                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                          FILED
                                                                                 October 16, 2015
vs) No. 14-1153 (Hancock County 13-F-136 & 11-F-45)                             RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
Delbert Reed,

Defendant Below, Petitioner



                              MEMORANDUM DECISION
        Petitioner Delbert Reed, by counsel P. Zachary Stewart, appeals the order of the Circuit
Court of Hancock County, entered on October 10, 2014, sentencing him to serve a term of ten to
twenty years in the custody of the West Virginia Division of Corrections upon his conviction of
sexual abuse by a custodian in violation of West Virginia Code § 61-8D-5, and a term of twenty-
five to one-hundred years in the custody of the West Virginia Division of Corrections upon his
conviction of sexual assault in the first degree in violation of West Virginia Code § 61-8D-5,
subsequent to a jury trial. Respondent State of West Virginia appears by counsel David A.
Stackpole.

       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 order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.

        In February of 2011, petitioner pled “no contest” to an information charging him with
unlawful assault (Docket No. 11-F-45). Pursuant to the plea agreement, the circuit court held the
plea in abeyance and deferred acceptance of the plea as long as petitioner abided by a three-year
period of probation. The agreement provided that if petitioner’s probationary period was
successful, he would be allowed to withdraw his plea and instead enter a plea to the lesser-
included misdemeanor offense of battery. Any violation of the terms of the agreement would
nullify that benefit. The terms of petitioner’s probation were the general conditions established
by law, including the condition that petitioner could not, during the term of his probation, violate
any criminal law of this or any other state or of the United States. Petitioner’s probationary
period began in February of 2011 and extended into February of 2014.

        In the midst of his probationary period, in September of 2013, petitioner was indicted on
one count of sexual abuse by a custodian (victim: D.S., male, age 3); one count of sexual assault
in the first degree (victim: D.S.), which count alleged various occurrences in a one-and-a-half
month period; one count of sexual abuse by a custodian (victim: J.M., female, age 6), also

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alleging various occurrences in a three-month period; one count of sexual assault in the first
degree (victim: W.O., female, who was between the ages of 11 and 14); and one count of sexual
abuse by a custodian (victim: W.O.), also alleging various occurrences. Subsequent to the issue
of this indictment, the Hancock County Adult Probation Office filed a petition for revocation of
petitioner’s probation. The circuit court conducted a hearing on March 26, 2014, at which time
petitioner’s counsel moved to dismiss the petition because the hearing was delayed. The court
denied the motion to dismiss and granted the petition for revocation.

        Petitioner filed a motion to sever the charges in the indictment, and the court granted his
motion, severing Counts 1 and 2 from Counts 3, 4, and 5. The State dismissed Count 3. After
petitioner was convicted of Counts 4 and 5 subsequent to a jury trial in May of 20141, the court
conducted a hearing to set a trial date on Counts 1 and 2, the charges at issue in this appeal.
Later, on July 28, 2014, petitioner filed a motion to disqualify the Hancock County Office of the
Prosecuting Attorney, alleging that, on the date of the hearing to set a trial date, he observed
Assistant Prosecuting Attorney Jack Wood, formerly petitioner’s public defender who negotiated
the plea agreement on the assault charges of No. 11-F-45, point to a folder in the possession of
the assistant who was prosecuting petitioner’s case. The circuit court conducted a hearing on the
motion to disqualify a few days later, and denied the motion, based on Mr. Wood’s testimony
that he had no involvement in the prosecution of petitioner. Mr. Wood testified that at the time
petitioner observed his interaction with the other prosecutor, Mr. Wood was in the courtroom to
address other cases on the docket. At the same hearing in which the court addressed the motion
to disqualify, the court ruled that W.O., the victim who was the subject of Counts Four and Five,
could testify pursuant to Rule 404(b) of the West Virginia Rules of Evidence in petitioner’s trial
on Counts One and Two, because her testimony was admissible to show lustful disposition.

       At trial, D.S.’s grandmother testified that she left D.S. in the care of petitioner, her
boyfriend, in March of 2013, and D.S.’s mother testified that the following day, D.S. held his
buttocks and cried, causing her to take him to the doctor. D.S. was referred to a specialist, who
determined that D.S. suffered a rectal tear caused by penetration. In addition to the testimony
about D.S., the mother of W.O. testified that petitioner touched her daughter inappropriately, and
W.O. testified about various occasions on which petitioner touched her breasts or vaginal area or
exposed his penis to her. Petitioner was found guilty of both counts of the indictment and was
sentenced as described above. This appeal followed.

        On appeal, petitioner asserts three assignments of error. First, he argues that the circuit
court violated petitioner’s due process rights by failing to provide a prompt hearing on the
petition to revoke probation. Second, he argues that the circuit court erred in failing to disqualify
the Hancock County Prosecutor’s Office from representing the State because petitioner is a
former client of Hancock County Assistant Prosecutor Jack Wood, and Mr. Wood was not
adequately screened from his case. Third, petitioner argued that the circuit court erred in
permitting W.O. to testify as a 404(b) witness.

       We begin with petitioner’s first assignment of error, in which he argues that the circuit

       1
        Petitioner appealed this conviction, and this Court affirmed. State v. Reed, No. 14-0728
(W.Va. Sup. Ct. of Appeals, June 22, 2015)(memorandum decision).
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court permitted an inordinate delay of a hearing on the State’s petition for revocation of
probation. In accordance with Syllabus Point 1 of State v. Duke, 200 W.Va. 356, 489 S.E.2d 738
(1997), we note that:

       [w]hen reviewing the findings of fact and conclusions of law of a circuit court
       sentencing a defendant following a revocation of probation, we apply a three-
       pronged standard of review. We review the decision on the probation revocation
       motion under an abuse of discretion standard; the underlying facts are reviewed
       under a clearly erroneous standard; and questions of law and interpretations of
       statutes and rules are subject to a de novo review.

        The chronology of events leading to the revocation hearing does not evince any due
process violation or any outcome offensive to our standard of review. Petitioner was held on the
charges from the sexual offenses indictment (Docket No. 13-F-136), and not for violation of the
probationary terms (Docket No. 11-F-45). A hearing on the petition for revocation was set for
October 15, 2013. At the time scheduled for that hearing, petitioner’s appointed public defender
advised the court that the public defender’s office had a conflict of interest. The circuit court
appointed new counsel. Later, on December 4, the State forwarded a notice of hearing, advising
the hearing would be conducted on December 16. Petitioner then filed, on December 12, a
motion to continue the hearing, stating that he had not had sufficient notice of the hearing and
could not be adequately prepared in the time allotted. The circuit court later, in January of 2014,
set a hearing date of March 13, 2014, and the State requested a continuance to accommodate an
out-of-state witness’s schedule. Petitioner did not object. In consideration of these facts, we
agree with the State that a portion of the delay of proceedings was occasioned by petitioner, and
petitioner suffered no prejudice from the delay.

        We turn to petitioner’s second assignment of error, in which he argues that the circuit
court failed to disqualify the Hancock County Prosecuting Attorney’s Office from his case based
on an assistant’s former representation of him. “‘A prosecuting attorney should recuse himself
from a criminal case if, by reason of his professional relations with the accused, he has acquired
any knowledge of facts upon which the prosecution is predicated or closely related, though the
consultations had with the accused were gratuitous and done in good faith.’ Syl. Pt. 5, State v.
Britton, 157 W.Va. 711, 203 S.E.2d 462 (1974).” State ex rel. Tyler v. MacQueen, 191 W. Va.
597, 598, 447 S.E.2d 289, 290 (1994). However,

       [p]ursuant to Rule 1.11 of the West Virginia Rules of Professional Conduct, the
       fact that an assistant prosecuting attorney previously represented a criminal
       defendant while in private practice does not preclude the prosecutor’s office as a
       whole from participation in further prosecution of criminal charges against the
       defendant, provided that the circuit court has held a hearing on any motion to
       disqualify filed on this basis and determined that the assistant prosecutor has
       effectively and completely been screened from involvement, active or indirect, in
       the case.

Syl. Pt. 2, id. at 598, 447 S.E.2d at 290. This Court has indicated that whether a trial court should
disqualify a prosecutor, or his office, from prosecuting a criminal defendant is reviewed under an

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abuse of discretion standard. State v. Keenan, 213 W.Va. 557, 584 S.E.2d 191 (2003) accord
State v. Jessica Jane M., 226 W.Va. 242, 700 S.E.2d 302 (2010). Petitioner’s only evidence
concerned his observation that the assistant prosecuting attorney pointed at a file. The evidence
shows that Mr. Wood was present at the time of the revocation hearing to address another case
on the court’s docket, and Mr. Wood offered unrebutted testimony that he had no involvement
with petitioner’s prosecution. We find that the circuit court conducted the requisite hearing and
did not abuse its discretion.

         Finally, we turn to petitioner’s third assignment of error, in which he argues that the
circuit court erred in permitting the Rule 404(b)2 testimony of W.O. The standard of review for a
trial court’s admission of evidence pursuant to Rule 404(b) involves a three-step analysis. First,
we review for clear error the trial court’s factual determination that there is sufficient evidence to
show the other acts occurred. Second, we review de novo whether the trial court correctly found
the evidence was admissible for a legitimate purpose. Third, we review for an abuse of discretion
the trial court’s conclusion that the “other acts” evidence is more probative than prejudicial under
Rule 403. See State v. Dillon, 191 W.Va. 648, 661, 447 S.E.2d 583, 596 (1994); TXO Production
Corp. v. Alliance Resources Corp., 187 W.Va. 457, 419 S.E.2d 870 (1992), aff’d, 509 U.S. 443,
113 S.Ct. 2711, 125 L.Ed.2d 366 (1993); State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986).
Petitioner was convicted of offenses against W.O. prior to her offer of testimony in the present
case, and there is no error in the circuit court’s determination that those offenses occurred. We
consider this assignment of error in the context of the second and third steps of the process set
forth above.

        Petitioner’s sole argument is that W.O. is a pubescent female and D.S., the victim in this
case, is a preschool-aged boy. Petitioner reasons that the allegations in this case—including that
he anally penetrated the younger, male victim—were “substantially different” from those
involving W.O., who testified that petitioner touched her inappropriately. However, as petitioner
himself acknowledges, State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990), our
seminal case on the admission of Rule 404(b) evidence to show lustful discrimination toward



2
    Rule 404 (b) of the West Virginia Rules of Evidence provides:

         Crimes, wrongs, or other acts.
         (1) Prohibited uses. Evidence of a crime, wrong, or other act is not admissible to
         prove a person's character in order to show that on a particular occasion the
         person acted in accordance with the character.
         (2) Permitted uses; Notice in a criminal case. This evidence may be admissible for
         another purpose, such as proving motive, opportunity, intent, preparation, plan,
         knowledge, identity, absence of mistake, or lack of accident. Any party seeking
         the admission of evidence pursuant to this subsection must:
         (A) provide reasonable notice of the general nature and the specific and precise
         purpose for which the evidence is being offered by the party at trial; and
         (B) do so before trial--or during trial if the court, for good cause, excuses lack of
         pretrial notice.


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children “does not discern between ages and genders of alleged victims.” In fact, we held in
Edward Charles L. that

       [c]ollateral acts or crimes may be introduced in cases involving child sexual
       assault or sexual abuse victims to show the perpetrator had a lustful disposition
       towards the victim, a lustful disposition towards children generally, or a lustful
       disposition to specific other children provided such evidence relates to incidents
       reasonably close in time to the incident(s) giving rise to the indictment. To the
       extent that this conflicts with our decision in State v. Dolin, 176 W.Va. 688, 347
       S.E.2d 208 (1986), it is overruled.

Syl. Pt. 2, id. at 643, 398 S.E.2d at 125 (emphasis supplied). Petitioner has offered no evidence
offensive to this long-articulated standard, and we conclude that the evidence was admissible for
a legitimate purpose. For these reasons, we further decline to find that the circuit court abused its
discretion in determining that the evidence was more probative than prejudicial.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.

ISSUED: October 16, 2015

CONCURRED IN BY:

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




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