State v. Robert Scott JR R.

• Decision Date: 29 January 2014
• Docket Number: No. 12–0791.,12–0791.
• Citation: 233 W.Va. 12,754 S.E.2d 588
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Respondent v. ROBERT SCOTT R., JR., Defendant Below, Petitioner.

233 W.Va. 12

754 S.E.2d 588

STATE of West Virginia, Plaintiff Below, Respondent

v.ROBERT SCOTT R., JR., Defendant Below, Petitioner.

No. 12–0791.

Supreme Court of Appeals of

West Virginia.

Submitted Jan. 15, 2014.

Decided Jan. 29, 2014.

Syllabus by the Court

1. “A judgment of conviction will not be reversed because of improper remarks by a prosecuting attorney in his opening statement to a jury which do not clearly prejudice the accused or result in manifest injustice.” Syllabus point 1, State v. Dunn, 162 W.Va. 63, 246 S.E.2d 245 (1978).

2. “If either the prosecutor or defense counsel believes the other has made improper remarks to the jury, a timely objection should be made coupled with a request to the court to instruct the jury to disregard the remarks.” Syllabus point 5, in part, State v. Grubbs, 178 W.Va. 811, 364 S.E.2d 824 (1987).

3. “Failure to make timely and proper objection to remarks of counsel made in the presence of the jury, during the trial of a case, constitutes a waiver of the right to raise the question thereafter either in the trial court or in the appellate court.” Syllabus point 6, Yuncke v. Welker, 128 W.Va. 299, 36 S.E.2d 410 (1945).

4. “Where improper evidence of a nonconstitutional nature is introduced by the State in a criminal trial, the test to determine if the error is harmless is: (1) the inadmissible evidence must be removed from the State's case and a determination made as to whether the remaining evidence is sufficient to convince impartial minds of the defendant's guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support the conviction, an analysis must then be made to determine whether the error had any prejudicial effect on the jury.” Syllabus point 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979).

5. “Before any in camera inspection of statutorily protected communications can be justified, a defendant must show both relevancy and a legitimate need for access to the communications. This preliminary showing is not met by bald and unilluminating allegations that the protected communications could be relevant or that the very circumstances of the communications indicate they are likely to be relevant or material to the case. Similarly, an assertion that inspection of the communications is needed only for a possible attack on credibility is also rejected. On the other hand, if a defendant can establish by credible evidence that the protected communications are likely to be useful to his defense, the trial judge should review the communications in camera.” Syllabus point 3, State v. Roy, 194 W.Va. 276, 460 S.E.2d 277 (1995).

6. “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].” Syllabus point 3, State v. Quinn, 200 W.Va. 432, 490 S.E.2d 34 (1997).

7. “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].” Syllabus point 4, State v. Quinn, 200 W.Va. 432, 490 S.E.2d 34 (1997).

8. “The test used to determine whether a trial court's exclusion of proffered evidence under our rape shield law violated a defendant's due process right to a fair trial is (1) whether that testimony was relevant; (2) whether the probative value of the evidence outweighed its prejudicial effect; and (3) whether the State's compelling interests in excluding the evidence outweighed the defendant's right to present relevant evidence supportive of his or her defense. Under this test, we will reverse a trial court's ruling only if there has been a clear abuse of discretion.” Syllabus point 6, State v. Guthrie, 205 W.Va. 326, 518 S.E.2d 83 (1999).

9. “The attorney for the state may by leave of court file a dismissal of an indictment, information or complaint, and the prosecution shall thereupon terminate.” Syllabus point 1, in part, State v. McWilliams, 177 W.Va. 369, 352 S.E.2d 120 (1986).

Nicholas T. James, Keyser, WV, for Petitioner.

Patrick Morrisey, Attorney General, Julie A. Warren, Assistant Attorney General, Robert D. Goldberg, Assistant Attorney General, Charleston, WV, Attorneys for Respondent.

PER CURIAM:

Robert Scott R., Jr. (hereinafter “Mr. R.”) ¹ appeals an order of the Circuit Court of Mineral County sentencing him to prison after he was convicted by a jury of committing thirty sexual offenses against four minors. The circuit court sentenced Mr. R. to a total of not less than 125 years nor more than 295 years in prison.² Here, Mr. R. contends that the circuit court committed error by (1) denying his motion for mistrial due to opening remarks by the prosecutor, (2) failing to conduct a hearing before admitting Rule 404(b) evidence, (3) denying his motion to allow discovery of the mental health records of one of the victims, (4) limiting cross-examination of two witnesses, and (5) allowing the indictment to be amended. After a careful review of the briefs, the record submitted on appeal, and listening to the argument of the parties, we affirm.

I.FACTUAL AND PROCEDURAL HISTORY

This case involved sexual offenses against four minors: C.R., J.D., A.M.; and R.R.³ All of the offenses occurred at various times at Mr. R.'s home during the period from 2008 through 2010.⁴ At the time of the offenses, Mr. R. was married. His wife had three children before the marriage. ⁵ Mr. R. had one child, a son, during the marriage.⁶

The State became aware of Mr. R.'s sexual abuse of the minors based upon an initial report by one of the victims, A.M. After an investigation, a grand jury returned a fifty-six count indictment against Mr. R. on September8, 2010. A jury trial commenced on October 24, 2011. During the trial, each victim testified via live closed-circuit television from a magistrate courtroom. The State also called fourteen other witnesses. Mr. R. testified and denied committing any of the crimes.⁷ The jury returned a verdict on October 27, 2011, convicting Mr. R. of thirty sexual offenses.⁸ The relevant facts from the testimony of each victim is set out separately below.

C.R. testified at the trial that, during the period from March 2009 through March 2010, she regularly visited the home of Mr. R. During this period, C.R., who was then fifteen, was dating one of Mr. R.'s stepsons. C.R. testified that she frequently stayed at Mr. R.'s home on weekends. When C.R. stayed overnight at the home she would sleep on a couch with Mr. R.'s stepdaughter.⁹ At the trial, C.R. testified to an incident in the home when Mr. R. forced her onto his bed and rubbed against her buttocks with his groin.¹⁰ As a result of this conduct, the jury convicted Mr. R. of sexual abuse by a custodian and sexual abuse in the first degree.

J.D. testified that she knew Mr. R. and his family well.¹¹ In August or September of 2009, J.D. spent the night at Mr. R.'s home. J.D. was fourteen years old at the time. Mr. R. and his wife had gone out for the evening. It appears that when they returned home, Mr. R.'s wife was intoxicated. The record is not clear; but, when the couple went to bed, J.D. also was in their bed. J.D. testified that Mr. R. had sexual intercourse with her while his wife was in the bed. Mr. R.'s wife testified about the incident as follows: ¹²

Q. No. I've moved on to something else. Where you indicated that you had actually observed someone being touched in the home?

A. Oh, okay. That night Bobby had taken me out drinking and we had the two twin girls at my house. So my daughter had friends to stay over with her and I was drunk. He wasn't drunk. [J.D.] was in our room, our room. And she had sex with him and I saw it and told him to stop, and he got mad at me.

Q. Okay. Could you describe when you first realized that that was going on?

A. It hurt my feelings because she was a young girl and I'm his wife. I couldn't believe it. Why was he having another girl?

Q. What, what were you doing at the time you first realized it was happening?

A. I was in the bed as well. I was getting up to go to the bathroom and then I saw him and her were in the bed.

Q. Did you know that she was in the bed before that?

A. No.

Q. Okay. Had you been sleeping?

A. I was asleep in our bed, yes.

Q. Okay. If you could, be very specific about what you saw? We just need to be able to convey that for the jury as to what you actually observed?

A. I saw her, [J.D.], she was on top of Bobby and I told him to stop. I told them to stop. And he got mad at me. He got mad at me and told me to shut the [f* *k] up. And he pushed my head against the wall.

As a result of the sexual conduct with J.D., the jury convicted Mr. R. of sexual abuse by a custodian, sexual assault in the second degree, and sexual assault in the third degree.

A.M. testified during the trial that she was a good friend of Mr. R.'s stepdaughter, R.R. A.M. frequently stayed overnight at their home. When A.M. was about thirteen years old, Mr. R. forced her to engage in sexual conduct on three separate occasions during the period from May 2009 to September 2009. The first incident involved Mr. R.'s stepdaughter R.R. A.M. testified that...