State v. Schoolcraft

• Decision Date: 25 July 1990
• Docket Number: No. 19303,19303
• Citation: 183 W.Va. 579,396 S.E.2d 760
• Parties: STATE of West Virginia v. John W. SCHOOLCRAFT.
• Court: West Virginia Supreme Court

Page 760

396 S.E.2d 760

183 W.Va. 579

STATE of West Virginia v. John W. SCHOOLCRAFT.

No. 19303.

Supreme Court of Appeals of

West Virginia.

July 25, 1990.

Syllabus by the Court

1. "Assignments of error that are not argued in the briefs on appeal may be deemed by this Court to be waived." Syllabus point 6, Addair v. Bryant, 168 W.Va. 306, 284 S.E.2d 374 (1981).

2. Although an indictment may contain more than one charge, a defendant can be convicted only of those charges which were prosecuted at trial.

3. Where a witness testifies about events which are covered in a prior out-of-court statement and the witness denies making the out-of-court statement or indicates no present recollection of its contents, then impeachment by a prior statement is permissible.

4. Where the witness cannot recall the prior statement or denies making it, then under W.Va.R.Evid. 613(b), extrinsic evidence as to the out-of-court statement may be shown--that is, the out-of-court statement itself may be introduced or, if oral, through the third party to whom it was made. However, the impeached witness must be afforded an opportunity to explain the inconsistency.

Larry E. Losch, Summersville, for John W. Schoolcraft.

Roger W. Tompkins, Atty. Gen., Joanna Tabit, Asst. Atty. Gen., Atty. Gen.'s Office, Charleston, for State of W.Va.

BROTHERTON, Justice:

This case is before the Court on the appeal of John W. Schoolcraft from the jury verdict which convicted him of two counts of first-degree sexual abuse and the March 2, 1989, order of the Circuit Court of Nicholas County, which sentenced the appellant to two concurrent terms of one-to-five years in the State penitentiary.

The appellant is a resident of Richwood, West Virginia, where he lives near Michael and Julie W., and their two daughters, Sabrina and Elizabeth, ages eight and five respectively. In September, 1987, the girls' father began to suspect sexual misconduct on the part of the appellant based upon comments made by his daughters. Consequently, he took the children to the State Police headquarters to talk with the authorities. ¹

On October 1, 1987, Elizabeth was examined by Dr. Kheyrolah Abedi, a general surgeon. The examination revealed that Elizabeth had a fused labia, which he believed resulted from an injury occurring approximately ten days prior to the examination. Dr. Abedi stated that his findings confirmed the parents' suspicion of molestation.

On October 1, 1987, West Virginia State Trooper M.R. Ensminger questioned the appellant regarding the alleged sexual abuse of Elizabeth W. On October 2, 1987, the Schoolcraft residence was searched for "one Alf doll, ... a cookie jar canister, a chair with no back or a broken back on wheels, a boom box radio, and doorknob in bedroom." The evidence was sought as substantiation of the veracity of the child's statements. The Alf doll was not found, although the other items were photographed. Thereafter, the appellant was arrested and charged with first-degree sexual assault of Elizabeth W.

On January 12, 1988, the grand jury returned an indictment against the appellant, charging him with two counts of first-degree sexual assault against Elizabeth W. and five-year-old Matthew T., a playmate of Elizabeth. Upon the appellant's counsel's motion, the two indictments were severed.

Elizabeth and Sabrina were interviewed by the West Virginia Department of Human Services about the alleged abuse. The videotaped interview consisted of questions posed by the children's mother, as well as Trooper Ensminger, Eugenia Moore from West Virginia University Hospital, and Trooper Carl Hosey. During the questioning, the children stated that John (the appellant) did not touch them. However, later in the same interview, Elizabeth affirmed that the appellant did indeed touch her.

On July 25, 1988, the trial began on Count One of the indictment concerning the sexual assault of Elizabeth W. The court specifically stated that the trial would proceed only on Count One against Elizabeth W., as the second count involving Matthew T. would not be prosecuted at that time.

At trial, Elizabeth and Sabrina testified that the appellant exposed himself and sexually abused them. Testimony was also elicited that the appellant threatened the children's parents if they told them about the "games." In response, the appellant attempted to introduce, as impeachment evidence, the videotaped interview of Elizabeth and Sabrina in which they initially stated that the appellant did not touch them. The trial court's refusal to allow the use of the videotape forms the basis of the appellant's appeal.

The prosecution also presented the testimony of Dr. Mark Tomsho, a pediatrician in Summersville, who examined Elizabeth at the request of the Department of Human Services. Dr. Tomsho stated that his examination revealed no physical evidence of sexual abuse. However, like Dr. Abedi, Dr. Tomsho found a fusion of the labia which he stated could be due either to abuse or, in rare cases, an allergy to soap or a bicycle injury. Dr. Tomsho noted that the American Journal of Obstetrics and Gynecology had concluded that such fusion could be considered a marker of sexual abuse. Based upon the history given by the mother, his examination, and the child's behavior, Dr. Tomsho concluded that it was his professional opinion that Elizabeth W. had been molested.

At the conclusion of the evidence, the trial court instructed the jury on the offenses of first-degree sexual assault and first-degree sexual abuse. The jury returned a verdict of guilty on two counts of first-degree sexual abuse. On March 2, 1989, the trial court sentenced the appellant to two concurrent sentences of not less than one nor more than five years in the State penitentiary. This proceeding is John Schoolcraft's appeal from that final order.

In his petition for appeal and brief, the appellant alleges that seventy-two separate errors occurred in the proceeding below. However, he fails to either argue the majority of these alleged assignments of error or direct the court's attention to specific errors in the record. "Assignments of error that are not argued in the briefs on appeal may be deemed by this Court to be waived." Syl. pt. 6, Addair v. Bryant, 168 W.Va. 306, 284 S.E.2d 374 (1981). Accordingly, we find the majority of the appellant's assignments of error to be waived. However, we do find merit in two separate assignments of error.

I.

On January 12, 1988, the appellant was indicted on two separate counts of first-degree sexual assault. The first count involved Elizabeth W. and the second count involved Matthew T. The appellant was subsequently convicted of two counts of first-degree sexual abuse in the trial held in February, 1989. However, he was tried on only one count. On February 2, 1988, the prosecution stated:

... at this point I do not see how Matthew T. could ever appear in a jury trial. For that reason we would have no objection to going forward on the other count.

The Court: The first count? ... This is the first count according to the copy in the file here. The first count involves Elizabeth W. The second count involves Matthew T., so you're going to go to trial on the first count is that correct?

Mr. Stollings: Yes sir.

The Court: You're not going to oppose, then, the motion to sever counts in this January, 88, indictment, No. 88-F-19, is that correct?

Later that same day, the court again noted that Matthew T. would not be involved in this trial, as the prosecution would proceed only on Count One.

Rule 52(b) of the West Virginia Rules of Criminal Procedure permits this Court to take notice of "plain error" which was not brought to the attention of the trial court. State v. England, 180 W.Va. 342, 376 S.E.2d 548, 554 (1988). This Court "will not ordinarily recognize plain error under such circumstances, even of constitutional magnitude, where the giving of the erroneous instruction did not substantially impair the truthfinding function of the trial." Syl. pt. 2, State v. Hutchinson, 176 W.Va. 172, 342 S.E.2d 138, 139 (1986). In this situation, we believe that a conviction on a charge that was not prosecuted at trial constitutes reversible error and warrants the application of the plain error doctrine.

"A conviction based upon evidence that varies materially from the charge contained in the indictment cannot stand and must be reversed." Syl. pt. 3, State v. Nicholson, 162 W.Va. 750, 252 S.E.2d 894 (1979), overruled on other grounds, State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980). Conversely, although an indictment may contain more than one charge, a defendant can only be convicted of the charges that were prosecuted at trial. Consequently, the lower court erred in convicting the appellant on two counts of first-degree sexual abuse when only one count was prosecuted at trial.

II.

The second issue to be addressed is whether the child's answer that she did not recall making the videotaped interview was a sufficient "inconsistent" response to be able to utilize the prior video interview to impeach. Courts have encountered some difficulty with this question, as illustrated by this statement from 3 J. Weinstein & M. Berger, Weinstein's Evidence, p 607, at 101-02 (1988):

The most unsettled aspect of determining what amounts to an inconsistency is presented when a witness denies all recollection of a matter about which he had formerly made a statement. Can this former statement be regarded as inconsistent? The common law practice--still probably followed in most jurisdictions--would not consider such statements inconsistent and would not, therefore, permit their use even for impeachment purposes. Wigmore objects to a rule of blanket exclusion noting that

the unwilling witness often takes refuge in a failure to remember, and the astute liar is sometimes impregnable unless his flank can be exposed to an attack of this sort. An absolute rule of prohibition would do more harm than good, and the...