        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                               January 2016 Term                        FILED
                                _______________
                                                                     June 16, 2016
                                                                        released at 3:00 p.m.
                                  No. 15-0037                         RORY L. PERRY II, CLERK
                                _______________                     SUPREME COURT OF APPEALS
                                                                         OF WEST VIRGINIA


                         STATE OF WEST VIRGINIA,
                                Respondent

                                       v.

                             NICHOLAS VARLAS,
                                 Petitioner

      ____________________________________________________________

                Appeal from the Circuit Court of Brooke County

                  The Honorable Martin J. Gaughan, Judge

                          Criminal Action No. 13-F-63


                      REVERSED AND REMANDED

      ____________________________________________________________

                            Submitted: March 1, 2016
                              Filed: June 16, 2016

Carl A. Frankovitch, Esq.                   Patrick Morrisey
M. Eric Frankovitch, Esq                    Attorney General
Frankovitch, Anetakis, Colantonio           David A. Stackpole
 & Simon                                    Assistant Attorney General
Weirton, West Virginia                      Charleston, West Virginia
Counsel for the Petitioner                  Counsel for the State



CHIEF JUSTICE KETCHUM delivered the Opinion of the Court.

JUSTICE BENJAMIN concurs, in part, dissents, in part, and reserves the right to
file a separate opinion.
                              SYLLABUS BY THE COURT


              1.     “A trial court’s evidentiary rulings, as well as its application of the

Rules of Evidence, are subject to review under an abuse of discretion standard.” Syllabus

Point 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).

              2.     “Assessments of harmless error are necessarily content-specific.

Although erroneous evidentiary rulings alone do not lead to automatic reversal, a

reviewing court is obligated to reverse where the improper exclusion of evidence places

the underlying fairness of the entire trial in doubt or where the exclusion affected the

substantial rights of a criminal defendant.” Syllabus Point 4, State v. Blake, 197 W.Va.

700, 478 S.E.2d 550 (1996).

              3.     Rule 412 of the West Virginia Rules of Evidence provides the

standard for the introduction at trial of a victim’s sexual history, and it supersedes W.Va.

Code § 61-8B-11 [1986] to the extent that the statute is in conflict with the rule.




                                              i
Chief Justice Ketchum:


              In this appeal from the Circuit Court of Brooke County, defendant Nicholas

Varlas appeals an order convicting him of second-degree sexual assault and of attempting

to commit first-degree sexual abuse. Because the circuit court erred in excluding relevant

evidence critical to Varlas’s defense, we reverse its order of conviction and remand the

case for a new trial.


                                   I.

                  FACTUAL AND PROCEDURAL BACKGROUND


              Defendant Varlas lived in Follansbee, West Virginia. According to the

prosecution’s evidence at trial, at about 11:00 p.m. on August 12, 2012, a group of people

drove to Varlas’s residence so that some of them could “hang out and drink.” The

visitors arrived at the same time, but in separate vehicles. In one car rode Varlas’s friend,

Jeremy Smith; Smith’s girlfriend, Jena Lindsey; and Lindsey’s two young children.

Alone in her own car was Lindsey’s friend, N.S.1 Lindsey had previously given N.S.’s

cell phone number to Varlas, and, the day before, Varlas and N.S. had exchanged a brief

series of friendly, flirtatious text messages. After the group had socialized for two hours

or longer, Lindsey left to drive her elder child around for a while so that he might fall

asleep.

              1
                We identify the victim in this sensitive matter by referring to her
exclusively by her initials. See W.Va.R.App.P. 40(e)(1); State v. Lewis, 235 W.Va. 694,
698 n.2, 776 S.E.2d 591, 595 n.2 (2015); see also W.Va.R.Evid. 412(e) (specifying that a
“victim” of sexual misconduct “includes an alleged victim”).


                                             1

                At 2:08 a.m., as N.S. sat in the den on a sofa, Varlas, from elsewhere in the

house, began to send her text messages of an explicit nature suggesting that they engage

in certain sexual acts. N.S. responded to those texts with one-word negatives. At about

the same time, N.S. was conversing via text with her boyfriend, Travis Shepard, to let

him know where she was.            Shepard initiated the final three exchanges in that

conversation:

                2:16: You promised no other guys, and now you two
                [Lindsey and N.S.] are with a different guy, not cool at all.

                2:16: He’s 33.

                2:17: Why did you guys go there?

                2:17: Idk [probably “I don’t know.”]

                2:18: Well, I’m gonna trust you, just remember, if you do
                something with someone else, I’m gone for good.

                2:19   I knoww [sic].

                After a while, Lindsey returned with her son still awake, then left again

with Smith and both of her children to drive around for a bit longer. N.S. admitted some

discomfort at the prospect of being alone with Varlas and conveyed her trepidation to

Lindsey, but she nonetheless remained behind.

                According to the prosecution, after Lindsey and Smith’s exit, N.S.

accompanied Varlas to the living room and sat down on the couch. Varlas played a

pornographic movie on the television; he then removed his shirt, sat down next to N.S.,

and began to kiss her. N.S. tried to fend off Varlas, but—the prosecution contended—his

kisses and gropes became more insistent. N.S. told the jury that Varlas pushed her shorts

                                              2

and underwear aside, forcing sexual intercourse. After Varlas finished and vacated the

room, Lindsey and Smith returned for a bit before the entire group departed the residence

for the evening. N.S. did not tell Lindsey or Smith that she had been assaulted.

              N.S. met Shepard in person to tell him what had happened, and then she

went home to sleep. From shortly after 6:00 a.m. until almost 8:00 a.m., a period of

slightly less than two hours, Shepard sent the following twenty-nine texts to N.S.:

              [6:03]:You need to call the cops!

              [6:26]:Where are you?

              [6:42]:[N.], you need to go to the hospital and you need to
              file charges. If you don’t file charges, that just shows me you
              wanted to have sex with him.

              [6:45]:Then why can’t you go to the hospital and file
              charges? You need to have justice served on him.

              [6:46]:So you just let it happen? That’s real [expletive] nice.
              [H]e’s getting his ass beat tomorrow.

              [6:49]:You still need to file charges. Please [N.], do this for
              me.

              [6:51]:The cops will keep it private, no one will know, just
              the cops and court. The news won’t get your name or
              anything, I promise.

              [6:52]:You don’t have to, they’ll keep it down low, I promise.
              Just please, go to the cops with me.

              [6:54]:You need to, this guy needs to go to jail for what he
              did to you, he [expletive] raped you, who knows if he has any
              [sexually transmitted diseases]. If he [ejaculated], if he’s a
              sex offender you need to file charges.

              [6:55] (1): Are you going to file charges?

              [6:55] (2): No, I swear I didn’t.

                                             3

[6:57]:No, I didn’t tell your parents, but [i]f you don’t press
charges, I will.

[6:59]:You need to press charges [N]. [I]t pissed me off more
than anything that someone [expletive] you tonight, all I
asked was no other guys, then I find out you went along with
him to watch a movie? Wtf.

[7:02]:It just bothers me that you won[’]t file charges, did you
have sex with [him] then regret [i]t afterw[a]rds? Tell me
what really happened.

[7:04]:You need to file charges on him, he [expletive] raped
you, you can’t let him get away with it.

[7:07]:Time is a big factor in rape cases [N]. [Y]ou need to
talk to the cops soon.

[7:10]:Because, they need to see if they can collect a semen
sample, check you for STDs, and internal injuries, and get
you help.

[7:14]:Then whatever, I’m done trying, obviously there’s
something more than you[’re] telling me, I told you, if you
had sex with him, and it wasn’t rape just tell me now, because
if it was rape, [you] wouldn’t be keeping it to yourself, and
not getting yourself [expletive] tested. Goodnight.

[7:23]:All I wanted to do was help, and you wanna let him get
away with it.

[7:34]:I told you, have sex with anyone else. I’m gone.

[7:35]:You shouldn’t [have] ever went there. Goodnight.

[7:36]:Nor should you [have] walked away with him by
yourself to watch a movie.

[7:41]:Apparently, you were next to him on the [expletive]
couch and [expletive], and left his hand on your leg for a long
time. I don’t know what to [expletive] believe, if you
honestly got raped, or you just [expletive] him. I[‘]m going
to bed.


                               4

                 [7:44]:I told you before you [expletive] went, no other boys,
                 or I’m gone, you say you got raped but won’t file charges,
                 seems like you’re hiding something and trying to keep me
                 from not getting mad. [B]ut until you press charges, I’m
                 done. Bye.

                 [7:48]:It was such a simple [expletive] request, no other boys,
                 or I’m gone, you say you got raped but won’t file charges,
                 seems like you’re hiding something and trying to keep me
                 from not getting mad. [B]ut until you press charges, I’m
                 done. Bye.

                 [7:51]:I’m done until you prove to me that it was rape and not
                 just you [expletive] him and regretting it, if you go file
                 charges by the time I wake up, but until then, I’m going with
                 you [expletive] him. [G]oodnight.

                 [7:52]:I’m done until you prove to me that it was rape and not
                 just you [expletive] him and regretting it, if you go file
                 charges by the time I wake up, then I’ll believe you and do
                 everything I can to make you happy, but until then, I’m going
                 with you [expletive] him. [G]oodnight.

                 [7:54]:First of all, you never should [have] went there,
                 secondly, you should of hit or bit him if you didn’t wanna
                 [expletive] him, and thirdly, you should have called the cops
                 by now. That’s why I don’t believe you. That’s why I think
                 you [expletive] him on your own will.

                 [7:56]:Good job at whoring around. This just shows me how
                 you really are. If it was rape, you would [have] already called
                 the cops.

To the extent that N.S. may have responded to the foregoing texts, her responses are not

in the record.

                 Shortly thereafter, Shepard arrived at N.S.’s residence, and she agreed to

accompany him to the police station and report the incident. Varlas was later interviewed

by the police and denied having had sexual contact with N.S. Laboratory analysis,

however, revealed Varlas’s sperm on N.S.’s shorts, and an accompanying fluid sample
                                               5

disclosed mixed DNA from N.S. and Varlas. On November 4, 2013, the grand jury

returned a two-count indictment against Varlas, charging him in Count One with sexual

assault in the second degree, see W.Va. Code § 61-8B-4 [1991], and in Count Two with

attempting to commit sexual abuse in the first degree, see id. § 61-8B-7(a)(1) [2006].2

              On the first morning of the defendant’s jury trial, on September 3, 2014, the

circuit court asked the lawyers whether there was any “rape shield evidence,” referring to

a particular type of evidence whose admissibility is specifically governed by West

Virginia Rule of Evidence 412. This Rule provides, in pertinent part:

                     (a) Prohibited Uses. The following evidence shall not
              be admissible in a civil or criminal proceeding involving
              alleged sexual misconduct:

                     (1) evidence offered to prove that a victim engaged in
              other sexual behavior; [or]



              2
                West Virginia Code § 61-8B-4(a)(1) provides, in pertinent part, that “[a]
person is guilty of sexual assault in the second degree when . . . such person engages in
sexual intercourse . . . with another person without the person’s consent, and the lack of
consent results from forcible compulsion.” The offense is distinguished from sexual
assault in the first degree in this instance by the absence of serious bodily injury or the
use of a deadly weapon in committing the act. Cf. id. § 61-8B-3(a) (2006). Pursuant to
West Virginia Code § 61-8B-7(a)(1), the offense of sexual abuse in the first degree is
committed when the perpetrator “subjects another person to sexual contact without their
consent, and the lack of consent results from forcible compulsion.” The term “sexual
contact” is defined as “any intentional touching, either directly or through clothing, of . . .
any part of the sex organs of another person . . . where the victim is not married to the
actor and the touching is done for the purpose of gratifying the sexual desire of either
party.” Id. § 61-8B-1(6) (2007). The indictment here alleged that Varlas “attempted to
place his finger in the vagina of N.S. without the consent of N.S.” See also id. § 61-11­
8(2) (2002) (setting forth punishments applicable to “[e]very person who attempts to
commit an offense, but fails to commit or is prevented from committing it”).


                                              6

                     (2) evidence offered to prove a victim’s sexual
              predisposition . . . .

                      (b) Exceptions.

                     (1) Criminal Cases. The court may admit the
              following evidence in a criminal case: . . .

                    (B) . . . evidence of specific instances of a victim’s
              sexual behavior with respect to the person accused of the
              sexual misconduct, if offered by the defendant to prove
              consent or if offered by the prosecutor;

                     (C) evidence of specific instances of the victim’s
              sexual conduct with persons other than the defendant . . . if
              the victim first makes his or her previous sexual conduct an
              issue in the trial by introducing evidence with respect thereto;
              and

                    (D) evidence whose exclusion would violate the
              defendant’s constitutional rights.

W.Va. R. Evid. 412 [2014].         Rule 412 (which revised and recodified former Rule

404(a)(3)) took effect on September 2, 2014, the day before Varlas’s trial, and it was

therefore the controlling authority with respect to the circuit court’s query.

              In response to the circuit court’s inquiry about rape shield evidence,

counsel for Varlas responded, “There’s a number of text messages between the alleged

victim[] and her on-again-off-again boyfriend,” including “after the alleged assault . . .

where she told him she was assaulted and he doesn’t necessarily believe her and says, ‘If

you don’t report this you’re a whore and I don’t believe you.’” The prosecutor opposed

admitting the texts, though acknowledging that N.S.’s “reluctance to report the crime, the

fact that she discussed it with the boyfriend and the boyfriend pushed her to report the

crime, I think that’s relevant.”

                                              7

             The conversation concerning the texts continued in general terms, as neither

party had yet produced them to be scrutinized in detail. The circuit court pondered that

             part of the text messages may be admissible. Anything that
             has to do with her prior sexual behavior is [barred] by the
             rape shield statute. The allegation that he put pressure on her
             to bring the charge is admissible. I don’t think that’s covered
             by the rape shield at all . . . . I don’t know if her alleged
             argument with the boyfriend is an issue in this case. So that
             might come in after we hear some testimony. But if it’s
             related directly to sex, I just think that it comes out as it
             relates only to her alleged boyfriend.

             After further discussion, the court expressed doubt that the text messages

would be admissible, but equivocated that “[i]t will depend on the testimony. Do not

hesitate to approach the bench if you think the door is opened. . . . These are rulings on

motions in limine, it’s subject to what happens in trial, whether it becomes more relevant

and more likely to come in.”

             The subject was next broached, again in generalities, not long after defense

counsel had begun his opening statement to the jury:

             [DEFENSE COUNSEL]: You’ll also hear about a series of
             text messages from an on-again-off-again boyfriend of the
             victim immediately after this, later that night into the
             morning. You will hear that this gentleman is the father of
             her child. They’re in an on-again-off-again relationship. You
             will hear that he does not believe her and indicates that he
             will not—

             [PROSECUTOR]:          Objection, Your Honor.         Can we
             approach? . . . .

             (at the bench) First off, I don’t know if this man has been
             subpoenaed to testify, number one. And number two, we
             touched on the fact that his opinion, whether she was telling
             the truth or not is inadmissible in trial. He just opened that

                                            8
              door. Whether or not he believes the victim is not an
              appropriate question (inaudible)—

              [DEFENSE COUNSEL]: —(inaudible) why he did not
              believe her. He would not believe her until she reported it.
              That is why he tells her to report it.

              THE COURT: As I indicated before, I think it’s admissible,
              but whatever else might come out of your mouth may not be.
              But that is.

              [PROSECUTOR]: It’s admissible to ask a witness whether
              they do or do not believe allegations made by a victim?

              THE COURT: No. Did he pressure her to testify or report
              this incident to the police is admissible.

              [PROSECUTOR]: I agree with what you just said. He just
              said here how this man didn’t believe her. That’s completely
              different than where he pressures her. I disagree that that’s
              admissible.

              [DEFENSE COUNSEL]: If I can get the exact text message
              he sent, that message said that I would believe you if you
              report this. He calls her a vulgar name and says until you
              report this—

              THE COURT: Okay. I don’t think that you’re permitted to
              get into all that. You are able to get into the fact of the
              pressure he applied to her, that I’m going [to] find admissible
              evidence.

(emphasis added). Later, during the State’s examination of N.S., the prosecutor elicited

that she had received text messages in which Shepard had used “very vulgar terms” to

pressure her to report the assault to the police. At that point, counsel for Varlas asked to

approach the bench, where the following colloquy ensued:

              [DEFENSE COUNSEL]: Your honor, I wanted to get a
              clarification I believe the text messages from Mr. Shepard are
              not hearsay, because I’m not going to be offering them for the
              truth. They’ll be offered for why she may have reported it. I

                                             9
              believe I should be able to get into the exact substance of
              those text messages and I wanted to get a ruling on that before
              we did that. . . .

              THE COURT: He wants to go further.

              [PROSECUTOR]: Yes. He wants put in specifically that
              he’s calling her a slut and that he’s saying things like that in
              the text message, which is blatantly being done to try to
              embarrass and to—which is the whole point of this evidence
              not coming in. She already answered that he was putting
              pressure on her. If he wants to follow up and ask a question
              that she doesn’t want to answer—the only reason [you] did
              this was because he pressured you, that’s one thing. The text
              messages don’t add any light to that.

              [DEFENSE COUNSEL]: It does to the amount of pressure
              that he was putting on her.

              THE COURT: I think that there’s already been testimony to
              the effect that he used foul language when he was putting the
              pressure on her. I think that’s enough.

              [DEFENSE COUNSEL]: Okay. Note my objection, please.

(emphasis added).

              Among the other witnesses testifying for the prosecution was Timothy

Robertson, Jr., the police officer assigned to investigate the matter by the Follansbee

Police Department. Officer Robertson’s testimony had adhered strictly to the facts of the

investigation until the prosecutor asked him, “In your experience and training in handling

these types of matters, is it unusual for sexual assault victims to be reluctant in reporting

of sexual assault?”    Defense counsel objected to the question, contending that no

evidentiary foundation had been established concerning the officer’s experience and

training that would permit him to answer.



                                             10

              The circuit court acknowledged the objection and invited the prosecutor to

have the witness elaborate. The prosecutor complied by eliciting from Officer Robertson

that he had received relevant training from the West Virginia State Police, and that he had

previously investigated one other sexual assault. Defense counsel renewed the objection

challenging Officer Robertson’s expertise, but the circuit court determined that “he can

testify as an expert as to what he has learned in class, and I’m going to permit that.

Keeping in mind this is not his personal experience. It’s what he’s been told by someone

during training.” Thereafter, Officer Robertson told the jury that “[i]n the training we

were administered, they advised us that most sexual assault victims never come forward,

they’re too ashamed or embarrassed.”

              Varlas testified in his own defense, admitting that he had sexual intercourse

with N.S., but insisting that the entire encounter was consensual. At the close of all the

evidence admitted during the two-day trial, the jury was instructed and deliberated for

about two hours before finding Varlas guilty of both counts as alleged in the indictment.

Varlas timely moved for a new trial, maintaining that Shepard’s text messages had

erroneously been excluded. The motion set forth the messages in their entirety for the

first time.

              The circuit court declined to grant Varlas’s motion, explaining in its

sentencing order of January 5, 2015, “that the denial of the admission of the text

messages into this trial, as outlined on the record, was appropriate, reaffirming its

previous rulings and denying the defendant’s request for a new trial based upon the

failure to admit the same.” Varlas was thereafter sentenced to one to three years in prison

                                            11

on his conviction of attempted first-degree sexual abuse, as set forth in Count Two of the

indictment, with a consecutive term of ten to twenty-five years on the Count One

conviction of second-degree sexual assault. The circuit court suspended the longer term,

however, instead imposing five years’ probation and requiring Varlas to register as a

sexual offender for ten years.

              Varlas now appeals his convictions, contending that Shepard’s text

messages were excluded in error, and that Officer Robertson was improperly permitted to

offer expert testimony concerning rape trauma syndrome.3


                             II. STANDARD OF REVIEW

              “A trial court’s evidentiary rulings, as well as its application of the Rules of

Evidence, are subject to review under an abuse of discretion standard.” See Syllabus

Point 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998). An evidentiary

ruling exceeding the circuit court’s discretion does not require that the defendant’s

conviction be disturbed, however, if the resulting error is harmless. See W.Va. R. Crim.

P. 52(a) (“Any error, defect, irregularity, or variance which does not affect substantial

rights shall be disregarded.”). An error impinges on the defendant’s substantial rights if it

is prejudicial, that is, if it “affected the outcome of the proceedings in the circuit court,


              3
               In State v. McCoy, 179 W.Va. 223, 226, 366 S.E.2d 731, 734 (1988), we
explained that “rape trauma syndrome” is a term used to “describe certain physical and
emotional symptoms experienced by rape victims,” the acute phase of which is
“characterized by certain physical and emotional reactions, including fear, humiliation,
anger, revenge, and self-blame.”


                                             12

and the defendant rather than the prosecutor bears the burden of persuasion with respect

to prejudice.” Syllabus Point 9, in part, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114

(1995). Further, we held in Syllabus Point 4 of State v. Blake, 197 W.Va. 700, 478

S.E.2d 550 (1996) that:

                    Assessments of harmless error are necessarily content-
             specific. Although erroneous evidentiary rulings alone do not
             lead to automatic reversal, a reviewing court is obligated to
             reverse where the improper exclusion of evidence places the
             underlying fairness of the entire trial in doubt or where the
             exclusion affected the substantial rights of a criminal
             defendant.


                                         III.

                                      ANALYSIS


                                  A. Shepard’s Texts


             Constitutionally, “[t]his Court has plenary authority to promulgate rules of

procedure, which have the force and effect of law.” State v. Wallace, 205 W.Va. 155,

160, 517 S.E.2d 20, 25 (1999). See also, W.Va. Const., Art. VIII, § 3 (“The court shall

have power to promulgate rules for all cases and proceedings, civil and criminal, for all

of the courts of the state[.]”); Louk v. Cormier, 218 W.Va. 81, 93, 622 S.E.2d 788, 800

(2005) (“Promulgation of rules governing litigation in the courts of this State rests

exclusively with this Court.”). Because of this constitutional power, “[t]he West Virginia

Rules of Evidence remain the paramount authority in determining the admissibility of

evidence in circuit courts.” Syllabus Point 7, in part, State v. Derr, 192 W.Va. 165, 451

S.E.2d 731 (1994). A rule of evidence promulgated by this Court “has the effect of a

statute in matters of procedure and supersedes any procedural statute which conflicts with

                                           13

the rule.” State ex rel. Wilson v. County Court of Barbour County, 145 W.Va. 435, 442,

114 S.E.2d 904, 909 (1960).

             This appeal concerns Rule 412 of the West Virginia Rules of Evidence.

Rule 412 “is intended to provide the standard for the introduction of evidence of a

victim’s sexual history.” W.Va. R. Evid. 412 cmt. The comments to the Rule state it was

adopted by this Court to “supersede[] the rape shield statute, W.Va. Code § 61-8B-11, to

the extent that the statute is in conflict with the rule.” Id.4 Accordingly, we now hold

             4
                 W.Va. Code § 61-8B-11 [1986] provides:

                    (a) In any prosecution under this article in which the
             victim's lack of consent is based solely on the incapacity to
             consent because such victim was below a critical age,
             evidence of specific instances of the victim's sexual conduct,
             opinion evidence of the victim's sexual conduct and
             reputation evidence of the victim's sexual conduct shall not be
             admissible. In any other prosecution under this article,
             evidence of specific instances of the victim's prior sexual
             conduct with the defendant shall be admissible on the issue of
             consent: Provided, That such evidence heard first out of the
             presence of the jury is found by the judge to be relevant.

                    (b) In any prosecution under this article evidence of
             specific instances of the victim's sexual conduct with persons
             other than the defendant, opinion evidence of the victim's
             sexual conduct and reputation evidence of the victim's sexual
             conduct shall not be admissible: Provided, That such evidence
             shall be admissible solely for the purpose of impeaching
             credibility, if the victim first makes his or her previous sexual
             conduct an issue in the trial by introducing evidence with
             respect thereto.

                    (c) In any prosecution under this article, neither age
             nor mental capacity of the victim shall preclude the victim
             from testifying.

                                                                            (continued . . .)
                                            14

that Rule 412 of the West Virginia Rules of Evidence provides the standard for the

introduction at trial of a victim’s sexual history, and it supersedes W.Va. Code § 61-8B­

11 [1986] to the extent that the statute is in conflict with the rule.

              The primary purpose of Rule 412 is “to safeguard the alleged victim against

the invasion of privacy, potential embarrassment and sexual stereotyping that is

associated with public disclosure of intimate sexual details and the infusion of sexual

innuendo into the factfinding process.” Id. See also, State v. Guthrie, 205 W.Va. 326,

339, 518 S.E.2d 83, 96 (1999) (observing that rape shield law is designed “to protect the

victims of sexual assault from humiliating and embarrassing public fishing expeditions

into their sexual conduct; to overcome victims’ reluctance to report incidents of sexual

assault; and to protect victims from psychological or emotional abuse in court as the price

of their cooperation in prosecuting sex offenders”). The Rule excludes “evidence offered

to prove that a victim engaged in other sexual behavior.” W.Va. R. Evid. 412(a)(1).

              None of the text messages at issue detail N.S.’s past sexual history.

Shepard’s statements in those text messages do relate to sexual conduct, but between N.S.

and defendant Varlas; Rule 412 expressly permits the introduction of that evidence. See

W.Va. R. Evid. 412(b)(1)(B) (permitting, except where otherwise prohibited by section

(a)(3), “evidence of specific instances of a victim’s sexual behavior with respect to the



                     (d) At any stage of the proceedings, in any prosecution
              under this article, the court may permit a child who is eleven
              years old or less to use anatomically correct dolls,
              mannequins or drawings to assist such child in testifying.


                                               15

person accused of the sexual misconduct, if offered by the defendant to prove consent or

if offered by the prosecutor”); cf. Syllabus Point 1, Guthrie, 205 W.Va. at 330, 518

S.E.2d at 87 (observing that, pursuant to the rape shield statute, only the victim’s sexual

conduct “with persons other than the defendant” is excluded). We therefore find that

under Rule 412, the circuit court abused its discretion when it prevented defendant Varlas

from admitting and using the text messages.

              We further conclude that the circuit court’s exclusion of the text messages

warrants a new trial. The analysis boils down to whether the erroneous exclusion of so

much relevant evidence can be ignored as not prejudicing the defendant. In that vein, the

number of messages must be considered along with their substance, as an important part

of Varlas’s defense was to illustrate the intensity of the barrage that Shepard directed at

N.S. to report the incident. Of course, even had the twenty-nine messages been admitted,

the jury could still have found Varlas guilty based solely on the testimony of N.S.

Beyond the mere sufficiency of the evidence, however, we are required by the applicable

standard of review, as expressed in Blake, to gauge the prejudice to Varlas attendant to

the exclusion.

              We find that the circuit court’s exclusion of the subject text messages

placed the underlying fairness of the entire trial in doubt, because Varlas was entitled to

have the jury informed of the extent to which Shepard may have pressured N.S. to report

the incident as a crime. On direct examination, N.S. agreed with the prosecutor’s leading

questions that Shepard had sent her “a series of text messages,” that he was “putting

pressure” on her to report what had occurred, and that he was “using very vulgar terms”

                                            16

toward that end. From such a vague account, the jury could hardly have divined the

avalanche of twenty-nine texts and their insistent tone; the circuit court’s ruling thus

resulted in an important aspect of the case being grossly deemphasized.               Where a

defendant’s conviction depends predominantly on the jury’s assessment of the victim’s

credibility and the excluded evidence bears on that issue, the potential for prejudice is at

its zenith. See State v. Jonathan B., 230 W.Va. 229, 240–41, 737 S.E.2d 257, 268–69

(2012) (exclusion of victim’s notebook in which she documented prior sexual intercourse

without mentioning defendant was not harmless given that State’s case relied “almost

completely” on the victim’s testimony).

               Because the essential evidence at issue was improperly excluded from the

jury’s consideration at the first trial of this matter, a new trial is necessary.



                             B. Officer Robertson’s Testimony

               While not strictly necessary to our decision to reverse Varlas’s convictions,

we briefly address the issue of Officer Robertson’s testimony insofar as it is reasonably

likely to recur at retrial. The prosecution did not offer Officer Robertson as an expert.

Still, the circuit court remarked in front of the jury that he could “testify as an expert as to

what he has learned in class.” To the contrary, Officer Robertson’s minimal training and

his prior experience amounting to a single case was insufficient as a matter of law to

qualify him to offer expert testimony regarding rape trauma syndrome. See State v.

M.M., 163 W.Va. 235, 242, 256 S.E.2d 549, 554 (1979) (“limited and superficial contact”

with subject area failed to evidence requisite “significant skill and knowledge” required

                                               17

to testify as an expert). Additionally, unless a witness has been qualified as an expert, the

witness is specifically precluded from offering an opinion “based on scientific, technical,

or other specialized knowledge[.]” W.Va. R. Evid. 701.

              Officer Robertson was thus left to testify as a lay witness to give his

account of what he had been told in police training about sexual assault victims in

general. That testimony was unadorned hearsay. It was also irrelevant to the situation at

hand, given the lack of any specific evidence that N.S. herself had suffered severe

emotional trauma from the rape, or that the trauma had manifested itself in her reluctance

to report the same. See M.M., 163 W.Va. at 242, 256 S.E.2d at 554 (remarking that even

testimony by qualified experts is inadmissible where opinions are “not founded on a

sufficient knowledge of [the subject’s] background”).        To be sure, and as we have

recognized time and again, our rape shield protections were devised in part to overcome

the demonstrated phenomenon that victims of sexual assault are often reluctant to come

forward and notify the authorities. In individual prosecutions, however, due process

demands that courts necessarily deal with specifics and not with generalities.

              Ordinary jurors, in view of their collective experience and the exercise of

their common sense, would almost certainly be familiar with the general reticence of

sexual assault victims, even had Officer Robertson not testified on the subject.

Moreover, the prosecutor did not overtly attempt to link the general proclivities of sexual

assault victims to N.S.’s particular reaction, a conclusion that necessarily can be drawn

only by an expert. We are nonetheless troubled by the apparent efforts to imply such a

connection to explain N.S.’s hesitation in reporting the particular conduct on trial. If, on

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retrial, the State wishes to demonstrate that the incident itself played a significant role in

N.S.’s reluctance to report, it must do so through competent, expert evidence derived

from and pertinent to N.S. herself.




                                   IV. CONCLUSION

              We reverse the circuit court’s order of January 5, 2015, convicting Varlas

of the two charges set forth in the indictment. The matter is remanded to the circuit court

for a new trial and such other proceedings as may be consistent with this opinion.

              The Clerk is further directed to issue the mandate in this action forthwith.

                                                                   Reversed and Remanded.




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