State v. Pettrey

• Decision Date: 13 June 2001
• Docket Number: No. 28401.,28401.
• Citation: 549 S.E.2d 323,209 W.Va. 449
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Jeffrey Allan PETTREY, Defendant Below, Appellant.

549 S.E.2d 323

209 W.Va. 449

STATE of West Virginia, Plaintiff Below, Appellee, v. Jeffrey Allan PETTREY, Defendant Below, Appellant.

No. 28401.

Supreme Court of Appeals of West Virginia.

Submitted March 7, 2001.

Decided June 13, 2001.

Concurring Opinion of Justice Starcher, July 24, 2001.

Darrell V. McGraw, Jr., Esq., Attorney General, Dawn E. Warfield, Esq., Deputy Attorney General, Charleston, West Virginia, Attorney for Appellee.

Tracy P. Burks, Esq., Mercer County Public Defender Corporation, Princeton, West Virginia, Attorney for Appellant.

MAYNARD, Justice:

The appellant, Jeffrey Allan Pettrey, was convicted by the Circuit Court of Mercer County, West Virginia, of three counts of first degree sexual assault, three counts of incest, and three counts of sexual abuse by a parent. After sentencing the appellant to the penitentiary on each count with the sentences to run consecutively, the court suspended the sentences for sexual assault and sexual abuse. The appellant was ordered to serve the sentences for the incest convictions and then be placed on probation for five years with the conditions that he receive treatment and/or counseling for pedophilia and not associate with children under eighteen years of age. On appeal, the appellant contends the circuit court committed reversible error by admitting inadmissible hearsay evidence; by denying his motion for a competency evaluation of the child victims; by recognizing play therapy as a scientifically reliable method for diagnosing child abuse; and by denying his motion for acquittal notwithstanding the verdict or for a new trial. We find no error and affirm.

I. FACTS

The appellant has two children, D.R., who is approximately eight years old, and K.R., who is approximately six years old. The appellant was never married to the children's mother, and the record is not clear as to how long they lived together. Visitation between the appellant and his children began in 1995. At some point the children's mother, R.R., became pregnant to her fifteen-year-old boyfriend. R.R. and her boyfriend were living in North Carolina at the time. D.R. and K.R. moved to West Virginia to live with their maternal grandmother. Both children accused their father of sexually abusing them. The authorities were notified and Detective Darrell Bailey investigated the case.

The grand jury returned a 12-count indictment against the appellant on February 9, 1999, charging him with four counts of sexual assault in the first degree in violation of W.Va.Code § 61-8B-3, four counts of incest in violation of W.Va.Code § 61-8-12, and four counts of sexual abuse by a parent in violation of W.Va.Code § 61-8D-5. The indictment alleged that the appellant engaged in sexual intercourse, oral sex, with D.R. on two occasions and K.R. on two occasions between September 1995 and May 7, 1998. The incidents occurred while the children were visiting with their father at his mother's house.

The appellant's trial was held on June 1 and 2, 1999. The State presented the testimony of Betsy Akers, D.R.'s kindergarten teacher; Margaret Spangler, the children's maternal grandmother; and Phyllis Hasty, a children's counselor at Southern Highlands Community Mental Health Center. The appellant testified in his own defense and presented the testimony of Sandra Hylton, his mother, and Dr. Joli Brams, a licensed psychologist. The children did not testify.

Ms. Akers testified that D.R. was in her kindergarten class from October 1997 to June 1998. She noticed a change in D.R.'s behavior in mid-April of that year. He seemed sad or depressed and wanted to be left alone. On one occasion, he pulled down his pants in the cafeteria and "mooned" the other students. When she discussed the incident with D.R., he told her that "well daddy did that to him." He also told his teacher "if he didn't do what daddy said he would beat him really hard[ ]" and the appellant made him lie down "for daddy to suck his wiener[.]" Ms. Akers observed D.R. placing stuffed animals in sexual positions. When she asked D.R. what he was doing, he told her the animals were "[e]ating each other out." Because she is required by law to report incidents of sexual abuse, Ms. Akers reported these conversations to the authorities.

Ms. Spangler testified that the children lived with her from the time D.R. started preschool through the beginning of first grade. During his kindergarten year, Ms. Spangler testified that she noticed a change in D.R.'s behavior. He began throwing tantrums and "would set and cry a lot, that he felt dirty and nasty[.]" Upon returning from a visit with her father on one occasion during this time period, Ms. Spangler said K.R. began "screamin' and cryin" when she went to the bathroom. When her grandmother went to check on her, she said K.R. was "red and sore[.]" Ms. Spangler also stated that when she gave K.R. a bath, "the water and soap would burn her bottom." She stated that the children enjoyed visiting their father when they initially came to live with her, but later D.R. did not want to visit or talk to his father. Ms. Spangler related an incident in which D.R. awoke with an erection, pulled down his undershorts and rubbed against her; he then touched her in the groin area. This occurred about the time the incidents at school were reported.

Phyllis Hasty testified that "[a] children's counselor is specifically trained to give counseling to a child, and my specific area that I work with, primarily, is play therapy." Ms. Hasty stated that she treated K.R. prior to working with D.R. However, D.R. disclosed the incidents of sexual abuse first.¹ Ms. Hasty began treating K.R. in February 1998 when the child was brought to her because of "acting out behavior and possible sexual abuse." She saw K.R. approximately seventeen times beginning when the child was three and one-half years old. D.R. was brought to her after the May 7, 1998 report of his behavior at school. Ms. Hasty saw D.R. approximately ten times. During her sessions with the children, they engaged in child-directed or nondirective play therapy in which small children use various toys to act out their feelings because they are unable to fully verbalize them.

Ms. Hasty testified that D.R. stated "daddy hurt me" during his third counseling session. She testified further that he elaborated on the incident by saying that "daddy held him down, pulled down his pants, sucked me, and he pointed to his groins, and he wouldn't let me up." This episode took place in D.R.'s paternal grandmother's bedroom. D.R. also stated "that he [ ] saw daddy do this with K." and "[h]e also saw daddy with K. with his hands between her legs[.]" After disclosing the abuse, D.R. immediately walked over to the bot bag and began hitting it, calling it daddy.

After being in therapy almost five months, K.R. told Ms. Hasty that her daddy hurt her. She testified that K.R. told her "daddy played with my pee-pee and I had to play with his, that it hurt, and that she didn't like the white stuff in her mouth.... [S]he said it was bad and made a sour face." Prior to making this statement, Ms. Hasty observed K.R. playing with dolls. K.R. called one of the male dolls "the mean doll and he would hurt her baby[.]" In April, K.R. "had him hurting the baby and she had him hit the baby in the face and then bite the baby, ... and had [the head of] the male doll in the groin, in the pelvic region of the other doll[.]" Ms. Hasty said that she made note of these behaviors because she thought they were alarming but at the time she did not view the behaviors as being diagnostic of abuse. After the disclosure in August, she reported the incident to Detective Darrell Bailey.

Sandra Hylton, the appellant's mother, testified that the appellant lived with her in a two-bedroom apartment. D.R. and K.R. would stay with her intermittently on weekends and at times for a week or two when their mother was living in North Carolina. She stated that the appellant had a loving relationship with his children and that both continued to stay with the appellant in her home after the allegations of abuse were made. The appellant testified that he is the father of D.R. and K.R. and that he lives with his mother. He stated that the children stayed with him on and off since 1995, the dates alleged in the indictment. The appellant testified that he was not involved in a dispute with R.R. and that he never had problems with the children's maternal grandmother. He could think of no reason why D.R. and K.R. would make up these stories. He denied sexually abusing his children.

Dr. Joli Brams, the appellant's expert, is a licensed psychologist. Dr. Brams reviewed the children's treatment records but did not interview D.R. and K.R. At trial, she testified that nondirective play therapy is not diagnostic. She stated that preconceived notions result in interviewer bias and that preschool age children are most susceptible to interviewer bias. She stated that the behaviors exhibited by these children were not clear indicators of sexual abuse but were clear indicators that D.R. and K.R. were "not brought up the right way." She stated that "all children lie" and suggested that D.R. and K.R.'s environment might explain their explicit knowledge of sexual matters. However, she admitted she had not met any family members.

At the close of the evidence, the court dismissed counts 2, 6, and 10² of the indictment because the State proved only one act of sexual assault involving D.R. The jury convicted the appellant of the remaining nine counts. The sentencing order was entered on August 5, 1999. The appellant was ordered to serve fifteen to thirty-five years in the penitentiary on each count of first degree sexual assault and five to fifteen years on each count of incest and sexual abuse by a parent; the court then suspended the sentences for sexual assault and sexual abuse. The appellant was ordered to serve the sentence for the incest convictions after...