State Of West Va. v. Jane M

Decision Date16 September 2010
Docket NumberNo. 35441.,35441.
Citation700 S.E.2d 302,226 W.Va. 242
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia, Appellee, v. JESSICA JANE M., Appellant.



Syllabus by the Court

1. “Pursuant to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Confrontation Clause contained within the Sixth Amendment to the United States Constitution and Section 14 of Article III of the West Virginia Constitution bars the admission of a testimonial statement by a witness who does not appear at trial, unless the witness is unavailable to testify and the accused had a prior opportunity to cross-examine the witness.” Syllabus Point 6, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).

2. “A defendant who wishes to cross-examine an alleged victim of a sexual offense about or otherwise introduce evidence about other statements that the alleged victim has made about being the victim of sexual misconduct must initially present evidence regarding the statements to the court out of the presence of the jury and with fair notice to the prosecution, which presentation may in the court's discretion be limited to proffer, affidavit, or other method that properly protects both the rights of the defendant and the alleged victim and effectuates the purpose of our rape shield law, W.Va.Code, § 61-8B-11 [1986] and West Virginia Rules of Evidence 404(a)(3)[1994].” Syllabus Point 3, State v. Quinn, 200 W.Va. 432, 490 S.E.2d 34 (1997).

3. “Requiring strong and substantial proof of the actual falsity of an alleged victim's other statements is necessary to reasonably minimize the possibility that evidence which is within the scope of our rape shield law W.Va.Code, § 61-8B-11 [1986] and West Virginia Rules of Evidence 404(a)(3)[1994], is not erroneously considered outside of its scope.” Syllabus Point 2, State v. Quinn, 200 W.Va. 432, 490 S.E.2d 34 (1997).

4. ‘The question of the competency of a witness to testify is left largely to the discretion of the trial court and its judgment will not be disturbed unless shown to have been plainly abused resulting in manifest error.’ Syllabus Point 8, State v. Wilson, 157 W.Va. 1036, 207 S.E.2d 174 (1974).” Syllabus Point 10, State v. Pettrey, 209 W.Va. 449, 549 S.E.2d 323 (2001).

5. “Prosecutorial disqualification can be divided into two major categories. The first is where the prosecutor has had some attorney-client relationship with the parties involved whereby he obtained privileged information that may be adverse to the defendant's interest in regard to the pending criminal charges. A second category is where the prosecutor has some direct personal interest arising from animosity, a financial interest, kinship, or close friendship such that his objectivity and impartiality are called into question.” Syllabus Point 1, Nicholas v. Sammons, 178 W.Va. 631, 363 S.E.2d 516 (1987).

Michael C. Alberty, Esquire, Alberty Law Office, Wheeling, WV, for Appellant.

Gail W. Kahle, Esquire, Jenna Perkins Wood, Esquire, Ohio County Prosecutors Office, for Appellee.


This is an appeal of a January 14, 2009, final order from the Circuit Court of Ohio County sentencing the defendant/appellant Jessica Jane M. 1 (hereinafter “Jessica M.” or defendant) to serve not less than 101 years, nor more than 235 years in the state penitentiary upon being convicted of three counts of first degree sexual assault, four counts of sexual abuse by a parent, three counts of incest, and one count of conspiracy. The defendant asserts that the trial court committed reversible error by (1) allowing the State to introduce hearsay statements the alleged victim made to her foster mother; (2) incorrectly applying our rape shield law by prohibiting the defendant from asking the alleged nine-year-old victim: “How many different men did you have sex with?”; (3) denying defense counsel's request to inquire as to the alleged victim's competency to testify at trial; and (4) denying defendant's motion to disqualify the Ohio County Prosecuting Attorney's Office due to previous contact between the defendant and certain members of the prosecutor's office in a separate matter.

After thorough review of the briefs, the legal authority cited and the record presented for consideration, we find that the circuit court committed no reversible error and therefore affirm the judgment of conviction and sentencing order.

I. Facts & Background

The charges against the defendant stem from allegations made by her daughter, R.M. R.M. was born on December 28, 1998, and resided with her mother until February 28, 2006, when she and her two younger siblings were removed from her mother's residence due to allegations of abuse and neglect unrelated to the sexual abuse allegations that form the basis of this appeal.

R.M. and her siblings were placed in the foster home of Sally Keefer in August 2006. 2 A month after the children moved into her house, Sally Keefer observed R.M. “french kissing” her 18 month-old younger brother and engaging in other overt sexual conduct that she considered abnormal behavior for a seven-year old child. During October and November 2006, R.M. told Ms. Keefer that she had been sexually abused by her mother and her mother's boyfriend, Jack Jones 3 , prior to being removed from her mother's house. Sally Keefer recorded these disclosures in a journal, contacted a DHHR (Department of Health and Human Resources) worker and requested that R.M. receive therapy to deal with this abuse.

R.M. also reported these sexual abuse allegations to Michelle Hogan, the CPS (Child Protective Services) worker assigned to handle her case. Ms. Hogan made an audio recording of an interview she conducted with R.M. in which R.M. described being sexually abused by her mother and her mother's boyfriend, Jack Jones. 4

Following these sexual abuse disclosures, R.M. underwent a physical examination and a forensic interview on November 7, 2006. Dr. Joan Phillips performed the physical examination and determined that a portion of R.M.'s hymen “was totally gone, which is abnormal,” and further testified that the absence of the hymen “is considered clear evidence of a penetrating trauma.”

Maureen Runyon, a social worker who has worked exclusively with sexually abused children for the last eleven years, conducted the forensic interview. While R.M. denied the sexual abuse allegations during this interview, Ms. Runyon concluded that “based on the ... behavior and statements that she's made ... I felt like there had been some type of inappropriate sexual activity.” In preparation for trial, Ms. Runyon reviewed R.M.'s history of sexual abuse disclosures and found them to be credible because of R.M.'s advanced sexual knowledge and the sensory details she provided. Ms. Runyon stated:

[S]he also describes, again, what we call sensory details. She can tell you what it feels like. She can't know what it feels like to have a penis inside of her from watching it on TV. At one point she describes the ejaculation as being wet and sticky. Again, that's a sensory detail that tells me she had to have experienced that to be able to describe it in the type of detail that she does.

R.M. saw a psychologist, Dr. Sara Wyer, approximately twenty times beginning in the fall of 2006 and continuing through 2007. R.M. repeated the same allegations of being sexually abused by her mother and Jack Jones to Dr. Wyer. Dr. Wyer testified that she found R.M.'s disclosures to be credible “primarily based on the fact that she gave very detailed sensory descriptives. What things tasted like, looked like, felt like ... I felt that she had had direct experience with that.”

Based on these sexual abuse allegations, an Ohio County grand jury returned a 14-count indictment against Jessica M. on January 14, 2008. This indictment included one count of felony conspiracy in violation of W.Va.Code § 61-10-31, four counts of felony sexual assault in the first degree in violation of W.Va.Code § 61-8B-3(a)(2), five counts of felony sexual abuse by a parent or custodian in violation of W.Va.Code § 61-8D-5(a), and four counts of felony incest in violation of W.Va.Code § 61-8-12(b).

The defendant's trial began on October 8, 2008, and lasted for three days. R.M. testified at the trial, stating that her mother held her down while Jack Jones raped her. R.M. also testified that her mother put her fingers inside of her vagina, made R.M. touch her breast, performed oral sex on R.M., and made R.M. perform oral sex on her.

The State called a number of witnesses who corroborated R.M.'s testimony including R.M.'s foster mother, Sally Keefer; R.M.'s CPS worker, Michelle Hogan; Dr. Phillips, whose physical findings showed “clear evidence of a penetrating trauma”; Maureen Runyon who conducted the forensic interview, reviewed R.M.'s history of sexual abuse disclosures and testified that she found R.M.'s allegations to be credible; and Dr. Sara Wyer, a psychologist who treated R.M. and found her allegations to be credible.

The State also called Connie Roy, a Licensed Professional Clinical Counselor at a residential treatment facility where R.M. spent five months receiving treatment. 5 Both Ms. Roy and a physician employed at the facility diagnosed R.M. with “post-traumatic stress disorder, chronic, and sexual abuse of child, focus on victim.” Ms. Roy testified that the post-traumatic stress disorder was a result of the sexual abuse R.M. suffered. Ms. Roy further testified that R.M.'s behavior and the manner in which she made the sexual abuse disclosures were consistent with that of a child who has been sexually abused.

At the close of the State's case, the defendant moved for a directed verdict of acquittal on all fourteen counts in the indictment. The court dismissed counts five, ten, and fourteen of the indictment 6 and denied the defendant's motion as to the remaining eleven counts.

The defendant's case consisted of...

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