State v. Calloway
| Decision Date | 16 December 1999 |
| Docket Number | No. 26204.,26204. |
| Citation | 528 S.E.2d 490,207 W.Va. 43 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia, Plaintiff Below, Appellee, v. Ronald Lynn CALLOWAY, Defendant Below, Appellant. |
Ira Mickenberg, Esq., George Castelle, Esq., Charleston, West Virginia, Attorneys for Appellant.
Darrell V. McGraw, Jr., Attorney General, Barbara H. Allen, Managing Deputy Attorney General, Charleston, West Virginia, Attorneys for Appellee. McGRAW, Justice:
Defendant Ronald Calloway was convicted in August 1998 on six counts of second-degree sexual assault, W. Va.Code § 61-8B-4 (1991), and one count of daytime entering without breaking, W. Va.Code § 61-3-11(b) (1993), in connection with an episode where he forced his way into a woman's home, severely beat her when she attempted to escape, and forced her to engage in repeated acts of oral sex.1 Calloway asserts on appeal that the circuit court improperly excluded DNA evidence under our Rape-Shield Statute, W. Va.Code § 61-8B-11 (1986), which evidence was purportedly exculpatory in that it excluded him as a possible source of semen found on the victim's bed. We find no merit in this argument because the evidentiary proffer made to the court below never indicated that the semen was deposited in connection with the incident in question; rather, this evidence was offered for the sole purpose of impeaching the victim's testimony by demonstrating that a sexual relationship existed between the victim and another individual alleged to be her boyfriend. Consequently, this evidence was properly excluded under the Rape Shield Statute. We therefore affirm Calloway's conviction.
The victim in this case, A.H.,2 testified at trial that she was awoken by a knock on her door at 3 a.m. on the morning of August 29, 1995.3 Looking through a window adjacent to the door, she observed Calloway, who was asking for an individual who had apparently lived in the house previously. A.H. told the defendant that the person he was looking for no longer lived there; and when he asked to call a taxi, she indicated that she had no telephone. Calloway left, and A.H. returned to bed.
Between 6:30 a.m. and 7 a.m. the same morning, A.H. was again roused by a knock on the door. This time A.H. opened the door without inquiring who it was, explaining that she assumed it was either her mother, whom she thought might be stopping by to take her to see her grandmother at the hospital, or a male friend who sometimes stopped by with breakfast on his way to work. Instead, she was faced by the same man who had visited her door four hours before. She again told the defendant that the person he was looking for no longer lived there, and began to close the door. According to A.H., Calloway forced his way into the house and locked the door behind him. She stated that he then pulled his sleeveless tanktop shirt over his head to obscure his identity, and told her not to scream.
After forcing his way into the victim's home, Calloway began making vulgar sexual comments toward A.H., and asked her if she had any crack cocaine (she said no). Shortly afterward, A.H. heard elementary-school children walking down the adjacent alleyway, and the defendant told her to keep quiet. According to the victim, Calloway then forced her into the living room (where she had been sleeping on a futon mattress), and insisted that she remove his penis from his shorts. A.H. testified that at this point she reached for a hammer under her pillow, and She ran for the door, but the defendant caught her just as she was opening it. A struggle ensued, according to A.H., where she maintained a firm grip on both the doorknob and Calloway's exposed penis, while he repeatedly struck her and bit her shoulder after placing her in a headlock.4 The victim testified that one blow eventually spun her around, and she could see her own blood hitting the wall. The defendant then forced her back into the living room and shoved her face into a pillow on the bed to the point where she had difficulty breathing. The victim stated that because she was fearful that defendant was smothering her, she agreed to do whatever Calloway wanted.
The defendant then forced A.H. to engage in alternating rounds of oral sex, during which he placed his finger in the victim's vagina and anus. When Calloway finally indicated a desire for intercourse, A.H. pleaded exhaustion, and asked if she could rest. The defendant laid down next to her, trapping the victim by placing his arm and leg over her. After waiting for Calloway to fall asleep, A.H. spent twenty minutes slowly moving his arm and leg off of her, and then ran for the door. According to her testimony, she ran down an alley until she found a neighbor, who took her into his home and called the police.
Officers from the Charleston Police Department responded and were directed to A.H.'s house, where they found Calloway still asleep with a red shirt pulled over his face. Forensic testing later identified traces of A.H.'s blood on Calloway's shorts and underwear. Also, A.H.'s blood was found on the floor and walls near the front door of the house. The physician who treated the victim after she was transported to the hospital, Dr. Lisa Skinner, testified that A.H. suffered a vertebral fracture, as well as bruising and a bite-related injury to the shoulder. Dr. Skinner also testified that she found no evidence that the victim had been forcibly penetrated.
Calloway's theory of the case was that he and A.H. met the previous night, and had gone to her house to smoke crack cocaine. The defense argued that the victim's boyfriend stopped at the house the following morning, became enraged upon seeing Calloway asleep in the house, and inflicted the wounds later observed on A.H.5 Calloway did not testify at trial. Instead, the salient evidence supporting his theory was (1) a "crack pipe" found among Calloway's belongings, which subsequently tested positive for cocaine; (2) the victim's statement that a male friend sometimes stopped by with breakfast on his way to work; (3) testimony from the arresting police officers who stated that they did not observe any injuries or blood on Calloway's body6; and (4) the testimony of the defendant's sole witness at trial, Debra Gibson, a neighbor who stated that she had previously observed drug-related activity at the victim's house (she did not indicate whether such activity was contemporaneous with A.H.'s occupancy), and who testified to hearing voices from the alleyway adjacent to the victim's home at both 11 p.m. and 3 a.m. on the night in question.
This Court's review of evidentiary rulings made by a trial court is highly deferential: "The action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion." Syl. pt. 10, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds, State ex rel. R.L. v. Bedell, 192 W.Va. 435, 452 S.E.2d 893 (1994)
; see also Syl. pt. 4, Riggle v. Allied Chem. Corp., 180 W.Va. 561, 378 S.E.2d 282 (1989). As we explained in Gentry v. Mangum, 195 W.Va. 512, 466 S.E.2d 171 (1995), "[i]n general, an abuse of discretion occurs when a material factor deserving significant weight is ignored, when an improper factor is relied upon, or when all proper and no improper factors are assessed but the circuit court makes a serious mistake in weighing them." Id. at 520 n. 6, 466 S.E.2d at 179 n. 6.
The sole issue raised in this appeal is Calloway's assertion that the trial court erred in excluding the results of deoxyribonucleic acid (DNA) testing performed on a stain found on the victim's futon mattress, which indicated the presence of semen that could not have come from the defendant. A.H.'s genetic markers were, however, found in the stain, suggesting that it was the result of her having had sex with another individual. Calloway asserts that such evidence was exculpatory in that it demonstrates that he was not the person who sexually assaulted the victim, and that the trial court's exclusion of this evidence was (1) an erroneous application of the Rape-Shield Statute, W. Va.Code § 61-8B-11 (1986), because the evidence falls under an exception set forth in W. Va. R. Evid. 404(a)(3) pertaining to acts related to the charged offense; and (2) to the extent that such evidence was excludable under the statute, such ruling was an unconstitutional application of the Rape Shield Statute, in that it violated his constitutional right to present a defense at trial. We consider these arguments in turn.
A.
We recently stated in syllabus point 1 of State v. Guthrie, 205 W.Va. 326, 518 S.E.2d 83 (1999), that "W. Va.Code § 61-8B-11(b) (1986)7 bars the introduction of evidence, in a sexual assault prosecution, concerning (1) specific instances of the victim's sexual conduct with persons other than the defendant, (2) opinion evidence of the victim's sexual conduct and (3) reputation evidence of the victim's sexual conduct." (Footnote added.) This general exclusion of evidence relating to a victim's prior sexual conduct is, however, subject to certain enumerated exceptions. In syllabus point 2, in part, of Guthrie, we indicated that such evidence is admissible for impeachment purposes when a victim makes his or her past sexual conduct an issue at trial:
Under the statute, evidence of (1) specific instances of the victim's sexual conduct with persons other than the defendant, (2) opinion evidence of the victim's sexual conduct and (3) reputation evidence of the victim's sexual conduct can be introduced solely for the purpose of...
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