Comer v. Tom A.M.

• Decision Date: 15 March 1991
• Docket Number: No. 19639,19639
• Citation: 403 S.E.2d 182,184 W.Va. 634
• Court: West Virginia Supreme Court
• Parties: K.M. COMER v. TOM A.M.; Louise C.; and the West Virginia Division of Health and Human Resources.

Page 182

403 S.E.2d 182

184 W.Va. 634

K.M. COMER v. TOM A.M.; Louise C.; and the West Virginia Division of

Health and Human Resources.

No. 19639.

Supreme Court of Appeals of

West Virginia.

March 15, 1991.

Syllabus by the Court

1. "When a court finds that there is probable cause to believe that a juvenile has committed one of the crimes specified in W.Va.Code, 49-5-10(d)(1) (treason, murder, robbery involving the use of or presenting of deadly weapons, kidnapping, first-degree arson, and first-degree sexual assault), the court may transfer the juvenile to the court's criminal jurisdiction without further inquiry. To the extent this holding is inconsistent with State v. R.H., 166 W.Va. 280, 273 S.E.2d 578 (1980) and State v. C.J.S., 164 W.Va. 473, 263 S.E.2d 899 (1980), those cases are overruled." Syllabus Point 2, State ex rel. Cook v. Helms, 170 W.Va. 200, 292 S.E.2d 610 (1981).

2. "Probable cause for the purpose of transfer of a juvenile to adult jurisdiction is more than mere suspicion and less than clear and convincing proof. Probable cause exists when the facts and circumstances as established by probative evidence are sufficient to warrant a prudent person in the belief that an offense has been committed and that the accused committed it." Syllabus Point 1, In Interest of Moss, 170 W.Va. 543, 295 S.E.2d 33 (1982).

3. "The probable cause determination at a juvenile transfer hearing may not be based entirely on hearsay evidence." Syllabus Point 3, In Interest of Moss, 170 W.Va. 543, 295 S.E.2d 33 (1982).

4. "Where the findings of fact and conclusions of law justifying an order transferring a juvenile proceeding to the criminal jurisdiction of the circuit court are clearly wrong or against the plain preponderance of the evidence, such findings of fact and conclusions of law must be reversed. W.Va.Code § 49-5-10(a) [1977]." Syllabus Point 1, State v. Bannister, 162 W.Va. 447, 250 S.E.2d 53 (1978).

Laurence W. Hancock, Hancock and Sears, Ravenswood, for Tom A.M.

Trooper K.M. Comer, pro se.

PER CURIAM:

This is an appeal from a decision by the Circuit Court of Jackson County transferring the fifteen-year-old appellant Tom A.M., ¹ from juvenile jurisdiction to the court's criminal jurisdiction pursuant to W.Va.Code 49-5-10(a) [1978]. Based upon our review of the petition for appeal, the briefs and the record, we affirm.

I

Tom A.M. was charged on January 16, 1990, with the first-degree sexual assault of his nine-year-old sister in violation of W.Va.Code, 61-8B-3(a)(2) [1984]. A juvenile petition was filed on January 19, 1990 by K.M. Comer, the investigating officer from West Virginia State Police. Prior to the scheduled adjudicatory hearing on the petition, the State timely moved to transfer the juvenile to the court's criminal jurisdiction pursuant to W.Va.Code, 49-5-10(a) [1978]. At the transfer hearing on January 29, 1990, the circuit court took judicial notice that Tom A.M., based on his admission of the felony offense of breaking and entering, had already been adjudicated delinquent.

Testimony at the transfer hearing established that on January 16, 1990, the victim told a counselor at school that her brother, Tom A.M., had been sexually assaulting her for the past several days. The counselor contacted John Mellinger, Tom A.M.'s probation officer, who, then, contacted Regina Polk, a child protective services worker for the Department of Health and Human Services and Trooper Comer. About 6:00 p.m. Mr. Mellinger, Ms. Polk and Trooper Comer went to Tom A.M.'s home and told him of the allegations.

The victim told Ms. Polk that Tom A.M. had tied her with ropes, removed her clothing, kissed her breasts, touched and "hurt" her genital area. The victim also said that Tom A.M. had written on her body with a pen or magic marker. Some of the marks, namely arrows pointing to her breasts and marks on her back and buttocks, could still be detected by Ms. Polk even though the victim had just bathed. The victim told Ms. Polk that Tom A.M. had written "suck me" on her chest with arrows pointing to her breasts and "had placed his privates inside of [her] privates." The victim was taken to the hospital and her physical examination revealed that she had been sexually active for some time because the "vaginal vault was easily entered with the speculum." ²

After Louise C., the mother of both the victim and Tom A.M., returned from the hospital, Trooper Comer, in the presence of Louise C. and Mr. Mellinger, advised the juvenile of his rights, and thereafter Tom A.M. waived his rights and with his mother signed the waiver of rights form. ³ In the first interview, Tom A.M. denied sexually assaulting the victim but admitted drawing on her body and rubbing against her. The first interview occurred between approximately 8:30 and 9:00 p.m. on January 16, 1990.

After taking a statement from the victim, Trooper Comer arrested Tom A.M. about 9:30 p.m. While the complaint was being prepared, Tom A.M. went to Trooper Comer and said he had lied during the first interview and wanted to be honest. Again with his mother and Mr. Mellinger present, the juvenile waived his rights and signed the waiver of rights form. In the second interview, Tom A.M. said that although he removed the victim's underpants and inserted his right forefinger into her vaginal area, he never used force or had sexual intercourse. Immediately after the second interview, about 11:00 p.m., the juvenile was arraigned before a magistrate.

According to the psychological evaluation ordered by the circuit court, Tom A.M. has low average intelligence but performs on the third grade level in reading and the seventh grade level in arithmetic. The psychologist reported Tom A.M.'s denial of sexual intercourse, but noted a "progression or escalation in his acting-out behaviors and anti-social behavior." The psychologist concluded that Tom A.M. was "in desperate need of rehabilitation" to reverse his behavior and recommended education, consistency and structure in his environment.

On February 1, 1990, the circuit court entered an order granting the motion to transfer based on the finding that probable cause existed to believe that Tom A.M. had committed first-degree sexual assault.

In seeking reversal, Tom A.M. has four primary assignments of error: first, the court did not make a finding concerning Tom A.M.'s personal factors as required by statute; second, the court, in a suppression hearing, should have suppressed Tom A.M.'s statements because his rights were not adequately protected during his interrogations; third, because the court based its determination of probable cause primarily on hearsay evidence, its finding of probable cause should be set aside; and, four, the court failed to resolve all ambiguities in favor of retaining juvenile jurisdiction.

II

The juvenile alleges that the circuit court failed to make a finding on his personal factors as required by W.Va.Code, 49-5-10(d) [1978]. Tom A.M. alleges that W.Va.Code, 49-5-10(d) [1978] requires: first, an inquiry into the juvenile's personal factors, and second, a determination of probable cause to believe that the juvenile committed one of the crimes described in the five subsections. ⁴

This argument fails to recognize the language of W.Va.Code 49-5-10(d)(1) [1978], which, unlike subsections (2) through (5), specifically excludes "further inquiry" when probable cause is found for the specific crimes listed in that subsection. First-degree sexual assault, the crime with which Tom A.M. is accused, is specifically listed in subsection (1). ⁵ In State ex rel. Cook v. Helms, 170 W.Va. 200, 292 S.E.2d 610 (1982), we examined W.Va.Code, 49-5-10(d) and concluded that the standard for transfer "with respect to subsection (1), dealing with the more serious crimes ... [was solely] a finding of probable cause to believe that the child committed any one of those enumerated crimes." Id., 170 W.Va. at 202, 292 S.E.2d at 612. In Syllabus Point 2 of Cook supra, we stated:

When a court finds that there is probable cause to believe that a juvenile has committed one of the crimes specified in W.Va.Code, 49-5-10(d)(1) (treason, murder, robbery involving the use of or presenting of deadly weapons, kidnapping, first-degree arson, and first-degree sexual assault), the court may transfer the juvenile to the court's criminal jurisdiction without further inquiry. To the extent this holding is inconsistent with State v. R.H., W.Va. 273 S.E.2d 578 (1980) and State v. C.J.S., W.Va., 263 S.E.2d 899 (1980), those cases are overruled.

See E.B., Jr. v. Canterbury, 183 W.Va. 197, 394 S.E.2d 892, 895 (1990).

In Cook, we noted that "the statute does not preclude a trial court judge from considering evidence about the child's 'personal factors,' even in circumstances where the child is accused of the enumerated serious crimes." Id., 170 W.Va. at 203, 292 S.E.2d at 613. In the present case, the circuit court specifically requested a psychological evaluation of Tom A.M. and at the conclusion of the hearing noted the report's concerns. Even though the circuit court was not required to address the "personal factors," the circuit court's order noted the juvenile's previous crime and his lack of concern and remorse concerning the allegations concerning his sister. Based on our review of the statute and the record, we find no merit in the first assignment of error.

III

In his second assignment of error, Tom A.M. claims that the circuit court should not have considered his statements because his rights were not adequately protected during his interrogations. Tom A.M. acknowledges that his mother was present during the interrogations and that both he and his mother were informed of his rights and that he waived his rights, including his right to counsel. However, Tom A.M. maintains that because his mother was also the victim's mother, she was unable to adequately protect his rights and, therefore, his statements should not have been...