In re C.B., 20-0175

CourtSupreme Court of West Virginia
Writing for the CourtARMSTEAD, JUSTICE
Citation865 S.E.2d 68,245 W.Va. 666
Parties IN RE: C.B.
Docket NumberNo. 20-0175,20-0175
Decision Date29 October 2021

245 W.Va. 666
865 S.E.2d 68

IN RE: C.B.

No. 20-0175

Supreme Court of Appeals of West Virginia.

Submitted: September 28, 2021
Filed: October 29, 2021


James Adkins, Esq., Public Defender Corp. 12th Jud. Circ., Fayetteville, West Virginia, Counsel for Petitioner

Patrick Morrisey, Esq., Attorney General, Katherine M. Smith, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for Respondent, The State of West Virginia

ARMSTEAD, JUSTICE:

865 S.E.2d 70

This matter involves the transfer of a juvenile delinquency petition to the criminal jurisdiction of the Fayette County Circuit Court. The juvenile, C.B.,1 (hereinafter "Petitioner") was seventeen years and seven months old when he was charged with child abuse resulting in serious bodily injury and child neglect resulting in serious bodily injury.2 Following the filing of the delinquency petition against Petitioner, the State of West Virginia moved to transfer the case to the criminal jurisdiction of the circuit court pursuant to West Virginia Code § 49-4-710 (2015). Following a hearing, the circuit court granted the State's motion and transferred the case to its adult criminal jurisdiction.

On appeal, Petitioner argues that the circuit court erred in transferring the case. He requests that this Court reverse and remand the case to the juvenile jurisdiction of the circuit court.

Upon careful review of the briefs of the parties, the appendix record, the arguments

865 S.E.2d 71

of the parties, and the applicable legal authority, we find no error in the circuit court's conclusion that this matter should have been transferred to its adult criminal jurisdiction. Accordingly, we affirm the circuit court's order.

I. FACTS AND PROCEDURAL HISTORY

On the evening of September 3, 2019, Corporal J.W. Keffer of the West Virginia State Police was called to Raleigh General Hospital in Beckley, West Virginia due to injuries sustained by a seven-week-old infant.3 The infant was transported to the hospital by his father, the Petitioner, and the mother of the child who was Petitioner's significant other. It is alleged that they brought their child to the hospital because of swelling in the infant's right leg and also because the infant had been crying uncontrollably for at least five hours. There was no call for emergency medical services during the five hours after Petitioner and the infant's mother noticed a problem with his child's leg despite the infant's uncontrollable crying. Upon arriving at Raleigh General Hospital, Cpl. Keffer was informed by Nurse Diehl that the infant had rib fractures and a broken leg. Further, he was informed that the infant was being transferred to CAMC Women and Children's hospital for further treatment.

The following day, September 4, 2019, Cpl. Keffer conducted Mirandized4 interviews of Petitioner and the mother of the infant. During the interview with Petitioner and while discussing the infant's rib injuries, Petitioner reported that he would sometimes get frustrated and may have squeezed the baby too hard.5 He also reported that he believed the baby's leg was broken when he (Petitioner) rolled off a bed and landed on top of the baby while he was sleeping with the baby on his chest. Petitioner also stated that he had smoked marijuana earlier in the day. At some point thereafter, he and the infant took a nap in bed, and according to Petitioner, he rolled from the bed onto the floor on top of the baby. After falling on his baby, Petitioner stated that the baby's leg appeared to be at an odd angle.

The mother of the infant denied being at home when the baby's injury occurred. However, after arriving home, she thought that the baby may have been injured so she and Petitioner called Petitioner's mother, but she could not come home immediately. Therefore, despite noticing that the baby's leg was swelling around 2:00 p.m., Petitioner and the mother of the infant waited until Petitioner's mother arrived home hours later before they took the baby to the hospital. After speaking with Petitioner and the mother of the infant, Cpl. Keffer spoke to Dr. Joan Phillips, M.D. who assessed the infant at CAMC Women and Children's Hospital. Dr. Phillips informed Cpl. Keffer that the infant had six healing rib fractures as well as fractures of the right distal femur and the right proximal tibia and a possible left distal femur fracture. In addition, Dr. Phillips noted that the infant had bruising on his right lower leg, left shoulder, upper left arm and left buttock.

On October 8, 2019, Cpl. J.W. Keffer of the West Virginia State Police filed a juvenile petition, alleging that Petitioner was a delinquent child. In the petition, he claimed that between August 25, 2019, and September 3, 2019, Petitioner committed the offenses of child abuse resulting in serious bodily injury6 by using excessive physical force on his infant son and child neglect resulting in serious

865 S.E.2d 72

bodily injury7 by "failing to provide necessities such that [the infant] was malnourished and dehydrated, and failing to seek medical attention" for the infant. At the time the petition was filed, Petitioner was seventeen years old, and his son was approximately seven weeks old. The infant's mother was thirty-four or thirty-five years old. Petitioner, the infant, the infant's mother, and Petitioner's mother lived together in Petitioner's mother's home.

On or about November 7, 2019, the State filed a motion to transfer Petitioner's juvenile proceedings to the circuit court's criminal jurisdiction. The State asserted that probable cause existed to believe that Petitioner committed the offenses set forth in the juvenile petition and that there was "clear and convincing evidence based on [Petitioner's] mental and physical condition, maturity, emotional attitude, home or family environment, school experience and similar personal factors" to transfer this matter to the criminal jurisdiction of the circuit court.

On November 22, 2019, the parties appeared for a transfer hearing, but the State was unprepared to proceed. The State requested a short continuance so that it could provide full discovery to Petitioner. Petitioner objected, arguing that good cause did not exist for the continuance. By order entered on December 4, 2019, the circuit court granted the State's motion for a continuance, finding that good cause existed.

The parties reconvened for the transfer hearing on December 18, 2019. Petitioner renewed his objection to the previously granted continuance. The circuit court overruled the objection. The court went on to hear testimony from Cpl. Keffer, the investigating officer; Judy Lively, the Attendance Director of the Fayette County Board of Education; and Chad Quesenberry, Assistant Principal of Oak Hill High School.

Cpl. Keffer testified that his investigation of the matter began with the receipt of a report of a possible child abuse case at Raleigh General Hospital. Cpl. Keffer was questioned by the State's counsel as follows:

Q. Okay. When you arrived at Raleigh General Hospital did you speak with anybody?

A. Initially I spoke with the nurse, Ashley Diehl.

Q. Okay. And what was -- what was conveyed to you when you spoke with Ms. Diehl?

A. When I spoke to her she basically gave me the rundown that --

[Petitioner's counsel]: I'm going to object to hearsay, Your Honor.

THE COURT: I'll overrule it. I think it goes to show why he took the actions that he took later on. It's not assertive for the truth of the matter serving just for the -- showing what he -- his conduct -- what led to his conduct. Go ahead.

Q. Okay. What she, I guess, did she give a time when -- when the family arrived at the hospital?

A. It was approximately 7:00, a little after 7:00 that evening. She explain [sic] that they went through and said that around 2:00 that they noticed the baby's leg and he was crying uncontrollably and I think they advised they had to wait until later that evening until the mother arrived -- they didn't have a ride.

....

Q. Okay. Did the nurse, nurse Diehl, give a status update on the condition of the [infant]?

A. Yeah, she advised that they had found some broken ribs that appeared to be healing and a broken leg, a right leg at that time they determined they were going to send the baby to see CAMC Women's and Children's.

Cpl. Keffer testified that the following day, he spoke with Petitioner and the mother of the infant. Upon advising them of their

865 S.E.2d 73

Miranda rights, they both made statements to Cpl. Keffer. When asked whether Petitioner gave "a statement in terms of what he believed the injuries to the child were," Cpl. Keffer testified:

The leg injury, he stated that he believed that he was sleeping with the baby on his chest and he fell from the bed into the floor on top of the baby, which is what he believed broke the baby's leg.

When I inquired about the rib injuries, he stated that sometimes he would get frustrated and may have squeezed the baby too hard.

Cpl. Keffer further testified that Petitioner told him that on the day he and his girlfriend, who is the infant's mother, took the infant to the hospital, Petitioner had smoked marijuana earlier in the day, and his girlfriend arrived home...

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