's the prejudice." The circuit court heard additional argument on the juror issue, at which time the Statepointed out that petitioner had struck every other potential juror who had served on the earlier jury. The court ultimately denied petitioner's motion.

During petitioner's trial, officers testified regarding obtaining the DVDs at issue, in addition to the chain of custody of those DVDs. A representative with the West Virginia State Police testified that the DVDs were recorded once and could not be edited after being recorded due to the type of disc used. At the close of the presentation of the State's evidence, petitioner moved for a judgment of acquittal based on the lack of evidence of penetration necessary to support the first-degree sexual assault counts. He also argued that the evidence was insufficient to sustain eleven separate acts of first-degree sexual abuse. The circuit court denied petitioner's motion but told petitioner he could submit a jury instruction defining penetration; however, petitioner declined to do so. Petitioner did not testify or present any witnesses. Following jury deliberations, petitioner was found guilty of all twenty counts.

On January 15, 2020, petitioner moved for a new trial and/or judgment of acquittal, asserting that the jury selection violated Batson; the circuit court erred in denying his motion to suppress the videos that were admitted without establishing a proper chain of custody; the circuit court erred in refusing petitioner's Rule 404(b) cautionary instruction; there was insufficient evidence to convict petitioner on all counts; there was insufficient evidence of "penetration" to sustain the counts that required penetration; there was insufficient evidence to convict on eleven separate counts of first-degree sexual abuse; and cumulative error. At that time, petitioner also requested that he be permitted to hire a physical and mental health expert to conduct a sex offender evaluation pursuant to West Virginia Code § 62-12-2(e), and that motion was granted by order entered on February 3, 2020. Ralph Smith, M.D. was retained to conduct the sex offender evaluation.

A presentence investigation ("PSI") was completed, which showed that petitioner admitted to molesting M.M., claiming he molested her only once and did not penetrate her. According to the report, petitioner was thirty-seven years old and the victim was just one year old at the time of the crime. The PSI reflects a lengthy criminal history, which includes multiple domestic battery and assault charges, multiple protective orders, drug charges, armed robbery, and fugitive from justice proceedings. The evaluator found that petitioner showed only minimal remorse and no sympathy for M.M.

On March 2, 2020, petitioner moved to continue the sentencing hearing because the report from his expert had not yet been completed. The circuit court decided to proceed with sentencing. During the sentencing hearing, the circuit court noted that petitioner is "one of the most evil persons [it had] ever encountered" and was "the epitome of evil." The court also characterized the video at issue as "haunting," commenting that "[i]t brought grown men to tears, watching [petitioner] molest a helpless baby as she lay there, watching cartoons with her bottle, crying while you took your time to get off, performing oral sex on her, penetrating her vagina." The circuit court found that "due to the nature of the crimes and the evidence presented at trial, an alternative sentence would not be granted in this matter." Accordingly, the circuit court determined that it was unnecessary to review petitioner's sex offender evaluation prior to sentencing. The circuit court informed petitioner that he could file a motion to reconsider within 120 days "and then once [it] receive[s the] report, [the court] will take that with the motion to reconsider, and [it] will reconsiderthe sentence . . . ."

The psychiatric evaluation completed by Dr. Smith, was ultimately sent to the circuit court on March 13, 2020. According to that report, petitioner...