Ballard v. Hunt, No. 14–0146.

CourtSupreme Court of West Virginia
Writing for the CourtKETCHUM, Justice
Citation235 W.Va. 100,772 S.E.2d 199
PartiesDavid BALLARD, Warden, Mount Olive Correctional Complex ; and Jim Rubenstein, Commissioner, West Virginia Division of Corrections, Respondents Below, Petitioners v. Richard Lee HUNT, Jr., Petitioner Below, Respondent.
Decision Date09 April 2015
Docket NumberNo. 14–0146.

235 W.Va. 100
772 S.E.2d 199

David BALLARD, Warden, Mount Olive Correctional Complex ; and Jim Rubenstein, Commissioner, West Virginia Division of Corrections, Respondents Below, Petitioners
v.
Richard Lee HUNT, Jr., Petitioner Below, Respondent.

No. 14–0146.

Supreme Court of Appeals of West Virginia.

Submitted March 10, 2015.
Decided April 9, 2015.


Patrick Morrisey, Attorney General, Shannon Frederick Kiser, Assistant Attorney General, Charleston, WV, for Petitioner.

G. Ernest Skaggs, Esq., Skaggs & Skaggs, Fayetteville, WV, for Respondents.

Opinion

KETCHUM, Justice:

235 W.Va. 101

The petitioners, the Warden of the Mount Olive Correctional Complex (the “Warden”) and the Commissioner of the West Virginia Division of Corrections (the “Commissioner”), appeal from the January 21, 2014, order of the Circuit Court of Calhoun County (the “habeas court”) which granted habeas relief to the respondent, Richard Lee Hunt, Jr. (“Hunt”). The habeas court vacated Hunt's convictions and sentence for sexual abuse in the first degree and sexual abuse by a custodian and granted Hunt a new trial.

Hunt's convictions concerned offenses committed against an eleven year old boy. The sole basis for the relief granted by the habeas court was the State's references to Hunt during the underlying trial as a pedophile. According to the habeas court, the references, made by the State's expert witness (and by the prosecutor), constituted inadmissible character evidence and denied Hunt the right to a fair trial.

We find that the references to pedophilia, while improper, were harmless error. The appendix record before us includes a transcript of Hunt's underlying trial. A review thereof makes clear that the evidence of the State overwhelmingly established Hunt's guilt of the crimes charged.

Accordingly, the January 21, 2014, order of the habeas court is reversed, and Hunt's convictions and sentence are reinstated.

I.

Factual and Procedural History

On May 4, 1999, a Calhoun County grand jury returned a four-count indictment charging Hunt with sex offenses against A.K., an eleven year old male.1 Counts one and two alleged that Hunt committed sexual abuse in the first degree against A.K., in violation of W.Va.Code, 61–8B–7 [1984]. Counts three and four alleged that Hunt committed sexual abuse by a custodian against A.K. in violation of W.Va.Code, 61–8D–5(a) [1998].

The indictment alleged that the sexual offenses occurred between September 1998 and December 1998. Hunt at that time was twenty-four years old and worked an extensive,

235 W.Va. 102
772 S.E.2d 201

evening newspaper route which included various rural areas. Hunt drove the route in his 1993 Ford Festiva and delivered the newspapers throughout the night. According to the State, Hunt invited A.K. to join him from time to time. Hunt allegedly committed the sexual offenses against A.K. in the car.

Hunt's trial began on May 16, 2000, and concluded three days later. During opening statements, the prosecutor referred to Hunt as a pedophile. The prosecutor further stated, during opening statements, that Hunt “has a lustful disposition toward young children” and that, “consistent with being a pedophile,” Hunt participated in only the minimum amount of therapy and counseling while incarcerated for a previous sexual offense involving a young girl.

The State called A.K., thirteen years old at the time of trial, who testified that he met Hunt in September 1998; that Hunt sexually abused him in the car with Hunt's penis while on the newspaper route; and that, during a telephone call initiated by Hunt to A.K., Hunt asked, “When are we gonna have sex again?” A.K.'s father, Michael K., testified that he overheard the telephone conversation. The State presented evidence that A.K.'s parents, Michael K. and Denise K., reported their suspicions that A.K. had been sexually abused by Hunt to the State Police. Moreover, A.K.'s parents took A.K. to a psychologist, Michael Carter, for treatment and counseling. In addition, the State presented evidence that Hunt had been convicted upon a plea of guilty, and was imprisoned, for the 1994 sexual abuse of his nine year old stepsister.

Finally, the State's evidence included the testimony of Lonnie Kishbaugh, who testified as an expert in the treatment and counseling of sex offenders. Hunt had been under Kishbaugh's counseling at the Denmar Correctional Center in Hillsboro, West Virginia, during Hunt's incarceration concerning the abuse of his stepsister. Kishbaugh discussed the term pedophilia for the jury and indicated that Hunt had undergone minimal counseling while at Denmar. Kishbaugh further testified that there is “a diagnostic impression on file at Denmar” (emphasis added) stating that Hunt is a pedophile.2 Kishbaugh's testimony was allowed by the trial court over Hunt's objection. During the State's closing, the prosecutor referred to the minimal counseling and the diagnostic impression that Hunt is a pedophile.

Hunt took the stand at trial and denied committing any offenses against A.K. In support, Hunt testified that various people accompanied him and A.K. on the newspaper route and that, consequently, he had never been alone with A.K. In addition, Hunt asserted that A.K. was often mistreated by A.K.'s father and that A.K. had been pressured at home into making false statements against Hunt. Finally, acknowledging the prior conviction concerning his stepsister, and his resulting registration as a sex offender, Hunt denied that the offense against his stepsister took place.

The jury found Hunt guilty on all four counts: two counts of sexual abuse in the first degree and two counts of sexual abuse by a custodian. On July 28, 2000, Hunt was sentenced to serve consecutive terms in the penitentiary. Hunt's direct appeal to this Court was subsequently refused.

II.

The Habeas Corpus Proceeding

On September 27, 2006, Hunt filed a pro se petition for a writ of habeas corpus in the Circuit Court of Calhoun County (the “habeas court”). An amended petition was filed after he was appointed counsel. Hunt alleged that his federal and State due process rights were violated because of unfair prejudice

235 W.Va. 103
772 S.E.2d 202

resulting from the references to him, at trial, as a pedophile.3

In September 2009, the habeas court conducted an omnibus hearing. Thereafter, by order entered on January 21, 2014, the court granted relief and vacated Hunt's convictions and sentence.

The sole basis for the habeas court's ruling concerned the testimony of Kishbaugh, (as well as the statements of the prosecutor) that Hunt is a pedophile. The habeas court determined that Kishbaugh's testimony constituted inadmissible character evidence under Rule 404(a) of the West Virginia Rules of Evidence.4 The January 21, 2014, order states:

To be diagnosed as a “pedophile” is not evidence of a prior bad act or crime but evidence of the character (propensity) of the Petitioner to engage in particular conduct. * * * This evidence was also highly prejudicial to the Petitioner and not necessary for the legitimate purposes of the State. The State had already proven Petitioner's prior conviction for sexual abuse of a child [and] the fact that Petitioner was imprisoned for the prior offense.

A stay of Hunt's release from prison, pending this appeal, has been granted. The Warden and the Commissioner ask this Court to reverse the January 21, 2014, order and reinstate Hunt's convictions and sentence.

III.

Standards of Review Concerning Habeas Corpus

Syllabus point 1 of Mathena v. Haines, Warden, 219 W.Va. 417, 633 S.E.2d 771 (2006), states:

In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three-prong standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standard; and questions of law are subject to a de novo review.

Accord syl. pt. 1, Ballard, Warden, ex rel. Mount Olive Correctional Center v. Meckling, No. 14–0245, 235 W.Va. 109, 772 S.E.2d 208, 2015 WL 1719101 (W.Va. April 9, 2015) ; syl. pt. 1, Ballard, Warden v. Dilworth, 230 W.Va. 449, 739 S.E.2d 643 (2013). See W.Va.Code, 53–4A–9 [1967] (providing for judicial review), of the West Virginia Post–Conviction Habeas Corpus Act.

IV.

Discussion

The admission in evidence during Hunt's underlying trial of his conviction of the 1994 sexual abuse of his nine year old stepsister is not contested in this appeal. Instead, the issue before this Court concerns the testimony of the State's expert witness, Lonnie Kishbaugh, (as well as the statements of the prosecutor) that Hunt is a pedophile. The...

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8 practice notes
  • State v. McDonnell, SCWC-14-0000355
    • United States
    • Supreme Court of Hawai'i
    • August 28, 2017
    ...[that the defendant] committed the crimes because [the defendant] has a propensity to commit sexual offenses"); Ballard v. Hunt, 235 W.Va. 100, 772 S.E.2d 199, 204 (2015) (holding "that the opinion evidence of an expert witness proffered by the State in a criminal prosecution, merely to sho......
  • Southern v. Pszczolkowski, No. 14–0920.
    • United States
    • Supreme Court of West Virginia
    • October 8, 2015
    ...and, in doing so, to analyze not what the experts say, but what basis they have for saying it.”).10 See alsoSyl. Pt. 2, Ballard v. Hunt,235 W.Va. 100, 772 S.E.2d 199 (2015)(“The opinion evidence of an expert witness proffered by the State in a criminal prosecution, merely to show that the a......
  • Southern v. Pszczolkowski, No. 14-0920
    • United States
    • Supreme Court of West Virginia
    • October 8, 2015
    ...in doing so, to analyze not what the experts say, but what basis they have for saying it."). 10. See also Syl. Pt. 2, Ballard v. Hunt, 235 W. Va. 100, 772 S.E.2d 199 (2015)("The opinion evidence of an expert witness proffered by the State in a criminal prosecution, merely to show that the a......
  • Gibbs v. Ames, 20-0478
    • United States
    • Virginia Supreme Court of Virginia
    • October 13, 2021
    ...contributed to the conviction.' Syl. pt. 20, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974)." Syl. Pt. 3, Ballard v. Hunt, 235 W.Va. 100, 772 S.E.2d 199 (2015). Even if illegally seized evidence was admitted against him at his trial, and even if the admission of such evidence at his ......
  • Request a trial to view additional results
8 cases
  • State v. McDonnell, SCWC-14-0000355
    • United States
    • Supreme Court of Hawai'i
    • August 28, 2017
    ...[that the defendant] committed the crimes because [the defendant] has a propensity to commit sexual offenses"); Ballard v. Hunt, 235 W.Va. 100, 772 S.E.2d 199, 204 (2015) (holding "that the opinion evidence of an expert witness proffered by the State in a criminal prosecution, merely to sho......
  • Southern v. Pszczolkowski, No. 14–0920.
    • United States
    • Supreme Court of West Virginia
    • October 8, 2015
    ...and, in doing so, to analyze not what the experts say, but what basis they have for saying it.”).10 See alsoSyl. Pt. 2, Ballard v. Hunt,235 W.Va. 100, 772 S.E.2d 199 (2015)(“The opinion evidence of an expert witness proffered by the State in a criminal prosecution, merely to show that the a......
  • Southern v. Pszczolkowski, No. 14-0920
    • United States
    • Supreme Court of West Virginia
    • October 8, 2015
    ...in doing so, to analyze not what the experts say, but what basis they have for saying it."). 10. See also Syl. Pt. 2, Ballard v. Hunt, 235 W. Va. 100, 772 S.E.2d 199 (2015)("The opinion evidence of an expert witness proffered by the State in a criminal prosecution, merely to show that the a......
  • Gibbs v. Ames, 20-0478
    • United States
    • Virginia Supreme Court of Virginia
    • October 13, 2021
    ...contributed to the conviction.' Syl. pt. 20, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974)." Syl. Pt. 3, Ballard v. Hunt, 235 W.Va. 100, 772 S.E.2d 199 (2015). Even if illegally seized evidence was admitted against him at his trial, and even if the admission of such evidence at his ......
  • Request a trial to view additional results

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