State v. Lowery

• Decision Date: 27 May 2008
• Docket Number: No. 33660.,33660.
• Citation: 664 S.E.2d 169,222 W.Va. 284
• Parties: STATE of West Virginia, Appellee v. John LOWERY, Appellant.
• Court: West Virginia Supreme Court

664 S.E.2d 169

222 W.Va. 284

STATE of West Virginia, Appellee v. John LOWERY, Appellant.

No. 33660.

Supreme Court of Appeals of West Virginia.

Submitted April 1, 2008.

Decided May 27, 2008.

Syllabus by the Court

1. "This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo." Syllabus Point 4 Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).

2. "A communication will be privileged, in accordance with W.Va.Code, 57-3-9 (1992), if four tests are met: (1) the communication must be made to a clergyman; (2) the communication may be in the form of a confidential confession or a communication; (3) the confession or communication must be made to the clergyman in his professional capacity; and (4) the communication must have been made in the course of discipline enjoined by the rules of practice of the clergyman's denomination." Syllabus Point 3, State v. Potter, 197 W.Va. 734, 478 S.E.2d 742 (1996).

3. "Where the exact age is not required to be proved, the defendant's physical appearance may be considered by the jury in determining age but there must be some additional evidence suggesting the defendant's age." Syllabus Point 6, State v. Richey, 171 W.Va. 342, 298 S.E.2d 898 [879] (1982).

Crystal L. Walden, Esq., Public Defender Corporation, Charleston, WV, for Appellant.

Darrell V. McGraw, Jr., Attorney General, Barbara H. Allen, Managing Deputy Attorney General, Charleston, WV, for Appellee.

PER CURIAM.

The appellant was indicted for six sexual offenses—three felony counts under W.Va. Code, 61-8B-5 [2000] and three misdemeanor counts under W.Va.Code, 61-8B-9 [1984]. The appellant claims in this appeal that the trial court erred by allowing the testimony of the appellant's pastor, by failing to declare a mistrial based upon a spectator outburst during trial, and by failing to direct a verdict of acquittal on the felony counts because of the State's failure to prove the specific age of the appellant—the difference in the age of the victim and the appellant being an element of the offense.

For the reasons stated, infra, we affirm.

I.

On July 26, 2006, the Grand Jury of Kanawha County returned an indictment against the appellant, John Henry Lowery, for three misdemeanor counts of sexual abuse in the third degree under W.Va.Code, 61-8B-9, and for three felony counts of sexual assault in the third degree under W.Va.Code, 61-8B-5. All counts in the indictment named a minor, A.D.,¹ a female, age fifteen, as the victim. The appellant was thirty-five years old, married and the father of children.

The defendant was found guilty on two felony counts of sexual assault in the third degree, and guilty on two misdemeanor counts of sexual abuse in the third degree, at a one-day jury trial on September 25, 2006. At trial the State called eight witnesses, including the victim, A.D.

The evidence at trial suggested that the appellant and A.D. began a relationship late in 2005 which continued into early 2006. Both the appellant and A.D. were members of the same church where A.D.'s mother served as assistant pastor. The appellant was also an employee of the Second Avenue Community Center, a facility sponsored by the church. A.D. participated in an after-school program at the Center, in which she served as choreographer for a men's dance team. Appellant was a member of the dance team.

Appellant and A.D. attempted to keep their relationship a secret, but relatives and other church members became suspicious after observing the two together. Several witnesses testified at the trial to seeing the pair together, and to their conduct. One of the witnesses who testified to observing the appellant with A.D. was the pastor of the sponsoring church, who also served as head of the Center. The pastor's testimony related to his observations of the couple together, and to his advising the appellant to stay away from A.D.

When A.D. testified, she detailed her relationship with the appellant, including the specific sexual contact between her and the appellant. Her testimony supported the elements of the offenses for which the appellant was convicted.

The record also reflects that during A.D.'s testimony, a gentleman spectator at the trial stood up and shouted the words, "You bastard! You bastard!", after which the spectator was immediately escorted from the courtroom. The trial court promptly instructed the jury, "Ladies and gentlemen of the jury, you will disregard that outburst."

The appellant did not present any evidence in his defense.

The jury returned a verdict of guilty on two felony counts of sexual assault in the third degree, and guilty on two misdemeanor counts of guilty of sexual abuse in the third degree.²

On October 5, 2006, the appellant filed two post-trial motions—a motion for judgment of acquittal based upon the allegation that the State had not proven the age of the appellant and a motion for new trial based the outburst in the courtroom by the spectator.

On October 26, 2006, the trial court conducted a hearing on the appellant's motions, after which the court entered an order denying both of the appellant's motions. The trial court then proceeded with sentencing. The trial judge effectively sentenced the appellant to a two-to-ten-year sentence. The felony sentences were to run consecutively, and the misdemeanor sentences were to run concurrently with one of the felony sentences.

It is from the October 26, 2006 order that the appellant appeals.

II.

In Syllabus Point 4 of Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996) this Court held:

This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo.

Where a trial court's determination involves a construction of the West Virginia Rules of Evidence and rulings of law, our review is plenary. See State v. Omechinski, 196 W.Va. 41, 44, 468 S.E.2d 173, 176 (1996) and Gentry v. Mangum, 195 W.Va. 512, 518, 466 S.E.2d 171, 177 (1995).

With these principles in mind we proceed to consider the appellant's assignments of error.

The appellant asserts the following as error: First, the trial court violated W. Va. Code, 57-3-9 [2001] when the pastor was allowed to testify; second, appellant's right to a fair trial was denied when the court denied the appellant's motion for a mistrial based on the spectator outburst during the trial; and third, appellant's conviction for sexual assault in the third degree is not supported by the evidence because the State failed to prove that the appellant was at least four years older than A.D.

The first assignment of error is whether or not the testimony of the pastor witness falls within the privilege provisions of W.Va.Code, 57-3-9, which states as follows:

§ 57-3-9. Communications to priests, nuns, clergy, rabbis, Christian Science practitioners or other religious counselors not subject to being compelled as testimony.

No priest, nun, rabbi, duly accredited Christian Science practitioner or member of the clergy authorized to celebrate the rites of marriage in this state pursuant to the provisions of article two, chapter forty-eight of this code shall be compelled to testify in any criminal or grand jury proceedings or in any domestic relations action in any court of this state:

(1) With respect to any confession or communication, made to such person, in his or her professional capacity in the course of discipline enjoined by the church or other religious body to which he or she belongs, without the consent of the person making such confession or communication; or (2) With respect to any communication made to such person, in his or her professional capacity, by either spouse, in connection with any effort to reconcile estranged spouses, without the consent of the spouse making the communication. This subsection is in addition to the protection and privilege afforded pursuant to section three hundred one, article one, chapter forty-eight of this code.

In the only case this Court has decided involving the application of W.Va. Code, 57-3-9, we held in Syllabus Point 3 of State v. Potter, 197 W.Va. 734, 478 S.E.2d 742 (1996) that:

A communication will be privileged, in accordance with W.Va.Code, 57-3-9 (1992), if four tests are met: (1) the communication must be made to a clergyman; (2) the communication may be in the form of a confidential confession or a communication; (3) the confession or communication must be made to the clergyman in his professional capacity; and (4) the communication must have been made in the course of discipline enjoined by the rules of practice of the clergyman's denomination.

In the instant case, the appellant did not make any confidential confession or communication to the pastor witness which was revealed by the pastor's testimony. The pastor's testimony centered around the conduct of the appellant and A.D. that he observed, and the statements he made to the appellant to stay away from A.D. The pastor's testimony was that his conversation with the appellant was primarily as the overseer of the Center where the appellant was employed, and as a supervisor and friend of the appellant. The pastor witness specifically testified that he was not speaking to the appellant as appellant's pastor.

Inasmuch as the pastor's testimony fails to meet at least three of the four elements of the Potter, supra, test, we believe that this aspect of the appellant's argument is without merit.

Next, we consider the outburst made by a spectator during the trial.

The record reveals that during the testimony of A.D., a spectator³ in the courtroom shouted, "You bastard! You bastard!" The spectator was promptly escorted out of the courtroom, and the judge instructed...