State v. Lambert

Decision Date25 October 2013
Docket NumberNo. 12–1066.,12–1066.
Citation232 W.Va. 104,750 S.E.2d 657
PartiesSTATE of West Virginia, Plaintiff Below, Respondent v. Jason Paul LAMBERT, Defendant Below, Petitioner.
CourtWest Virginia Supreme Court


Syllabus by the Court

1. ‘Rulings on the admissibility of evidence are largely within a trial court's sound discretion and should not be disturbed unless there has been an abuse of discretion.’ State v. Louk, 171 W.Va. 639, 301 S.E.2d 596, 599 (1983).” Syl. Pt. 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983).

2. “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).

3. ‘Pursuant to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Confrontation Clause contained within the Sixth Amendment to the United States Constitution and Section 14 of Article III of the West Virginia Constitution bars the admission of a testimonial statement by a witness who does not appear at trial, unless the witness is unavailable to testify and the accused had a prior opportunity to cross-examine the witness.’ Syllabus Point 6, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).” Syl. Pt. 1, State v. Jessica Jane M., 226 W.Va. 242, 700 S.E.2d 302 (2010).

4. Where the out-of-court statements of a non-testifying individual are introduced into evidence solely to provide foundation or context for understanding a defendant's responses to those statements, the statements are offered for a non-hearsay purpose and the introduction of the evidence does not violate the defendant's rights under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) and State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).

5. “Errors involving deprivation of constitutional rights will be regarded as harmless only if there is no reasonable possibility that the violation contributed to the conviction.” Syl. Pt. 20, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

6. “A judgment will not be reversed for any error in the record introduced by or invited by the party seeking reversal.” Syl. Pt. 21, State v. Riley, 151 W.Va. 364, 151 S.E.2d 308 (1966).’ Syllabus point 4, State v. Johnson, 197 W.Va. 575, 476 S.E.2d 522 (1996).” Syl. Pt. 4, State v. Mann, 205 W.Va. 303, 518 S.E.2d 60 (1999).

7. ‘An appellant or plaintiff in error will not be permitted to complain of error in the admission of evidence which he offered or elicited, and this is true even of a defendant in a criminal case.’ Syl. Pt. 2, State v. Bowman, 155 W.Va. 562, 184 S.E.2d 314 (1971).” Syl. Pt. 3, State v. Crabtree, 198 W.Va. 620, 482 S.E.2d 605 (1996).

8. “A judgment of conviction will not be set aside because of improper remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused or result in manifest injustice.” Syl. Pt. 5, State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995).

9. “Four factors are taken into account in determining whether improper prosecutorial comment is so damaging as to require reversal: (1) the degree to which the prosecutor's remarks have a tendency to mislead the jury and to prejudice the accused; (2) whether the remarks were isolated or extensive; (3) absent the remarks, the strength of competent proof introduced to establish the guilt of the accused; and (4) whether the comments were deliberately placed before the jury to divert attention to extraneous matters.” Syl. Pt. 6, State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995).

Neal Jay Hamilton, Fairmont, WV, for Petitioner.

Patrick Morrisey, Attorney General, Elbert Lin, Solicitor General, Laura Young, Assistant Attorney General, for Respondent.

WORKMAN, Justice:

The petitioner, Jason Paul Lambert, was convicted in the Circuit Court of Marion County, West Virginia, of one count of sexual abuse by a parent, guardian or custodian, and one count of distribution and display of obscene matter to a minor. The victim, S.W.,1 who was four years old at the time of the offenses, was deemed incompetent to testify. On appeal, the petitioner claims that admission at trial of certain of S.W.'s out-of-court statements violated his rights under the United States Constitution, Amendment VI, and the West Virginia Constitution, article III, section 14; and that the prosecuting attorney's closing argument contained statements so egregious as to constitute plain error.2

After careful consideration of the parties' briefs, the oral argument, the appendix record, and the applicable law, we affirm the judgment of the circuit court.


The petitioner was indicted in the February, 2011, term of court for the felony offenses of sexual abuse by a parent, guardian or custodian, West Virginia Code § 61–8D–5 (2010), and distribution and display of obscene matter to a minor, West Virginia Code § 61–8A–2(a) (2010). Both offenses were alleged to have occurred on December 4–5, 2010, at a time when the petitioner was caring for the victim, S.W., and her sister. The factual underpinning for the charges was that the petitioner, with S.W. present and observing, went into his bedroom and masturbated to ejaculation while watching a pornographic film on his television set. The petitioner's defense, boiled down to its essence, was that although the child was in the bedroom while these acts took place, the petitioner didn't intend for her to see what he was doing.

The investigation that led to the charges against the petitioner began after S.W. reported to her mother that “Uncle Jason” had “showed me his tail.” Thereafter, Trooper Adam Scott spoke with S.W.'s mother, conducted a forensic interview of the child, and took a statement from the petitioner. Trooper Scott's interrogation technique included confronting the petitioner with information allegedly given to him by S.W.—whether true or not—to test his initial protestations of innocence. Ultimately, the petitioner admitted to Trooper Scott that he had masturbated in his bedroom while watching a pornographic film, but that he didn't realize S.W. was present, or, alternatively, that S.W. was positioned in such a way that she could not have seen either the masturbation or the pornography. Significantly, although the petitioner maintained that he never intentionally exposed himself to the child, he admitted that she had probably seen him and that's why he asked her “not to tell.”

During the discovery phase of the criminal proceedings, S.W. was evaluated by a psychologist to determine her competency to testify. Based on the psychologist's report, and after a full evidentiary hearing at which the psychologist testified, the circuit court held that

as a matter of law, the Court finds that S.W. the alleged victim in this matter is not competent to testify, and does GRANT the defendant's motion to preclude said minor child's testimony and all testimony regarding the statements of said minor child in this matter. The Court's finding is based on the conclusion that because of the age of the child the probative value is outweighed by the prejudicial effect of her testimony and statements to the defendant (sic) in this proceeding.

During the trial, the issue of S.W.'s out-of-court statements came up in three different contexts. First, S.W.'s mother was permitted to testify as to the child's disclosure to her of the incident, see text supra. The circuit court deemed this testimony admissible because it was offered not for the truth of the child's statement, but to show how and why the criminal investigation began. Second, Trooper Scott was permitted to play a tape recorded interview of the petitioner, during the course of which interview the trooper referred several times to information that S.W. had allegedly given him. The court deemed this testimony admissible becauseit was offered not for the truth of the child's statements, but to illustrate the officer's investigative technique, and to give context to the petitioner's answers to the officer's questions. Third, Stacy Miller, a Child Protective Services worker, was permitted to reiterate the child's statement to her mother; further, she testified that in a search of the petitioner's home, she and Trooper Scott found [l]otions that the child had referenced.” The court deemed the former testimony admissible because it was offered not for the truth of the child's statement, but to show how and why CPS became involved in the case. With respect to the latter testimony, the court instructed the witness: “Just don't reference what was told to you by the child since she will not be testifying. Leave her out of it. Just say what you saw.”

With respect to the testimony of all three of these witnesses, the circuit court specifically admonished the jury that S.W.'s statements were not being offered for the truth of what the child had said. Following the testimony of S.W.'s mother, the court instructed the jury that

[t]his child is five years old. She won't testify. She's not old enough to testify, or mature enough to testify, which is not uncommon. This comment that she made to her mother is not offered for the truth of that matter. It's not offered to prove that it actually happened. It's just offered to you for your consideration to kind of show you how this investigation got started. Okay? Not that the child's statements were true, but rather those statements to her mother are what started the investigation.

During the testimony of Trooper Scott, the court instructed the jury that

[t]he Court has previously determined as a matter of law that this [tape recorded statement of the petitioner's interview] is admissible for your consideration. Let me mention one thing also. The trooper has talked about his...

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8 cases
  • State v. Rollins
    • United States
    • West Virginia Supreme Court
    • June 17, 2014
    ...remarks were improper, I believe, as the majority briefly suggests, that it was invited error. Recently, in State v. Lambert, 232 W.Va. 104, 750 S.E.2d 657 (2013), we addressed a prosecutor's unobjected-to argument made in response to defense counsel's statement that the four-year-old victi......
  • United States v. Whittle
    • United States
    • U.S. District Court — Western District of Kentucky
    • November 29, 2016
    ...when questioned by the officer; the statements were not hearsay, but were offered to explain the context); State v. Lambert , 232 W.Va. 104, 112, 750 S.E.2d 657, 665 (2013) (holding "that where the out-of-court statements of a non-testifying individual are introduced into evidence solely to......
  • State v. Lambert
    • United States
    • West Virginia Supreme Court
    • September 17, 2015
    ...36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) and State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).Syl. pt. 4, State v. Lambert, 232 W.Va. 104, 750 S.E.2d 657 (2013).The record in the instant case indicates that, during the direct testimony of Mr. Lambert, the following exchange occurre......
  • State v. Benesch
    • United States
    • Tennessee Court of Criminal Appeals
    • August 25, 2017
    ...because the conversation was not offered for truth, but instead for context and evidence of knowledge."); see also State v. Lambert, 750 S.E.2d 657, 665 (W. Va. 2013) (holding "that where the out-of-court statements of a non-testifying individual are introduced into evidence solely to provi......
  • Request a trial to view additional results

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