State v. Shrewsbury

• Citation: 582 S.E.2d 774,213 W.Va. 327
• Decision Date: 14 April 2003
• Docket Number: No. 30597.,30597.
• Parties: STATE of West Virginia, Plaintiff Below, Appellee v. Artie SHREWSBURY, Defendant Below, Appellant
• Court: Supreme Court of West Virginia

582 S.E.2d 774

213 W.Va. 327

STATE of West Virginia, Plaintiff Below, Appellee v. Artie SHREWSBURY, Defendant Below, Appellant

No. 30597.

Supreme Court of Appeals of West Virginia.

Submitted January 15, 2003.

Decided April 14, 2003.

John Earl (Jay) Williams, Jr., Princeton, West Virginia, Attorney for the Appellant.

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

PER CURIAM:

This is an appeal by Artie Gene Shrewsbury (hereinafter "Appellant") from a November 6, 2001, order of the Circuit Court of Mercer County sentencing him to four consecutive terms of one to five years in the penitentiary and five years probation upon his conviction of seven counts of first degree sexual assault and four counts of first degree sexual abuse. The Appellant contends that the lower court erred in admitting the testimony of the children's play therapist regarding statements made by the alleged victims of abuse. Upon thorough review of the record and the arguments of the parties, we disagree with the Appellant's contentions and affirm the lower court.

I. Factual and Procedural History

On October 11, 2000, the Appellant was indicted for seven counts of first degree sexual assault and four counts of first degree sexual abuse. The indictment alleged that, from November 1996 through November 1999, the Appellant had engaged in sexual intercourse with his step-nephews, J.C., a minor under the age of eleven years, and R.S., the younger brother of J.C.¹ The Appellant's trial was conducted on August 30 and 31, 2001. During trial, the children's mother, Debra. S., testified that she had been concerned about the behavior of the children and had consulted Southern Highlands Community Mental Health Center regarding J.C.'s behavior problems in 1997. The children's mother also admitted J.C. for an evaluation and observation at Highland Hospital in December 1997, due to violence toward his younger brother and threats of suicide. J.C. thereafter spent approximately one year living with a cousin and her husband. Upon his return to his family, the children's mother testified that she began to notice disturbing behavior in both boys, including touching one another's genitals and touching the genitals of animals. The children's mother testified that on November 10, 1999, J.C. informed her that his Uncle Artie, the Appellant, had touched him in private parts of his body. The children's mother also testified that R.S. admitted that the Appellant had also engaged in such contact with him.

Subsequent to this revelation, the children's mother scheduled counseling with Phyllis Hasty, a children's counselor and play therapist at Southern Highlands Community Mental Health Center. At trial, Ms. Hasty testified that she engaged in several forms of child-directed play therapy with the boys, including activities such as workbooks, drawing pictures, letter writing, painting, and hitting an "anger bop bag" to express feelings. Ms. Hasty testified that the children had talked to her about Artie touching and fondling them, as well as requests from Artie that the children also touch him. Ms. Hasty also testified that the children informed her that oral sex was involved, with J.C. offering the statement that "he didn't understand about the white stuff that comes out of Artie's thing." Ms. Hasty explained that the children had told her that they witnessed each other being abused. R.S. related an incident to Ms. Hasty in which Artie had attempted to penetrate R.S. while J.C. watched.

II. Standard of Review

A trial court's rulings on the admissibility of evidence, "including those affecting constitutional rights, are reviewed under an abuse of discretion standard." State v. Marple, 197 W.Va. 47, 51, 475 S.E.2d 47, 51 (1996). In syllabus point two of State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983), this Court explained: "`Rulings on the admissibility of evidence are largely within a trial court's sound discretion and should not be disturbed unless there has been an abuse of discretion.' State v. Louk, 171 W.Va. 639, [643,] 301 S.E.2d 596, 599 (1983)."

III. Discussion

The Appellant attacks the admissibility of the testimony of witness Phyllis Hasty on two grounds.² First, he maintains that Ms. Hasty should not have been permitted to provide information to the jury regarding comments made by the children and that such testimony violated the Appellant's right to confront his accusers. Second, the Appellant contends that Ms. Hasty should not have been permitted to testify regarding her therapy with the child victims which involved play therapy.³

A. Constitutional Right To Confront Witnesses

1. Unavailability Issue

The Appellant asserts that the lower court improperly admitted the therapist's testimony regarding the statements of the children without first determining that the children were unavailable to testify at trial. The Appellant asserts that the trial court's admission of such statements consequently violated his constitutional right to confront his accusers.⁴ In syllabus point two of State v. James Edward S., 184 W.Va. 408, 400 S.E.2d 843 (1990), this Court explained: "The two central requirements for admission of extrajudicial testimony under the Confrontation Clause contained in the Sixth Amendment to the United States Constitution are: (1) demonstrating the unavailability of the witness to testify; and (2) proving the reliability of the witness's out-of-court statement." In syllabus point two of State v. Kennedy, 205 W.Va. 224, 517 S.E.2d 457 (1999), however, this Court substantially modified that holding, as follows:

We modify our holding in James Edward S.,184 W.Va. 408,400 S.E.2d 843 (1990), to comply with the United States Supreme Court's subsequent pronouncements regarding the application of its decision in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), to hold that the unavailability prong of the Confrontation Clause inquiry required by syllabus point one of James Edward S. is only invoked when the challenged extrajudicial statements were made in a prior judicial proceeding.

In Kennedy, this Court concluded: "Given the fact that the extrajudicial statement in this case—the autopsy report—does not involve statements given in a prior judicial proceeding, we conclude that the unavailability analysis pertinent to the Confrontation Clause inquiry under James Edward S. is not applicable." 205 W.Va. at 229, 517 S.E.2d at 462.

This issue of the role of unavailability in a determination of admissibility was also addressed in State v. Pettrey, 209 W.Va. 449, 549 S.E.2d 323 (2001), a case very similar to the one at bar. In Pettrey, this Court evaluated the admissibility of a play therapist's testimony regarding statements made by two young children describing sexual abuse. This Court analyzed issues similar to those raised by the Appellant in the present case and concluded that "the statements made by the children to Ms. Akers [the victim's teacher] and Ms. Hasty [the victim's therapist] were obviously not made in a prior judicial proceeding. Therefore, the unavailability analysis pertinent to the Confrontation Clause is not applicable." Id. at 457, 549 S.E.2d at 331.

Likewise, the challenged statements in the case sub judice were made to the therapist after the children had revealed the abuse to their mother. Since there is no issue regarding a statement made at a prior judicial proceeding, we concluded that the unavailability issue is not relevant, and the State was not required to establish that the children were unavailable to testify prior to introducing the testimony of the play therapist regarding statements made by the children.⁵

2. Reliability Issue

The Appellant also attacks the admissibility of the statements in the present case based upon the alleged absence of reliability. As this Court recognized in syllabus point four of State v. Mason, 194 W.Va. 221, 460 S.E.2d 36 (1995),

"Even though the unavailability requirement has been met, the Confrontation Clause contained in the Sixth Amendment to the United States Constitution mandates the exclusion of evidence that does not bear adequate indicia of reliability. Reliability can usually be inferred where the evidence falls within a firmly rooted hearsay exception." Syllabus Point 5, State v. James Edward S., 184 W.Va. 408, 400 S.E.2d 843 (1990).

In syllabus point six of Mason, this Court further explained: "For purposes of the Confrontation Clause found in the Sixth Amendment to the United States Constitution and Section 14 of Article III of the West Virginia Constitution, no independent inquiry into reliability is required when the evidence falls within a firmly rooted hearsay exception."

In Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the United States Supreme Court clarified that hearsay evidence that falls under a firmly rooted exception to the hearsay rule or alternatively, when such evidence is accompanied by "particularized guarantees of trustworthiness," is admissible without any affront to the Confrontation Clause. Id. at 66, 100 S.Ct. 2531. Specifically, the Roberts Court held that "[r]eliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception." Id.

In syllabus point four of State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990), this Court explained:

The following [is] ... not excluded by the hearsay rule, even though the declarant is available as a witness: ... (4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. W.Va.R.Evid. 803(4).

In syllabus point five, the Edward Charles...