                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In re: D.M.                                                                         FILED
                                                                               November 22, 2017
No. 16-0947 (Barbour County 16-JD-1)                                             EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA


                              MEMORANDUM DECISION
        Petitioner D.M., by counsel George J. Cosenza, appeals the Circuit Court of Barbour
County’s September 27, 2016, order sentencing him to a term of commitment until the age of
twenty-one for his first degree sexual assault conviction.1 The State, by counsel David A.
Stackpole, filed a response and a supplemental appendix. On appeal, petitioner argues that the
circuit court erred in denying his motion for a mistrial and abused its discretion by committing
him to a juvenile detention facility.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        In January of 2016, the State filed a juvenile criminal petition against petitioner, then age
fourteen, alleging that he sexually abused two younger children. According to the petition, in
March of 2015 and May of 2015, petitioner provided babysitting services for P.W. and D.W.
While providing babysitting services, petitioner forced P.W. to perform oral sex on him. After
the sexual assault, petitioner sent the children’s mother, B.W., a message on Facebook asking her
to forgive him for “everything he had done to P.W.” and stated that he “hoped that [she] could
forgive him.” The children’s mother telephoned the police department to report the sexual assault
of P.W. Following a police investigation by Sergeant Brad Miller (“Sergeant Miller”) and
forensic interviews of the children, petitioner was charged with four counts of first degree sexual
assault and two counts of first degree sexual abuse.

        In August of 2016, petitioner’s jury trial commenced. At trial, the State asked Sergeant
Miller on direct exam if he attempted to obtain a statement from petitioner. Petitioner’s counsel
immediately objected to the State’s line of questioning and moved the circuit court for a mistrial,
as follows:

       1
         Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).
                                                     1

              The State:	                   Did you attempt to get a statement from
                                            [petitioner]?

              Sergeant Miller:	             On September –

              Petitioner’s Counsel:	         Objection.

              The Circuit Court:	            Just a second. Come Forward.

              Petitioner’s Counsel:	         Motion for mistrial.

              The State:	                   The answer was going to be no, he didn’t get a
                                            statement from him.

              The Circuit Court:	            It’s against the rules. You cannot even inquire. The
                                            problem is if you do this then he’s going to be
                                            sitting in a detention center for months.

       The circuit court then called the State, petitioner, petitioner’s mother, and petitioner’s
counsel into chambers.

              The Circuit Court:	           This is in chambers on the record. Mr. Curry, you
                                            have just asked for a mistrial as a result of [the
                                            State’s] inquiry that goes to the 5th amendment
                                            privilege.

              Petitioner’s Counsel:	         I have no choice.

              The Circuit Court:	            Well, here’s what I want to explain, first of all, to
                                            [petitioner] and his mother. Ms. Elkins crossed over
                                            the boundary line here in asking about whether
                                            [petitioner] made a statement. That’s totally off
                                            limits. It’s basically against the rules, and
                                            [petitioner] is entitled to a mistrial as a result. Now
                                            the problem is that [petitioner] will be sitting in
                                            detention for several more months while we wait to
                                            do this all over again. And I understand it puts you
                                            between a rock and a hard place. . . . It forces you to
                                            make a decision whether you basically exercise
                                            your right or, because he is in detention . . . . Now, I
                                            can go out and attempt to explain to the jury that the
                                            question crossed the limits . . . And [The State] has
                                            absolutely no right to even ask that question. If you
                                            want a few minutes to discuss it or consider it, I will
                                            allow you to do that.

                                                   2

               Petitioner’s Counsel:	         You know, now that – I would advise against
                                              waiving this.

        The circuit court granted petitioner’s motion for a mistrial, but allowed petitioner and his
counsel a five-minute recess to discuss how they wished to proceed. At the conclusion of this
recess, petitioner and his counsel informed the court as follows:

               Petitioner’s Counsel:	          Well, we’re going to waive. Okay, I’ve talked to
                                              [petitioner]. [H]e wants to go on, his mother wants
                                              to go on. They have determined to disregard my
                                              advice, which is to take the mistrial. . . .

               Petitioner:	                   I just want to get it over with. Honestly, I’ve been
                                              stressed for the last six months and I don’t want to
                                              be stressed no more.

               The Circuit Court:	             If you want a mistrial, I will grant a mistrial because
                                              it was inadmissible.

               Petitioner:	                   Yes sir. I don’t want a mistrial, sir. I just want to get
                                              this over with.

               The Circuit Court:	            Then let’s go back and we’ll get started.


       Thereafter, the victim, P.W., and petitioner both testified at the trial. Petitioner denied
that he sexually assaulted the victim and that he sent the Facebook message to the victim’s
mother. The jury found petitioner guilty of one count of first degree sexual assault. Petitioner
moved to set aside the jury’s verdict.

        In September of 2016, the circuit court held a dispositional hearing to consider
petitioner’s motion to set aside the jury’s verdict. The circuit court denied petitioner’s motion
based on his previous waiver of his right to a mistrial. The State recommended that petitioner be
placed in a juvenile detention facility because of the severity of his crime and that a suitable
alternative placement was not available because of community safety concerns. Petitioner’s
therapist testified as to petitioner’s long history of psychological and emotional problems. At the
close of the evidence, the circuit court found that

       [t]he best interests of the juvenile and the welfare of the public make the
       commitment of the juvenile to the Department of Juvenile Services (“DJS”) for
       placement in secured detention appropriate, as no less restrictive alternative than
       commitment to secured detention will accomplish the juvenile’s rehabilitation and
       will meet his needs.




                                                     3

        The circuit court also found that a diagnostic evaluation would not be “helpful” because
petitioner refused to accept responsibility for his actions. Ultimately, the circuit court committed
petitioner to the DJS until the age of twenty-one, by order dated September 27, 2016. It is from
the sentencing order that petitioner appeals.

       The Court has previously established the following standard of review:

       The standard of review with regard to a circuit court’s sentencing order or
       disposition under [West Virginia] Code, 49-5-13 (2002) [now West Virginia Code
       § 49-4714 (2015)], is whether the circuit court’s ruling constitutes an abuse of
       discretion. State v. Kirk N., 214 W.Va. 730, 741, 591 S.E.2d 288, 299 (2003),
       quoting State ex rel. D.D.H. v. Dostert, 165 W.Va. 448, 471, 269 S.E.2d 401, 416
       (1980), (“discretionary” rulings of circuit courts at the dispositional stage in
       juvenile cases “should only be reversed where they are not supported by the
       evidence or are wrong as a matter of law”); In the Interest of Thomas L., 204
       W.Va. 501, 504, 513 S.E.2d 908, 911 (1998), (disposition in juvenile case held to
       be within the circuit court’s “sound discretion”); State ex rel. Department of
       Health and Human Resources v. Frazier, 198 W.Va. 678, 683, 482 S.E.2d 663,
       668 (1996), (circuit courts are “vested with discretion to select the appropriate
       disposition for a particular juvenile”).

State v. Kenneth Y., 217 W.Va. 167, 170, 617 S.E.2d 517, 520 (2005). Upon our review, we find
no error in the circuit court’s ruling below.

        Simply put, petitioner has provided no support for his assertion that the circuit court erred
in this case. Contrary to petitioner’s argument on appeal, the circuit court did not deny his
motion for a mistrial; instead petitioner made a knowing and intelligent waiver of his right to a
mistrial. “An accused may, by declaration and conduct, waive a fundamental right protected by
the Constitution, but it must be demonstrated that the waiver was made knowingly and
intelligently.” State v. Eden, 163 W.Va. 370, 378, 256 S.E.2d 868, 873 (1979). “The remedial
doctrines of knowing and intelligent waiver and harmless error are firmly established by statute,
court rule and decisions as salutary aspects of the criminal law of this State.” Syl. Pt. 4, State v.
Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975).

        It is clear from the record on appeal that the circuit court recognized the State’s inquiry
into Sergeant Miller’s attempt to obtain petitioner’s statement was not appropriate and the basis
for a mistrial. The court communicated to petitioner the same, advised him that he was entitled to
a mistrial, and that it would grant a mistrial if petitioner so desired. Petitioner was afforded time
to consult with both his counsel and his mother. Ultimately, petitioner decided to waive his right
to a mistrial, against the advice of his counsel. Petitioner clearly stated that he did not want the
circuit court to grant the mistrial because he wanted to get the trial “over with” and did not want
to prolong the trial process any further. Following petitioner’s waiver, the circuit court instructed
the jury to disregard the State’s question and response regarding petitioner’s right to remain
silent.




                                                     4

        Petitioner’s sole argument regarding waiver is his claim that this Court held in State ex
rel. J.M. v. Taylor, 166 W.Va. 511, 276 S.E.2d 199 (1981), that a juvenile can never waive any
right without the agreement of counsel. In Taylor, three juveniles waived their respective rights
to counsel, without first having been advised by counsel. We held that a juvenile cannot waive
any constitutional rights unless the waiver is

       secured with counsel, guardian, parent or interested adult present. An interested,
       friendly adult is supposed to protect an infant from governmental coercion or
       pressure and to allow someone capable of understanding the nature and
       consequences of the waiver to help in the decision and to protect the child from
       inaccurate accounts of his statements at proceedings in which waiver is made.

Id. at 166 W.Va. at 517, 276 S.E.2d at 202. Thus, Taylor holds that, before a juvenile can waive
the right to counsel, he must first be afforded the advice of counsel. Petitioner argues that the
holding in Taylor is that a juvenile can never waive any right unless his/her counsel agrees to the
waiver. That is simply not true. Here, and in accordance with our ruling in Taylor, petitioner had
the benefit of the advice of counsel and his mother and chose to move forward with his trial. As
such, we do not find that the circuit court erred in denying petitioner’s motion for a mistrial.

        Petitioner next argues that the circuit court abused its discretion by committing petitioner
to a juvenile detention facility because it was required to have him evaluated prior to disposition.
Petitioner also argues that the circuit court failed to consider alternate dispositions. We disagree.
Rule 40(b) of the West Virginia Rules of Juvenile Procedure expressly states that the circuit
court “may order a psychological examination of the juvenile prior to disposition.” As such, the
rule does not require that an evaluation be done, but rather, places the decision within the sound
discretion of the circuit court. “As a general rule of statutory construction, the word ‘may’
inherently connotes discretion and should be read as conferring both permission and power. The
Legislature’s use of the word ‘may’ usually renders the referenced act discretionary, rather than
mandatory, in nature.” Syl. Pt. 1, Pioneer Pipe, Inc. v. Swain, 237 W.Va. 722, 791 S.E.2d 168
(2016).

        Additionally, there was no need for an evaluation because an evaluation would not have
changed the outcome of petitioner’s disposition. The State recommended that petitioner be
committed to a juvenile detention facility and that “due to the severity of the charges [the State]
would be hard pressed to find somewhere for him to go, and a lot of places would not accept him
[because of] his charges.” The parties attempted, before the trial, to find a suitable alternative
placement for petitioner but community safety concerns necessitated detention. Further,
petitioner refused to accept responsibility for his actions and the circuit court determined that he
presented a danger to the community. Therefore, we find no error in the circuit court committing
petitioner to a juvenile detention facility without ordering an evaluation.

       Finally, with regard to potential alternate dispositions, the circuit court made express
findings that petitioner’s placement in a juvenile detention facility was necessary pursuant to
West Virginia Code § 49-4-714(a)(5)(A). This Court has provided the factors to be considered
regarding the disposition of a juvenile:



                                                     5

                In a juvenile proceeding it is the obligation of a trial court to make a
       record at the dispositional stage when commitment to an industrial school is
       contemplated under [West Virginia] Code, 49-5-13(b)(5) [2012] and where
       incarceration is selected as the disposition, the trial court must set forth his
       reasons for that conclusion. In this regard the court should specifically address the
       following: (1) the danger which the child poses to society; (2) all other less
       restrictive alternatives which have been tried either by the court or by other
       agencies to whom the child was previously directed to avoid formal juvenile
       proceedings; (3) the child’s background with particular regard to whether there
       are pre-determining factors such as acute poverty, parental abuse, learning
       disabilities, physical impairments, or any other discrete, causative factors which
       can be corrected by the State or other social service agencies in an environment
       less restrictive than an industrial school; (4) whether the child is amenable to
       rehabilitation outside an industrial school, and if not, why not; (5) whether the
       dual goals of deterrence and juvenile responsibility can be achieved in some
       setting less restrictive than an industrial school and if not, why not; (6) whether
       the child is suffering from no recognizable, treatable determining force and
       therefore is entitled to punishment; (7) whether the child appears willing to
       cooperate with the suggested program of rehabilitation; and, (8) whether the child
       is so uncooperative or so ungovernable that no program of rehabilitation will be
       successful without the coercion inherent in a secure facility.”

Syl. Pt. 5, State v. J.S., 233 W.Va. 198, 757 S.E.2d 622 (2014). The circuit court considered the
relevant factors. Specifically, the circuit court considered petitioner’s failure to accept
responsibility for his actions, the possibility for petitioner’s rehabilitation, the severity of his
crime, his long history of psychological and emotional problems, the recommendation for
placement, and the danger petitioner posed to the community. Based on these facts, the circuit
court determined that detention was the appropriate disposition for petitioner. Accordingly, we
find no error below.

       For the foregoing reasons, the circuit court’s September 27, 2016, sentencing order is
hereby affirmed.


                                                                                         Affirmed.

ISSUED: November 22, 2017

CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker


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