                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

State of West Virginia,

Plaintiff Below, Respondent                                                       FILED

                                                                                November 8, 2013
                                                                             RORY L. PERRY II, CLERK
vs) No. 13-0132 (Marion County 11-F-80)                                    SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA

George J.,

Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner George J., by counsel Kevin Tipton, appeals the January 15, 2013 order of the
Circuit Court of Marion County denying petitioner’s motion for judgment of acquittal and/or
new trial. Respondent State of West Virginia, by counsel Benjamin F. Yancey III, filed a
response in support of the circuit court’s order.

       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.

        Petitioner George J. was accused of sexually assaulting his stepdaughter, M.S., over a
period of several years, from January of 2006 through May of 2011. M.S. was eleven when the
abuse began. On June 6, 2011, petitioner was indicted on ten counts of sexual abuse by a parent,
guardian or custodian and ten counts of incest. Prior to his arrest, petitioner was interviewed by
Officer Adam Scott of the West Virginia State Police, where he confessed to several acts,
including sexual contact with M.S., “rubbing up against her,” touching her “all over” including
her breasts, and putting his penis in her vagina on at least two occasions. He blamed these
actions on a medication he was on at the time.

        In March of 2012, petitioner moved to suppress his statements and moved in limine to
prohibit the mention of petitioner viewing internet pornography. The motion to suppress was
eventually denied, and the motion in limine was granted. Petitioner was initially tried in April of
2012, but a mistrial was declared after the prosecuting attorney suffered a seizure during trial.
Petitioner’s second trial began on August 15, 2012. During that trial, petitioner’s recorded
statement was admitted and published to the jury without any redactions regarding the references
to him viewing internet pornography. Petitioner was found guilty of ten counts of sexual abuse
by a parent, guardian, or custodian, and two counts of incest. Petitioner was sentenced via order
dated January 10, 2013, to ten to twenty years of incarceration on each of the ten counts of
sexual abuse by a parent, guardian or custodian, to run consecutively, and five to fifteen years of

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incarceration on each of the two counts of incest, to run consecutively to one another but
concurrently to the other charges. The aggregate sentence was 100 to 200 years of incarceration.
Petitioner moved for judgment of acquittal and/or a new trial after the verdict, but these motions
were denied without a hearing on January 15, 2013.

       With respect to a trial court's denial of a motion for a new trial, this Court has explained:

       “‘Although the ruling of a trial court in granting or denying a motion for a new
       trial is entitled to great respect and weight, the trial court's ruling will be reversed
       on appeal when it is clear that the trial court has acted under some
       misapprehension of the law or the evidence.’ Syl. pt. 4, Sanders v. Georgia–
       Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).” Syllabus point 1,
       Andrews v. Reynolds Memorial Hospital, Inc., 201 W.Va. 624, 499 S.E.2d 846
       (1997). Syl. pt. 1, Lively v. Rufus, 207 W.Va. 436, 533 S.E.2d 662 (2000).

State v. White, 228 W.Va. 530, 536, 722 S.E.2d 566, 572 (2011).

        Petitioner’s assignments of error all surround the use of his confession at trial. Petitioner
first argues that the circuit court erred in denying his motion to suppress and in allowing his
confession to be used at trial although it was illegally obtained through the use of threats and
implied promises of leniency. He states that he was threatened repeatedly with a polygraph
examination during the confession, and that he was promised leniency because the officer noted
that “it could be worse, it’s not like it’s incest.” Petitioner contends that this statement implied
that he would not be charged with incest although he later was charged with that crime.

       This Court has noted as follows:

       “When reviewing a ruling on a motion to suppress, an appellate court should
       construe all facts in the light most favorable to the State, as it was the prevailing
       party below. Because of the highly fact-specific nature of a motion to suppress,
       particular deference is given to the findings of the circuit court because it had the
       opportunity to observe the witnesses and to hear testimony on the issues. Therefore,
       the circuit court’s factual findings are reviewed for clear error.” Syllabus point 1,
       State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996).

Syl. Pt. 13, State v. White, 228 W.Va. 530, 722 S.E.2d 566 (2011). Moreover,

       By employing a two-tier standard, we first review a circuit court’s findings of fact
       when ruling on a motion to suppress evidence under the clearly erroneous standard.
       Second, we review de novo questions of law and the circuit court’s ultimate
       conclusion as to the constitutionality of the law enforcement action. Under the
       clearly erroneous standard, a circuit court’s decision ordinarily will be affirmed
       unless it is unsupported by substantial evidence; based on an erroneous
       interpretation of applicable law; or, in light of the entire record, this Court is left
       with a firm and definite conviction that a mistake has been made. See State v.

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       Stuart, 192 W.Va. 428, 452 S.E.2d 886, 891 (1994). When we review the denial of
       a motion to suppress, we consider the evidence in the light most favorable to the
       prosecution.

State v. Lilly, 194 W.Va. 595, 600, 461 S.E.2d 101, 106 (1995). Upon consideration of the above
standard of review, this Court finds no error in the circuit court’s denial of petitioner’s motion to
suppress his statement. Petitioner voluntarily spoke with police, and his confession was not
obtained illegally or involuntarily. This Court has stated that

       It is the mandatory duty of a trial court, whether requested or not, to hear the
       evidence and determine in the first instance, out of the presence of the jury, the
       voluntariness of an oral or written confession by an accused person prior to
       admitting the same into evidence.

Syl. Pt. 2, State v. Black, 227 W.Va. 297, 708 S.E.2d 491 (2010) (internal citations omitted).
Moreover, “[t]he State must prove, at least by a preponderance of the evidence, that confessions or
statements of an accused which amount to admissions of part or all of an offense were voluntary
before such may be admitted into the evidence of a criminal case.” Syl. Pt. 10, State v. Keesecker,
222 W.Va. 139, 633 S.E.2d 593 (2008) (citations omitted). “Whether an extrajudicial inculpatory
statement is voluntary or the result of coercive police activity is a legal question to be determined
from a review of the totality of the circumstances.” Syl. Pt. 4, State v. Jones, 220 W.Va. 214, 640
S.E.2d 564 (2006) (citations omitted).

       In examining the totality of the circumstances, a court must consider a myriad of
       factors, including the defendant's age, intelligence, background and experience
       with the criminal justice system, the purpose and flagrancy of any police
       misconduct, and the length of the interview. State v. Sugg, 193 W.Va. 388, 456
       S.E.2d 469 (1995).

State v. Bradshaw, 193 W.Va. 519, 527, 457 S.E.2d 456, 464 (1995).

        In the present case, it is clear that the confession was voluntary. The interview was only
fifty-eight minutes long, only contained one officer, and petitioner understood and responded
appropriately. There was no indication of any involvement of drugs or alcohol, or any mental
health impairment. At no time did petitioner try to end the interview, and Trooper Scott was not
threatening or physically intimidating petitioner. No promises of leniency were given regarding
possible criminal charges. This Court has stated that “[r]epresentations or promises made to a
defendant by one in authority do not necessarily invalidate a subsequent confession. In
determining the voluntariness of a confession, the trial court must assess the totality of all the
surrounding circumstances. No one factor is determinative.” Syl. Pt. 7, in part, State v. Farley, 192
W.Va. 247, 452 S.E.2d 50 (1994). Therefore, we find no error in the denial of the motion to
suppress.

       Petitioner also argues that the circuit court committed plain and reversible error by
permitting the recording of the confession to be admitted although it contained references to a

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polygraph examination. Polygraphs are inadmissible in West Virginia; however, this Court has
found that:

       Although neither polygraph test results nor the offer or refusal by a defendant to
       take a polygraph test is admissible in a criminal trial in West Virginia, this Court
       has recognized that the mere mention of a polygraph, without revealing the results,
       does not necessarily require the reversal of a criminal conviction. State v. Beard,
       194 W.Va. 740, 461 S.E.2d 486 (1995).

State v. Lewis, 207 W.Va. 544, 548, 534 S.E.2d 740, 744 (2000). Moreover, a mistrial should not
be automatically granted when mention of a polygraph is made. Id. In this case, there was no error
in allowing the mention of a polygraph. First, prior to allowing the jury to hear the recorded
confession, a cautionary instruction was given indicating that polygraph results are inadmissible as
they are unreliable. Moreover, the jury was told that offers to take a polygraph or refusals to do so
are inadmissible. They were also told that the mention of a polygraph was an interrogation
technique and should only be considered in determining if the confession was voluntary. The jury
was never presented any polygraph results as petitioner never took one. At most the jury heard a
vague offer to take one made by petitioner.

        Finally, petitioner argues that the court erred in allowing the recorded confession to be
played and entered into evidence when it contained accusations concerning internet pornography
after the court had already ordered references to internet pornography inadmissible, irrelevant,
and prejudicial. However, the record shows that petitioner moved in limine for an order
prohibiting one of his children from testifying regarding seeing petitioner look at pornography on
the internet. That motion was granted. The interview with petitioner was played and contained
references to his children seeing him looking at pornography. Petitioner moved for a mistrial, but
the court found that the motion in limine dealt solely with one of petitioner’s children testifying
about the internet pornography. Petitioner now argues that all references should have been
eliminated pursuant to the granted motion. This Court agrees with the circuit court’s finding that
the motion was specific and should not be construed broadly in retrospect. Moreover, this Court
finds that the references were harmless in this case based on the plethora of evidence against
petitioner.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.
ISSUED:     November 8, 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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