                             STATE OF WEST VIRGINIA 

                           SUPREME COURT OF APPEALS 



State of West Virginia, 
                                                           FILED
Plaintiff Below, Respondent                                                       May 14, 2018 

                                                                                EDYTHE NASH GAISER, CLERK
vs.) No. 17-0550 (Marion County 16-F-161)                                       SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA


Robert T., 

Defendant Below, Petitioner



                               MEMORANDUM DECISION

        Petitioner Robert T., by counsel Christopher M. Wilson, appeals the May 18, 2017,
sentencing order of the Circuit Court of Marion County following his conviction of multiple sex
crimes.1 The State of West Virginia (“the State”), by counsel Scott E. Johnson, filed a response in
support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred by not
considering the totality of the circumstances when determining whether his inculpatory statements
to the police were voluntarily made.

        The 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 October of 2016, petitioner was charged with two counts of first-degree sexual assault;
three counts of sexual abuse by a parent, guardian, custodian, or person in a position of trust; and
one count of first-degree sexual abuse. The State alleged that petitioner made inappropriate sexual
contact with the minor child, K.L., while petitioner was living with the child and her mother. Later
that same month, the State filed a “Motion to Determine Admissibility of Evidence” that related to
petitioner’s recorded inculpatory statement taken by the investigating officer.

       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).


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         The circuit court held an evidentiary hearing on the State’s motion in December of 2016.
The investigating officer testified that he went to petitioner’s home and requested that petitioner
come to the police detachment to provide a statement. Petitioner acted upset, denied the
allegations, and then refused to come to the station. Petitioner indicated that he would speak to the
officer on the porch where they stood. The officer orally gave petitioner his Miranda2 warnings
and petitioner gave an oral statement. This first interaction was not recorded because he did not
expect petitioner to give a statement while at the home and did not have his digital recording
device on his person. During the statement, petitioner threatened self-harm and he placed
petitioner under arrest to ensure petitioner’s safety, as well as the safety of others. The officer
testified that he placed petitioner in his police car and turned on his digital recording device. The
officer then informed petitioner of his Miranda rights again, but petitioner interrupted by stating
that he knew his rights. Nevertheless, the officer reread petitioner the Miranda rights in full. (This
interaction is plainly heard in the recording.) Petitioner made further inculpatory statements. At no
point did petitioner ask for an attorney or request that the interrogation end. The officer’s
testimony was supported by the audio recording of petitioner’s statement in the police cruiser.
Petitioner offered no testimony or evidence in opposition to the State’s motion.

        In January of 2017, the circuit court entered an order finding that petitioner’s recorded
inculpatory statements were voluntarily given and that the Miranda warnings were properly
administered. Pursuant to the circuit court’s ruling, the recorded statement was played during
petitioner’s jury trial. The jury convicted petitioner of all six counts. In a May 18, 2017, order, the
circuit court sentenced petitioner to 25 to 100 years for each of his convictions of first-degree
sexual assault as contained in Count 1 and 2; 10 to 20 years for his conviction of sexual abuse by a
parent, guardian, custodian, or person in a position of trust as contained in Count 3; 10 to 20 years
for his conviction of sexual abuse by a parent, guardian, custodian, or person in a position of trust
as contained in Count 4; 10 to 20 years for his conviction of sexual abuse by a parent, guardian,
custodian, or person in a position of trust as contained in Count 5; and 5 to 25 years for his
conviction of first-degree sexual abuse as contained in Count 6. The circuit court ordered that
Counts 1 and 3 be served concurrently; that Counts 2 and 4 be served concurrently, but
consecutive to Counts 1 and 3; and that Counts 5 and 6 be served concurrently, but consecutive to
Counts 1 and 3 and Counts 2 and 4. Petitioner now appeals that order.

       This Court has held that “[a] trial court’s decision regarding the voluntariness of a
confession will not be disturbed unless it is plainly wrong or clearly against the weight of the
evidence.” Syl. Pt. 3, State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978). More recently, we
held:
               This Court is constitutionally obligated to give plenary, independent, and de
       novo review to the ultimate question of whether a particular confession is voluntary
       and whether the lower court applied the correct legal standard in making its
       determination. The holdings of prior West Virginia cases suggesting deference in
       this area continue, but that deference is limited to factual findings as opposed to
       legal conclusions.
       2
           Miranda v. Arizona, 384 U.S. 436 (1966).

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Syl. Pt. 2, State v. Farley, 192 W.Va. 247, 452 S.E.2d 50 (1994).

        On appeal, petitioner argues that the circuit court erred in finding that his confession was
voluntarily given because the circuit court did not consider the totality of the circumstances at the
time the confession was given. Specifically, petitioner argues that the circuit court should have
considered his state of mind, his background, and his lack of experience with law enforcement, yet
the circuit court made no specific factual findings regarding those factors. This Court has
previously held that “[i]n circumstances where a trial court admits a confession without making
specific findings as to the totality of the circumstances, the admission of the confession will
nevertheless be upheld on appeal, but only if a reasonable review of the evidence clearly supports
voluntariness.” Id, 192 W.Va. at 250, 452 S.E.2d at 53, Syl. Pt. 3.

        Having fully reviewed the record on appeal, we conclude that the circuit court’s finding
that petitioner’s statement was voluntarily given was not plainly wrong or clearly against the
weight of the evidence.

       This Court has held that

       [t]he burden is on the State to prove by a preponderance of the evidence that
       extrajudicial inculpatory statements were made voluntarily before the statements
       can be admitted into evidence against one charged with or suspected of the
       commission of a crime. Absent a knowing and intelligent waiver of the Fifth
       Amendment right against self-incrimination, a statement made by a suspect during
       in-custody interrogation is inadmissible. Even when a suspect has made a valid
       waiver, an inculpatory statement is inadmissible if it appears it was made
       involuntarily. Whether such a statement was voluntary or the result of coercive
       police activity is a legal question to be determined from a review of the totality of
       the circumstances.

State v. Bradshaw, 193 W.Va. 519, 527, 457 S.E.2d 456, 464 (1995) (citations omitted). “In
examining the totality of the circumstances, a [circuit court] must consider a myriad of factors,
including the defendant’s age, intelligence, background and experience with the criminal justice
system, the purpose and the flagrancy of any police misconduct, and the length of the interview.”
Id.

        In petitioner’s case, it is clear from the record that his inculpatory statements were
voluntarily made. Petitioner was read his Miranda rights before he gave a statement to the officer,
and there is no assertion in the record that petitioner ever attempted to enforce those rights.
Additionally, in petitioner’s audio statement, he interrupts the officer as the Miranda rights are
given, stating that he already knows his rights. Nevertheless, the officer repeated the rights before
he began questioning. Following the recitation of the Miranda rights, the officer asked petitioner
simple questions in a non-threatening manner and without promises of leniency or coercion. The
recording reveals that petitioner answered the questions calmly.

       Petitioner argues that his threats self-harm before his recorded confessions should have
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been considered in the totality of the circumstances regarding the voluntariness of his statements.
We reject this claim given that petitioner did not continue to threaten himself or others, he did not
act irrationally during the interview and he did not appear upset when answering questions.
Moreover, the officer testified that it is common for suspects to threaten self-harm when
confronted with allegations of sexual nature. Accordingly, petitioner’s actions indicate he was of
sufficiently sound mind to provide a voluntary statement.

       Petitioner also argues that his background and inexperience with the police should have
been considered in the circumstances surrounding petitioner’s inculpatory statements. However,
no evidence was presented on this issue in the record or on appeal to consider in the totality of the
circumstances. We refuse to speculate on what petitioner’s background and experience may be.
Accordingly, we find that the circuit court’s finding that petitioner’s statement was voluntarily
given was not plainly wrong or clearly against the weight of the evidence.

       Accordingly, for the foregoing reasons, we affirm the circuit court’s May 18, 2017, final
sentencing order.


                                                                                          Affirmed.

ISSUED: May 14, 2018

CONCURRED IN BY:

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




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