State v. Timothy C.

• Decision Date: 03 June 2016
• Docket Number: No. 15–0211,15–0211
• Parties: State of West Virginia, Plaintiff Below, Respondent v. Timothy C., Defendant Below, Petitioner
• Court: West Virginia Supreme Court

237 W.Va. 435

787 S.E.2d 888

State of West Virginia, Plaintiff Below, Respondent

v.Timothy C., Defendant Below, Petitioner

No. 15–0211

Supreme Court of Appeals of West Virginia.

Submitted: April 19, 2016

Filed: June 3, 2016

Crystal L. Walden, Esq., Public Defender Services, Charleston, West Virginia, Counsel for Petitioner.

Patrick Morrisey, Esq., Attorney General, Nic Dalton, Esq., Assistant Attorney General, Shannon Kiser, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for Respondent.

LOUGHRY

, Justice:

The petitioner, Timothy C.,¹ appeals from the February 5, 2015, order of the Circuit Court of Jackson County sentencing him to a total period of incarceration of fifty to one hundred sixty-five years to be followed by thirty years of supervised release² for his felony convictions on various sex offenses against two minor victims, M.C. and A.O. Seeking to set aside his convictions, the petitioner challenges the trial court's exclusion of DNA evidence; its admission of Rule 404(b) evidence;³ and the sufficiency of the State's evidence to establish that he was a “custodian” or “person in a position of trust”⁴ as to victim A.O. Following a careful review of the parties' arguments, the appendix record, and the applicable law, this Court finds no reversible error regarding the petitioner's convictions related to victim A.O., and we affirm those convictions. We do find error, however, in the trial court's exclusion of the DNA evidence, which warrants a reversal of the petitioner's convictions related to victim M.C. Accordingly, we remand this action to the circuit court for further proceedings solely on the counts involving victim M.C.

I. Facts and Procedural Background

In October of 2013, a Jackson County grand jury returned an eleven-count indictment charging the petitioner with sex crimes involving his minor daughter, M.C., and a minor female neighbor, A.O. The first nine counts of the indictment involved M.C. and pertained to three separate incidents. For each incident, the petitioner was charged with one count of first degree sexual assault in violation of West Virginia Code § 61–8B–3(a)(2)

(2014), one count of sexual abuse by a parent in violation of West Virginia Code § 61–8D–5(a) (2014), and one count of incest in violation of West Virginia Code § 61–8–12 (2014). The final two counts involved a single incident with A.O. for which the petitioner was charged with one count of first degree sexual abuse in violation of West Virginia Code § 61–8B–7(a)(3) (2014) and one count of sexual abuse by a custodian or person in a position of trust in violation of West Virginia Code § 61–8D–5(a).

Prior to trial, the State filed a motion seeking to compel a blood and/or a saliva sample from the petitioner. Possessing a shirt belonging to M.C.⁵ on which semen had been found, the State asserted it “must obtain a blood and/or saliva sample of the Defendant for DNA testing[,]” noting the presence of semen was consistent with M.C.'s statement that the petitioner made her perform oral sex on him. The trial court denied the motion. Approximately one month later, the State filed a verified motion in which it argued that a minimally invasive saliva sample “could produce crucial evidence in support of the State's case.” The State maintained that if the petitioner's semen were identified as being on the shirt M.C. “was wearing at the time of the alleged acts[,]” it would constitute relevant and corroborative evidence. The trial court granted the motion, and the petitioner provided a saliva sample.

Soon thereafter, the State filed a motion in limine seeking to exclude the introduction of the DNA test results at trial because they eliminated the petitioner as a potential donor of the semen. The State argued the evidence was irrelevant, overly prejudicial, and would violate the rape shield law.⁶ In response, the petitioner maintained the absence of his DNA was relevant to support his defense of innocence; was critical to his defense; was potentially exculpatory evidence; and was crucial to his receipt of a fair trial.⁷

The trial court granted the State's motion in limine on the basis that the rape shield law prohibited the introduction of the DNA results. Because M.C. only identified her father as the perpetrator, the trial court reasoned the identity of the perpetrator was not an issue. The trial court concluded that the possibility that someone else abused M.C. did not logically mean the petitioner had not.

The State also filed a pre-trial motion seeking to introduce Rule 404(b)

evidence at trial from four minor females, E.A.,⁸ R.E., M.W., and I.R., for the purpose of showing the petitioner's lustful disposition for children under State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990).⁹ The trial court conducted an in camera McGinnis hearing¹⁰ during which the State presented the testimony of three of the four witnesses listed in its motion.¹¹ The petitioner presented the testimony of various witnesses in an attempt to discredit the testimony of the State's witnesses by showing inconsistencies between their hearing testimony and their prior statements concerning the petitioner's alleged sexual misconduct toward them. He further presented testimony that criminal charges were never filed as to M.W. and the charges related to R.E. were dismissed.¹² Although the trial court ruled that E.A., R.E., and M.W. would be allowed to testify at trial, the State only offered the testimony of E.A. and R.E.

The petitioner's trial began on October 14, 2014. Seven witnesses were called by the State, including the two Rule 404(b)

witnesses. Six witnesses were called by the defense.

M.C. testified at trial that her father put his penis inside her mouth.¹³ According to M.C., this assault occurred while she and her older sister, K.S., were visiting their father for the weekend in the home of his girlfriend, Denise G., with whom he resided.¹⁴ M.C. was seven years old at the time. During that same weekend, M.C. told K.S. what had happened,¹⁵ after which K.S. told Denise G. Following the disclosure, the petitioner and Denise G. took M.C. home to her mother.¹⁶ When M.C. was asked whether she had denied the assault ever happened during this car-ride home, M.C. responded, “No.”¹⁷

Regarding the victim, A.O., the evidence at trial showed the petitioner was a neighbor to A.O. and her family. One evening in July or August of 2013, the petitioner was in A.O.'s yard with A.O.'s grandmother while A.O. and her younger siblings were outside playing. A.O. was ten years old at the time. A.O. testified that after tiring, she laid down on the ground and fell asleep. A.O. described waking up slightly when she felt herself being carried. At first, she thought her grandmother, Kathy E.,¹⁸ was carrying her, but she soon realized it was a man. According to A.O., the petitioner did not take her to her bedroom, although he knew where it was as he had been in it previously. Instead, he walked through the house and carried her to a porch, which she described as a toy room or sunroom, where he laid her down on a bed. A.O. testified that while she was still half asleep, the petitioner lifted her hand and briefly placed it on his penis, moving her hand in a circular motion.¹⁹ A.O. testified that she was soon fully awake at which point the petitioner “jumps back real fast and he says the ‘s—h’ word, and he almost falls back into the toy box.” At that point, A.O. told the petitioner she was no longer tired and ran out the front door of her home. She explained that she was scared and crying. A.O. then described how she peeked in the front door of her home and, upon seeing her grandmother coming in through the back door, she went back inside and into the bathroom where she continued to cry. A.O. testified that while she was in the bathroom, she thought she heard the petitioner approaching, so she jumped out of the bathroom window and climbed a tree, where she remained until she saw the petitioner leave her backyard. Although A.O. disclosed this incident to both M.C. and K.S. the following day, she explained that she did not tell her grandmother because her grandmother's brother had just died and because “Papa was real bad sick.”²⁰

Kathy E. testified at trial that the petitioner was a neighbor with whom she was friendly, explaining that her grandchildren played with his children. Regarding the evening in question, she testified that she and the petitioner were in her yard while her grandchildren were outside playing. According to Kathy E., “when we got ready to take all the kids in to put them to bed,” the petitioner picked up A.O., who had fallen asleep in the yard, and carried her into the house. Kathy E. assumed the petitioner was being “nice and polite” and “trying to be helpful.” When questioned regarding how long the petitioner was in the house with A.O. before she went inside, Kathy E. was uncertain, indicating a “minute or so,” but also stating it took her a little while to round up her other grandchildren because they did not want to stop playing.

Kathy E. further testified that she first learned of A.O.'s allegations against the petitioner when police officers appeared at her home. She explained that although A.O. had been saying the petitioner was “being mean[,]” she had assumed “it was where he was being rough playing with the kids.” She further testified that the petitioner “was always horsing around with her [A.O.].”

The State also presented the testimony of the two Rule 404(b)

witnesses: E.A. and R.E. E.A., who was eleven years old at the time of trial, testified that she spent the night with her friend, C.B., one of the petitioner's daughters, in the home of C.B.'s grandfather (the petitioner's father). E.A. stated that she, C.B., and the petitioner, who also spent the night, were lying on the bed of a pull-out couch in the living room watching “The Grinch Who Stole Christmas.” E.A. testified that after C.B. fell asleep, C.B.'s grandfather took C.B. to his...