State v. Quinn, No. 23537

• Court: Supreme Court of West Virginia
• Writing for the Court: STARCHER; MAYNARD; WORKMAN
• Citation: 200 W.Va. 432,490 S.E.2d 34
• Parties: STATE of West Virginia, Plaintiff Below, Appellee v. James QUINN, Defendant Below, Appellant.
• Docket Number: No. 23537
• Decision Date: 05 June 1997

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490 S.E.2d 34 200 W.Va. 432 STATE of West Virginia, Plaintiff Below, Appellee
v.
James QUINN, Defendant Below, Appellant. No. 23537.
Supreme Court of Appeals of West Virginia. Submitted Feb. 25, 1997.
Decided June 4, 1997.
Dissenting Opinion of
Justice Maynard June 5, 1997. Rehearing Denied July 15, 1997.
Concurring Opinion of
Chief Justice Workman
July 22, 1997.

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[200 W.Va. 433] Syllabus by the Court

1. Evidence that the alleged victim of a sexual offense has made statements about being the victim of sexual misconduct, other than the statements that the alleged victim has made about the defendant and that are at issue in the state's case against the defendant, is evidence of the alleged victim's "sexual conduct" and is within the scope of West

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[200 W.Va. 434] Virginia's rape shield law, W.Va.Code, 61-8B-11 [1986] and West Virginia Rules of Evidence 404(a)(3) [1994], unless the defendant establishes to the satisfaction of the trial judge outside of the presence of the jury that there is a strong probability that the alleged victim's other statements are false.

2. Requiring strong and substantial proof of the actual falsity of an alleged victim's other statements is necessary to reasonably minimize the possibility that evidence which is within the scope of our rape shield law, W.Va.Code, 61-8B-11 [1986] and West Virginia Rules of Evidence 404(a)(3) [1994], is not erroneously considered outside of its scope.

3. A defendant who wishes to cross-examine an alleged victim of a sexual offense about or otherwise introduce evidence about other statements that the alleged victim has made about being the victim of sexual misconduct must initially present evidence regarding the statements to the court out of the presence of the jury and with fair notice to the prosecution, which presentation may in the court's discretion be limited to proffer, affidavit, or other method that properly protects both the rights of the defendant and the alleged victim and effectuates the purpose of our rape shield law, W.Va.Code, 61-8B-11 [1986] and West Virginia Rules of Evidence 404(a)(3) [1994].

4. If the trial court finds that there is a strong probability that the alleged victim of a sexual offense has made other statements which are false of being the victim of sexual misconduct, evidence relating to those statements may be considered by the court outside of the scope of our rape shield law, W.Va.Code, 61-8B-11 [1986] and West Virginia Rules of Evidence 404(a)(3) [1994].

5. A determination of the probable falsity of other statements of being the victim of sexual misconduct made by an alleged victim of a sexual offense is not a determination of the admissibility of evidence regarding the statements, nor is it a determination that cross-examination on the other statements must be permitted. A falsity determination means only that evidence regarding the other statements is not to be considered as evidence of an alleged victim's "sexual conduct" within the meaning of our rape shield law, W.Va.Code, 61-8B-11 [1986] and West Virginia Rules of Evidence 404(a)(3) [1994]. The evidence remains subject to all other applicable evidentiary requirements and considerations. Moreover, in the event that an ultimate determination is made that such evidence is admissible, the state retains the right to seek to rebut or impeach such evidence before the ultimate trier of fact.

6. Under West Virginia Rules of Evidence 801(d)(1)(B) [1994] a prior consistent out-of-court statement of a witness who testifies and can be cross-examined about the statement, in order to be treated as non-hearsay under the provisions of the Rule, must have been made before the alleged fabrication, influence, or motive came into being.

David R. Bungard, Robinson and McElwee, Charleston, David L. Jackson, Chase and Gardner, Moundsville, for Appellant.

Scott E. Johnson, Senior Assistant Attorney General, State of West Virginia, Charleston, for Appellee.

STARCHER, Justice:

This case involves an appeal by James Quinn ("the appellant") of his conviction in the Circuit Court of Wetzel County for the offense of sexual misconduct toward a child by a custodian.

At the appellant's trial, the presiding judge ruled that our rape shield law prohibited the admission of evidence that the child victim had made other statements about sexual misconduct against her by other persons. We uphold the trial judge's ruling because the appellant did not show that the child's other statements were false, and the evidence regarding the statements was not admissible pursuant to the provisions of our rape shield law.

The trial judge also allowed two witnesses to testify about statements made by the child victim to the witnesses, describing the appellant's sexual misconduct. We also uphold this ruling by the trial judge, because the child's prior consistent statements rebutted

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[200 W.Va. 435] the appellant's charge that the child had fabricated her testimony.

Finding no reversible error in the appellant's trial, we affirm the judgment of conviction.

I.

Facts and Discussion

The appellant James Quinn was convicted in 1994 in the Circuit Court of Wetzel County of violating W.Va.Code, 61-8D-5(a) [1991], which creates the criminal offense of sexual misconduct toward a child by a parent, custodian, or guardian. ¹ The child in question we shall call T.M. to protect her identity, as is our customary practice in sensitive cases.

In November of 1992, T.M. was five years old and lived with her mother and several siblings in Wetzel County. The appellant is the father of one of T.M.'s siblings and a close neighbor of T.M.'s mother. The appellant was a frequent babysitter for T.M. and her siblings. The appellant was also a regular attender at drunken parties at T.M.'s home--parties that often ended in T.M.'s mother having sex with one of her numerous male friends.

On November 18, 1992, T.M. told her mother's sister, Connie Morgan, that the appellant had sexually molested T.M. several weeks earlier when the appellant was babysitting for T.M. and her siblings. On the next day, November 19, 1992, T.M. repeated her allegations about the appellant's conduct to a social worker, Michelle Hall.

After the appellant was arrested and charged with sexual misconduct, T.M. began seeing a therapist. In the course of the therapy, T.M. made a number of statements which were recorded in therapy notes to the effect that T.M. had been the victim of sexual misconduct by several other persons, including a sibling and a grandparent. ²

The questions which we address in this appeal are (1) whether our rape shield law barred the jury at appellant's trial from learning of T.M.'s statements about other persons allegedly molesting T.M.; and (2) whether the prior consistent statement rule permitted the jury to hear testimony about T.M.'s statements implicating the appellant that T.M. made to her aunt and to a social worker. We answer both questions in the affirmative.

A.

Standard of Review

There are two interrelated standards that apply in this case. First, an interpretation of the West Virginia Rules of Evidence presents a question of law subject to de novo review. Second, a trial court's ruling on the admissibility of testimony is reviewed for an abuse of discretion, but to the extent the circuit court's ruling turns on an interpretation of a West Virginia Rules of Evidence, our review is plenary. State v. Sutphin, 195 W.Va. 551, 560, 466 S.E.2d 402, 411(1995).

B.

Rape Shield Law

At his trial, the appellant was prohibited from asking T.M. on cross-examination

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[200 W.Va. 436] about her statements that she had been the victim of sexual misconduct by persons other than the appellant. The appellant also was prohibited from putting on testimony before the jury from third persons to the effect that T.M. had made such statements, and that the statements were false.

The trial court's rationale for prohibiting the appellant's proffered questioning and evidence was West Virginia's rape shield law, which is expressed in W.Va.Code, 61-8B-11 [1986] ³ and in West Virginia Rules of Evidence 404(a)(3) [1994]. ⁴ In this opinion we shall refer to both the statute and the rule, considered in pari materia, as West Virginia's "rape shield law."

The appellant contends that our rape shield law does not apply to T.M.'s statements. The appellant contends that T.M.'s statements were false, and therefore were not evidence of T.M.'s sexual conduct. The appellant argues that T.M.'s false statements are evidence that T.M. has lied about others in the same fashion that the appellant says that T.M. has lied about him.

The issue that we address in this appeal, concerning when and how our rape shield law applies to other statements by an alleged victim of a sexual offense that he or she has been the victim of sexual misconduct, is apparently one of first impression for this Court.

However, many other jurisdictions have considered the question of how a trial court should respond when a defendant on trial for a sexual offense wishes to try to show that the alleged victim has made other statements that are false to the effect that he or she has been the victim of sexual misconduct. ⁵ See generally cases collected in Johnson, Denise R., Prior False Allegations of Rape: Falsus in Uno, Falsus in Omnibus?, 7 Yale J.L. &

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[200 W.Va. 437] Feminism 243 (1995). See also note 7 infra and text at infra note 8.

In West Virginia, evidence about such other statements must be considered by the trial court in light of (1) our rape shield law, and (2) other applicable evidentiary rules and principles. We confine our discussion in this opinion to the applicability and effect of our rape shield law--because the rape shield law was the basis of the trial court's ruling in the instant case, and because our determination on this issue is dispositive of the assignment of error presented by the appellant.

However, we...