State v. Edward Charles L.

• Decision Date: 27 July 1990
• Docket Number: No. 19004,19004
• Citation: 183 W.Va. 641,398 S.E.2d 123
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. EDWARD CHARLES L., Sr.

Page 123

398 S.E.2d 123

183 W.Va. 641

STATE of West Virginia v. EDWARD CHARLES L., Sr.

No. 19004.

Supreme Court of Appeals of

West Virginia.

July 27, 1990.

Dissenting Opinion Sept. 21, 1990.

Syllabus by the Court

1. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. W.Va.R.Evid. 404(b).

2. Collateral acts or crimes may be introduced in cases involving child sexual assault or sexual abuse victims to show the perpetrator had a lustful disposition towards the victim, a lustful disposition towards children generally, or a lustful disposition to specific other children provided such evidence relates to incidents reasonably close in time to the incident(s) giving rise to the indictment. To the extent that this conflicts with our decision in State v. Dolin, --- W.Va. ----, 347 S.E.2d 208 (1986), it is overruled.

3. " 'Where improper evidence of a nonconstitutional nature is introduced by the State in a criminal trial, the test to determine if the error is harmless is: (1) the inadmissible evidence must be removed from the State's case and a determination made as to whether the remaining evidence is sufficient to convince impartial minds of the defendant's guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support the conviction, an analysis must then be made to determine whether the error had any prejudicial effect on the jury.' Syllabus Point 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979), cert denied, 445 U.S. 904, 100 S.Ct. 1081, 63 L.E.2d 320 (1980)"; Syl. Pt. 3, State v. Maynard, 183 W.Va. 1, 393 S.E.2d 221 (1990) (quoting Syl. Pt. 6, State v. Smith, 178 W.Va. 104, 358 S.E.2d 188 (1987)).

4. The following [is] ... not excluded by the hearsay rule, even though the declarant is available as a witness: ... (4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. W.Va.R.Evid. 803(4).

5. The two-part test set for admitting hearsay statements pursuant to W.Va.R.Evid. 803(4) is (1) the declarant's motive in making the statements must be consistent with the purposes of promoting treatment, and (2) the content of the statement must be such as is reasonably relied upon by a physician in treatment or diagnosis.

6. "The language of Rule 804(b)(5) of the West Virginia Rules of Evidence and its counterpart Rule 803(24) requires that five general factors must be met in order for hearsay evidence to be admissible under the rules. First and most important is the trustworthiness of the statement, which must be equivalent to the trustworthiness underlying the specific exceptions to the hearsay rule. Second, the statements must be offered to prove the material fact. Third, the statement must be shown to be more probative in the issue for which it is offered than any other evidence that the proponent can reasonably procure. Fourth, admission of the statement must comport with the general purposes of the rules of evidence and the interest of justice. Fifth, adequate notice of the statement must be afforded the other party to provide that party a fair opportunity to meet the evidence." Syl. Pt. 5, State v. Smith, W.Va. , 358 S.E.2d 188 (1987).

7. Expert psychological testimony is permissible in cases involving incidents of child sexual abuse and an expert may state an opinion as to whether the child comports with the psychological and behavioral profile of a child sexual abuse victim, and may offer an opinion based on objective findings that the child has been sexually abused. Such an expert may not give an opinion as to whether he personally believes the child, nor an opinion as to whether the sexual assault was committed by the defendant, as these would improperly and prejudicially invade the province of the jury.

8. "In the determination of a claim that an accused was prejudiced by ineffective assistance of counsel violative of Article III, Section 14 of the West Virginia Constitution and the Sixth Amendment to the United States Constitution, courts should measure and compare the questioned counsel's performance by whether he exhibited the normal and customary degree of skill possessed by attorneys who are reasonably knowledgeable of criminal law, except that proved counsel error which does not affect the outcome of the case, will be regarded as harmless error." Syl. Pt. 19, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

9. "Where a counsel's performance, attacked as ineffective, arises from occurrences involving strategy, tactics and arguable courses of action, his conduct will be deemed effectively assistive of his client's interests, unless no reasonably qualified defense attorney would have so acted in the defense of an accused." Syl. Pt. 21 State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

Clark B. Frame, William L. Frame, Wilson, Frame & Metheney, Morgantown, for Edward Charles L., Sr.

Roger W. Tompkins, Atty. Gen., John E. Shank, Deputy Atty. Gen., Attorney General's Office, Charleston, for State of W.Va.

WORKMAN, Justice.

This case is before the Court upon an appeal of the conviction of Edward Charles L. ¹ on May 28, 1987, in Mineral County, West Virginia, of two counts of first-degree sexual assault and two counts of first-degree sexual abuse. ² The appellant raises four assignments of error based on the proceedings which occurred before the lower court: 1) the trial court committed plain error in permitting the state to make references to unrelated sexual acts and tendencies of the appellant; 2) the trial court committed plain error in allowing the state to elicit secondhand accounts of the sexual offenses which constituted hearsay evidence; 3) the uncorroborated testimony of the child victims was inherently incredible and does not sustain the guilty verdicts; and 4) the appellant was denied effective assistance of counsel. We find that the lower court committed no reversible error in the proceedings and affirm the appellant's convictions.

The appellant was married to Sharon L. from October 1977 until July 1984. The couple had three children, twins, a boy and girl named C.L. and S.L. respectively, born on August 7, 1979, and another son D.L., born on September 4, 1983. When the events surrounding this case occurred in the fall of 1983, the family was living together in Mineral County, West Virginia. Mrs. L. would attend meetings of the Fountain Volunteer Firemen's Auxiliary or visit a neighbor while leaving the children in the care of her husband, the appellant. The twins were four-years-old when the alleged crimes against them occurred.

On occasions when Mrs. L. was not at home, C.L.'s testimony revealed that the appellant took him into a bedroom, took his clothes off, made the child lie on his stomach and then inserted his penis (identified at the trial by the child as his "georgie") into the boy's rectum. S.L. testified that she heard her brother cry out but that she was afraid to go to him because she was watching her younger brother, D.L., on the couch and he could have fallen off the couch had she left. C.L. further testified that his father had stuck his finger up the child's rectum and had placed his mouth on the boy's "georgie".

The appellant was accused of abuse against his daughter as well. The girl's testimony indicated that on a night in which her mother was away, she was abused by her father in the bathroom. She testified that while she and her father were in the bathroom, he stuck his finger up her vagina (identified at trial by the child as her "tweetie"). When the child screamed that this hurt her, the appellant desisted in his action. The appellant also attempted to force his penis into the girl's vagina but ceased in his attempt because it was not possible.

According to the children's testimony at trial, the appellant was able to silence the children regarding the incidents by threatening to cut off the little boy's "georgie" and by threatening to cut open the girl's "tweetie" so that his penis would fit there if they told anyone.

The appellant and Mrs. L. were separated on December 26, 1983, and divorced in July 1984. The appellant maintained visitation with his children subsequent to the divorce.

According to Mrs. L.'s testimony, it was not until October 1984 that she observed strange behavior ³ being exhibited by her son. When she asked the child about his behavior, he said his daddy told him to do it, because it would feel good. When the mother questioned the boy further, he began crying and said his father told him not to tell her. Mrs. L. then asked a close friend, to question her son about his behavior. The child told the friend about sexual acts performed on him by his father, and later told his mother as well. The friend was not called to testify at trial. ⁴

Subsequently, the child began to display more behavior problems at home, including flushing his mother's keys down the toilet. The child, according to his mother's testimony, told her that the reason he did it was because "my daddy had keys to get in our house, and daddy told me if I ever told you what he did to me, he would cut my 'georgie' off." In September 1985, C.L.'s first grade teacher reported to Mrs. L. that C.L. was inattentive in class to the point that the teacher would have to yell his name or smack a book on his desk to gain his attention. A school counselor referred the matter to a licensed psychologist, ...