                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                         FILED
                                                                             November 3, 2014
vs) No. 14-0095 (Harrison County 13-F-99-03)                                  RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA
Christopher L. L.,
Defendant Below, Petitioner


                              MEMORANDUM DECISION

       Petitioner Christopher L. L.,1 by counsel Jerry Blair, appeals the order of the Circuit
Court of Harrison County, entered December 12, 2013, that denied his post-trial motions for a
new trial and for a judgment of acquittal. A jury found petitioner guilty of incest, first degree
sexual assault, first degree sexual abuse, and sexual abuse by a parent. The State of West
Virginia, by counsel Derek A. Knopp, responds 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 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.

        Petitioner and his wife had two children, a son and a daughter, prior to their divorce in
2010. Thereafter, the children resided primarily with their mother, but had frequent visitation
with petitioner. Following a visitation with petitioner, petitioner’s daughter, L.L., told her mother
that petitioner had placed his fingers inside her “pee bug” (L.L.’s name for her vagina) and put
his “pee bug” (L.L.’s name for his penis) in her mouth. At the time, L.L. was six years old.

        Thereafter, L.L.’s mother took L.L. to a hospital where L.L. was examined by a Sexual
Assault Nurse Examiner. L.L. also participated in a forensic interview and L.L’s mother was
interviewed by the investigating officer assigned to the case.

       In May of 2013, petitioner was indicted on one count of incest in violation of West
Virginia Code § 61-8-12; one count of sexual assault in the first degree in violation of West
Virginia Code § 61-8B-3; one count of sexual abuse in the first degree in violation of West
Virginia Code § 61-8B-7; and one count of sexual abuse by a parent in violation of West
Virginia Code § 61-8D-5. These acts were alleged to have occurred during November of 2012.


       1
         Consistent with our practice in cases involving sensitive matters, we use petitioner’s
first name and middle and last initial, and the child victim’s initials. See State v. Edward Charles
L., 183 W.Va. 641, 645n.1, 398 S.E.2d 123, 127n.1 (1990); see also W.Va. R. App. P. 40(e)(1).
                                                 1

         Petitioner’s trial began on August 12, 2013. During the State’s case-in-chief, L.L.
testified that, while she and petitioner were in the bathroom of petitioner’s home, he “wanted
[her] to clean his pee-bug with her mouth” and he wanted to clean her pee-bug with his fingers.
L.L then demonstrated for the jury how petitioner used his fingers. L.L. also testified that
petitioner did not use a washcloth when he “cleaned” her and that his penis had entered her
mouth.

        The State also called the investigating officer who had interviewed L.L.’s mother. The
officer testified that, during the interview, he lied to L.L.’s mother in an effort to learn whether
she had encouraged L.L. to make false allegations against petitioner. The lie was that petitioner
had passed a polygraph examination. Immediately following this testimony, petitioner’s counsel
objected and moved for a mistrial. The exact discourse follows.

       The State: May I ask you [the investigating officer], on April 4th of 2012, did you
       lie to [L.L.’s mother] or were you truthful with [L.L.’s mother].

       ....

       The Investigating Officer: I lied to her.

       The State: Why did you lie?

       The Investigating Officer: In an effort to gain the truth.

       The State: What is it that you lied about?


       The Investigating Officer: I told [L.L.’s mother] that [petitioner] had actually

       passed a polygraph.


       Defense Counsel: Objection, your honor.

       The Court: Counsel, approach.

       (The following discussion was held at the bench.)

       Defense Counsel: I move for a mistrial, Your Honor.

       ....

       The State: There was no polygraph. None whatsoever.

       Defense Counsel: The implication is [L.L.’s mother] said [petitioner] lied when
       he told [L.L.’s mother] that he passed a polygraph. The implication is that he

       failed a polygraph.


       . . . .


                                                   2

       The Court: Let me deny [the defense’s] request for a mistrial, and I will give [a]
       cautionary instruction to the jury, and [the State will] clean it up.

       The State: I will.

       (The bench conference concluded.)

       The Court: Ladies and gentlemen of the jury, let me give you a cautionary
       instruction. There is evidence that’s been presented to you from this witness
       concerning a polygraph. Polygraphs are not admissible in court.

       The State (resuming its questioning of the investigating officer): There was no
       polygraph. Correct?

       The Investigating Officer: Correct.

       ....

       The State: Okay. And you lied to her why?

       The Investigating Officer: In an effort to gain the truth. I basically wanted to
       gauge her reaction to that, to try to determine her truthfulness in regard to the
       allegation.

       ....

       The State: Okay. What was [L.L.’s mother’s] reaction when you lied to her?

       The Investigating Officer: She was relieved, actually, to find out that [petitioner]
       didn’t do that, that he wasn’t responsible.

       The State: Did that surprise you—

       The Court: Let me see counsel again.

        At the ensuing bench conference, the court expressed concern that the State was asking
the investigating officer to testify regarding L.L.’s mother credibility. Therefore, the court
instructed the State to “move on.” Thereafter, the investigating officer read a portion of a written
statement petitioner had given to the officer during a second interview.

               I was in the bathroom use (sic) it when [L.L.] barged in. I turned to chase
       her out, and my pants fell down in the process of chasing her out, and my penis
       might have touched her mouth or the side of her face while chasing her out. I
       didn’t think anything . . . at the time because she was running and laughing about
       what had happened. She has barged in on me and my wife several times before
       while we were being intimate to each other.

                                                 3

The investigator also testified that, when he asked petitioner what portion of his penis went into
L.L’s mouth, petitioner replied, “Just the tip of it, if any at all.”

       On August 13, 2013, the jury found petitioner guilty on all four counts of the indictment.

       Post-trial, petitioner filed motions seeking a new trial or a judgment of acquittal on the
ground that the jury was left with the impression that petitioner had denied a request to take a
polygraph examination. By order entered December 12, 2013, the circuit court denied both
motions and found as follows.

                [T]he testimony [] regarding a polygraph concerned a lie told . . . to a
       witness . . . as an investigative technique utilized by the officer in an attempt to
       see if the witness was being truthful; there was no evidence or inference presented
       to the jury that [petitioner] ever took, passed, failed or was offered or refused any
       polygraph examination; the [c]ourt gave a cautionary instruction at the time of the
       testimony by [the investigating officer] to which [petitioner] did not object; even
       if the question and answer concerning the polygraph examination was as counsel
       for [petitioner] represented in the motion, the cautionary instruction was sufficient
       at the time to keep the jury form using any polygraph examination reference as a
       part of its deliberations; and there was sufficient evidence irrespective of the
       mention of the polygraph examination from which [the] jury could find beyond a
       reasonable doubt that [petitioner] committed the offenses charged in the
       indictment.

        By that same order, the circuit court sentenced petitioner to five to fifteen years in prison
for incest; twenty-five to one hundred years in prison for sexual assault in the first degree; five to
twenty-five years in prison for sexual abuse in the first degree; and ten to twenty years in prison
for sexual abuse by a parent. The circuit court ordered these sentences to be served
consecutively.

       Petitioner now appeals the denial of his post-trial motions.

       This Court has explained the standard of review with respect to a circuit court’s denial of
a motion for a new trial as follows:

               “‘“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).”
       Syllabus point 1, Lively v. Rufus, 207 W.Va. 436, 533 S.E.2d 662 (2000).

Syl. Pt. 1, State v. White, 228 W.Va. 530, 722 S.E.2d 566 (2011). Further,



                                                  4

                “[i]n reviewing challenges to findings and rulings made by a circuit court,
        we apply a two-pronged deferential standard of review. We review the rulings of
        the circuit court concerning a new trial and its conclusion as to the existence of
        reversible error under an abuse of discretion standard, and we review the circuit
        court’s underlying factual findings under a clearly erroneous standard. Questions
        of law are subject to a de novo review.” Syllabus point 3, State v. Vance, 207
        W.Va. 640, 535 S.E.2d 484 (2000).

Syl. Pt. 2, White.

        Furthermore, this Court has explained that the standard of review with respect to a circuit
court’s denial of a motion for a judgment of acquittal is de novo. As we said in State v. LaRock,
196 W.Va. 294, 304, 470 S.E.2d 613, 623 (1996):

        The trial court’s disposition of a motion for judgment of acquittal is subject to our
        de novo review; therefore, this Court, like the trial court, must scrutinize the
        evidence in the light most compatible with the verdict, resolve all credibility
        disputes in the verdict's favor, and then reach a judgment about whether a rational
        jury could find guilt beyond a reasonable doubt.

        On appeal, petitioner’s sole assignment of error is that the circuit court erred in denying
his motions for a new trial and a judgment of acquittal on the ground that evidence entered by the
State at petitioner’s trial inferred that petitioner had refused to take a polygraph examination and
was, therefore, guilty of the crimes charged. Petitioner also claims (1) that the circuit court’s
curative instruction was constitutionally insufficient because it did not direct the jury to disregard
the polygraph-related testimony, and (2) that the circuit court failed to give any other instruction
regarding the polygraph-related testimony, including those requested by the defense.

        In Syllabus Point 2 of State v. Chambers, 194 W.Va. 1, 459 S.E.2d 112 (1995), this Court
said, “Reference to an offer or refusal by a defendant to take a polygraph test is inadmissible in
criminal trials to the same extent that polygraph results are inadmissible.” In Chambers, there
was testimony showing that the defendant was offered, but refused, a polygraph examination.
Conversely, in this case, the investigating officer never said that petitioner ever took, passed,
failed, or was offered a polygraph examination. Instead, the investigating officer clearly testified
that he lied to petitioner’s former wife about the existence of a polygraph examination, and then
clarified that that there was no polygraph examination in this case.

       This Court recently examined a factually similar situation in State v. George J., 13-0132,
(W.Va. Supreme Court, Nov. 8, 2013) (memorandum decision). In that case, the petitioner
argued that the trial court erred in permitting the recording of his confession to be admitted into
evidence at trial because it contained references to a polygraph examination. Id. at 2. In affirming
George J.’s conviction, this Court cited to State v. Lewis, 207 W.Va. 544, 548, 534 S.E.2d 740,
744 (2000), as follows:

        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

                                                  5

        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).

Id. at 4.

        In the instant case, following the investigating officer’s mere mention of a polygraph, the
circuit court gave the jury an appropriate cautionary instruction. Thereafter, the investigating
officer clarified that no polygraph examination occurred in this case. On these facts and in light
of our holdings in Lewis and Beard, we cannot say that the circuit court abused its discretion in
denying petitioner post-trial motions.

        For the foregoing reasons, we affirm.
                                                                                          Affirmed.

ISSUED: November 3, 2014

CONCURRED IN BY:

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




                                                 6

