        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                  January 2015 Term                FILED
                                   _______________
                                                                April 9, 2015
                                                                released at 3:00 p.m.
                                     No. 14-0146                RORY L. PERRY II, CLERK
                                   _______________            SUPREME COURT OF APPEALS
                                                                  OF WEST VIRGINIA


                      DAVID BALLARD, WARDEN,
               MOUNT OLIVE CORRECTIONAL COMPLEX;

                AND JIM RUBENSTEIN, COMMISSIONER,

               WEST VIRGINIA DIVISION OF CORRECTIONS,

                      Respondents Below, Petitioners


                                           v.

                              RICHARD LEE HUNT, JR.,

                              Petitioner Below, Respondent



                Appeal from the Circuit Court of Calhoun County

                  The Honorable Thomas C. Evans, III, Judge

                               Case No. 06-C-22


                                      REVERSED



                               Submitted: March 10, 2015

                                  Filed: April 9, 2015


Patrick Morrisey,                                G. Ernest Skaggs, Esq.
Attorney General                                 Skaggs & Skaggs
Shannon Frederick Kiser,                         Fayetteville, West Virginia
Assistant Attorney General                       Counsel for the Respondent
Charleston, West Virginia
Counsel for the Petitioners

JUSTICE KETCHUM delivered the Opinion of the Court.

JUSTICE LOUGHRY, joined by CHIEF JUSTICE WORKMAN, concurs, in part,
and dissents, in part, and reserves the right to file a separate Opinion.
                               SYLLABUS BY THE COURT



         1. “Collateral 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.” Syl. pt. 2, State v. Edward Charles L., 183 W.Va.

641, 398 S.E.2d 123 (1990).



         2. The opinion evidence of an expert witness proffered by the State in a criminal

prosecution, merely to show that the accused has the character trait of a pedophile under the

Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric

Association, is inadmissible pursuant to Rule 404(a) of the West Virginia Rules of Evidence

to prove that on a particular occasion the accused acted in accordance with that character

trait.



         3. “Errors involving deprivation of constitutional rights will be regarded as harmless

only if there is no reasonable possibility that the violation contributed to the conviction.” Syl.

pt. 20, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).
Ketchum, Justice:



       The petitioners, the Warden of the Mount Olive Correctional Complex (the “Warden”)

and the Commissioner of the West Virginia Division of Corrections (the “Commissioner”),

appeal from the January 21, 2014, order of the Circuit Court of Calhoun County (the “habeas

court”) which granted habeas relief to the respondent, Richard Lee Hunt, Jr. (“Hunt”). The

habeas court vacated Hunt’s convictions and sentence for sexual abuse in the first degree and

sexual abuse by a custodian and granted Hunt a new trial.



       Hunt’s convictions concerned offenses committed against an eleven year old boy. The

sole basis for the relief granted by the habeas court was the State’s references to Hunt during

the underlying trial as a pedophile. According to the habeas court, the references, made by

the State’s expert witness (and by the prosecutor), constituted inadmissible character

evidence and denied Hunt the right to a fair trial.



       We find that the references to pedophilia, while improper, were harmless error. The

appendix record before us includes a transcript of Hunt’s underlying trial. A review thereof

makes clear that the evidence of the State overwhelmingly established Hunt’s guilt of the

crimes charged.




                                              1

       Accordingly, the January 21, 2014, order of the habeas court is reversed, and Hunt’s

convictions and sentence are reinstated.



                                          I.

                            Factual and Procedural History


       On May 4, 1999, a Calhoun County grand jury returned a four-count indictment

charging Hunt with sex offenses against A. K., an eleven year old male.1 Counts one and two

alleged that Hunt committed sexual abuse in the first degree against A. K., in violation of

W.Va. Code, 61-8B-7 [1984]. Counts three and four alleged that Hunt committed sexual

abuse by a custodian against A. K. in violation of W.Va. Code, 61-8D-5(a) [1998].



       The indictment alleged that the sexual offenses occurred between September 1998 and

December 1998. Hunt at that time was twenty-four years old and worked an extensive,

evening newspaper route which included various rural areas. Hunt drove the route in his

1993 Ford Festiva and delivered the newspapers throughout the night. According to the

State, Hunt invited A. K. to join him from time to time. Hunt allegedly committed the sexual

offenses against A.K. in the car.




       1
         This Court follows its past practice in sensitive matters and shall refer to the
names of certain individuals herein by initials. See State v. Jason H., 215 W.Va. 439, 441
n. 2, 599 S.E.2d 862, 864 n. 2 (2004). See also Rule 40(e), Rules of Appellate Procedure
West Virginia Supreme Court of Appeals.

                                             2

        Hunt’s trial began on May 16, 2000, and concluded three days later. During opening

statements, the prosecutor referred to Hunt as a pedophile. The prosecutor further stated,

during opening statements, that Hunt “has a lustful disposition toward young children” and

that, “consistent with being a pedophile,” Hunt participated in only the minimum amount of

therapy and counseling while incarcerated for a previous sexual offense involving a young

girl.



        The State called A. K., thirteen years old at the time of trial, who testified that he met

Hunt in September 1998; that Hunt sexually abused him in the car with Hunt’s penis while

on the newspaper route; and that, during a telephone call initiated by Hunt to A. K., Hunt

asked, “When are we gonna have sex again?” A. K.’s father, Michael K., testified that he

overheard the telephone conversation. The State presented evidence that A. K.’s parents,

Michael K. and Denise K., reported their suspicions that A. K. had been sexually abused by

Hunt to the State Police. Moreover, A. K.’s parents took A. K. to a psychologist, Michael

Carter, for treatment and counseling. In addition, the State presented evidence that Hunt had

been convicted upon a plea of guilty, and was imprisoned, for the 1994 sexual abuse of his

nine year old stepsister.



        Finally, the State’s evidence included the testimony of Lonnie Kishbaugh, who

testified as an expert in the treatment and counseling of sex offenders. Hunt had been under


                                                3

Kishbaugh’s counseling at the Denmar Correctional Center in Hillsboro, West Virginia,

during Hunt’s incarceration concerning the abuse of his stepsister. Kishbaugh discussed the

term pedophilia for the jury and indicated that Hunt had undergone minimal counseling while

at Denmar. Kishbaugh further testified that there is “a diagnostic impression on file at

Denmar” (emphasis added) stating that Hunt is a pedophile.2 Kishbaugh’s testimony was

allowed by the trial court over Hunt’s objection. During the State’s closing, the prosecutor

referred to the minimal counseling and the diagnostic impression that Hunt is a pedophile.



       Hunt took the stand at trial and denied committing any offenses against A. K. In

support, Hunt testified that various people accompanied him and A. K. on the newspaper

route and that, consequently, he had never been alone with A. K. In addition, Hunt asserted

that A. K. was often mistreated by A. K.’s father and that A. K. had been pressured at home

into making false statements against Hunt. Finally, acknowledging the prior conviction

concerning his stepsister, and his resulting registration as a sex offender, Hunt denied that

the offense against his stepsister took place.




       2
          In discussing the term pedophilia, Kishbaugh cited the Diagnostic and Statistical
Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association.
Both the 1994 Fourth Edition and the 2000 Revised Fourth Edition set forth diagnostic
criteria for pedophilia. Among the criteria is the following, referenced in Kishbaugh’s
testimony: “Over a period of at least 6 months, recurrent, intense sexually arousing
fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child
or children (generally age 13 years or younger).

                                                 4

       The jury found Hunt guilty on all four counts: two counts of sexual abuse in the first

degree and two counts of sexual abuse by a custodian. On July 28, 2000, Hunt was sentenced

to serve consecutive terms in the penitentiary. Hunt’s direct appeal to this Court was

subsequently refused.


                                         II.

                             The Habeas Corpus Proceeding


       On September 27, 2006, Hunt filed a pro se petition for a writ of habeas corpus in the

Circuit Court of Calhoun County (the “habeas court”). An amended petition was filed after

he was appointed counsel. Hunt alleged that his federal and State due process rights were

violated because of unfair prejudice resulting from the references to him, at trial, as a

pedophile.3



       In September 2009, the habeas court conducted an omnibus hearing. Thereafter, by

order entered on January 21, 2014, the court granted relief and vacated Hunt’s convictions

and sentence.




       3
          U.S. Const. amend. V and amend. XIV provide that no person shall be deprived
of life, liberty or property without due process of law. Similarly, W.Va. Const. Art. III, §
10, provides that no person shall be deprived of life, liberty or property without due
process of law.

                                             5

      The sole basis for the habeas court’s ruling concerned the testimony of Kishbaugh,

(as well as the statements of the prosecutor) that Hunt is a pedophile. The habeas court

determined that Kishbaugh’s testimony constituted inadmissible character evidence under

Rule 404(a) of the West Virginia Rules of Evidence.4 The January 21, 2014, order states:


             To be diagnosed as a “pedophile” is not evidence of a prior bad act or
      crime but evidence of the character (propensity) of the Petitioner to engage in
      particular conduct. * * * This evidence was also highly prejudicial to the
      Petitioner and not necessary for the legitimate purposes of the State. The State
      had already proven Petitioner’s prior conviction for sexual abuse of a child
      [and] the fact that Petitioner was imprisoned for the prior offense.



      A stay of Hunt’s release from prison, pending this appeal, has been granted. The

Warden and the Commissioner ask this Court to reverse the January 21, 2014, order and

reinstate Hunt’s convictions and sentence.




      4
          Rule 404(a) of the West Virginia Rules of Evidence provides, in part:

              (a) Character evidence generally. - Evidence 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[.]

     It should be noted that Rule 404 of the West Virginia Rules of Evidence was
amended in 2014. The 2014 version of the Rule is not applicable in this case.

                                              6

                                         III.

                    Standards of Review Concerning Habeas Corpus


       Syllabus point 1 of Mathena v. Haines, Warden, 219 W.Va. 417, 633 S.E.2d 771

(2006), states:


              In reviewing challenges to the findings and conclusions of the circuit
       court in a habeas corpus action, we apply a three-prong standard of review.
       We review the final order and the ultimate disposition under an abuse of
       discretion standard; the underlying factual findings under a clearly erroneous
       standard; and questions of law are subject to a de novo review.


Accord syl. pt. 1, Ballard, Warden, ex rel. Mount Olive Correctional Center v. Meckling, No.

14-0245 (W.Va. April 9, 2015); syl. pt. 1, Ballard, Warden v. Dilworth, 230 W.Va. 449, 739

S.E.2d 643 (2013). See W.Va. Code, 53-4A-9 [1967] (providing for judicial review), of the

West Virginia Post-Conviction Habeas Corpus Act.



                                             IV.

                                          Discussion


       The admission in evidence during Hunt’s underlying trial of his conviction of the 1994

sexual abuse of his nine year old stepsister is not contested in this appeal. Instead, the issue

before this Court concerns the testimony of the State’s expert witness, Lonnie Kishbaugh,

(as well as the statements of the prosecutor) that Hunt is a pedophile. The appendix record

indicates that both the 1994 conviction and Kishbaugh’s references to Hunt as a pedophile

were admitted at trial under Rule 404(b) of the West Virginia Rules of Evidence. Rule 404(b)


                                               7

states:


                 (b) Other crimes, wrongs, or acts. - Evidence of other crimes, wrongs,
          or acts is not admissible to prove the character of a person in order to show
          that he or she acted in conformity therewith. It may, however, be admissible
          for other purposes, such as proof of motive, opportunity, intent, preparation,
          plan, knowledge, identity, or absence of mistake or accident, provided that
          upon request by the accused, the prosecution in a criminal case shall provide
          reasonable notice in advance of trial, or during trial if the court excuses pretrial
          notice on good cause shown, of the general nature of any such evidence it
          intends to introduce at trial.5



          Sexual offenses against children, however, are in a special category in relation to Rule

404(b), as this Court emphasized in our leading case, State v. Edward Charles L., 183 W.Va.

641, 398 S.E.2d 123 (1990).



          In Edward Charles L., the defendant was convicted of two counts of sexual assault

in the first degree and two counts of sexual abuse in the first degree. The victims were the

defendant’s four year old twin son and daughter. At trial, the State was permitted to make

reference to various unrelated sexual acts of the defendant. Some of the unrelated acts were

committed in front of the twins and included: masturbating in front of his son, exposing the

children to pornographic magazines and making the children listen to telephone calls the

defendant made to sex clubs. Noting that those acts occurred close in time to the offenses


          5
       The State argued that the diagnostic impression that Hunt is a pedophile was
admissible under Rule 404(b) to show motive and intent.

                                                   8

charged, this Court, in Edward Charles L., determined that the acts were admissible under

West Virginia Rule of Evidence 404(b), to show absence of mistake or accident. Moreover,

this Court concluded that the acts were “so interwoven with [the defendant’s] pattern of

conduct toward the children that they are part of the res gestae of the crimes charged.” 183

W.Va. at 649, 398 S.E.2d at 131.



       In Edward Charles L., the State was also permitted to make reference to unrelated

sexual acts of the defendant which indirectly involved the children, such as the defendant

ejaculating on underwear having been worn by his daughter. Considering those acts, along

with the sexual acts committed in front of the children, this Court found that the probative

value thereof outweighed any assertion of unfair prejudice.             Articulating a “lustful

disposition exception” to the general exclusion of such evidence, syllabus point 2 of Edward

Charles L. states, in part:


               Collateral 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.



(Emphasis added) Accord syl. pt. 3, State v. Parsons, 214 W.Va. 342, 589 S.E.2d 226

(2003); syl. pt. 3, State v. Lola Mae C., 185 W.Va. 452, 408 S.E.2d 31 (1991). See R. P.


                                               9

Davis, Annotation, Admissibility, in Prosecution for Sexual Offense, of Evidence of Other

Similar Offenses, 77 A.L.R.2d 841 (1961).6



       Edward Charles L. clearly establishes that a lustful disposition may be shown by

collateral acts or crimes. It does not stand for the proposition that opinion evidence or

comments by a prosecutor as to pedophilia are admissible to show a defendant likely engaged

in such conduct on a particular occasion.



       In Hunt’s underlying trial, the jury was given a limiting instruction stating (1) that

other acts committed by Hunt were not admitted as proof of his guilt under the indictment,

(2) that the evidence of prior sexual abuse could only be considered to show that Hunt had

a lustful disposition toward children, and (3) that any such evidence was not relevant to

Hunt’s character or to whether he is a bad person. Nevertheless, while Hunt’s conviction of

the 1994 sexual abuse of his nine year old stepsister was properly admitted in conformity

with Edward Charles L. and Rule 404(b), our case law has yet to address the situation where,

in a prosecution for sexual offenses committed against a child, an expert witness called by


       6
        The unrelated acts of the defendant in Edward Charles L. also included the
defendant’s frequent patting of the front of his pants and his masturbation after having
had sex with his wife. This Court found the admission of those matters to be error
because they had no relation to the defendant’s conduct toward the children. However,
this Court concluded, in Edward Charles L., that, in view of the conclusive effect of the
remaining evidence and the lack of unfair prejudice to the defendant, the error was
harmless.

                                             10

the State opined that the accused is a pedophile.



       As a preliminary matter, we note that the admissibility of testimony by an expert is a

matter within the discretion of the trial court. State v. McKinley, 234 W.Va. 143, 764 S.E.2d

303, 322 (2014); State v. Black, 227 W.Va. 297, 306-07, 708 S.E.2d 491, 500-01 (2010). See

Rule 702 of the West Virginia Rules of Evidence. Kishbaugh was employed as a therapist

at the Denmar Correctional Center. His qualifications for assessing sex offenders was largely

based on practical experience at Denmar. Although this Court finds no abuse of discretion

in allowing Kishbaugh to testify, Kishbaugh was not a licensed psychologist and had not

completed the course work required for a Masters Degree in psychology. Moreover, the

diagnostic impression of Hunt on file at Denmar, referred to during Kishbaugh’s testimony,

was not included in the appendix record before this Court. Kishbaugh’s testimony at trial

relating to Hunt was rather cursory and consisted largely of discussing the general nature of

pedophilia.



       Many of the cases from other jurisdictions concerning the terms pedophile and

pedophilia are limited, in context, to the sentencing stage in a criminal prosecution or to a

proceeding seeking to commit an offender to a mental health facility. However, in the

circumstances now before us, the more reasoned view is that the use of those terms by the

prosecution, merely to establish a character trait of the accused, is improper, but subject to


                                             11

a harmless error analysis. See State v. Person, 20 Conn.App. 115, 564 A.2d 626, 631 (1989)

(The defendant’s proffer of expert testimony on whether he fit the profile of a pedophile was

properly rejected, with the observation that a majority of the courts that have considered the

issue [of showing various profiles] “have rebuffed attempts on the part of the state as well

as the defendant to present testimony of this kind.”); State v. Floray, 715 A.2d 855, 858 n.

8 (Del.Super. 1997) (citing Person, supra, for the same principle); Phillips v. State, 589

So.2d 1360, 1362 (Fla.App.1st Dist. 1991) (The use of pedophile profile testimony as

substantive evidence of guilt is reversible error, but a harmless error analysis may be applied

in certain cases.); Knight v. State, 206 Ga.App. 529, 426 S.E.2d 1 (1992) (“There is no

authority for the admission of an expert opinion that the defendant who is on trial for sex

crimes against a child is or is not a pedophile.”); State v. Hester, 114 Idaho 668, 760 P.2d 27,

33 (1988) (“Using evidence of a person’s characteristics in the prosecution’s case in chief

simply to support the ultimate conclusion that he acted in conformance with those

characteristics in committing a crime, is not permissible.”); Dyer v. Commonwealth, 816

S.W.2d 647, 654 (Ky. 1991), overruled on other grounds by Baker v. Commonwealth, 973

S.W.2d 54 (Ky. 1998) (Concepts such as “pedophile” have no bearing on a criminal case,

except in relation to the accused’s mental condition at the time of the alleged offense, and

may not be used to convict or acquit without further testimony from an expert qualified in

the field “positively establishing that the condition is a recognized scientific entity, and then

tying the accused to this mental state.”); State v. Nelson, 331 S.C. 1, 501 S.E.2d 716, 719


                                               12

(1998) (citing cases from several states that have rejected character related testimony or

evidence showing that the defendant is a pedophile).7



       Upon those authorities and the facts before us, we hold that the opinion evidence of

an expert witness proffered by the State in a criminal prosecution, merely to show that the

accused has the character trait of a pedophile under the Diagnostic and Statistical Manual

of Mental Disorders of the American Psychiatric Association, is inadmissible pursuant to

Rule 404(a) of the West Virginia Rules of Evidence to prove that on a particular occasion the

accused acted in accordance with that character trait. However, where such evidence is

improperly admitted at trial, the error is subject to a harmless error analysis. In conjunction

with our holding, we note that comments by the prosecutor on such evidence are improper,

yet are also subject to a harmless error analysis.



       Consequently, this Court is in agreement with the habeas court Judge that the

prosecutor’s comments and the opinion evidence as to pedophilia were not admissible under

Rule 404(b) because they did not relate to collateral acts or crimes. They were solely related

to a character trait to engage in wrongful conduct. Therefore, the testimony of Kishbaugh


       7
        See generally Gregory G. Sarno, Annotation, Admissibility of Expert Testimony
as to Criminal Defendant’s Propensity Toward Sexual Deviation, 42 A.L.R.4th 937
(1985); Thomas M. Fleming, Annotation, Negative Characterization or Description of
Defendant, by Prosecutor During Summation of Criminal Trial, as Ground for Reversal,
New Trial, or Mistrial - Modern Cases, 88 A.L.R.4th 8 (1991).

                                              13

and the comments by the prosecutor were erroneous.



       Although the error was prejudicial to Hunt at trial, this Court is of the opinion that the

prejudice was not unfair to the extent that Hunt should be granted a new trial. Our principles

guiding a harmless error analysis are well settled. In State v. Bowling, 232 W.Va. 529, 542­

43, 753 S.E.2d 27, 40-41 (2013), cert. denied, 134 S.Ct. 1772 (2014), this Court stated:

“When the alleged error involves the infringement of a petitioner’s constitutional rights, the

burden is on the State to show that the error is harmless beyond a reasonable doubt.”

Moreover, as expressed in syllabus point 20 of State v. Thomas, 157 W.Va. 640, 203 S.E.2d

445 (1974): “Errors involving deprivation of constitutional rights will be regarded as

harmless only if there is no reasonable possibility that the violation contributed to the

conviction.” Accord syl. pt. 4, State v. Jenkins, 195 W.Va. 620, 466 S.E.2d 471 (1995).



       The evidence of the State overwhelmingly established Hunt’s guilt of the crimes

charged. In addition to Hunt’s prior conviction for the sexual abuse of his nine year old

stepsister, the evidence included the telephone conversation during which Hunt asked A. K.,

“When are we gonna have sex again?” Hunt has not challenged that statement in this appeal.

Hunt’s extensive, evening newspaper route, which included rural areas, clearly provided him

with opportunities to commit the offenses. According to A. K., he sustained bruises on his

legs and buttocks caused by Hunt during those encounters.


                                               14

       Psychologist Michael Carter, who provided treatment and counseling to A. K.,

testified that A. K. exhibited “a severe level of trauma which is consistent with and would

suggest that he had been molested.” In addition, A. K.’s school counselor testified that,

during the period in question, A. K. went from being social and outgoing to being easily

emotional and suffering academically. The school counselor testified further: “And also at

times he stated that he wanted to kill himself or hurt himself; and he also stated that he

wanted to run away.” Finally, the State produced evidence that in 1999, after the suspicions

of sexual abuse against A. K. had been reported, Hunt went to A. K.’s home and began

harassing him. The police were called, and Hunt was cited for trespassing.



       In State v. Rollins, 233 W.Va. 715, 732, 760 S.E.2d 529, 546 (2014), this Court stated:

“If a trial court has admitted ‘bad character’ evidence in error, a petitioner is only entitled to

reversal if the error affected his substantial rights.” See Rule 103(a) [1985] of the West

Virginia Rules of Evidence (“Error may not be predicated upon a ruling which admits or

excludes evidence unless a substantial right of the party is affected.”). See also State v.

McKinley, 234 W.Va. 143, 764 S.E.2d 303, 314 (2014) (citing Rollins). In this case, the

prosecutor’s references and opinion testimony concerning pedophilia were absolutely

unnecessary to establish Hunt’s guilt. However, this error did not rise to the level of a

constitutional violation or otherwise violate Hunt’s substantial rights. This Court concludes

that the error was harmless. See n. 6, supra.


                                               15

                                          V.

                                       Conclusion


      For the reasons stated above, the January 21, 2014, order of the habeas court is

reversed, and Hunt’s convictions and sentence are reinstated.



                                                                           Reversed.




                                           16

