                             STATE OF WEST VIRGINIA 

                           SUPREME COURT OF APPEALS 



State of West Virginia,
Plaintiff Below, Respondent                                                      FILED
                                                                            November 16, 2018
vs) No. 17-0904 (Mercer County 17-F-19-DS)                                    EDYTHE NASH GAISER, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
Charles B., 

Defendant Below, Petitioner



                              MEMORANDUM DECISION
        Petitioner Charles B., by counsel R. Thomas Czarnik, appeals the Circuit Court of Mercer
County’s September 22, 2017, order denying his motion for a new trial following his conviction
of one count of first-degree sexual assault, one count of sexual abuse by a parent of a child, and
one count of incest.1 Respondent the State of West Virginia, by counsel Scott E. Johnson, filed
its 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. For these reasons, a memorandum
decision affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Petitioner was indicted in 2016 on fifty-four counts of crimes, including first-degree
sexual assault; sexual abuse by a parent, guardian, or custodian; and incest, all against his
daughter. Prior to trial, petitioner gave a statement to Mercer County Sheriff’s Detective Steven
Sommers that was the subject of motions to suppress; petitioner argued that Detective Sommers
did not inform petitioner that he was free to go before being interviewed. The circuit court
entered a written order finding that the statement was admissible for impeachment purposes and
took under advisement the admissibility of the statement in the State’s case-in-chief. During trial,
the circuit court informed the parties that it had listened to the actual tape recording of
petitioner’s statement and determined that the statement was admissible in the State’s case-in-
chief. That trial resulted in a mistrial because the jury was unable to arrive at a unanimous
verdict.

       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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        Thereafter, the State obtained a superseding indictment, Indictment No. 17-F-19. During
the second trial, the victim, then-twenty-years-old, testified and identified petitioner as her father.
She testified that petitioner sexually molested her when she was a young child, between the ages
of three and six, mainly “oral sex, but that I could also recall times where he – I would be laying
on the bed and he would be over top of me rubbing his penis against my vagina.” She denied any
penetration but testified that he would finish in a towel beside of the bed and that she was then
allowed to put her clothes back on and go about her day. The victim also testified that “it was
essentially kind of like a game, he would tell me to see how many licks I could get on – on his
penis.” A licensed professional counselor testified that the victim displayed symptoms consistent
with someone who had experienced sexual abuse trauma. Detective Sommers testified about the
same statement that was admitted during the first trial.

        At the conclusion of the trial, the jury deliberated for approximately two hours before
notifying the circuit court that it had not reached a unanimous verdict. The circuit court told
counsel that it was “going to bring the jury back out and instruct them, as I did before, repeated,
their verdict has to be unanimous, either all one way or all the other. . . .” After the jury was
seated, the circuit court advised them that

       you don’t have a verdict until it’s unanimous. I understand that, you know, you
       don’t have unanimous results yet. That’s okay. . . So what I want you to do is go
       back and refresh your recollection about what those instructions said about
       considering each other’s opinions, listen to the arguments of each other, et cetera,
       and give it your best shot to make a decision, and I’m going to let you go back
       and try that. If you cannot ultimately reach a unanimous verdict well, then we’ll
       see what we do at that point. But you really haven’t been back there long enough
       yet for me to have concern. . . So you’ve got to have a unanimous verdict, okay.
       It’s either going to be all one way, or all the other. And if at some point you can’t
       do that, you need to let me know that. But after two days of testimony and a
       couple hours of deliberation, we’re not to the point where we’re ready to say you
       can’t keep working at it. We’re not there yet. All right. So go on in the back and
       resume your deliberations . . . .

The circuit court then instructed the attorneys to stay nearby in case they were needed. The jury
later convicted petitioner on three counts and acquitted him of the remaining charges. The circuit
court sentenced petitioner to consecutive terms of imprisonment of fifteen to thirty-five years,
ten to twenty years, and five to fifteen years.

        Petitioner filed a motion for a new trial, which the circuit court, without explanation,
denied in an amended order entered on September 19, 2017. The circuit court then entered its
September 22, 2017, order “sua sponte pursuant to [petitioner’s] ‘Motion for New Trial.’” In that
order, the circuit court indicated that it did not give an Allen instruction, but answered a jury
question about the requirement that the jury’s verdict had to be unanimous. It concluded that
there was “no reason to change its ruling denying the motion for new trial and it is accordingly
denied.” Petitioner appeals from that order.

       We have previously set forth the standard of review applicable to the denial of a motion

                                                  2

for a new trial following a conviction by a jury:

       “As a general proposition, we review a circuit court’s rulings on a motion for a
       new trial under an abuse of discretion standard. In re State Public Building
       Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994). . . . Thus, in
       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.” Tennant v. Marion Health Care Found.,
       Inc., 194 W.Va. 97, 104, 459 S.E.2d 374, 381 (1995).

State v. Swims, 212 W. Va. 263, 267, 569 S.E.2d 784, 788 (2002).

        While petitioner sets forth eight assignments of error, some of which have subparts, he
divides his arguments into six areas. First, he contends that the Allen instruction, or charge, was
improper.2 He contends that the circuit court gave a partial and coerced Allen instruction, without
opportunity or forewarning to counsel, when the jury had deliberated for only two hours. The
remainder of petitioner’s argument is unclear and difficult to follow, aside from pointing to
language found in a traditional Allen instruction that was not given by the circuit court in the
instant case. It is important to note that petitioner did not object to the instruction below. In
addition, the record shows that after the judge excused the jury, he specifically noted the
presence of both counsel. Because petitioner failed to object, his argument is worded in a manner
that does not allow this Court to fully understand the same, and he does not assert plain error, we
cannot find error on this ground. See State v. Guthrie, 205 W. Va. 326, 344, 518 S.E.2d 83, 101
(1999).

       His second alleged error is that the circuit court erred in denying his request to introduce
explanatory testimony as to how fake Facebook messages can be created. In a confusing
argument, petitioner appears to assert that while a photograph depicts a Facebook message sent

       2
         An Allen charge is a “supplemental instruction given to encourage deadlocked
       juries to reach an agreement.” F. Cleckley, 2 Handbook on West Virginia
       Criminal Procedure, at 257 (1993). Dealing with an Allen-type charge, we have
       stated that

               [w]here a jury has reported that it is unable to agree and the trial
               court addresses the jury urging a verdict, but does not use language
               the effect of which would be to cause the minority to yield its
               views for the purpose of reaching a verdict, the trial court’s
               remarks will not constitute reversible error.

       Syllabus Point 2, State v. Johnson, 168 W.Va. 45, 282 S.E.2d 609 (1981).

State v. Shabazz, 206 W. Va. 555, 559, 526 S.E.2d 521, 525 (1999).


                                                    3

from one witness to another witness, that message was fraudulent. Petitioner asserts that witness
testimony regarding such programs does not constitute expert testimony. Again, petitioner’s
argument is difficult to comprehend. However, it appears that petitioner sought to elicit
testimony from a witness regarding the authenticity of Facebook messages and how they can be
“forged.”

       In addressing the issue of lay witness opinion testimony, we have held that

       [i]n order for a lay witness to give opinion testimony pursuant to Rule 701 of the
       West Virginia Rules of Evidence, (1) the witness must have personal knowledge
       or perception of the facts from which the opinion is to be derived; (2) there must
       be a rational connection between the opinion and the facts upon which it is based;
       (3) the opinion must be helpful in understanding the testimony or determining a
       fact in issue; and (4) the opinion must not be based on scientific, technical, or
       other specialized knowledge within the scope of Rule 702.

Syl. Pt. 1, State v. Johnson, 238 W. Va. 580, 797 S.E.2d 557 (2017). As respondent points out,
petitioner admitted the proposed witness did not have any training in Facebook applications, had
not gone to college, was not a professional website developer, was not a professional Facebook
consultant, had no training on the Facebook platform, had no website training, and she conceded
that she had no training on Facebook Java SDK, SDK for Python, Facebook SDK for Android,
or REACT.3 Another witness was permitted to testify that the message was not from her, though
it appeared to be from her account. That witness also testified that her activity log did not reveal
any activity on the date of the alleged message. For these reasons, we do not find that the circuit
court erred in refusing to allow the proposed witness to offer the requested testimony.

       In his third assignment of error, petitioner argues that the State committed various
discovery violations. While he makes a number of factual assertions, he fails to cite to the record
in support of any of these assertions. As set forth in West Virginia Rule of Appellate Procedure
10(c)(7), in part,

       [t]he argument must contain appropriate and specific citations to the record on
       appeal, including citations that pinpoint when and how the issues in the
       assignments of error were presented to the lower tribunal. The Court may
       disregard errors that are not adequately supported by specific references to the
       record on appeal.

Due to petitioner’s failure to comply with this requirement, we decline to address this alleged
error.

       Petitioner’s fourth assignment of error takes issue with the language of the counts
charged in the indictment. However, this argument is so unclear that this Court is unable to fully
address the same. Generally, he contends that certain counts of the indictment charged acts in the

       3
           Each of these are software and/or coding applications for computers and/or mobile
devices.


                                                 4

alternative or disjunctive in violation of the West Virginia Constitution, art. III § 14. He also
asserts that an “attempt” is not an offense under a charge of sexual crimes. He argues therein that
this was plain error affecting his substantial rights. In response, the State argues that because the
circuit court failed to rule on petitioner’s motion to dismiss the counts at issue, this Court is
barred from reviewing this argument on appeal. The State also asserts that these arguments are
insufficiently briefed to allow this Court to address them.

        This Court has long held that the “‘plain error’ doctrine grants appellate courts, in the
interest of justice, the authority to notice error to which no objection has been made.” State v.
Miller, 194 W. Va. 3, 18, 459 S.E.2d 114, 129 (1995). “To trigger application of the ‘plain error’
doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4)
seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Id. at
syl. pt. 7. We have further noted that the plain error rule should only be exercised to avoid a
miscarriage of justice and reserved for correction of those few errors that “‘seriously affect the
fairness, integrity or public reputation of judicial proceedings.’ United States v. Young, 470 U.S.
1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1, 12 (1985).” State v. Peterson, 239 W. Va. 21, 32, 799
S.E.2d 98, 109 (2017). Based upon petitioner’s argument, we cannot find that the circuit court
committed plain error in its consideration of the counts at issue.

        Petitioner’s fifth assignment of error is that his statement to police should have been
excluded. He asserts that he was not specifically told that he was “free to go” and was not read
his Miranda rights. Petitioner further argues that because he was willing to take a polygraph
examination but was not given one, his willingness to do so was admissible to show his lack of
consciousness of guilt. Whether a person is in custody is determined by an objective test:
“viewing the totality of the circumstances, would a reasonable person in the defendant’s position
have considered his freedom of action restricted to the degree associated with a formal arrest.”
State v. Potter, 197 W. Va. 734, 752, 478 S.E.2d 742, 752 (1996). In this case, while petitioner
was interviewed at a police station, he voluntarily chose to go there with his wife. Detective
Sommers asked if petitioner understood that he was there of his own freewill, and petitioner
confirmed that understanding. The interview lasted just under forty-four minutes and then
Detective Sommers told petitioner that he was finished and advised petitioner that he was going
to speak with petitioner’s wife. Petitioner was excused and went to the public lobby. These facts
establish that petitioner was not in custody. In addition, we have held that “[r]eference 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.” Syl. Pt. 2, State v. Chambers, 194 W. Va. 1, 459
S.E.2d 112 (1995). For these reasons, we find no merit in this alleged error.

        The final alleged error addressed by petitioner is his assertion that the circuit court erred
by excluding lay witnesses with claimed personal knowledge of child sexual abuse. He argues
that these witnesses should have been permitted to offer testimony regarding their observations
of the victim’s actions, which he claims are inconsistent with victims of such abuse. Pointing to
Rules 6024 and 7015 of the West Virginia Rules of Evidence, petitioner contends that the circuit


       4
           Rule 602 of the West Virginia Rules of Evidence provides that

(continued…)
                                                 5

court abused its discretion in “refusing witnesses testimony that lacks on personal experience,
[k]nowledge, and/or observation of ‘[a]voidance’ behavior of victims of child sexual abuse
toward the perpetrator; the behavior of the accuser over [fifteen] years time was inconsistent with
abuse.”

        Again, petitioner has failed to comply with West Virginia Rule of Appellate Procedure
10(c)(7), as there are no citations to the record to support his arguments. Moreover, this Court
has long held that “‘[t]he determination of whether a witness has sufficient knowledge of the
material in question so as to be qualified to give his opinion is largely within the discretion of the
trial court, and will not ordinarily be disturbed on appeal unless clearly erroneous.’ Cox v.
Galigher Motor Sales Co., 158 W.Va. 685, 213 S.E.2d 475 (1975).” Syl. Pt. 3, State v.
Haller, 178 W. Va. 642, 363 S.E.2d 719 (1987). Further, we have previously addressed this
issue, holding as follows:

               Expert psychological testimony is permissible in cases involving incidents
       of child sexual abuse and an expert may state an opinion as to whether the child
       comports with the psychological and behavioral profile of a child sexual abuse
       victim, and may offer an opinion based on objective findings that the child has
       been sexually abused. Such an expert may not give an opinion as to whether he
       personally believes the child, nor an opinion as to whether the sexual assault was
       committed by the defendant, as these would improperly and prejudicially invade
       the province of the jury.

Syl. Pt. 7, State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990). It does not
appear that the witnesses petitioner desired to present to offer such testimony were psychological
experts. Therefore, we find that the circuit court was not clearly erroneous in refusing to allow
them to testify as requested.

       For these reasons, we find no error in the circuit court’s denial of petitioner’s motion for
a new trial following his convictions as set forth above.

       [a] witness may testify to a matter only if evidence is introduced sufficient to
       support a finding that the witness has personal knowledge of the matter. Evidence
       to prove personal knowledge may consist of the witness’s own testimony. This
       rule does not apply to a witness’s expert testimony under Rule 703.
       5
           Rule 701 of the West Virginia Rules of Evidence provides as follows:

       If a witness is not testifying as an expert, testimony in the form of an opinion is
       limited to one that is:
       (a) rationally based on the witness’s perception;
       (b) helpful to clearly understanding the witness's testimony or to determining a
       fact in issue; and
       (c) not based on scientific, technical, or other specialized knowledge within the
       scope of Rule 702.



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       For the foregoing reasons, we affirm.

                                                          Affirmed.

ISSUED: November 16, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice Paul T. Farrell sitting by temporary assignment




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