State v. Kennedy, No. 18-0906

CourtSupreme Court of West Virginia
Writing for the CourtArmstead, Chief Justice
Citation842 S.E.2d 262,243 W.Va. 58
Parties STATE of West Virginia, Plaintiff Below, Respondent v. Tyler Brett KENNEDY, Defendant Below, Petitioner
Docket NumberNo. 18-0906
Decision Date24 April 2020

243 W.Va. 58
842 S.E.2d 262

STATE of West Virginia, Plaintiff Below, Respondent
Tyler Brett KENNEDY, Defendant Below, Petitioner

No. 18-0906

Supreme Court of Appeals of West Virginia.

Submitted: January 29, 2020
Filed: April 24, 2020

J. Daniel Kirkland, Esq., Arnold & Bailey, PLLC, Charles Town, West Virginia, Counsel for Petitioner.

Patrick Morrisey, Esq., Attorney General, Elizabeth Grant, Esq., Assistant Attorney General, Holly M. Flanigan, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for Respondent.

Armstead, Chief Justice:

Petitioner, Tyler Brett Kennedy, was indicted for sexual assault in the second degree and conspiracy to commit sexual assault in the second degree. According to the indictment, Petitioner sexually assaulted his victim while she was physically helpless. A jury convicted Petitioner of simple battery as a lesser included offense, and the Circuit Court of Jefferson County determined that Petitioner's battery was sexually motivated. This finding means that Petitioner must register as a sex offender. W. Va. Code § 15-12-2(c) (2018).1

Petitioner appeals from the circuit court's sentencing order, arguing that the circuit court abused its discretion and erred when it found that Petitioner's offense was sexually motivated. Based on the record before us, the arguments of the parties, and the applicable law, we find no abuse of discretion and no error; therefore, we affirm.


On April 23, 2016, Petitioner's victim—sixteen-year-old A.M.2 —was drinking alcohol

842 S.E.2d 265

with other young people at the home of an acquaintance. A.M. became inebriated and, in time, fell and hit her head. She was taken by car to Jefferson Medical Center, where a blood test revealed that her alcohol serum content was .32. A urine screen showed that she had opiates and marijuana in her system. A.M.’s condition was serious, and she was transferred to Berkeley Medical Center by ambulance.

The morning after, A.M. communicated with her friend, B.S., about what had happened. B.S. told A.M., "you let people have sex with you" and texted that A.M. "had sex with" Petitioner. A.M. reported these allegations to her nurse. This led to a forensic examination by a nurse and a police investigation. Police interviewed Petitioner, who gave a recorded statement denying that he sexually assaulted A.M.

In January 2017, a Jefferson County grand jury indicted Petitioner for sexual assault in the second degree and conspiracy. The sexual assault count charged Petitioner with "unlawfully and feloniously engag[ing] in sexual intercourse with A.M. without the consent of A.M. and when A.M. was physically helpless" in violation of W. Va. Code § 61-8B-4(a)(2) (1991).3 The conspiracy count accused Petitioner of "conspir[ing] with [Z.P.] and two Juveniles (J.M. and J.K.) for the purpose of committing the felony offense of second degree sexual assault" in violation of W. Va. Code § 61-10-31 (1971).4

Petitioner's trial began on April 24, 2018, and lasted four days. The State's witnesses included A.M. and five other young people who were present at S.R.’s house during the alleged sexual assault. The State also offered Petitioner's recorded statement.

A.M.’s Testimony

A.M. testified that, on April 23, 2016, she went to the home of an acquaintance, S.R. A.M. went there with her friend, B.S., and their plan was to acquire some alcohol, stay for a while, and then depart for A.M.’s home with the remaining alcohol. A.M. testified that she invited J.K. to join them because she thought he was "cute" and a "potential" sex partner.

A.M.’s friend, B.S., brought money, and Petitioner used this money to buy vodka for them. A.M. recalled drinking what amounted to three-to-four shots of vodka "incredibly fast"—faster than the other young people. She also crushed and snorted a line of hydrocodone.

According to A.M., J.K. sat beside her on the couch, and she flirted with him. The next thing she remembered was waking up in the ambulance. She denied consenting to having sex with J.K., with Petitioner, or with two other young men, J.M. and Z.P., who were present in the home.

B.S.’s Testimony

A.M.’s friend, B.S., testified next. According to B.S., A.M. went to S.R.’s home intending to have sex with J.K., and A.M. cajoled B.S. into giving Petitioner money to buy alcohol. B.S. recalled that A.M. drank "two if not more" cups of vodka and snorted Oxycodone. At some point, A.M. went to the back room with J.K. According to B.S., A.M. was "a bit tipsey[,] but she could still walk ... and talk pretty normally."

A.M. and J.K. returned from the back room, and J.K. left the party sometime later. A.M. resumed drinking and grew increasingly intoxicated. A.M. began telling Petitioner to "eff" her, and she began touching Petitioner. Petitioner grabbed her, touching her buttocks and breasts and pulling her pants down. B.S. and others protested because "the way he was grabbing her didn't look okay."

Then the guys yelled, "[S]omeone ... finish her already[,]" and S.R. said, "[J]ust have sex with her already[.]" According to B.S., Petitioner said, "[O]kay, I will," and he and

842 S.E.2d 266

another young man, Z.P., carried A.M. to the back room. B.S. reported that Petitioner and Z.P. "had to carry her.... She was so intoxicated that she couldn't walk herself back there."

B.S. assumed that Petitioner had sex with A.M., but she could not say so for sure. Two other young men, J.M. and Z.P., went to the back room "to watch[.]" Petitioner emerged from the room sometime later, as did Z.P. J.M. remained, however, and B.S. saw him "dry humping" A.M. when she entered the room. B.S. told J.M. to "get off her" and helped others "put her clothes back on." B.S. reported that A.M. "was incoherent" and "didn't understand" when she was spoken to or "know ... what was going on."

B.S. and other young people helped A.M. to the living room, where A.M. "fell off the couch and ... busted her eyebrow open[.]" A.G. called her mother, and A.M. was taken to the hospital.

On cross-examination, B.S. agreed that A.M. yelled "f— me, f— me, f— me" to J.K. and later yelled "f— me, f— me" to Petitioner. B.S. also conceded that Petitioner groped A.M. in "direct response to what she was communicating to him" and that Petitioner "push[ed] her back on the couch and ... t[old] her to stop" "a couple times[.]" B.S. further admitted that, though she believed it was "inappropriate" for Petitioner and Z.P. to carry A.M. to the back room, she did not stop them because A.M. "was communicating a willingness to do something[.]"

On redirect, B.S. testified that her opinion had changed since that night and that she did not believe A.M. was capable of consenting to sex. Yet, on further cross-examination, B.S. agreed that B.S. was "probably the soberest person" there and that, when "all this happened [she] didn't think anything was wrong because [she] thought [A.M.] was communicating a willingness to act[.]"

A.G.’s Testimony

A.G. remembered being at S.R.’s home on April 23, 2016. A.G. denied any knowledge of whether A.M. had sex with anyone. According to A.G., A.M. "was mainly just laying on the couch and ... being really loud with ... moaning and groaning noises." This included "saying ... eff me or whatever ... frequently but not ... too much." A.G. assumed that when Petitioner and Z.P. carried A.M. to the backroom they were placing her "in bed or something" so she could rest and "calm down[.]" Later, however, she recalled Petitioner asking "one specific time" "should I just go ahead and have sex with [A.M.] since she is screaming eff me anyway[?]" On cross-examination, A.G. agreed that A.M. was "out of control yelling things like, f— me, f— me, f— me" before Petitioner and Z.P. carried her to the back room.

S.R.’s Testimony

S.R. hosted the April 23, 2016 gathering. S.R. testified that A.M. had sex with J.K., but she did not remember A.M. having sex with Petitioner. She told the police that Petitioner had sex with A.M. because she heard "moaning" coming from the back room, not because she witnessed the two having sex. At first, S.R. denied seeing Petitioner (or anyone else) carry A.M. to the back room. According to S.R., A.M. went to the back room with J.K. and was still there when Petitioner "went back to check on her[.]" Later, however, S.R. conceded that she had given previous sworn testimony that she saw Petitioner carry A.M. to the back room.

J.M.’s Testimony

J.M. remembered going to S.R.’s house in April 2016. He denied that either he or Petitioner had sex with A.M. There were few other things he professed to remember, and he invoked his right not to incriminate himself.

Z.P.’s Testimony

Z.P. testified pursuant to a plea agreement. According to Z.P., Petitioner bought vodka with money he received from A.M. A.M. "got really drunk" and then snorted some pills. She became drowsy and "wasn't able to walk." "[S]he was still talking, but ... it wasn't as ... clear." In time, "she couldn't respond very well."


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1 practice notes
  • State v. Thompson, No. 19-0754
    • United States
    • Supreme Court of West Virginia
    • April 24, 2020
    ...the Legislature's use of the word "shall" in this context makes this directive to the appealing party mandatory. See, e.g. , Syl. pt. 1, 842 S.E.2d 262 Nelson v. W. Va. Pub. Emps. Ins. Bd. , 171 W. Va. 445, 300 S.E.2d 86 (1982) ("It is well established that the word ‘shall,’ in the absence ......
1 cases
  • State v. Thompson, No. 19-0754
    • United States
    • Supreme Court of West Virginia
    • April 24, 2020
    ...use of the word "shall" in this context makes this directive to the appealing party mandatory. See, e.g. , Syl. pt. 1, 842 S.E.2d 262 Nelson v. W. Va. Pub. Emps. Ins. Bd. , 171 W. Va. 445, 300 S.E.2d 86 (1982) ("It is well established that the word ‘shall,’ in the absence of ......

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