                             STATE OF WEST VIRGINIA 

                           SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                        FILED
                                                                                 May 11, 2018
Vs.) No. 17-0262 (Gilmer County 16-F-7)                                        EDYTHE NASH GAISER, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
Keith A., 

Defendant Below, Petitioner



                              MEMORANDUM DECISION
        Petitioner Keith A.1, by counsel Robert P. Dunlap II, appeals the order of the Circuit
Court of Gilmer County, entered on February 27, 2017, sentencing him to imprisonment in the
state penitentiary for ten to twenty years for the conviction of each of three counts of sexual
abuse by a parent, guardian, custodian, or person in a position of trust, and imprisonment in the
state penitentiary for five to twenty-five years for the conviction of each of three counts of sexual
abuse in the first degree, with all sentences ordered to be served concurrently, and further
ordering that he register as a sex offender for the remainder of his life. Respondent State of West
Virginia appears by counsel Sarah B. Massey.

       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.

        Petitioner was indicted in the Circuit Court of Gilmer County on three counts of sexual
abuse by a parent, guardian, custodian, or person in a position of trust and three counts of sexual
abuse in the first degree, all based on the State’s allegations concerning petitioner’s conduct
toward his then ten-year-old biological daughter, P.A. Petitioner immediately moved the circuit
court to dismiss the indictment based on his theory that the criminal prosecution is collaterally
estopped by prior abuse and neglect proceedings arising from the same actions. The circuit court
denied the motion to dismiss, and the case ultimately proceeded to trial before a jury, where the
evidence, including the testimony of P.A. and her brother, showed that petitioner touched P.A.’s
buttocks on multiple occasions. Petitioner was found guilty of all six counts and sentenced as set

       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).
                                                 1

forth above. Petitioner moved the circuit court to set aside the verdict, and the court denied his
motion.

        Petitioner asserts four assignments of error on appeal. He argues that: 1) the circuit court
abused its discretion and was clearly erroneous in denying his motion to dismiss the indictment
“because the charges arose from an abuse and neglect proceeding which collaterally estops
pursuit of criminal charges for the same acts;” 2) the circuit court violated Rules 403 and 404(b)
of the West Virginia Rules of Evidence by allowing testimony about disciplinary action taken by
petitioner’s employer in 2006; 3) the circuit court erred in denying petitioner’s post-trial motion
for judgment of acquittal based on insufficiency of the evidence; and 4) the circuit court allowed
hearsay testimony by an investigating police officer concerning a text message that petitioner
sent to his daughter, the victim, P.A.

        We begin with petitioner’s assertion that the circuit court erred in denying his motion to
dismiss the indictment on collateral estoppel grounds because he was absolved of the abuse or
neglect of P.A. in prior proceedings. “This Court’s standard of review concerning a motion to
dismiss an indictment is, generally, de novo. . . .” State v. Grimes, 226 W.Va. 411, 413, 701
S.E.2d 449, 451 (2009). Because petitioner argues that his criminal prosecution was barred by
collateral estoppel, we are mindful that

       [c]ollateral estoppel will bar a claim if four conditions are met: (1) The issue
       previously decided is identical to the one presented in the action in question; (2)
       there is a final adjudication on the merits of the prior action; (3) the party against
       whom the doctrine is invoked was a party or in privity with a party to a prior
       action; and (4) the party against whom the doctrine is raised had a full and fair
       opportunity to litigate the issue in the prior action.

State v. Miller, 194 W.Va. 3, 6, 459 S.E.2d 114, 117 (1995). Also, whether collateral estoppel
applies in a particular case generally rests within the sound discretion of the trial court. Syl. Pt. 7,
in part, Conley v. Spillers, 171 W.Va. 584, 301 S.E.2d 216 (1983).

        Petitioner’s assertion of collateral estoppel fails on several grounds. See, e.g., In re: B.C.,
233 W.Va. 130, 755 S.E.2d 664 (2014) and Miller, 194 W.Va. 3, 459 S.E.2d 114. Here, we
particularly emphasize that the function of the abuse and neglect proceeding is fundamentally
different from that of the criminal prosecution, and the issue previously decided is therefore not
identical to the one now presented. The focus of an abuse and neglect proceeding is, always, the
well-being of the child. See Syl. Pt. 1, in part, In re Darla B., 175 W.Va. 137, 331 S.E.2d 868
(1985). In furtherance of that goal, such a proceeding is initiated when information is produced
suggesting that a child is in need of protection. Future abuse and neglect proceedings involving
the same parties are not precluded; such proceedings may be instituted when new information
alerts the courts, again, that a child may require protection. In contrast, the sole focus of a
criminal proceeding is on the guilt or innocence of the accused. The United States Supreme
Court aptly explained, “[T]he purpose of a criminal court is not to provide a forum for the
ascertainment of private rights. Rather it is to vindicate the public interest in the enforcement of
the criminal law while at the same time safeguarding the rights of the individual defendant.”
Standefer v. United States, 447 U.S. 10, 25, 100 S.Ct. 1999, 2008, 64 L.Ed.2d 689 (1980).

                                                   2

Inasmuch as the purposes of the abuse and neglect proceedings and the criminal proceedings are
fundamentally different, it is best that each proceed in its own due course, and not to the
preclusion of the other such that the State would be faced with the decision of whether to shelter
a child or to seek criminal justice.

        Petitioner’s second assignment of error asserts that the circuit court violated Rules 403
and 404(b) of the West Virginia Rules of Evidence by allowing prejudicial testimony concerning
disciplinary action taken by petitioner’s employer in 2006. Rule 403 provides, “The court may
exclude relevant evidence if its probative value is substantially outweighed by a danger of one or
more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” Rule 404(b) provides, in part,
“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.”
Petitioner asserts that he was prejudiced in violation of these rules because the circuit court
allowed the investigating deputy and certain employees of petitioner’s former employer to testify
that petitioner was disciplined in his prior employment for accessing thousands of pornographic
images at work. At least one of these witnesses testified that the images were “very close” to
child pornography. The State argues that this evidence was intrinsic to the crime because it
showed long-harbored desires that led petitioner to “groom” P.A. to carry out his fantasies. We
disagree that petitioner’s employment discipline for viewing pornography at inappropriate times
and places is intrinsic to the crimes described herein.2 We do however, find that the evidence
would have been properly admitted to show petitioner’s lustful disposition toward children,
inasmuch as the investigating deputy testified at a pretrial hearing that the 2006 employment
investigation revealed that petitioner had viewed various images “including father/daughter
pornography.” We have explained:




       2
         We explained in State v. LaRock, 196 W.Va. 294, 312 n.29, 470 S.E.2d 613, 631
n.29 (1996):

       In determining whether the admissibility of evidence of “other bad acts” is
       governed by Rule 404(b), we first must determine if the evidence is “intrinsic” or
       “extrinsic.” See United States v. Williams, 900 F.2d 823, 825 (5th Cir.1990):
       “‘Other act’ evidence is ‘intrinsic’ when the evidence of the other act and the
       evidence of the crime charged are ‘inextricably intertwined’ or both acts are part
       of a ‘single criminal episode’ or the other acts were ‘necessary preliminaries’ to
       the crime charged.” (Citations omitted). If the proffer fits in to the “intrinsic”
       category, evidence of other crimes should not be suppressed when those facts
       come in as res gestae—as part and parcel of the proof charged in the indictment.
       See United States v. Masters, 622 F.2d 83, 86 (4th Cir.1980)(stating evidence is
       admissible when it provides the context of the crime, “is necessary to a ‘full
       presentation’ of the case, or is . . . appropriate in order ‘to complete the story of
       the crime on trial by proving its immediate context or the “res gestae”’”).
       (Citations omitted). . . .


                                                3

       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, in part, State v. Edward Charles L., 183 W. Va. 641, 643, 398 S.E.2d 123, 125 (1990).
We consider the evidence offered to show lustful disposition as follows:

       [W]e review the trial court’s decision to admit evidence pursuant to Rule 404(b)
       under an abuse of discretion standard. State v. Bell, 189 W.Va. 448, 453, 432
       S.E.2d 532, 537 (1993); Syl. pt. 1, State ex rel. Tinsman v. Hott, 188 W.Va. 349,
       424 S.E.2d 584 (1992). Our function on this appeal is limited to the inquiry as to
       whether the trial court acted in a way that was so arbitrary and irrational that it
       can be said to have abused its discretion. In reviewing the admission of Rule
       404(b) evidence, we review it in the light most favorable to the party offering the
       evidence, in this case the prosecution, maximizing its probative value and
       minimizing its prejudicial effect.

State v. McGinnis, 193 W.Va. 147, 159, 455 S.E.2d 516, 528 (1994). Under the limited facts
before us, where the circuit court conducted a pretrial hearing to address the State’s notice that it
would present evidence of petitioner’s prior employment discipline, we find that the circuit court
did not abuse its discretion and there is no error.

        Petitioner’s third assignment of error is based on his assertion that the evidence was
insufficient to support his conviction because there was no evidence that he touched P.A.’s
buttocks for his sexual gratification, and gratification is an essential element of the crimes
charged.3

       A criminal defendant challenging the sufficiency of the evidence to support a
       conviction takes on a heavy burden. An appellate court must review all the
       evidence, whether direct or circumstantial, in the light most favorable to the
       prosecution and must credit all inferences and credibility assessments that the jury
       might have drawn in favor of the prosecution. The evidence need not be
       inconsistent with every conclusion save that of guilt so long as the jury can find
       guilt beyond a reasonable doubt. Credibility determinations are for a jury and not
       an appellate court. Finally, a jury verdict should be set aside only when the record
       contains no evidence, regardless of how it is weighed, from which the jury could
       find guilt beyond a reasonable doubt. To the extent that our prior cases are
       inconsistent, they are expressly overruled.

Syl. Pt. 3, State v. Guthrie, 194 W. Va. 657, 663, 461 S.E.2d 163, 169 (1995). P.A. testified that
after her parents’ divorce, when she was about ten years old, petitioner began a pattern of
whistling at her when she got out of the shower, that petitioner sometimes touched her buttocks

       3
           See W. Va. Code § 61-8B-1.

                                                 4

though she asked him not to, and that he sometimes got into her bed wearing only his underwear
and put his arms and legs around her. In addition, P.A.’s brother testified that he witnessed
petitioner “groping” P.A.’s buttocks, often when petitioner was wearing only his underwear.
Having been presented with this testimony, the jury easily could have found that petitioner
touched his daughter in the manner that he did for his sexual gratification.

        Finally, petitioner asserts that the circuit court improperly allowed hearsay testimony by
an investigating police officer concerning a text message that petitioner sent to P.A. using the
dysphemistic term “angry dragon,” which alludes to a man’s receiving fellatio and, at the
moment of ejaculation, hitting his partner on the back of the head. “‘The action of a trial court in
admitting or excluding evidence in the exercise of its discretion will not be disturbed by the
appellate court unless it appears that such action amounts to an abuse of discretion.’ Syllabus
point 10, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds by
State ex rel. R.L. v. Bedell, 192 W.Va. 435, 452 S.E.2d 893 (1994).” Syl. Pt. 2, State v. Doonan,
220 W.Va. 8, 640 S.E.2d 71 (2006). We agree with the State that this did not constitute hearsay
testimony because it was offered to show the reasonableness of the officer’s actions in the
investigatory course. “‘The hearsay rule excludes hearsay evidence only when offered “as
evidence of the truth of the matter asserted”; and does not operate against such testimony offered
for the mere purpose of explaining previous conduct.’ Syllabus Point 1, State v. Paun, 109
W.Va. 606, 155 S.E. 656 (1930).” Syl. Pt. 4, State v. Morris, 227 W.Va. 76, 78, 705 S.E.2d 583,
585 (2010). On this issue, petitioner briefly suggests that the officer’s testimony was not the
“best evidence” of the message that petitioner sent to P.A. The best evidence rule is found in
Rule 1002 of the West Virginia Rules of Evidence: “An original writing, recording, or
photograph is required in order to prove its content unless these rules or a state statute provides
otherwise.” However, Rule 1004 provides certain exceptions. Particular to this matter, the best
evidence rule does not apply if the “originals are lost or destroyed, and not by the proponent
acting in bad faith” or “[t]he writing, recording, or photograph is not closely related to a
controlling issue.” We note, first, that P.A. testified that petitioner deleted the text from her
phone. The original text therefore was not available. We also note that the petitioner’s sending of
this vulgar text to P.A., though sufficient to prompt the officer to further investigation, was not
closely related to the controlling issue of whether petitioner abused P.A.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.

ISSUED: May 11, 2018

CONCURRED IN BY:

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




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DISSENTING:

Justice Menis E. Ketchum


KETCHUM, Justice, dissenting and writing separately:

        Prior to petitioner’s trial, the State, without reference to any particular rule of evidence,
filed a motion in limine informing the circuit court of its intent to introduce “res gestae” evidence
of petitioner’s employment suspension ten years prior, when the victim, petitioner’s daughter,
was about two years old. Petitioner opposed the motion on the grounds that evidence of his
suspension was inadmissible under Rules 403 and 404(b) of the West Virginia Rules of
Evidence. At a pretrial hearing, the State maintained that the evidence it would introduce was not
evidence of a crime, wrong, or other act as described by Rule 404(b), but rather was intrinsic to
the crimes with which petitioner was charged. The majority correctly determined that the
connection, if any, between petitioner’s suspension for downloading pornography while working
and petitioner’s later conduct was insufficient to establish a plan to “groom” his then-toddler
daughter to fulfill his sexual fantasies. The majority erred, however, in stretching the bounds of
evidence permitted by Rule 404(b)(2).

         Evidence proffered at the pretrial hearing and the trial establishes that, around 2006,
petitioner downloaded between 5,000 and 18,000 pornographic images using his colleague’s
work credentials. Resulting problems with the colleague’s work system triggered the internal
investigation and eventual suspension of petitioner by his employer, Federal Correctional
Institution (“FCI”), a facility under the Federal Bureau of Prisons. Though the images
downloaded by petitioner were reviewed by FCI’s internal investigators, his supervisors, and,
eventually, the county sheriff’s deputy who investigated the crimes charged in this case,
petitioner was not charged with possession of child pornography. When asked at the pretrial
hearing whether any of the retrieved images constituted child pornography, the deputy
responded, “No. . . . [Y]ou cannot tell by pictures of a person’s age. There is young females, but
you can’t tell by looking at a picture how old somebody is.” Of the thousands of images that led
to petitioner’s employment discipline, the investigating deputy identified two—possibly an
image and its duplicate—that were captioned, “My Sexy Daughter.” When asked whether those
images depicted actual websites visited by petitioner or, instead, “pop-up” advertisements, the
deputy responded, “It has a website at the bottom. It looks like an—it kind of looks like an
advertisement to a website.”

        I continue to harken to the early days of my practice of law when “if [a defendant] was
going to be convicted, then the person was going to be convicted based upon evidence showing
the person’s guilt of the specific offense charged in the indictment. Nothing more, nothing less.”
State v. Bruffey, 231 W. Va. 502, 517, 745 S.E.2d 540, 555 (2013) (Ketchum, J., dissenting)
quoting State v. Willett, 223 W.Va. 394, 401, 674 S.E.2d 602, 609 (2009) (Ketchum, J.,
dissenting). That precept is particularly applicable to the present case. I am troubled that the
circuit court abused its discretion in permitting prejudicial testimony and photographic evidence
from multiple witnesses concerning petitioner’s proclivity for viewing pornography at
inappropriate times and places. At least one of these witnesses suggested that he was told that the

                                                 6

images were “very close” to child pornography, but the evidence adduced at the pretrial hearing
does not appear to support that conclusion. Though petitioner’s inclination is disturbing, if there
was no evidence that the images downloaded by petitioner were child pornography, they are not
evidence of a lustful disposition toward children, and must form no basis for petitioner’s
conviction.

       I disagree with the majority, and I respectfully dissent.




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