State of WV v. Wood
Annotate this Case
January 1995 Term
___________
No. 22575
___________
STATE OF WEST VIRGINIA
Plaintiff Below, Appellee
v.
FORREST WOOD,
Defendant Below, Appellant
___________________________________________________
Appeal from the Circuit Court of Cabell County
Honorable Dan O'Hanlon, Judge
Criminal Action No. 93-F-00061
AFFIRMED, IN PART;
REVERSED, IN PART; AND REMANDED.
___________________________________________________
Submitted: May 9, 1995
Filed: July 14, 1995
Gregory J. Campbell
Julia B. Shalhoup
Campbell & Turkaly
Charleston, West Virginia
Attorneys for the Appellant
Darrell V. McGraw, Jr.
Attorney General
Amie L. Langfitt
Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellee
CHIEF JUSTICE McHUGH delivered the Opinion of the Court.
JUSTICE BROTHERTON AND JUSTICE RECHT did not participate.
JUDGE FOX and RETIRED JUSTICE MILLER sitting by temporary
assignment.
RETIRED JUSTICE MILLER and JUSTICE CLECKLEY concur, in part, and
dissent, in part, for the same reasons stated by Justice Miller
in his dissent in State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
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, No. 22571, ___ W. Va. ___, ___ S.E.2d
___ (May 18, 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, ___
W. Va. ___, 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, No. 22571, ___
W. Va. ___, ___ S.E.2d ___ (May 18, 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, No. 22571, ___ W. Va. ___, ___ S.E.2d
___ (May 18, 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, No. 22781, ___ W. Va. ___, ___ S.E.2d ___ (June 19, 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, No.
22781, ___ W. Va. ___, ___ S.E.2d ___ (June 19, 1995).
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.,See footnote 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.See footnote 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 psychologistSee footnote 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.See footnote 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, No. 22571, ___ W. Va. ___, ___ S.E.2d ___ (May 18,
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 sexual assault], to your
satisfaction, to determine whether or not she was,
in fact, telling you the truth?
A Yes, I did because -- in fact, we had
-- you know, I explained the severity of
making an accusation like that. . . . [S]he at
that time convinced me that she was telling
the truth.
At the outset, we note that this issue involves the
admission of testimony regarding the credibility of a witness. As
observed by the United States Court of Military Appeals, "[t]here
are three evidentiary stages which concern the credibility of
witnesses at trial: bolstering, impeachment, and rehabilitation."
United States v. Toro, 37 M.J. 313, 315 (C.M.A. 1993). Bolstering
occurs when a party seeks to enhance a witness's credibility before
it has been attacked. Id. Bolstering is generally disallowed.
Impeachment occurs anytime a witness's credibility is attacked, and
it may be accomplished in several different ways including, inter
alia, the following: a witness's character trait for
untruthfulness pursuant to W. Va. R. Evid. 608(a); prior
convictions pursuant to W. Va. R. Evid. 609(a); instances of
misconduct not resulting in a conviction pursuant to W. Va. R.
Evid. 608(b); and prior inconsistent statements pursuant to W. Va.
R. Evid. 613.See footnote 5 See Id. Rehabilitation, which occurs after a witness's credibility has been attacked, also may be accomplished
in a number of different ways including "explanations on redirect
examination, corroboration, a character trait for truthfulness, or
prior consistent statements." Toro, supra at 315 (citation
omitted). Credibility issues concerning a witness may be addressed
by questioning that witness or through the testimony of another
witness.
Although not briefed by the appellant, the resolution of
the issue before us involves an analysis of W. Va. R. Evid. 608.
W. Va. R. Evid. 608(a) allows for the admission of evidence which either attacks or supports the credibility of a witness in the form
of opinion or reputation subject to two limitations:
The credibility of a witness may be
attacked or supported by evidence in the form
of opinion or reputation, but subject to these
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.
W. Va. R. Evid. 608(a).
The first limitation found in 608(a)(1), which states
"the evidence may refer only to character for truthfulness or
untruthfulness[,]" explicitly "permits [opinion] testimony
concerning a witness's general character or reputation for
truthfulness or untruthfulness but prohibits any [opinion]
testimony as to a witness's truthfulness on a particular occasion."
State v. Rimmasch, 775 P.2d 388, 391 (Utah 1989) (citations
omitted). The rationale behind disallowing opinion testimony as to
a witness's truthfulness on a particular occasion is that "it
prevents trials from being turned into contests between what would
amount to modern oath-helpers who would largely usurp the fact-
finding function of judge or jury." Id. at 392. See also United
States v. Azure, 801 F.2d 336, 341 (8th Cir. 1986) (The "opinion
evidence went beyond the limitation in Rule 608(a)(1) of only
addressing character for truthfulness and addressed the specific
believability and truthfulness of [the witness's] story."); People
v. Koon, 713 P.2d 410, 412 (Colo. Ct. App. 1985) ("[N]either a lay
nor expert witness may give opinion testimony with respect to whether a witness is telling the truth on a specific occasion."
(citations omitted)).
We implicitly acknowledged the wisdom of the above
rationale in syllabus point 7, in relevant part, of State v. Edward
Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990), when we held
that an expert on child sexual abuse "may not give an opinion as to
whether he personally believes the child . . . as [this] would
improperly and prejudicially invade the province of the jury."
The second limitation found in W. Va. R. Evid. 608(a)(2),
states "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[.]" This limitation
disallows the bolstering of a witness's credibility. See 1
Franklin D. Cleckley, Handbook on Evidence for West Virginia
Lawyers § 6.8(A)(1) (3d 1994) and 3 Jack B. Weinstein, et al.,
Weinstein's Evidence ¶ 608[08] (1995). After all, "a person's
character is assumed to be good unless evidence exists to indicate
otherwise." Cleckley, supra at § 6-8(A)(2). See also Weinstein,
supra at ¶ 608[08] at 608-64. ("'[T]here is no reason why time
should be spent in proving that which may be assumed to exist.'"
(quoting Wigmore, Evidence § 1104 (3d ed. 1940)).
Moreover, W. Va. R. Evid. 608(a) is subject to the
protections of 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. See
Weinstein, supra at ¶ 608[01] at 608-13 and Cleckley, supra at § 6-
8(A)(2). Thus, the admissibility of evidence regarding a witness's
character for truthfulness or untruthfulness is within the sound
discretion of the trial judge, and depends upon the totality of the
circumstances of a given case. See Id.
Accordingly, we hold that 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.
In the case before us, we find that Mr. Pace's testimony
violates the two limitations set forth in W. Va. R. Evid. 608 in
that Mr. Pace gave his opinion as to Betty A's truthfulness on a specific occasion and testified as to her truthfulness before her
character for truthfulness had been attacked. As we previously
indicated, no objection was made at trial. Thus, we must determine
if the admission of Mr. Pace's testimony was plain error. We
conclude that it is not.
As we previously stated, Mr. Pace, who was Betty A.'s
behavior disorder teacher, was the first person to whom Betty A.
reported the sexual assaults. At trial, Mr. Pace, the State's
first witness, testified that when Betty A. first told him of the
sexual assault he did not immediately report her allegations
because he wanted to make sure they were true.
However, the record reveals that there was no need for
the prosecutor to engage in the questioning of Betty A.'s character
for truthfulness in that Betty A.'s credibility had not yet been
attacked. In fact, Betty A.'s credibility was not an issue until
the prosecutor made it an issue.See footnote 6 As we previously stated, a witness's character for truthfulness is assumed to be truthful
until attacked. Thus, the admission of Mr. Pace's testimony
regarding Betty A.'s character for truthfulness was error pursuant
to W. Va. R. Evid. 608(a) because it was admitted before her
character for truthfulness had been attacked. Furthermore, Mr.
Pace's opinion testimony as to whether Betty A.'s allegations of
sexual assault were believable is error pursuant to W. Va. R. Evid.
608(a) in that it improperly invades the province of the jury.
However, as the testimony above reveals, Mr. Pace was
merely giving an historical account as to how he learned of Betty
A.'s sexual assault allegations and as to how he determined what
actions he should take regarding those allegations. Although Mr.
Pace's testimony violates W. Va. R. Evid. 608(a), his testimony was
not given for the purpose of determining Betty A.'s character for
truthfulness which is the paramount concern of W. Va. R. Evid. 608,
but rather was given as historical information. Cf. United States
v. Blackwell, 853 F.2d 86 (2d Cir. 1988) (Fed. R. Evid. 608(a) does
not preclude testimony by an accused of his lack of a criminal record because such testimony is essentially background
information); Government of Virgin Islands v. Grant, 775 F.2d 508,
513 n. 7 (3d Cir. 1985) (The Court of Appeals for the Third Circuit
noted that the line between background evidence and character
evidence is blurred). Thus, although we find that the admission of
the above testimony by Mr. Pace violates W. Va. R. Evid. 608(a), we
recognize that it is a close call considering the purpose for which
this testimony was introduced. Cf. United States v. Toledo, 985 F.2d 1462, 1469-70 (10th Cir. 1993), cert. denied, ___ U.S. ___,
114 S. Ct. 218 (An expert's statement in a case in which a child
was kidnapped and sexually assaulted that the child's consistency
in her story was "'consistent with a high likelihood that this
occurred'" did not warrant review under the plain error doctrine
because it is a close call and therefore not an obvious error
affecting the fundamental fairness of the trial).
Accordingly, although the admission of Mr. Pace's
testimony regarding Betty A.'s character for truthfulness was error
pursuant to W. Va. R. Evid. 608(a), given the context in which this
particular testimony occurred we find that it does not "seriously
affect[ ] the fairness, integrity, or public reputation of the
judicial proceedings" thereby implicating review pursuant to the
plain error doctrine. Syl. pt. 7, Miller, supra.
III.
Although not clearly defined, it appears that the
appellant raises the following three issues regarding the testimony
of Elizabeth Brachna, who testified as an expert on abused and assaulted children, which are as follows: (a) whether Ms. Brachna
was properly qualified as an expert; (b) whether Ms. Brachna's
testimony regarding the truthfulness of Betty A.'s story violates
syllabus point 7 of Edward Charles L., supra; and (c) whether the
law in Edward Charles L., supra, regarding the admission of a child
sexual abuse profile is a sound principle or whether the case
should be overruled.
A.
The appellant's trial counsel objected to Ms. Brachna
being qualified as an expert on abused and assaulted children
because she was not a treating psychiatrist or psychologist.
In syllabus point 7 of Edward Charles L., supra, this
Court held that expert psychological testimony regarding child
sexual abuse is permissible:
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.
Furthermore, in syllabus point 5 of Mayhorn v. Logan Medical
Foundation, ___ W. Va. ___, 454 S.E.2d 87 (1994) this Court stated:
'"'"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).
Appellant's contention that Ms. Brachna must have a
certain educational background in order to testify as an expert on
abused and assaulted children is misplaced. "[A] witness may be
qualified as an expert by practical experience in a field of
activity conferring special knowledge not shared by mankind in
general[.]" Syl. pt. 2, in relevant part, State v. Baker, 180 W.
Va. 233, 376 S.E.2d 127 (1988). For instance, in Cargill v.
Balloon Works, Inc., 185 W. Va. 142, 405 S.E.2d 642 (1991), we
found that a certified pilot of hot air balloons had a sufficient
background regarding the operation, safety, construction and flight
of hot air balloons to be qualified as an expert in the design and
manufacture of a hot air balloon that crashed even though the pilot
did not possess an engineering or design degree.
We concluded in Cargill that W. Va. R. Evid. 702, which
enunciates the standard by which the qualification of an expert is
determined, "cannot be interpreted to require . . . that the
experience, education, or training of the individual be in complete
congruence with the nature of the issue sought to be proven." Id.
at 146-47, 405 S.E.2d at 646-47.See footnote 7 Instead, a witness may be qualified as an expert based upon his or her knowledge, skill,
experience, training, or education. Board of Educ. v. Zando,
Martin & Milstead, Inc., 182 W. Va. 597, 390 S.E.2d 796 (1990)
(This Court held that a witness was qualified as an expert on
structural matters even though he had not been educated as a
structural engineer because of his experience in the construction
business).
Thus, Ms. Brachna need not be a treating psychiatrist or
psychologist as asserted by the appellant. The facts indicate that
Ms. Brachna is a licensed social worker who works as a counselor
with victimized children. Additionally, Ms. Brachna has a
bachelor's degree in sociology and an uncompleted master's degree
in behavioral disorders. Most importantly, the record reveals that
Ms. Brachna has nine years of experience with troubled adolescent girls in group homes, and that she has seen more than one hundred
abused and/or traumatized children.
As the State points out, other states have qualified non-
psychologists as experts on abused and assaulted children because
of their experience and training. See, e.g., People v. Pollard,
589 N.E.2d 175, 180 (Ill. App. Ct. 1992), appeal denied, 596 N.E.2d 635 (assault program worker, who was a foster mother specializing
in sexually abused children); and Commonwealth v. Thayer, 634 N.E.2d 576 (Mass. 1994) (licensed psychiatric social worker).
Accordingly, based on Ms. Brachna's training and experience of
working with abused and traumatized children, the trial court did
not abuse its discretion by qualifying Ms. Brachna as an expert on
abused and assaulted children.
B.
The appellant next contends that Ms. Brachna's testimony
regarding the truthfulness of Betty A.'s allegations violates
syllabus point 7, in relevant part, of Edward Charles L., supra,
which states: "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." As we previously explained, W. Va. R. Evid. 608(a)
prohibits any testimony as to a witness's truthfulness on a
particular occasion.
There are two questionable times in which Ms. Brachna's
testimony borders on giving an opinion as to whether Betty A. was being truthful. The first incident occurred in the following
exchange:
Q [by the State] I do not want to
relate specifically what [Betty A.] told you.
That is not my purpose in having you testify.
I only want you to inform this Court whether
or not you made observations of [Betty A.] in
her testimony which would cause you to be able
to render to this Court an opinion as to
whether or not [Betty A.] fit within the
profile that you have previously described to
this Court as that of a sexually abused child?
A [by Ms. Brachna] Yes. When I do a
taped interview, there are criteria I am
watching and observing for. . . . [I]t . . .
allows us to look back and check to see if the
age and the emotion matches the trauma the
child is reporting. One particular criterion
I look for when doing this is if the child or
adolescent uses age appropriate terminology
for their body, their body parts, the alleged
perpetrator's body parts[.] . . . I also
start each taped interview with questions
which helps me determine if the child can
determine right from wrong, or more
importantly, truth from a lie, or also show
some type of suggestibility. . . . In [Betty
A.'s] case, she was not highly suggestible.
She maintained what she perceived as the
truth. That helps me as a guideline to go on
with my questioning. . . . When I'm looking
for a child that's been coached, I'm looking
for more -- either a street language or even
maybe the correct terminology for genitalia,
which she did not have or give me. Her
knowledge of sexual acts seemed age
appropriate. . . . To my opinion, she
demonstrated an appropriate level of anxiety,
meaning her emotion did reflect the trauma
that she was reporting[.] . . . So, it was a
very credible statement to me as far as those
components that I look for.
(emphasis added). The second incident occurred after the State
asked the following: "Was there anything . . . she said or her
behavior or demeanor that would signal to you that there was something wrong with her statement, that there may be some falsity
to it?" Ms. Brachna responded: "Not that I could tell. There was
not what I would term as motive for her to give me that."
The appellant's trial attorney, however, did not object
to the admission of the above statements nor did the trial judge
give a cautionary instruction.See footnote 8 Therefore the admission of this
testimony must invoke the plain error doctrine before we will
reverse on this ground. As we previously stated, 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." Syl. pt. 7,
Miller, supra.
In the case before us, Ms. Brachna admitted, on cross-
examination, that if a child were indeed lying, she would have no
way of knowing, thereby neutralizing her prior testimony which
suggested that she believed Betty A.'s allegations to be true.
Thus, if Ms. Brachna's testimony on direct examination was error,
such error did not "seriously affect[ ] the fairness, integrity, or
public reputation of the judicial proceedings." Syl. pt. 7,
Miller, supra. See State v. Folse, 623 So. 2d 59 (La. Ct. App.
1993) (The expert testified, without objection, on direct
examination that he believed the victim was telling the truth about
having been sexually abused; however, the court found that this did
not violate rule 608 of the rules of evidence because the
defendant's cross-examination corrected the direct testimony by
making clear that the expert could not say whether or not the
victim was telling the truth). Cf. United States v. Rosales, 19 F.3d 763 (1st Cir. 1994) (In a sexual abuse case the expert's
testimony implicitly sent a message to the jury that the children
had testified truthfully; however, review pursuant to the plain
error doctrine was not warranted because the jury was presented
with expert testimony which directly contradicted the objectional
testimony and because the trial court instructed the jury that they
were free to reject the opinions of the experts); United States v.
Provost, 875 F.2d 172 (8th Cir. 1989), cert. denied, 493 U.S. 859
(The expert's testimony that two incidents described by the victim
of a sexual assault "'both occurred'" was an isolated statement
which did not constitute reversible error because it was harmless); Toledo, supra (An expert's statement in a case in which a child was
kidnapped and sexually assaulted that the child's consistency in
her story was "'consistent with a high likelihood that this
occurred'" did not warrant review under the plain error doctrine
because it is a close call and therefore not an obvious error
affecting the fundamental fairness of the trial). Accordingly,
because the appellant's trial counsel clarified that Ms. Brachna
would have no idea whether a child was lying, the admission of Ms.
Brachna's testimony regarding whether Betty A.'s allegations were
truthful, if error, did not "seriously affect[ ] the fairness,
integrity, or public reputation of the judicial proceedings"
thereby implicating review pursuant to the plain error doctrine.
Syl. pt. 7, Miller, supra.
C.
Although the appellant's brief is unclear, it appears
that the appellant contends that the admission of expert testimony
based upon a child sexual abuse profile is error. More
specifically, the appellant asserts that the theory that sexually
abused children manifest particular identifiable characteristics is
not supported by accepted medical or scientific opinion as is
required by W. Va. R. Evid. 702. See syl. pt. 2, Wilt v. Buracker,
191 W. Va. 39, 443 S.E.2d 196 (1993), cert. denied, ___ U.S. ___,
114 S. Ct. 2137 (1994) (This Court outlines how the admissibility
of expert testimony should be analyzed pursuant to W. Va. R. Evid.
702).
However, as the appellant concedes, this Court held the
following in syllabus point 7 of Edward Charles L., supra, in
relevant part, regarding the admission of expert testimony on the
profiles of child sexual abuse victims:
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.
We decline to revisit our holding in Edward Charles L., supra.See footnote 9
Accordingly, the admission of Ms. Brachna's testimony regarding the
psychological and behavioral profile of a child sexual abuse victim
was not error.See footnote 10
IV.
The appellant asserts that he was denied his right to
effective assistance of counsel under the sixth amendment to the
United States Constitution and under Article III, § 14 of the West
Virginia Constitution.
We recently explained why addressing ineffective
assistance of counsel claims on direct appeal is usually
inappropriate: "In cases involving ineffective assistance on
direct appeals, intelligent review is rendered impossible because
the most significant witness, the trial attorney, has not been
given the opportunity to explain the motive and reason behind his
or her trial behavior." Miller, at ___, ___ S.E.2d at ___ (slip
op. at 22) (footnote omitted). See also State v. Triplett, 187
W. Va. 760, 771, 421 S.E.2d 511, 522 (1992) ("it is the extremely
rare case when this Court will find ineffective assistance of
counsel when such a charge is raised as an assignment of error on a direct appeal"). When addressing an ineffective assistance of
counsel claim, however, the following analysis should be used:
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.
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. pts. 5 and 6, Miller, supra.
In the case before us, the appellant asserts that his
trial counsel was ineffective because he, inter alia,: (1) failed
to call character witnesses or any other witnesses other than the
appellant; (2) failed to object to Mr. Pace's testimony which was
previously discussed in this opinion; (3) failed to object to Ms.
Brachna's testimony on whether Betty A.'s allegations against the
appellant were true; (4) failed to call an expert who would attest
that appellant's psychological profile would suggest that he did
not commit the crimes charged; (5) failed to have the trial court
give a cautionary instruction that the testimony of Ms. Riley, who, as we previously stated, was qualified as an expert on abused and
assaulted children, regarding the hearsay statements made by Betty
A., was only being offered to show the basis of her opinion and was
not being offered to support the truth of what Betty A. said; (6)
failed to request that Betty A. undergo psychological evaluation in
order to see if there were psychological problems which may make
her testify falsely; (7) failed to offer a jury instruction which
stated that Betty A.'s testimony should be scrutinized with caution
since it was uncorroborated; and (8) failed to offer any evidence
of mitigating circumstances at appellant's sentencing hearing.
However, as the State points out, there may have been
tactical reasons for appellant's trial counsel's lack of action.
For instance, there may not have been any witnesses who could
testify as to appellant's character pursuant to W. Va. R. Evid.
404(a)(1)See footnote 11 nor may there have been any evidence of mitigating
circumstances to offer at appellant's sentencing hearing. Our
review of the record does not reveal "whether, in light of all the
circumstances, the identified acts or omissions [of the appellant's
trial counsel] were outside the broad range of professionally
competent assistance . . . [without] engaging in hindsight or
second-guessing of [appellant's trial counsel's] strategic
decisions." Syl. pt. 6, in part, Miller, supra. As we stated in Miller, at ___, ___ S.E.2d at ___ (slip op. at 29), "[i]t is
apparent that we intelligently cannot determine the merits of this
ineffective assistance claim without an adequate record giving
trial counsel the courtesy of being able to explain his trial
actions." Accordingly, we decline to further address this issue
on direct appeal.
V.
The appellant asserts that the trial judge violated ex
post facto principles found in W. Va. Const. art. III, § 4 and U.
S. Const. art. I, § 10See footnote 12 by sentencing him to serve a term of not
less than fifteen nor more than thirty-five years in prison for
sexual assault pursuant to W. Va. Code, 61-8B-3(b) which was
effective on July 1, 1991. The appellant contends that the 1984
version of W. Va. Code, 61-8B-3(b), which provides for a term of
"not less than fifteen nor more than twenty-five years[,]" is the
applicable Code section because the indictment charges that he
committed the crimes in 1989.
Similarly, on the incest charges, the appellant was
sentenced to a prison term of not less than five years nor more
than fifteen years pursuant to W. Va. Code, 61-8-12(c) which was
effective in 1991. In that the appellant was charged with
committing incest in 1989, the appellant contends that he should
have been sentenced according to the 1986 version of W. Va. Code, 61-8-12(c) which provides for a term of not less than five years
nor more than ten years.
This Court held the following in syllabus points 6 and 7
of State ex rel. Collins v. Bedell, No. 22781, ___ W. Va. ___, ___
S.E.2d ___ (June 19, 1995):
6. '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).
7. 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.
(emphasis added). Clearly, applying the 1991 versions of W. Va.
Code, 61-8B-3(b) and 61-8-12(c) increased the appellant's
punishment, thus, violating the ex post facto principles found in
the W. Va. Const. and U. S. Const. Accordingly, we reverse the
sentences imposed upon the appellant and remand this case to the
circuit court for resentencing in accordance with this opinion.
VI.
In summary, we reverse appellant's sentences on the
sexual assault counts and incest counts, and remand this case to
the circuit court for resentencing in accordance with this opinion.
Otherwise, we affirm the appellant's conviction.
Affirmed, in part;
reversed, in part;
and remanded.
Footnote: 1
Since this case involves sensitive matters, we follow
our traditional practice and use only the last initial of the
juvenile involved in this case. See State v. Michael S., 188 W.
Va. 229, 230 n. 1, 423 S.E.2d 632, 633 n. 1 (1992). (citation
omitted).Footnote: 2
Though the record describes the sexual acts in graphic
detail, considering our resolution of the issues in this case, it
is not necessary to recount those facts in detail in this
opinion.Footnote: 3
Ms. Riley is working as a psychologist under the
supervision of Dr. Betsy Evans until she obtains a license in
psychology.Footnote: 4
We held the following in syllabus point 2 of State v.
Stewart, 187 W. Va. 422, 419 S.E.2d 683 (1992): "'"Error in the
admission of testimony to which no objection was made will not be
considered by this Court on appeal or writ of error, but will be
treated as waived." Syl. Pt. 4, State v. Michael, 141 W. Va. 1,
87 S.E.2d 595 (1955).' Syllabus point 7, State v. Davis, 176
W. Va. 454, 345 S.E.2d 549 (1986)." However, W. Va. R. Evid.
103(d) states that "[n]othing in this rule precludes taking
notice of plain errors affecting substantial rights although they
were not brought to the attention of the court."Footnote: 5
W. Va. R. Evid. 608(a) states, in relevant part,
"[t]he credibility of a witness may be attacked or supported by
evidence in the form of opinion or reputation[.]"
W. Va. R. Evid. 609(a) states, in pertinent part, that
the credibility of an accused in a criminal case may be attacked
by "evidence that the accused has been convicted of a crime . . .
but only if the crime involved perjury or false swearing." The
credibility of a witness other than the accused may be attacked
by "evidence that the witness has been convicted of a crime . . .
subject to Rule 403 . . . if the crime was punishable by death or
imprisonment in excess of one year . . . and . . . [by] evidence
that the witness has been convicted of a crime . . . [involving]
dishonesty or false statement, regardless of the punishment."
Id.
W. Va. R. Evid. 608(b) states, in relevant part, that
"[s]pecific instances of the conduct of a witness, for the
purpose of attacking or supporting the witness' credibility,
other than conviction of crime as provided in Rule 609, may not
be proved by extrinsic evidence. They may, however, in the
discretion of the court, if probative of truthfulness or
untruthfulness, be inquired into on cross-examination of a
witness other than the accused (1) concerning the witness'
character for truthfulness or untruthfulness, or (2) concerning
the character for truthfulness or untruthfulness of another
witness as to which character the witness being cross-examined
has testified."
W. Va. R. Evid. 613(b) states, in pertinent part, that
"[e]xtrinsic evidence of a prior inconsistent statement by a
witness is not admissible unless the witness is afforded an
opportunity to explain or deny the same and the opposite party is
afforded an opportunity to interrogate the witness thereon, or
the interest of justice otherwise require."Footnote: 6
At least one court has noted that if a witness's
character for truthfulness is eventually attacked during the
trial after opening statements which indicate that the
credibility of a witness will be attacked, then the admission of
the testimony of a witness's truthful character before such
attack is harmless error. United States v. Beaty, 722 F.2d 1090,
1097 (3d Cir. 1983) ("'In view of the inevitability of defense
counsels' attack on [the witnesses'] credibility and the
formidable assault which in fact was made in the defense
openings, cross-examinations and summations, the error in the
timing of the introduction of the [truthfulness promise] does not
require reversal in this case[:]" the prosecutor elicited on
direct examination that the witness had promised to tell the
truth in connection with a plea bargain (citation omitted)).
Subsequent to Mr. Pace's testimony, the appellant's
trial counsel did attack Betty A.'s character for truthfulness.
Therefore, the State asserts that since Mr. Pace's testimony
regarding Betty A.'s character for truthfulness would have been
admissible once the appellant's trial counsel attacked her
character for truthfulness, the admission of Mr. Pace's testimony
in the facts before us was harmless error.
However, unlike the case above, the prosecutor had no
indication in the opening statement of the appellant's trial
attorney that Betty A.'s credibility would be attacked. Thus, it
is arguable whether the appellant would have attacked Betty A.'s
credibility if the prosecutor had not delved into the issue
during Mr. Pace's testimony. Moreover, we do not condone this
type of questioning because it could still amount to error which
is not harmless depending on the totality of the circumstances in
a given case.Footnote: 7
W. Va. R. Evid. 702 states:
Testimony by Experts. If scientific,
technical, or other specialized knowledge
will assist the trier of fact to understand
the evidence or to determine a fact in issue,
a witness qualified as an expert by
knowledge, skill, experience, training, or
education may testify thereto in the form of
an opinion or otherwise.
Additionally, this Court held the following in syl. pt. 4 of
Mayhorn, supra:
Pursuant to West Virginia Rules of
Evidence 702 an expert's opinion is
admissible if the basic methodology employed
by the expert in arriving at his opinion is
scientifically or technically valid and
properly applied. The jury, and not the
trial judge, determines the weight to be
given to the expert's opinion.Footnote: 8
The trial judge did in his charge to the jury give the
following instruction submitted by the appellant:
The jury is instructed that the rules of
evidence ordinarily do not permit witnesses
to testify as to opinions or conclusions. An
exception to this rule exists as to those
whom we call 'expert witnesses.' Witnesses
who, by education and experience, have become
expert in some art, science, profession, or
calling, may state their opinions as to
relevant and material matter, in which they
have been qualified to be expert, and may
also state their reasons for the opinion.
You should consider each expert opinion
received in evidence in this case, and give
it such weight as you may think it deserves.
If you should decided [sic] that the opinion
of an expert witness is not based upon
sufficient education and experience, or if
you should conclude that the reason given in
support of the opinion is not sound or if you
feel that it is outweighed by other evidence,
you may disregard the opinion entirely.Footnote: 9
We recognize that the admission of expert testimony
regarding the child sexual abuse profile is a disputed point.
Justice Miller has written a very detailed dissent to Edward
Charles L., supra, regarding this issue. However, the majority
opinion in Edward Charles L., which authorizes the admission of
such testimony, has not been overruled.
Footnote: 10
Although it is not clear, the appellant also appears
to argue that Ms. Brachna did not provide a basis for her
knowledge of the sexual assault profile. However, as the State
points out, W. Va. R. Evid. 705 does not require the expert to
disclose the underlying facts or data which support his or her
opinion unless the trial court requires the disclosure or unless
during cross-examination he or she is asked to disclose that
information:
Rule 705. Disclosure of Facts or Data
Underlying Expert Opinion. The expert may
testify in terms of opinion or inference and
give reasons therefor without first
testifying to the underlying facts or data,
unless the court requires otherwise. The
expert may in any event be required to
disclose the underlying facts or data on
cross-examination.
Moreover, appellant's assertion that Ms. Brachna's one-
time interview with Betty A. was insufficient to enable Ms.
Brachna to form an expert opinion, and appellant's assertion that
Ms. Brachna failed to conduct a full-scale psychological and
developmental evaluation of the child and underlying family
dynamics are more appropriately explored through cross-
examination which allows the trier of fact to weigh the
credibility of the expert's opinion rather than on appeal. Cf. 2
Franklin D. Cleckley, Handbook on Evidence for West Virginia
Lawyers, § 7-2(A)(1) at 28 (3d ed. 1994) ("Should the [expert]
witness later fail to adequately define or describe the relevant
standard of care, opposing counsel is free to explore that
weakness in the testimony. The trier of fact may then choose to
discount the testimony." (citations omitted)).Footnote: 11
W. Va. R. Evid. 404(a)(1) states, in relevant part,
that "[e]vidence of a person's character or a trait of character
is not admissible for the purpose of proving that he or she acted
in conformity therewith on a particular occasion, except: (1)
Character of Accused.--Evidence of a pertinent trait of his
character offered by an accused, or by the prosecutor to rebut
the same[.]"Footnote: 12
The W. Va. Const. art. III, § 4 states, in relevant
part: "No . . . ex post facto law . . . shall be passed." The
U. S. Const. art. I, § 10 provides, in relevant part: "No State
shall . . . pass any . . . ex post facto Law[.]"
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