State v. Wood

• Decision Date: 14 July 1995
• Docket Number: No. 22575,22575
• Citation: 194 W.Va. 525,460 S.E.2d 771
• Parties: STATE of West Virginia, Plaintiff Below, Appellee v. Forrest WOOD, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

Page 771

460 S.E.2d 771

194 W.Va. 525

STATE of West Virginia, Plaintiff Below, Appellee v. Forrest WOOD, Defendant Below, Appellant.

No. 22575.

Supreme Court of Appeals of

West Virginia.

Submitted May 9, 1995.

Decided July 14, 1995.

Syllabus by the Court

1. "To trigger application of the 'plain error' doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings." Syl. pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

2. West Virginia Rules of Evidence 608(a) permits the admission of evidence in the form of an opinion or reputation regarding a witness's character for truthfulness or untruthfulness, subject to two limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness; and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. The admission of testimony pursuant to W.Va.R.Evid. 608(a) is within the sound discretion of the trial judge and is subject to W.Va.R.Evid. 402, which requires the evidence to be relevant; W.Va.R.Evid. 403, which requires the exclusion of evidence whose "probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury[;]" and W.Va.R.Evid. 611, which requires the court to protect witnesses from harassment and undue embarrassment.

3. "Expert psychological testimony is permissible in cases involving incidents of child sexual abuse and an expert may state an opinion as to whether the child comports with the psychological and behavioral profile of a child sexual abuse victim, and may offer an opinion based on objective findings that the child has been sexually abused. Such an expert may not give an opinion as to whether he personally believes the child, nor an opinion as to whether the sexual assault was committed by the defendant, as these would improperly and prejudicially invade the province of the jury." Syl. pt. 7, State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990).

4. " ' " ' "Whether a witness is qualified to state an opinion is a matter which rests within the discretion of the trial court and its ruling on that point will not ordinarily be disturbed unless it clearly appears that its discretion has been abused." Point 5, syllabus, Overton v. Fields, 145 W.Va. 797 [117 S.E.2d 598 (1960) ].' Syllabus Point 4, Hall v. Nello Teer Co., 157 W.Va. 582, 203 S.E.2d 145 (1974)." Syllabus Point 12, Board of Education v. Zando, Martin & Milstead, 182 W.Va. 597, 390 S.E.2d 796 (1990).' Syl. pt. 3, Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993)." Syl. pt. 5, Mayhorn v. Logan Medical Foundation, 193 W.Va. 42, 454 S.E.2d 87 (1994).

5. "In the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel's performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Syl. pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

6. "In reviewing counsel's performance, courts must apply an objective standard and determine whether, in light of all the circumstances, the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsel's strategic decisions. Thus, a reviewing court asks whether a reasonable lawyer would have acted, under the circumstances, as defense counsel acted in the case at issue." Syl. pt. 6, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

7. " 'Under ex post facto principles of the United States and West Virginia Constitutions, a law passed after the commission of an offense which increases the punishment, lengthens the sentence or operates to the detriment of the accused, cannot be applied to him.' Syl. pt. 1, Adkins v. Bordenkircher, 164 W.Va. 292, 262 S.E.2d 885 (1980)." Syl. pt. 6, State ex rel. Collins v. Bedell, 194 W.Va. 390, 460 S.E.2d 636 (1995).

8. "A procedural change in a criminal proceeding does not violate the ex post facto principles found in the W.Va. Const. art. III, § 4 and in the U.S. Const. art. I, § 10 unless the procedural change alters the definition of a crime so that what is currently punished as a crime was an innocent act when committed; deprives the accused of a defense which existed when the crime was committed; or increases the punishment for the crime after it was committed." Syl. pt. 7, State ex rel. Collins v. Bedell, 194 W.Va. 390, 460 S.E.2d 636 (1995).

Gregory J. Campbell and Julia B. Shalhoup, Campbell & Turkaly, Charleston, for appellant.

Darrell V. McGraw, Jr., Atty. Gen. and Amie L. Langfitt, Asst. Atty. Gen., Charleston, for appellee.

McHUGH, Chief Justice:

Following a one-day jury trial, the appellant, Forrest M. Wood, was convicted of two counts of first degree sexual assault and two counts of incest in the Circuit Court of Cabell County. The appellant was sentenced to prison terms of fifteen to thirty-five years on each of the first degree sexual assault counts and to five to fifteen years on each of the incest counts, with all sentences running consecutively.

The appellant appeals his convictions raising the following four assignments of error: (1) whether the admission of the testimony of Mr. Donald Pace, a teacher, wherein he stated that he determined the victim's allegations against the appellant were true before he took any action regarding those allegations, was error; (2) whether the admission of the expert testimony of Elizabeth Brachna was error in that (a) she was not properly qualified as an expert, (b) she testified that the victim's allegations were credible, and (c) she based her testimony upon the child sexual abuse profile; (3) whether the appellant was denied effective assistance of counsel; and (4) whether the appellant was sentenced in violation of the ex post facto principles set forth in the West Virginia and United States Constitutions. For reasons set forth below, we affirm, in part, reverse, in part, and remand this case to the circuit court for the defendant's resentencing in accordance with this opinion.

I.

The appellant married the mother of the victim, Betty A., ¹ in 1981, thereby becoming Betty A.'s stepfather. At trial, Betty A. testified that once or twice a week in 1989, when she was approximately eight or nine years old, she was forced to engage in various sexual acts with the appellant. ² Betty A. first reported the sexual assaults in the spring of 1992 to her behavior disorder teacher, Donald Pace, who testified at trial. Additionally, Elizabeth Brachna, a licensed social worker, and Vicki Riley, a supervised psychologist ³ in private practice, who were qualified as experts on abused and assaulted children, both testified that in their opinion Betty A.'s behavior fit the profile of a sexually abused child. Betty A.'s mother's testimony supported Betty A.'s and the experts' testimonies. Conversely, the appellant testified that he did not sexually assault Betty A.

The appellant and Betty A.'s mother separated in November of 1989, and a divorce action soon ensued. The evidence at trial indicates that Betty A. has had no contact with the appellant since her mother and the appellant separated.

II.

The appellant asserts that the admission of Donald Pace's testimony regarding the truthfulness of Betty A.'s allegations against the appellant was error. However, as the appellant concedes, the appellant's trial attorney did not object to the admission of this testimony. ⁴ Therefore, the admission of this testimony must invoke the plain error doctrine before this Court will reverse the appellant's conviction. In syllabus point 7 of State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995) this Court held that in order "[t]o trigger application of the 'plain error' doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings." See also syllabus point 4, in relevant part, State v. England, 180 W.Va. 342, 376 S.E.2d 548 (1988) (The plain error "doctrine is to be used sparingly and only in those circumstances where substantial rights are affected, or the truth-finding process is substantially impaired, or a miscarriage of justice would otherwise result.")

The appellant complains about the admission of the following testimony by Donald Pace:

Q [This excerpt of testimony occurs after Mr. Pace has testified that he did not report Betty A.'s allegations until he determined whether or not they were true] [by the State] You indicated that you had come to the conclusion that [Betty A.] was not making this up; is that correct?

A [by Mr. Pace] That's correct.

Q Why do you say that?

A Well, for one thing, after I had established a relationship with [Betty A.], I found out that when she was lying, if I pursued my questioning, she would always tell me the truth.

Q Now, wait a minute. So, you're saying that [Betty A.] has lied to you?

A In terms that she may deny that she had done something, and when I questioned her about that, she would often say, 'Oh, no, Mr. Pace, that wasn't me, I didn't do that, I didn't do that,' and when I pursued the matter, she would always own up to it.

Q Always?

A Well, to my knowledge, yes.

....

Q So, in your opinion, based on your work with [Betty A.], she's basically a truthful person?

A Oh, yes. Now, qualifying that, if she could get out of trouble, she would.

....

Q ... Did you investigate [Betty A.'s allegations of...