                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,                                                             FILED
Plaintiff Below, Respondent                                                         June 24, 2013
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs) No. 12-0272 (Mercer County 10-F-91)                                          OF WEST VIRGINIA



Mark Lynn J.,

Defendant Below, Petitioner



                               MEMORANDUM DECISION
       Petitioner Mark Lynn J.,1 by counsel John Earl Williams Jr., and Robert E. Holroyd,
appeals the sentencing order of the Circuit Court of Mercer County entered January 23, 2012.
Following a jury trial, petitioner was convicted of two counts of purchasing a child, three counts
of sexual abuse in the first degree, four counts of sexual abuse by a custodian, and one count of
sexual assault in the first degree. The State, by counsel, the Office of the Attorney General, filed
a response.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        In December of 2006, petitioner offered $15,000 to $20,000 to purchase custody of his
granddaughters, 4-year old A.A. and 2-year old K.J. (his son, Kirby’s children) directly from his
daughter-in-law, Sylvia. The victim in the remaining counts of abuse and assault was a third
child, petitioner’s step-granddaughter, A.P. (his son, Kevin’s step-child).

        The State informed the trial court and petitioner that it wished to offer evidence of
inappropriate touching of A.P.’s sister, C.R., and additional evidence from A.P. to establish that
petitioner had illicit purposes in attempting to purchase A.A. and K.J. The trial court conducted a
Rule 404(b) hearing and ruled that this evidence would be permitted to show petitioner’s lustful
disposition toward children and the absence of mistake.

        At trial, the jury heard the testimony of petitioner’s daughter-in-law Sylvia regarding
petitioner’s attempt to purchase her children, A.A. and K.J. The jury also heard the testimony of

       1
         In view of the sensitive nature of this case, this Court will refer to certain individuals by
their initials or first name and last initial. Clifford K. v. Paul S., 217 W.Va. 625, 630 n.1, 619
S.E.2d 138, 143 n.1 (2005).
                                                  1

petitioner’s granddaughters, C.R. and A.P. The State called Phyllis Hasty, a licensed social
worker specializing in children’s counseling and play therapy. Ms. Hasty testified regarding the
treatment she provided A.P. and C.R., and what the children reported. The trial court gave the
jury a Rule 404(b) limiting instruction regarding the testimony concerning petitioner’s conduct
toward C.R.

        Petitioner was found guilty of two counts of purchasing a child, three counts of sexual
abuse in the first degree, four counts of sexual abuse by a custodian, and one count of sexual
assault in the first degree. He received an effective sentence of fifteen to forty-five years in the
penitentiary.2

       Asking for a new trial, petitioner raises several assignments of error. Petitioner’s first
assignment of error addresses his most significant issue, namely, that the trial court erred by
allowing C.R. to testify as a Rule 404(b) witness, when she was not named as a victim in the
indictment.

        We begin by recognizing that the West Virginia Rules of Evidence allocate significant
discretion to the trial court in making evidentiary rulings. Syl. Pt. 1, State v. Cyrus, 222 W.Va.
214, 664 S.E.2d 99 (2008). On appeal, this Court applies a three-fold standard of review for
Rule 404(b) determinations by a trial court:

       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).

State v. LaRock, 196 W.Va. 294, 310-11, 470 S.E.2d 613, 629-30 (1996). Furthermore, this
Court reviews the admission of Rule 404(b) evidence in the light most favorable to the party
offering the evidence, in this case the State, maximizing its probative value and minimizing its
prejudicial effect. State v. McGinnis, 193 W.Va. 147, 159, 455 S.E.2d 516, 528 (1994).



       2
        The trial court sentenced petitioner to serve one to five years for each of the counts of
purchasing a child, one to five years for each count of sexual abuse, ten to twenty years for each
count of sexual abuse by a custodian, and twenty-five to one hundred years for the count of
sexual assault, with sentences to run consecutively. The trial court ordered the sentences for the
three counts of sexual abuse by a custodian and the sexual assault count suspended, pending a
five-year period of probation upon discharge of the remaining counts.


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       In this case, the State offered the evidence of petitioner’s sexual advances on C.R. to
show petitioner’s lustful disposition toward children and the absence of mistake. After
conducting a hearing on the Rule 404(b) motion, the trial court found that this evidence was
relevant and admissible for the limited purpose of showing petitioner’s motive and intent behind
his physical contact toward A.P., and the attempted purchase of A.A. and K.J. The trial court
found that the probative value of the evidence was not substantially outweighed by its potential
for unfair prejudice. Furthermore, the trial court gave limiting instructions to the jury
immediately after the testimony, and again in the final jury charge.

        We believe the trial court admitted the challenged evidence for a proper purpose and it
was relevant. At trial, petitioner disavowed any criminal intent in attempting to purchase his
granddaughters and stated he made the offer to give them a better life. The State sought to
demonstrate petitioner’s motive and the absence of mistake by showing petitioner’s prior acts of
sexual advances toward C.R. In addition to the clear and unambiguous language of Rule 404(b),
our previous cases recognize the probative value of uncharged acts to demonstrate “intent” and
“absence of mistake or accident.” See State v. LaRock, 196 W.Va. 294, 310, 470 S.E.2d 613, 629
(1996)(evidence of defendant’s acts of continued violence against his defenseless son to prove
intent). After careful review, this Court finds that the trial court did not abuse its discretion by
ruling the evidence was admissible.

        Petitioner’s second assignment of error is that the trial court erred by admitting the
testimony of the play therapist, Ms. Hasty, to present her opinion when her testimony was
originally limited to that of only a historian for soliciting a child statement as a statement made
for the purpose of medical diagnosis or treatment as an exception to the hearsay rule under West
Virginia Rules of Evidence 803(4).

       We find that the trial court properly admitted the testimony of Ms. Hasty, subject to this
Court’s holding in Syllabus Point 9 of State v. Pettrey, 209 W.Va. 449, 549 S.E.2d 323 (2001),
which states,

       When a social worker, counselor, or psychologist is trained in play therapy and
       thereafter treats a child abuse victim with play therapy, the therapist’s testimony
       is admissible at trial under the medical diagnosis or treatment exception to the
       hearsay rule, West Virginia Rule of Evidence 803(4), if the declarant’s motive in
       making the statement is consistent with the purpose of promoting treatment and
       the content of the statement is reasonably relied upon by the therapist for
       treatment. The testimony is inadmissible if the evidence was gathered strictly for
       investigative or forensic purposes.

       Ms. Hasty provided treatment to A.P. and C.R. following a referral by a child advocacy
agency after the forensic interviews were completed. After Ms. Hasty testified about what C.R.
had told her, the trial court gave its Rule 404(b) limiting instruction. When Ms. Hasty was asked
about her opinion about whether A.P. was “coached,” drawing an objection, the trial court
sustained that objection. The prosecuting attorney rephrased the question, asking specifically
about Ms. Hasty’s observations of A.P. When asked by the prosecuting attorney if there was
“any evidence that you are aware of that [A.P.] was coached?” Ms. Hasty responded no, that

                                                 3

[A.P.] “had the stigma. She had the fear. She used child-like language[.]” Based upon our review
of the record, this Court finds no reversible error in the admission of Ms. Hasty’s testimony, and
we affirm the trial court’s rulings in that regard.

        Finally, petitioner contends the trial court erred by allowing the State to read excessive
portions of A.P.’s forensic interviews to impeach or rebut petitioner’s testimony that the forensic
interviewer had offered A.P. money to say that petitioner molested her.3 The State responds that
not only did petitioner invite the State to refer to the forensic interviews, the State was left with
no choice because petitioner leveled a very serious and false charge during his direct
examination. The State argues that it had to present the exact exchange between A.P. and the
interviewer because the transcript showed that A.P. said she was receiving money for chores and
good grades.

        Given the fact that petitioner invited the introduction of the hearsay statement when he
falsely represented that the statement showed an admission by A.P. that she made the accusations
for money, this Court is of the opinion that the admission of the forensic interviews on rebuttal
was within the trial court’s discretion. This assignment of error is, therefore, without merit.

       Having fully considered the record before us, this Court finds no reversible error.4 For the
foregoing reasons, we affirm petitioner’s criminal convictions as set forth in the January 23,
2012, order of the Circuit Court of Mercer County.



       3
           During the course of petitioner’s testimony, his counsel asked him:

       Q.      Do you have any idea why these charges were brought against you?

       A.      [A.P.] was paid.

       Q.      What?

       A.      [A.P.] was paid.

       Q.      How do you know that?

       A.      Because I read it in the interview she had with Shiloh Woodward. . .

       Q.      And what did you read there?

       MS. WILLIAMSON: Objection, Your Honor. May we approach?

       THE COURT:               Yep. Sure.

       (WHEREUPON the following discussion was had at the bench out of the hearing

       of the jury)

       MS. WILLIAMSON: I would like a ruling that I’m allowed on cross-examination

       to get into all the forensic interviews.

       THE COURT: Well, it looks like you’re getting into Shiloh Woodard’s at least.

       He brought up Shiloh Woodard so you can get into Shiloh Woodward.

       4
         This Court finds no merit in petitioner’s contention that the prosecuting attorney’s
statement in closing argument, admonishing the jury to not allow petitioner to “buy his way out
of this verdict,” was prejudicial. Petitioner failed to show that the prosecuting attorney’s limited,
isolated remark was so damaging as to require reversal. See Syl. Pt. 6, State v. Sugg, 193 W.Va.
388, 456 S.E.2d 469 (1995).
                                                  4

                                       Affirmed.

ISSUED: June 24, 2013

CONCURRED IN BY:

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




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