State v. Maggard

• Decision Date: 07 October 2013
• Docket Number: No. 12–0301.,12–0301.
• Citation: 232 W.Va. 55,750 S.E.2d 271
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Respondent v. Bryan MAGGARD, Petitioner.

232 W.Va. 55

750 S.E.2d 271

STATE of West Virginia, Respondent

v.Bryan MAGGARD, Petitioner.

No. 12–0301.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 10, 2013.

Decided Oct. 7, 2013.

Syllabus by the Court

1. “A trial court's evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review under an abuse of discretion standard.” Syllabus Point 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).

2. “ ‘ “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).’ Syllabus Point 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983).” Syllabus Point 7, State v. Miller, 175 W.Va. 616, 336 S.E.2d 910 (1985).

Richard W. Weston, Esq., Connor D. Robertson, Esq., Weston Law Office, Huntington, WV, Attorney for Petitioner.

Patrick Morrisey, Attorney General, Scott E. Johnson, Senior Assistant Christopher S. Dodrill, Assistant Attorney General, Charleston, WV, Attorneys for Respondent.

PER CURIAM:

The instant case is before the Court upon the appeal of Bryan Maggard, Petitioner, from a conviction for one count of second degree sexual assault. Petitioner alleges the following assignments of error: 1) the circuit court erred by allowing the State to question the alleged victim regarding the Petitioner's sexual history and portraying him as a sexual predator; 2) the circuit court erred by excluding the alleged victim's Twitter statement under the Rape Shield Law; 3) the circuit court erred by refusing to strike three different jurors for cause; 4) the State presented insufficient evidence to sustain a conviction on Count One, sexual assault in the second degree; and 5) the jury reached a compromise verdict that was not based on the evidence at trial. Upon reviewing the petition, the response, the submitted appendix, and the arguments of counsel, this Court concludes that, for the reasons set forth more fully below, the circuit court committed error and therefore, the case must be reversed and remanded for a new trial.

I.FACTUAL AND PROCEDURAL BACKGROUND

In September 2008, Petitioner Bryan Maggard logged into Facebook and saw a “friend request” from a female named J.C.¹ He accepted her friend request and the two began chatting via Facebook and then began text messaging one another. Approximately a week later, Maggard and J.C. decided to meet in person. On the night of September 27, 2008, J.C., who worked at a Huntington nightclub, ended her shift at approximately 3:30 a.m. Maggard met J.C. outside the club following her shift and she drove him to the “Marshall Rugby House” where he lived. When the pair got to Maggard's home, he asked her if she would come in to watch a movie.

Upon entering the rugby house, Maggard and J.C. went to his bedroom. J.C. sat down in a chair and watched Maggard turn on the television; light candles; remove his shirt, pants, and shoes; and climb into bed. J.C. alleges that she told Maggard that “nothing sexual was going to happen.” Maggard then pulled J.C. by the hand from the chair to the bed. While the two were kissing, Maggard rubbed J.C.'s crotch over her shorts. J.C. alleges that she repeatedly told Maggard “no” and pushed his hand away multiple times. Maggard conversely alleges that J.C. never told him “no.” Maggard digitally penetrated J.C.'s vagina and thereafter, the two engaged in sexual intercourse. J.C. alleges that she repeatedly tried to push Maggard away by pushing against his hips but that he forced his penis into her vagina while holding her arms down. J.C. alleges that she repeatedly said, “no.” Conversely, Maggard alleges that J.C. never told him “no,” and that the two consensually engaged in sexual intercourse in different positions.

Thereafter, Maggard went to the bathroom and then returned to his bedroom. Maggard got back into the bed and asked J.C. to spend the night. She laid on the bed with Maggard and he fell asleep. At some point thereafter, she left the house and started to drive to her home in Ohio. During the drive, she pulled over her car and called a friend to take her to the hospital. J.C.'s friend, Krisha, took her to Cabell Huntington hospital. Krisha then called her friend, Huntington Police Officer Todd Veazey, who met them at the hospital.

At the hospital, J.C. was examined by registered nurse Stacie King who performed a rape kit. J.C. was visibly upset and crying. She gave a statement to Officer Veazey. Detective Rodney Pell, who was thereafter assigned the case, reviewed J.C.'s statement with her and took a statement from Maggard. On March 16, 2010, Maggard was indicted on two counts of sexual abuse in the second degree (sexual intrusion without consent) pursuant to West Virginia Code § 61–8B–4(a)(1) (1991). Count One charged digital penetration. Count Two charged penile penetration. The case went to trial on April 5–6, 2011. The jury convicted Maggard on Count One (digital penetration) but acquitted him on Count Two (penile penetration). On January 30, 2012, the circuit court sentenced Maggard to ten to twenty-five years in prison, but suspended the sentence, placed him on probation for five years, and required him to register as a sex offender for life.

II.STANDARD OF REVIEW

As it pertains to the applicable standard of review in this case, this Court has consistently held that “[a] trial court's evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review under an abuse of discretion standard.” Syl. pt. 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998). “ ‘ “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).’ Syllabus Point 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983).” Syl. Pt. 7, State v. Miller, 175 W.Va. 616, 336 S.E.2d 910 (1985).

With this standard in mind, we proceed to consider the merits of Maggard's appeal.

III.DISCUSSION

In his first assignment of error, Maggard alleges that the circuit court erred by allowing the State to question the victim regarding his sexual history and portraying him as a sexual predator. On direct examination at trial, the State asked J.C. why she did not want to go into Maggard's house when he kept persistently asking her to accompany him into the residence. J.C. answered, “I heard how he is.” The defense objected and said “ ‘Heard how he is' is completely outside the scope of what is going on here.” The circuit court responded “I will let her answer that.” The State then asked, “and you said you knew?” J.C. replied, “Yes. And how he was that he just wants to be with—he just wants to get one thing from girls.” Importantly, the State repeated J.C.'s answers twice during its closing argument. The first time, the State represented in closing,

“[s]o she knows what he is like and she is not wanting to have sex at that time with him. That's her decision to make and she says, ‘Look, I made this agreement with him. I am not going to have sex with him and I told him that.’ ”

The second time the State mentioned J.C.'s comments in closing, the State represented that “[t]hat's why [J.C.] made that agreement with him. You heard what [J.C.] said. ‘I had heard what he was like. I mean, I had heard these things about him.’ ”

Maggard argues that these statements are improper 404(a) character evidence, as they portray him as a sexual predator and suggest to the jury that J.C. was “just next in line.” ² Additionally, Maggard asserts that the testimony could also be characterized as improper 404(b) testimony for which no pretrial notice or findings were made because, while it was not clear if J.C. was referring to character evidence or specific instances of conduct, her remarks were prejudicial.³ Maggard avers that he never placed his character in evidence at any point in the trial and that the State did not indicate pre-trial that it intended to use such 404(b) evidence.

Conversely, the State contends that Maggard made an enigmatic objection that did not clearly and specifically apprise the court of the legal grounds for his complaint. The State asserts that Maggard's objection was, at best, based on Rule 611(b)(2) of the West Virginia Rules of Evidence⁴ or Rule 401 of the West Virginia Rules of Evidence.⁵ The State also avers that J.C.'s answers were relevant to show that she would not have consented to sexual relations with defendant. Third, the State argues that because Maggard failed to raise a 404(b) objection, he waived the objection and the Court is precluded from reviewing defendant's 404(b) argument. See State v. DeGraw, 196 W.Va. 261, 272, 470 S.E.2d 215, 226 (1996).

Upon reviewing the trial transcript and the arguments of the parties, we conclude that the statements above constitute the precise type of character evidence that is specifically barred by Rule 404(a) of the West Virginia Rules of Evidence. The statements at issue do not reference specific instances of “other crimes, wrongs, or acts” as contemplated by Rule 404(b) of the West Virginia Rules of Evidence; rather, the statements seek to demonstrate Rule 404(a) evidence of Maggard's character, or a trait of his character, that is not admissible for the purpose of proving that he acted in conformity therewith on the night of the incident in this case. It is apparent from the record that the statements “heard how he is” and “how he was that he just wants to be with—he just wants to get one thing from girls” clearly insinuates that Maggard is a sexual predator.

In determining whether defense counsel adequately preserved an objection to the admission of these statements for the purposes of appellate review, we find that the very nature of J.C.'s statement pertaining to Maggard's character makes the specific...