State v. Jonathan B.

Decision Date20 November 2012
Docket NumberNo. 11–0282.,11–0282.
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia, Respondent v. JONATHAN B., Petitioner.


Syllabus by the Court

1. “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.” Syllabus Point 10, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955).’ Syl. pt. 4, State v. Ashcraft, 172 W.Va. 640, 309 S.E.2d 600 (1983).” Syl. pt. 2, State v. Franklin, 191 W.Va. 727, 448 S.E.2d 158 (1994).

2. “Where an offer of evidence is made under Rule 404(b) of the West Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West Virginia Rules of Evidence, is to determine its admissibility. Before admitting the evidence, the trial court should conduct an in camera hearing as stated in State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and arguments of counsel, the trial court must be satisfied by a preponderance of the evidence that the acts or conduct occurred and that the defendant committed the acts. If the trial court does not find by a preponderance of the evidence that the acts or conduct was committed or that the defendant was the actor, the evidence should be excluded under Rule 404(b). If sufficient showing has been made, the trial court must then determine the relevancy of the evidence under Rules 401 and 402 of the West Virginia Rules of Evidence and conduct the balancing required under Rule 403 of the West Virginia Rules of Evidence. If the trial court is then satisfied that the Rule 404(b) evidence is admissible, it should instruct the jury on the limited purpose for which such evidence has been admitted. A limiting instruction should be given at the time the evidence is offered, and we recommend that it be repeated in the trial court's general charge to the jury at the conclusion of the evidence.” Syl. pt. 2, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).

3. Where an offer has been made of lustful disposition evidence pursuant to State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990), the reviewing court must evaluate the admissibility of that evidence as required by Edward Charles L. and State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).

4. “Consent to search may be implied by the circumstances surrounding the search, by the person's prior actions or agreements, or by the person's failure to object to the search. Thus, a search may be lawful even if the person giving consent does not recite the talismanic phrase: ‘You have my permission to search.’ Syl. pt. 1, State v. Flippo, 212 W.Va. 560, 575 S.E.2d 170 (2002).

5. “The test used to determine whether a trial court's exclusion of proffered evidence under our rape shield law violated a defendant's due process right to a fair trial is (1) whether that testimony was relevant; (2) whether the probative value of the evidence outweighed its prejudicial effect; and (3) whether the State's compelling interests in excluding the evidence outweighed the defendant's right to present relevant evidence supportive of his or her defense. Under this test, we will reverse a trial court's ruling only if there has been a clear abuse of discretion.” Syl. pt. 6, State v. Guthrie, 205 W.Va. 326, 518 S.E.2d 83 (1999).

Nicholas T. James, Esq., The James Law Firm, PLLC, Keyser, WV, for Petitioner.

Darrell V. McGraw, Jr., Esq., Attorney General, Michele Duncan Bishop, Esq., Assistant Attorney General, Charleston, WV, for Respondent.

BENJAMIN, Justice:

This case is before the Court on appeal by the petitioner, Jonathan B., 1 of the December 16, 2010, order of the Circuit Court of Mineral County denying his motion for a new trial. Below, Jonathan B. was convicted of one count of second degree sexual assault, one count of incest, one count of detain with intent to defile, and one count of conspiracy. In this appeal, Jonathan B. argues that the circuit court erred by allowing the State to admit in its case in chief eight pornographic file names obtained during a search of his personal laptop computer. The State argued that the file names were incestuous. Jonathan B. also argues that the circuit court erroneously applied the Rape Shield statute, W. Va.Code § 61–8B–11(b), in refusing to allow him to admit into evidence a notebook maintained by the victim, M.B. Finally, Jonathan B. asserts that the circuit court erred by allowing the state to introduce evidence of his illegal drug and alcohol use.

After a thorough review of the record presented for consideration, the briefs, the legal authorities cited, and the arguments of Jonathan B. and the State, we find that the circuit court committed reversible error by failing to fully evaluate the admissibility of the pornographic file names pursuant to a McGinnis hearing. We further find that the circuit court erroneously applied the Rape Shield statute in refusing to allow Jonathan B. to admit the victim's notebook into evidence. We therefore reverse the circuit court's order denying the petitioner's motion for a new trial, and we remand this case for further proceedings consistent with this opinion.


This case involves the alleged rape of M.B. by her half-brother, petitioner Jonathan B.,2 and his friend, Kilton Kitchen (“Kitchen”). M.B. testified that the rape occurred between late July3 and early August of 2006. At the time of the alleged rape, M.B. was thirteen years old, Jonathan B. was either nineteen or twenty years old,4 and Kilton Kitchen was eighteen years old. M.B. lived with her father, Roger B., when the rape allegedly occurred. Jonathan B. lived with his grandmother, Shirley B., having been adopted by her when he was about eighteen months old. Shirley B. is the paternal grandmother of both M.B. and Jonathan B.

M.B. testified that on the day of the alleged rape, Jonathan B. invited her to join him and Kitchen for the night at Shirley B.'s home. M.B. agreed and arrived at the home sometime between 5:00 p.m. and 6:00 p.m. She stated that Jonathan B. and Kitchen left the house numerous times throughout the evening to acquire alcoholic beverages and pills that they crushed and snorted.5

According to M.B., she, Jonathan B., and Kitchen spent the majority of the evening in Jonathan B.'s basement bedroom in Shirley B.'s home.6 During the evening, M.B. left the basement to use the restroom, leaving her Mountain Dew soft drink in the basement. When she returned, she found the men playing video games and drinking alcohol. M.B. testified at trial that she began feeling “weird” upon returning to the basement. She said, “Like, I was tired, but at the same time my body just like, I didn't feel like myself. Like, I don't know how to explain it. It was just a different feeling.” She also testified that she did not feel groggy and said, “I still felt like I had all my power in me.”

Because she felt “weird,” she said that she rested on Jonathan B.'s bed. She stated that after they left the room for a short while, Jonathan B. and Kitchen returned and took turns holding her down and raping her. M.B. testified that she screamed and struggled during the rape but that the men increasedthe volume of the music playing at the time to drown out her screams. Shirley B., who was home at the time of the alleged rape, testified that she did not hear M.B. scream or any sounds of a struggle.

M.B. stated that after the rape, Kitchen told her that if she told anyone about the rape, he would kill her.7 She testified that she went upstairs and showered then went to bed in one of the bedrooms on the main level of the home.

M.B. did not tell her grandmother about the rape. She later indicated to the investigating officer that she had informed her father, Roger B., about the rape one month after the rape but that he had told her, “I really don't want them hurting you so let's just keep this between us.” At trial, Roger B. denied any such conversation took place.

Approximately 39 months after the rape allegedly occurred, on November 3, 2009, then sixteen-year-old M.B. told Deputy Karalewitz, a Prevention Resource Officer at her high school, about the rape. Deputy Karalewitz asked M.B. to provide him with a handwritten statement describing what had happened, and she complied.

On November 6, 2009, Deputy Karalewitz provided M.B.'s statement to another officer, Deputy McKone, for investigation. Two other deputies, Deputy Taylor and Deputy Leatherman, met with M.B. at her school for a follow-up interview on November 17, 2009. The case remained inactive until April 25, 2010, at which time Deputy Veach was assigned to the case.8

Deputy Veach, after reviewing the case file and speaking with M.B., obtained an arrest warrant for Jonathan B. on May 1, 2010. He arrested Jonathan B. at home the next day, May 2, 2010.

During the arrest, Deputy Veach noticed a laptop computer in Jonathan B.'s room and asked if he could take the computer into evidence. Jonathan B. consented. Deputy Veach acquired a search warrant on August 3, 2010, to search the computer. On the computer, Deputy Veach discovered eight video files with pornographic file names. He testified at trial that only four of the files would open, and that of those files, no child pornography was contained therein. He testified that some of the eight file names appeared to relate to incest. Deputy Veach noted on the property receipt upon conclusion of his search of the laptop that the eight files were created on April 29, 2010—three days before Jonathan B.'s arrest.

On September 8, 2010, the petitioner was indicted on one count each of second degree sexual assault, incest, detaining with intent to defile, and conspiracy. Numerous pretrial hearings were held prior to trial. An in camera hearing was held on September 24, 2010, to address the...

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