State v. Gatto

• Decision Date: 12 January 2022
• Docket Number: 20-0977
• Court: Virginia Supreme Court
• Parties: State of West Virginia, Plaintiff Below, Respondent v. Brian Randall Gatto, Defendant Below, Petitioner

State of West Virginia, Plaintiff Below, Respondent
v.
Brian Randall Gatto, Defendant Below, Petitioner

No. 20-0977

Supreme Court of Appeals of West Virginia

January 12, 2022

Marion County CC-24-2020-F-15

MEMORANDUM DECISION

Petitioner Brian Randall Gatto, by counsel J. Bryan Edwards and C. Anthony Gutta III, appeals the Circuit Court of Marion County's November 25, 2020, order sentencing him to not less than twenty-five nor more than one hundred years of incarceration for his first-degree sexual assault conviction; not less than ten nor more than twenty years for each of his four sexual abuse by a parent, guardian, custodian or person in a position of trust to a child convictions; and not less than five nor more than twenty-five years for each of his two first-degree sexual abuse convictions. Respondent State of West Virginia, by counsel Patrick Morrisey and Mary Beth Niday, filed a response. Petitioner filed 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.

Petitioner was indicted on February 6, 2018 ("first indictment"), for two counts of first-degree sexual assault; four counts of sexual abuse by a parent, guardian, custodian or person in a position of trust to a child; and two counts of first-degree sexual abuse. The matter was assigned Case Number 18-F-43. During the pendency of that proceeding, the circuit court granted petitioner's request for his victim's mental health and counseling records and ordered the State "to obtain the full and complete mental health and counseling records of the alleged victim and have the same served upon the [c]ourt under seal" for in camera review. Following its in camera review of the received records, the court concluded that they were discoverable and permitted them to be reviewed by petitioner with his counsel and an appropriate expert. In addition, Amy Burdette and Family Services were later specifically ordered to provide their records of the victim's treatment to the court under seal.

1

In January of 2019, the parties jointly tendered a proposed order continuing trial and charging petitioner with the continuance of the current term of court to the February of 2019 term "because [petitioner] is seeking the medical records of the victim in this matter," which the court entered.

Later in 2019, petitioner moved to dismiss his first-degree sexual assault charges. First, the indictment specified a date range within which the alleged sexual assaults occurred that would place the victim between six and thirteen years old. As first-degree sexual assault is defined to occur when the perpetrator "being fourteen years old or more, engages in sexual intercourse or sexual intrusion with another person who is younger than twelve years old and is not married to that person," petitioner argued that the indictment was fatally flawed and that those counts must be dismissed. W.Va. Code § 61-8B-3(a)(2). Petitioner also argued that the grand jury was not provided with evidence to support that crime because Sergeant Brian Stewart of the Fairmont City Police Department, who testified before the grand jury, never testified to any sexual intercourse and/or sexual intrusion. In a separate motion, petitioner also moved to dismiss the counts charging first-degree sexual abuse because the indictment set forth the incorrect statute and because, within the date range specified in the indictment, the victim was alleged to be between six and thirteen years old. Thus, for the same reason petitioner argued the first-degree sexual assault charges should be dismissed, he urged dismissal of the first-degree sexual abuse charges.

At a hearing on petitioner's motions to dismiss, the court dismissed the first-degree sexual assault charges, finding that Sergeant Stewart "didn't testify there was any penetration. I think he said or testified that it's alleged that [petitioner] put his hand on the child's vagina. There's no suggestion in Officer Stewart's direct testimony that there's any penetration." The court was "less concerned" about the first-degree sexual abuse charges, and it was "less concerned about the date line involved," so it denied petitioner's motion to dismiss the first-degree sexual abuse charges.

In November of 2019, the State moved to dismiss the first indictment without prejudice because it "no longer wishe[d] to prosecute this case." The court ordered the case dismissed without prejudice.

On February 3, 2020, petitioner was again indicted ("second indictment") for two counts of first-degree sexual assault (Counts I and III); four counts of sexual abuse by a parent, guardian, custodian or person in a position of trust to a child (Counts II, IV, VI, and VIII); and two counts of first-degree sexual abuse (Counts V and VII). By agreed order, "all motions, arguments, filings, and the entirety of the [c]ourt file" in Case Number 18-F-43 was "transferred and incorporated within" the new case (the instant case), assigned Case Number 20-F-15.

Petitioner moved to dismiss Counts I and III (first-degree sexual assault) of the second indictment, arguing that Sergeant Stewart falsely testified that the victim, in an interview with the Marion County Child Advocacy Center ("CAC"), said that petitioner penetrated her vagina with his fingers. Petitioner stated that the victim, in fact, answered "no" when asked whether petitioner had ever penetrated her vagina. As the grand jury was not presented with any other evidence that petitioner engaged in sexual intercourse and/or sexual intrusion, petitioner argued that the first-degree sexual assault charges should be dismissed.

2

The court denied petitioner's motion to dismiss the first-degree sexual assault charges. In its order, the court recounted that it conducted an in camera review of the CAC interview and the grand jury transcript. The court found that petitioner

failed to demonstrate a prima facie case of "willful, intentional fraud" on the part of [Sergeant] Stewart with regard to his testimony to the grand jury on February 3, 2020, that the alleged victim disclosed in her CAC interview that when the [petitioner] "put his hand down her pants his fingers would penetrate her vagina."

The court noted that "the CAC interviewer's questions to the alleged victim were not probing, the child was not under oath and the child's disclosures were not subject to cross examination." As a result, the court found that whether the alleged victim's disclosure during her CAC interview that petitioner "tried to [digitally penetrate her vagina] but I started crying because it hurt" satisfies the legal definition of "penetration" was a question of fact to be decided by the jury, inasmuch as "any penetration, however slight, of the labia or external lips of the vulva of the female is all that i[s] necessary." Syl. Pt. 1, in part, State v. Vance, 146 W.Va. 925, 124 S.E.2d 252 (1962).

Petitioner's three-day jury trial began on August 5, 2020. The jury heard testimony from the investigating officers, the victim, one of the victim's therapists, the director of the CAC, and petitioner before beginning its deliberations on the second day of trial.^[1] When the jury appeared on the morning of the third day to resume their deliberations, the court informed the jury that the thumb drive containing the victim's CAC interview was missing from the jury room. The jurors were placed under oath and asked whether "anybody t[ook] it home last night inadvertently or otherwise?" No one acknowledged removing the thumb drive from the jury room. The court remarked, "Okay. We have no explanation." A replacement thumb drive was provided to the jury, and it resumed its deliberations.

Once the jury was in the jury room, petitioner moved for a mistrial. Petitioner "appreciated" the fact that an inquiry was made into the disappearance of the exhibit, but he argued that it "could have been taken home, viewed by someone, viewed by them and their family members or things of that nature, that could have brought forth, I guess, deliberations outside of the jury room." The court, finding that it "cannot presume any impropriety insofar as the jurors were all placed under oath" and "[n]one of them admitted to having removed or having possession of the thumb drive," denied petitioner's motion. The court also pointed out that the interview was "an exhibit they would have seen in the jury room anyway."

Following their deliberations, the jury found petitioner guilty of one count of first-degree sexual assault (Count I); four counts of sexual abuse by a parent, guardian, custodian or person in a position of trust to a child (Counts II, IV, VI, and VIII); and two counts of first-degree sexual abuse (Counts V and VII). Petitioner was acquitted of the first-degree sexual assault charged in Count III of the second indictment.

3

Petitioner moved for a new trial. He argued that "it was recently discovered the State . . . failed to comply with two (2) prior Orders of the court and failed to provide relevant medical records." In consulting with the State prior to trial to confirm that all medical records had been obtained and produced, the State asserted that the only records obtained were those from two hospitals not at issue. Petitioner stated that he had "recently discovered," however, that Amy Burdette maintained a file containing mental health and counseling records of the victim. Further, Ms. Burdette reportedly informed petitioner that no one from the State had contacted her to...