State v. Reed, No. 34136.

• Court: Supreme Court of West Virginia
• Writing for the Court: Per Curiam
• Citation: 674 S.E.2d 18
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Ronald REED, Sr., Defendant Below, Appellant.
• Decision Date: 05 February 2009
• Docket Number: No. 34136.

674 S.E.2d 18 STATE of West Virginia, Plaintiff Below, Appellee,
v.
Ronald REED, Sr., Defendant Below, Appellant. No. 34136. Supreme Court of Appeals of West Virginia. Submitted January 28, 2009. Decided February 5, 2009.

[674 S.E.2d 19]

Syllabus by the Court

1. "Rule 15 of the West Virginia Rules of Criminal Procedure permits a deposition to be compelled in a criminal case only under very limited conditions, i.e., where, due to exceptional circumstances, the deposition is necessary, in the interest of justice, to preserve the deponent's testimony for use at trial." Syllabus point 1, State ex rel. Spaulding v. Watt, 186 W.Va. 125, 411 S.E.2d 450 (1991).

2. "`To preserve an issue for appellate review, a party must articulate it with such sufficient distinctiveness to alert a circuit court to the nature of the claimed defect.' Syl. Pt.2, State ex rel. Cooper v. Caperton, 196 W.Va. 208, 470 S.E.2d 162 (1996)." Syllabus point 10, State v. Shrewsbury, 213 W.Va. 327, 582 S.E.2d 774 (2003).

3. "After a trial court grants a pre-trial discovery motion requiring the prosecution to disclose evidence in its possession ... failure of the prosecution to disclose [such evidence]

[674 S.E.2d 20]

is grounds for a new trial when such non-disclosure is prejudicial. The non-disclosure is prejudicial where the defense is surprised on a material issue and where the failure to make the [evidence] available hampers the preparation and presentation of defendant's case." Syllabus, in part, State v. Cowan, 156 W.Va. 827, 197 S.E.2d 641 (1973).

4. "Rule 16(a)(1)(D) of the West Virginia Rules of Criminal Procedure allows discovery of all results or reports of physical or mental examinations which are material to the defense or are to be used as evidence in the prosecution's case-in-chief." Syllabus point 1, State v. Roy, 194 W.Va. 276, 460 S.E.2d 277 (1995).

5. "A criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a jury and not an appellate court. Finally, a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt." Syllabus point 3, in part, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

Christopher A. Scheetz, Follansbee, West Virginia, Edward L. Gillison, Jr., Weirton, for Appellant.

Scott R. Smith, Ohio County Prosecuting Attorney, John D. Little, Assistant Prosecuting Attorney, Wheeling, for Appellee.

PER CURIAM:¹

This is a criminal appeal by Ronald Reed (hereinafter referred to as "Mr. Reed") from an order of the Circuit Court of Ohio County sentencing him to imprisonment for not less than 385 nor more that 875 years. Mr. Reed was sentenced to prison after being convicted by a jury on charges involving sexual conduct with his daughter and two other adolescent girls. Specifically, Mr. Reed was convicted of thirty-one counts of sexual abuse by a custodian, thirty counts of sexual assault in the third degree, two counts of sexual abuse by a parent, two counts of incest, and one count of sexual assault in the first degree. Here, Mr. Reed assigns error to the trial court's ruling that permitted a video-taped deposition to be introduced at trial and to the State's failure to provide criminal and psychological records of the victims, and additionally asserts that the evidence was insufficient to support the convictions.² After a careful review of the briefs and record submitted on appeal, and having listened to the oral arguments of the parties, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

On or about September 5, 2000, J.L.R.³ walked into the City of Wheeling Police Department to report that she had been a victim of sexual assault by her father, Mr. Reed.⁴ J.L.R. reported that the incestuous conduct began when they lived in Columbus, Ohio, when she was about four or five years

674 S.E.2d 21

old. The sexual conduct continued when they moved to Wheeling, West Virginia. The sexual conduct ended when J.L.R. was about fifteen years old.⁵

During the investigation into J.L.R.'s allegations, the police received information that Mr. Reed may have sexually assaulted two sisters, A.P. and J.P., when they were adolescents. A.P. initially would not implicate Mr. Reed as having sexually assaulted her, however, J.P. did.⁶ It was reported by J.P. that in 1997, when she was about eleven years old, Mr. Reed forced her to have sex with him at a Boy Scout Camp Mr. Reed operated in Wheeling, West Virginia.⁷

On January 8, 2001, a grand jury returned an indictment against Mr. Reed. The indictment charged him with six felony sexual offenses involving his daughter, J.L.R.,⁸ and two felony sexual offenses involving J.P.⁹ The case against Mr. Reed languished for several years after the first indictment was returned, primarily because of constant changes in defense counsel. During the pendency of the charges against Mr. Reed, nine attorneys were appointed at various times to represent him. The eighth and ninth attorneys appointed to Mr. Reed represented him during the trial.

While the first indictment was pending against Mr. Reed, A.P. came forward with allegations against him. A.P. alleged that Mr. Reed had engaged in sexual conduct with her over thirty times, beginning when she was about fourteen years old. As a result of A.P.'s accusations, a grand jury indicted Mr. Reed again on May 10, 2004. The second indictment charged Mr. Reed with sixty felony sexual offenses involving A.P.¹⁰ The two indictments were consolidated for trial purposes.

Mr. Reed was tried before a jury on July 6, 2005. The State called eighteen witnesses during its case-in-chief. Only two of the victims, A.P. and J.P, testified. The State relied upon the video-taped deposition testimony of the lead detective in the case, Keith Brown,¹¹ to establish the charges involving J.L.R.¹² At the close of the State's case-in-chief, the circuit court granted judgment of acquittal to Mr. Reed on two of the offenses involving J.L.R.¹³ Mr. Reed put on a case-in-chief; however, he did not testify during the trial. He called four witnesses during his case-in-chief. Three of the witnesses were his relatives,¹⁴ and the fourth witness was a former neighbor.

At the conclusion of all the evidence, the jury returned a verdict convicting Mr. Reed

674 S.E.2d 22

of thirty-one counts of sexual abuse by a custodian, thirty counts of sexual assault in the third degree, two counts of sexual abuse by a parent, two counts of incest, and one count of sexual assault in the first degree. The circuit court thereafter sentenced Mr. Reed to serve consecutive sentences that would result in his imprisonment for a term of not less than 385 nor more that 875 years. Mr. Reed filed post-trial motions for a new trial and judgment of acquittal. Both were denied. Thereafter, Mr. Reed filed this appeal.

II. STANDARD OF REVIEW

In this case we are called upon to review the circuit court's order which denied Mr. Reed a new trial. This Court has previously held that

"[a]lthough the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence."

State v. Vance, 207 W.Va. 640, 643, 535 S.E.2d 484, 487 (2000) (quoting Syl. pt. 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976)). We elaborated upon the standard of review in Syllabus point 3 of Vance:

In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

207 W.Va. 640, 535 S.E.2d 484. Utilizing these standards of review as guidance, we will address the issues raised by Mr. Reed.

III. DISCUSSION A. Admission of Video-Taped Deposition

Mr. Reed contends that the trial court committed error in admitting the video-taped deposition of Mr. Brown. It has been recognized that a trial court's "decision to actually admit [a] deposition as evidence is reviewed for an abuse of discretion." United States v. Martinez, 198 Fed.Appx. 704, 711 (10th Cir.2006). See United States v. Campbell, 845 F.2d 1374, 1378 (6th Cir.1988) ("The determination of admissibility of deposition testimony based on the unavailability of the witness is a matter left to the discretion of the trial judge."). This Court has previously held that

Rule 15 of the West Virginia Rules of Criminal Procedure permits a deposition to be compelled in a criminal case only under very limited conditions, i.e., where, due to exceptional circumstances, the deposition is necessary, in the interest of justice, to preserve the deponent's testimony for use at trial.

Syl. pt. 1, State ex rel. Spaulding v. Watt, 186 W.Va. 125, 411 S.E.2d 450 (1991).

In the instant case, Mr. Reed's trial was scheduled to occur in December of 2004. However, Mr. Reed filed a motion to continue the trial. In support of that motion, Mr. Reed indicated that Mr. Brown was "scheduled to be deployed for service in the Military." Insofar as a continuation of the trial date might have precluded Mr. Brown from being available to testify, Mr. Reed...