State v. Jones
Decision Date | 11 April 2013 |
Docket Number | No. 11–1504.,11–1504. |
Citation | 230 W.Va. 692,742 S.E.2d 108 |
Court | West Virginia Supreme Court |
Parties | STATE of West Virginia, Plaintiff Below, Respondent v. Jack JONES, Defendant Below, Petitioner. |
OPINION TEXT STARTS HERE
Syllabus by the Court
1. Syl. pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).
2. Syl. pt. 5, State v. Quinn, 200 W.Va. 432, 490 S.E.2d 34 (1997).
3. Syl. pt. 6, State v. Guthrie, 205 W.Va. 326, 518 S.E.2d 83 (1999).
4. “The traditional appellate standard for determining prejudice for discovery violations under Rule 16 of the West Virginia Rules of Criminal Procedure involves a two-pronged analysis: (1) did the non-disclosure surprise the defendant on a material fact, and (2) did it hamper the preparation and presentation of the defendant's case.” Syl. pt. 2, State ex rel. Rusen v. Hill, 193 W.Va. 133, 454 S.E.2d 427 (1994).
5. “Ordinarily, where objections to questions or evidence by a party are sustained by the trial court during the trial and the jury instructed not to consider such matter, it will not constitute reversible error.” Syl. pt. 18, State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 (1966).
6. “The discretion of the trial court in ruling on the propriety of argument by counsel before the jury will not be interfered with by the appellate court, unless it appears that the rights of the complaining party have been prejudiced, or that manifest injustice resulted therefrom.” Syl. pt. 3, State v. Boggs, 103 W.Va. 641, 138 S.E. 321 (1927).
Stephen D. Herndon, Esq., Herndon Law Offices, Wheeling, West Virginia, Brent A. Clyburn, Esq., The Law Office of Brent A. Clyburn, Wheeling, WV, for Petitioner.
Patrick Morrisey, Esq., Attorney General, Scott E. Johnson, Esq., Senior Assistant Attorney General, Charleston, WV, for Respondent.
This case is before this Court upon the appeal of Jack Jones from his convictions in the Circuit Court of Ohio County of six counts of sexual assault in the first degree, seven counts of sexual abuse by a custodian or parent and one count of conspiracy. All of the convictions represented acts of sexual misconduct perpetrated by Jones against a child, R.M.1 According to the evidence of the State, Jessica M., the mother of R.M., participated with Jones in some of the acts of sexual misconduct against R.M. Jessica M.'s criminal convictions concerning R.M. were affirmed by this Court in State v. Jessica Jane M., 226 W.Va. 242, 700 S.E.2d 302 (2010).
Following trial by jury in 2009, the circuit court entered an order denying Jones's post-trial motions and sentencing him to an aggregate penitentiary term of 161 to 355 years. The circuit court reimposed that sentence by order entered on September 30, 2011.
Asking for a new trial, Jones sets forth several assignments of error, among which is his contention that his confrontation and due process rights were violated because he was not permitted to let the jury know that the complaining witness, R.M., had made various statements that sexual misconduct had been perpetrated against her by individuals other than Jones. Jones asserts that evidence of R.M.'s statements implicating others should have been admitted at trial as an exception to this State's rape shield statute, W.Va.Code, 61–8B–11 [1986].
In reviewing Jones's assignments of error, this Court has carefully examined the appendix-record and the briefs and argument of the parties. For the reasons stated herein, we find the assignments of error to be without merit. Accordingly, this Court affirms Jones's convictions as well as his penitentiary sentence reflected in the September 30, 2011, order.
R.M., born in December 1998, is the biological daughter of Jessica M. The biological father has been absent from this State for some time and is not involved in this case. In 2001, Jessica M. began a relationship with the petitioner, Jack Jones, an adult male born in 1970. Jones lived at Jessica M.'s residence in the Wheeling area from time to time and is the putative father, with Jessica M., of two children, Molly, born in 2003, and Isaac, born in 2005. Throughout the relationship between Jessica M. and Jones, drug and alcohol abuse and domestic violence took place at the residence in the presence of the children. As a result, the circumstances necessitated the continued involvement of the West Virginia Department of Health and Human Resources and its office of Child Protective Services.
In 2006, the Department of Health and Human Resources instituted abuse and neglect proceedings in the Circuit Court of Ohio County against Jessica M. and Jones on grounds unrelated to the sexual misconduct charges underlying this appeal. One of the primary allegations in the abuse and neglect proceeding was that, while under the influence of an illegal substance, Jessica M. drove away in a vehicle, leaving one of the infant children, age two, on the sidewalk. Soon after, R.M., Molly and Isaac were placed in foster care. The record indicates that Jessica M.'s parental rights to R.M. were terminated in November 2007.
At age seven, R.M. entered the foster home of Sally Keefer and was seen exhibiting age-inappropriate sexual knowledge and sexual conduct, such as “French kissing.” Soon after, R.M. told Ms. Keefer that she had been sexually abused by Jessica M. and Jones. Following the disclosure, R.M. underwent a number of interviews and counseling and therapy sessions during which she related to social workers, Child Protective Services workers and psychologists various incidents of sexual misconduct perpetrated against her by Jessica M. and Jones.
In January 2008, an Ohio County grand jury returned separate indictments against Jessica M. and Jones, charging them with committing sexual offenses against R.M.2 The indictment against Jones set forth six counts of sexual assault in the first degree in violation of W.Va.Code, 61–8B–3(a)(2) [1991], and seven counts of sexual abuse by a custodian or parent in violation of W.Va.Code, 61–8D–5 [1998]. Those counts charged Jones with a wide variety of acts of sexual misconduct against R.M. over a period of time, when R.M. was age 11 or younger. An additional count charged Jones with conspiracy in violation of W.Va.Code, 61–10–31 [1971], alleging that Jones engaged in sexual intercourse or intrusion with R.M., while Jessica M. held R.M. down.
Following a mistrial in June 2009, Jones's second trial began in December 2009. The evidence submitted by the State was graphic. According to that evidence, Jones had been sexually assaulting or sexually abusing R.M. since she was three or four years old. Some of the incidents occurred when Jessica M. was absent from the residence, and some occurred with Jones committing the act while Jessica M. held R.M. down on the bed. The acts attributed to Jones included vaginal and anal penetration of R.M. with Jones's penis, penetration by Jones of R.M. with his fingers and with a stick, oral sex by Jones upon R.M. and oral sex by R.M. upon Jones. In addition, R.M. witnessed Jessica M. and Jones having sex and was exposed to pornographic movies. The evidence of the State included the testimony of Joan Phillips, M.D., of Women and Children's Hospital in Charleston who examined R.M. and found “blunt force penetrating trauma” to R.M.'s vagina. At the time of the December 2009 trial, R.M., who testified as a witness for the State, was age ten.
Although Jones did not testify, he called a psychologist to the stand who stated that as a result of excessive interviews by social workers, Child Protective Services workers and other psychologists, it could not be determined whether R.M., a young child, was able to accurately report that sexual offenses were committed against her. In addition, Jones called R.M.'s grandmother and aunt who testified that R.M. never disclosed to them any sexual misconduct by Jones. In addition, Jones called Stephen R. Guertin, M.D., who contested the findings of abnormality found by Dr. Phillips.
At the conclusion of the trial, the jury found...
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