State v. Erin S. T.

• Decision Date: 18 November 2016
• Docket Number: No. 15-1195,15-1195
• Parties: State of West Virginia, Plaintiff Below, Respondent v. Erin S. T., Defendant Below, Petitioner
• Court: West Virginia Supreme Court

State of West Virginia, Plaintiff Below, Respondent v. Erin S. T., Defendant Below, Petitioner

No. 15-1195

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

November 18, 2016

(Berkeley County 14-F-191)

MEMORANDUM DECISION

Petitioner and defendant below Erin S. T.,¹ by counsel Kevin D. Mills and Shawn R. McDermott, appeals the November 13, 2015, order of the Circuit Court of Berkeley County that sentenced him to ten to twenty years confinement but ordered that such confinement be served on home incarceration with electronic monitoring. Petitioner's sentence followed his conviction of one count of sexual abuse by a parent, guardian, custodian, or person in a position of trust. The State of West Virginia, by counsel Cheryl K. Saville, filed a response in support of the circuit court's order. Petitioner submitted a reply.

This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

On October 21, 2014, a grand jury returned a seven count indictment against petitioner accusing him of having an inappropriate sexual relationship with one of his students while he was a teacher at Hedgesville High School.² Count two of the indictment charged petitioner with sexual assault in the second degree, in violation of West Virginia Code § 61-8B-5(a)(2),³ asfollows:

That ERIN [S. T.] on or between the ___ day of August, 2013, and the ___ day of December, 2013, in the County of Berkeley and the State of West Virginia did unlawfully, feloniously and intentionally engage in sexual intercourse or sexual intrusion with M.H., without her consent, the said ERIN [S. T.] (DOB 06/29/1983) being over the age of sixteen, to wit: 30, and M.H. (DOB 02/20/1998) then being a child under the age of sixteen, to wit: 15, and more than four years younger than ERIN [S. T.], and ERIN [S. T.] was not married to M.H., in violation of [West Virginia Code § 61-8B-5(a)(2)] against the peace and dignity of the State.

Count three charged petitioner with sexual assault by a parent, guardian, custodian, or person in a position of trust, in violation of West Virginia Code § 61-8D-5(a).⁴ It alleged as follows:

That ERIN [S. T.] on or between the ___ day of August, 2013, and the ___ day of December, 2013, in the County of Berkeley and State of West Virginia did unlawfully, intentionally and feloniously engage in or attempt to engage in sexualintercourse, sexual intrusion or sexual contact with M.H., the said M.H. then being a minor child under the care, custody or control of the said ERIN [S. T.], her parent, guardian, custodian or other person in a position of trust in relation to the child, in violation of [West Virginia Code § 61-8D-5(a)] against the peace and dignity of the State.

Counts two and three were based upon the allegation that petitioner inserted his finger into the victim's vagina while the two were in his classroom.

Counts four through seven also charged petitioner with sexual assault by a parent, guardian, custodian, or person in a position of trust. The allegations therein were identical to the allegations set forth in count three with the exception of the dates during which the sexual acts were alleged to have occurred. Counts four through seven alleged that petitioner committed the sexual acts "on or between the ___ day of August, 2013, and the ___ day of February, 2014," and are based upon allegations that petitioner hugged, kissed, and groped the victim in the stairwell at school.

Prior to trial, petitioner moved to dismiss the indictment on the ground that it was insufficient, or in the alternative, for a bill of particulars. The circuit court denied petitioner's motion.

Petitioner also moved to suppress petitioner's statement made to police on the grounds that it was involuntary, violative of Miranda,⁵ and surreptitiously recorded at petitioner's home without his consent, in violation of his constitutional right against unlawful search and seizure and West Virginia Code § 62-1F-2(a). Petitioner gave the statement after an officer contacted petitioner and his wife while they were on vacation and falsely advised them that their vehicle had been seen at the scene of a bank robbery. The officer met petitioner and his wife at their home and, after briefly speaking with them about their vehicle, began speaking with petitioner about the victim. Eventually, the officer asked petitioner questions about his relationship with the victim and revealed the accusations against him. Petitioner denied having any sexual contact with the victim and requested counsel; however, the recording indicates that, following petitioner's request for counsel, the officer continued to question petitioner about the victim. Petitioner's motion to suppress this statement in its entirety was denied. Although the circuit court ordered that that portion of petitioner's statement following petitioner's request for counsel be suppressed, the parties agree that petitioner requested that the entire statement be admitted at trial for strategic purposes.

At trial, the victim testified that she arrived at school at 7:20 a.m. each morning and immediately visited petitioner in his homeroom or in a stairwell. She testified that they engaged in kissing, hugging, and groping every morning between 7:20 a.m. and 7:40 a.m. and that, on one occasion, petitioner took down his pants and asked for oral sex. The victim testified that she declined to perform oral sex but that she "massaged" his penis instead. The victim furthertestified that, on another occasion, petitioner digitally inserted his finger into her vagina. The State also presented numerous Facebook messages between petitioner and the victim.

In his defense, petitioner asserted that the victim's accusations were false and that they never engaged in any sexual contact. Petitioner presented as evidence a Skype conversation between the victim and her friend that occurred on February 15, 2014, in which the victim complained that petitioner had "ripped her heart out" that day by telling her that they could not talk anymore.⁶ It is petitioner's contention that this evidence contradicted the victim's testimony on direct-examination that it was she who was trying to break off the relationship. Petitioner also presented numerous alibi witnesses consisting of students and teachers who testified that, every morning, they saw petitioner in his wife's classroom located on the other side of the school from where the victim alleged her daily morning rendezvous with petitioner occurred.

During jury deliberations, the jury asked for the definition of "attempt" and "intent." After consulting with counsel, the circuit court defined "attempt" and "intent" for the jury. The jury also asked: "1. Does [sic] charges 3-7 deal with the specific acts that supposedly occurred, groping, kissing, and rubbing in the classroom and stairwell? and 2. Does it deal with the attempt to engage in sexual intercourse via electronic information?" After consulting with counsel, the court responded,

1. Charges 3 through 7 pertain to the allegations made about sexual contact or sexual intrusion that are alleged to have occurred in the classroom and stairwell.

2. No. Charges 3 through 7 pertain to the allegations made about sexual contact or sexual intrusion that are alleged to have occurred in the classroom and stairwell."

The jury convicted petitioner on count three of the indictment and acquitted him of the remaining charges. Petitioner was sentenced to ten to twenty years confinement but such confinement was ordered to be served on home incarceration with electronic monitoring. This appeal followed.

In his first assignment of error, petitioner argues that the circuit court erred in failing to dismiss the indictment as insufficient and in violation of the constitutional prohibition against double jeopardy. Petitioner argues that the indictment lacked specificity as to what sexual acts he allegedly committed against the victim and, as a result, he was not put on notice as to the allegations against which he was defending at trial. Specifically, count two charged petitioner with engaging in "sexual intercourse or sexual intrusion," in violation of West Virginia Code § 61-8B-5(a)(2), while counts three through seven charged petitioner with engaging in or attempting to engage in "sexual intercourse, sexual intrusion, or sexual contact," in violation of West Virginia Code § 61-8D-5(a). Petitioner contends that these statutory provisions encompass numerous separate potential actions, all of which are illegal under these statutes, but none of which were alleged with any specificity in the indictment. Compounding the confusion,petitioner argues, is that the lack of specific dates and range of dates set forth in counts two and three (five months) and counts four through seven (seven months) precluded petitioner from "pars[ing] out whether the [alleged incidents] occurred on separate days, on the same day but by different methods, or on a combination of same days and separate days[,]" thereby confusing the jury and violating the constitutional prohibition against double jeopardy.

This Court has held that "'[g]enerally, the sufficiency of an indictment is reviewed de novo. An indictment need only meet minimal constitutional standards, and the sufficiency of an indictment is determined by practical rather than technical considerations.' Syl. Pt. 2, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996)." Syl. Pt. 2, State v. Chic-Colbert, 231 W. Va. 749, 749 S.E.2d 642 (2013). Furthermore,

[a]n indictment is sufficient under Article III, § 14 of the West

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