        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                 September 2017 Term


                                   _____________           FILED
                                                       October 19, 2017
                                    No. 17-0419            released at 3:00 p.m.
                                                         RORY L. PERRY, II CLERK
                                   _____________       SUPREME COURT OF APPEALS
                                                            OF WEST VIRGINIA




        STATE OF WEST VIRGINIA, EX REL. MATTHEW HARVEY,

                    PROSECUTING ATTORNEY,

                            Petitioner



                                         V.


              HONORABLE JOHN C. YODER, CIRCUIT JUDGE,

                  TWENTY-THIRD JUDICIAL CIRCUIT,

                    AND GERALD G. RANKIN, JR,

                           Respondents


  ____________________________________________________________________

                   PETITION FOR WRIT OF PROHIBITION

              WRIT GRANTED, IN PART; DENIED, IN PART
  ____________________________________________________________________

                           Submitted: October 4, 2017

                             Filed: October 19, 2017


Timothy D. Helman                                  J. Daniel Kirkland
Assistant Prosecuting Attorney                     Arnold & Bailey, PLLC
Charles Town, West Virginia                        Charles Town, West Virginia
Attorney for Petitioner                            Attorney for Gerald G. Rankin

JUSTICE DAVIS delivered the Opinion of the Court.
CHIEF JUSTICE LOUGHRY concurs and reserves the right to file a concurring

opinion.


JUSTICE WORKMAN concurs and reserves the right to file a concurring opinion.


JUSTICE KETCHUM concurs and reserves the right to file a concurring opinion.

                              SYLLABUS BY THE COURT




              1.     “The test used to determine whether a trial court’s exclusion of

proffered evidence under our rape shield law violated a defendant’s due process right to a fair

trial is (1) whether that testimony was relevant; (2) whether the probative value of the

evidence outweighed its prejudicial effect; and (3) whether the State’s compelling interests

in excluding the evidence outweighed the defendant’s right to present relevant evidence

supportive of his or her defense.” Syllabus point 6, State v. Guthrie, 205 W. Va. 326, 518

S.E.2d 83 (1999).



              2.     In order to rebut evidence on an evidentiary fact under Rule

412(b)(1)(C) of the West Virginia Rules of Evidence, (1) the original evidence must be

inadmissible under Rule 412; (2) the rebuttal evidence must be similarly inadmissible; and

(3) the rebuttal evidence must be limited to the same evidentiary fact as the original

inadmissible evidence.




                                               i
Davis, Justice:



              This matter was filed as a petition for a writ of prohibition, under the original

jurisdiction of this Court, by the Office of the Prosecuting Attorney of Jefferson County

(hereinafter “the State”). In this proceeding, the State seeks to have this Court prohibit

enforcement of an order of the Circuit Court of Jefferson County1 that allows the

Respondent, Gerald G. Rankin, Jr. (hereinafter “Mr. Rankin”), to testify at his criminal trial

about the sexual history of his adolescent victim, M.Y.2 After carefully reviewing the briefs,

the arguments of the parties, the legal authority cited, and the record presented for

consideration, the writ is granted, in part, and denied, in part.



                                               I.


                      FACTUAL AND PROCEDURAL HISTORY


              In the 2016 April term of court, a grand jury indicted Mr. Rankin on eight

felony counts of sexual assault in the third degree, and eight felony counts of sexual abuse

              1
               The trial judge that entered the order, the Honorable John C. Yoder, died while
this case was pending. The issue presented in this case is not mooted by the death of Judge
Yoder. See Syl. pt. 4, in part, Tennant v. Marion Health Care Found., Inc., 194 W. Va. 97,
459 S.E.2d 374 (1995) (“Once a trial judge rules on a motion in limine, that ruling becomes
the law of the case unless modified by a subsequent ruling of the court.”). Governor Jim
Justice has appointed the Honorable Debra MH McLaughlin to replace Judge Yoder.
              2
               We follow our traditional practice in cases involving children and sensitive
facts and do not use the name of the victim. See State v. Roy, 194 W. Va. 276, 280 n.2, 460
S.E.2d 277, 281 n.2 (1995).

                                               1

by a parent, guardian, or person in position of trust to a child. The crimes allegedly took

place between June 12, 2015, and July 17, 2015. The victim, M.Y., was fourteen years old

at the time. Mr. Rankin was about fifty years old. M.Y.’s mother and Mr. Rankin had a

romantic relationship for an undisclosed period of time. At some point after that relationship

ended, Mr. Rankin expressed an interest in renewing his friendship with M.Y. and her

mother.3 It was after this overture that M.Y. was permitted to stay at Mr. Rankin’s residence

on several occasions between June 12, 2015, and July 17, 2015.



              M.Y. first disclosed the sexual relationship with Mr. Rankin to a family friend

with whom she was staying while her mother was on her honeymoon. The family friend

reported the matter to M.Y.’s mother. The mother promptly reported the matter to the police.

The police launched an investigation that included an interview of M.Y. During the

interview, M.Y. stated that she had engaged in consensual sex with Mr. Rankin between

eight and twelve times. M.Y. also informed the police that, because the first encounter had

been unprotected sex, Mr. Rankin purchased her a “Plan B” emergency contraceptive pill to

prevent her from getting pregnant.4 The police obtained cell phone records of M.Y. and Mr.

              3
               At the time, M.Y.’s mother was seeing another man. She married the man on
or about July 24, 2015.
              4
              See State v. Bledsoe, No. W2012-01643-CCA-R3-CD, 2013 WL 3968780, at
*8 n.3 (Tenn. Crim. App. July 31, 2013) (“A Plan B pill is used to prevent pregnancy
following unprotected intercourse or contraceptive failure.” (internal quotations and citation
omitted)).
                                                                                (continued...)

                                              2

Rankin. Those records revealed conversations between them on a social media messenger

app called “KiK.” The messenger app disclosed M.Y. and Mr. Rankin texting numerous

times that they loved each other. The messenger app also revealed them making remarks

about their anatomy. In one conversation, M.Y. stated to Mr. Rankin “I think my mother

would be okay with me exploring my sexual desires with you to be honest.”



              After Mr. Rankin was arrested, he was interviewed by the police. During that

interview, he admitted to spending time with M.Y. but denied ever having a sexual

relationship with her. Mr. Rankin admitted to purchasing the Plan B pill for M.Y.,

explaining that she asked him to purchase it because she had had unprotected sex with

someone else. Mr. Rankin provided no explanation when asked why M.Y. would accuse him

of engaging in sex with her on numerous occasions.



              Subsequent to Mr. Rankin’s indictment, he filed two motions seeking to

introduce evidence of M.Y.’s sexual history. In the first motion, Mr. Rankin sought to

introduce evidence that M.Y. accused another man of sexual assault when she was eleven

years old.5 Mr. Rankin contended in the first motion that this evidence was critical because

              4
                  (...continued)

              5
              The defendant in that case was indicted on several sexual assault and abuse
charges. The defendant ultimately entered a plea of no contest to sexual assault in the third
                                                                              (continued...)

                                             3

M.Y. had asked him to physically harm that defendant if his prosecution did not go her way.

Mr. Rankin asserted further that he refused to agree to the request and that, as a result of his

refusal, M.Y. retaliated by falsely accusing him of sexual assault.



              In the second motion, Mr. Rankin sought to introduce evidence of M.Y.’s

sexual history as it related to the Plan B pill. The State opposed both motions on the ground

that Rule 412 of the West Virginia Rules of Evidence prohibited the introduction of such

evidence. The trial court ruled, as to the first motion, that if Mr. Rankin took the stand to

testify he could introduce evidence involving M.Y.’s sexual assault claims when she was

eleven years old. As to the second motion, the trial court ruled that Mr. Rankin could cross-

examine M.Y. about whether she told him she had engaged in sex with anyone during the

seventy-two hour period prior to the purchase of the Plan B pill.



              The State filed the instant proceeding to prohibit enforcement of the circuit

court’s order permitting Mr. Rankin to introduce of evidence M.Y.’s sexual history.




              5
               (...continued)
degree on July 12, 2016. The defendant was sentenced to one to five years in prison for
sexually assaulting M.Y.

                                               4

                                              II.


                                STANDARD OF REVIEW


              In this case, the State seeks a writ of prohibition to prevent enforcement of a

pretrial order of the circuit court. There are limited instances in which the State may seek

a writ of prohibition in a criminal matter. We have held that

                      [t]he State may seek a writ of prohibition in this Court in
              a criminal case where the trial court has exceeded or acted
              outside of its jurisdiction. Where the State claims that the trial
              court abused its legitimate powers, the State must demonstrate
              that the court’s action was so flagrant that it was deprived of its
              right to prosecute the case or deprived of a valid conviction. In
              any event, the prohibition proceeding must offend neither the
              Double Jeopardy Clause nor the defendant’s right to a speedy
              trial. Furthermore, the application for a writ of prohibition must
              be promptly presented.

Syl. pt. 5, State v. Lewis, 188 W. Va. 85, 422 S.E.2d 807 (1992), superseded by statute on

other grounds as recognized in State v. Butler, 239 W. Va. 168, 799 S.E.2d 718 (2017). In

Syllabus point 4 of State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996), we

set forth the following standard for issuance of a writ of prohibition:

                     In determining whether to entertain and issue the writ of
              prohibition for cases not involving an absence of jurisdiction but
              only where it is claimed that the lower tribunal exceeded its
              legitimate powers, this Court will examine five factors: (1)
              whether the party seeking the writ has no other adequate means,
              such as direct appeal, to obtain the desired relief; (2) whether the
              petitioner will be damaged or prejudiced in a way that is not
              correctable on appeal; (3) whether the lower tribunal’s order is
              clearly erroneous as a matter of law; (4) whether the lower
              tribunal’s order is an oft repeated error or manifests persistent
              disregard for either procedural or substantive law; and (5)

                                               5

              whether the lower tribunal’s order raises new and important
              problems or issues of law of first impression. These factors are
              general guidelines that serve as a useful starting point for
              determining whether a discretionary writ of prohibition should
              issue. Although all five factors need not be satisfied, it is clear
              that the third factor, the existence of clear error as a matter of
              law, should be given substantial weight.

With the foregoing in mind, we turn to the issues presented.



                                             III.


                                       DISCUSSION


              In this proceeding we are called upon to address two issues. First, we are asked

to decide if the circuit court properly ruled that Mr. Rankin could testify about M.Y.’s sexual

assault claims against another defendant when she was eleven years old. Second, we have

been asked to determine whether the circuit court correctly found that Mr. Rankin could

cross-examine M.Y. about her sexual history seventy-two hours before the purchase of the

Plan B pill. We will address each issue separately below.



                 A. Evidence about a Prior Sexual Assault of the Victim

              The first issue presented involves the circuit court’s ruling that Mr. Rankin

could testify about M.Y.’s sexual history with another person when she was eleven years old.

The State argues that admission of this evidence violates the rape shield law as set fourth




                                              6

under Rule 412 of the West Virginia Rules of Evidence.6 Mr. Rankin contends, and the

circuit court found, that the evidence was necessary for him to present a defense. We

disagree.



              Rule 412(a) sets out a general prohibition on introducing the sexual history of

a victim of sexual crimes. Rule 412(a) provides as follows:

                     (a) Prohibited Uses. – The following evidence shall not
              be admissible in a civil or criminal proceeding involving alleged
              sexual misconduct:

                     (1) evidence offered to prove that a victim engaged in
              other sexual behavior;

                     (2) evidence offered to prove a victim’s sexual
              predisposition; or

                      (3) evidence of specific instances of the victim’s sexual
              conduct, opinion evidence of the victim’s sexual conduct and
              reputation evidence of the victim’s sexual conduct in any
              prosecution in which the victim’s lack of consent is based solely
              on the incapacity to consent because such victim was below a
              critical age, mentally defective, or mentally incapacitated.

The function of the Rule has been stated as follows:

                     Rule 412 has two primary underlying functions. The first
              function is to promote the reporting of sexual assaults and other
              sexual misconduct by victims, by vitiating their fear that in


              6
                See Syl. pt. 3, State v. Varlas, 237 W. Va. 399, 787 S.E.2d 670 (2016) (“Rule
412 of the West Virginia Rules of Evidence provides the standard for the introduction at trial
of a victim’s sexual history, and it supersedes W. Va. Code § 61-8B-11 [1986] to the extent
that the statute is in conflict with the rule.”).

                                              7

              reporting the incident they will be opening up their private life
              to be put on display through the course of discovery and at trial.
              The rule’s second function seeks to combat the sexual
              stereotyping of victims, i.e., to prevent the jury from subverting
              the substantive law of rape by making the guilt of the defendant
              turn on the jury’s assessment of the moral worth of the victim.

1 Louis J. Palmer, Jr., Robin Jean Davis, and Franklin D. Cleckley, Handbook on Evidence

for West Virginia Lawyers, § 412.02[1], at 543 (6th ed. 2015) (internal citations and

quotations omitted) (footnotes omitted). See also State v. Varlas, 237 W. Va. 399, 407, 787

S.E.2d 670, 678 (2016) (“The primary purpose of Rule 412 is to safeguard the alleged victim

against the invasion of privacy, potential embarrassment and sexual stereotyping that is

associated with public disclosure of intimate sexual details and the infusion of sexual

innuendo into the factfinding process.” (internal quotations and citation omitted)).



              Here, the State has specifically relied upon Rule 412(a)(1) and 412(a)(3). That

is, the State argues that Mr. Rankin’s proposed testimony is prohibited by Rule 412(a)(1)

because it would constitute evidence offered to prove that the victim engaged in other sexual

behavior, and by Rule 412(a)(3)(2) because it would constitute evidence of a specific

instance of the victim’s sexual conduct when she was below the age of consent. The circuit

court’s order summarily cited to all of the provisions under Rule 412(a). We must interpret

the circuit court’s treatment of Rule 412(a) as an implicit finding that testimony by Mr.

Rankin, regarding M.Y.’s sexual history when she was eleven, was prohibited under the rule.



                                              8

              We agree with the State that Rule 412(a)(1) and Rule 412(a)(3) prohibit the

testimony Mr. Rankin seeks to introduce. Mr. Rankin seeks to inform the jury that M.Y. had

a sexual relation with a man when she was eleven years old. This evidence strikes at the

heart of what Rule 412(a)(1) and Rule 412(a)(3) are designed to prevent from being

introduced at a trial. See United States v. Bordeaux, 400 F.3d 548, 558 (8th Cir. 2005)

(noting that “the purpose of [Rule 412(a)] is to protect the alleged victims of sexual assault

from harassment or embarrassment”); United States v. Gardner, No. 16-cr-20135, 2016 WL

5404207, at *2 (E.D. Mich. Sept. 28, 2016) (“MV-1 was under 18 in October 2015, and thus

qualifies as an underage victim to whom Rule 412’s protections are especially important.”);

People v. Arenda, 416 Mich. 1, 13, 330 N.W.2d 814, 818 (1982) (“These children and others

are the ones who are most likely to be adversely affected by unwarranted and unreasonable

cross-examination into these areas. They are among the persons whom the [rape shield]

statute was designed to protect.”). Indeed, in the context of this case “[t]here is nothing more

intimate than childhood sexual abuse, and nothing as potentially devastating to a [victim]

than to have that abuse publicly exposed.” Andrea A. Curcio, Rule 412 Laid Bare: A

Procedural Rule That Cannot Adequately Protect Sexual Harassment Plaintiffs from

Embarrassing Exposure, 67 U. Cin. L. Rev. 125, 155-56 (1998).




                                               9

              In this proceeding, Mr. Rankin relied upon an exception to the prohibitions of

Rule 412(a). Rule 412(b)(1) delineates the exceptions to the prohibitions contained in Rule

412(a). It is provided under Rule 412(b)(1) that:

              The court may admit the following evidence in a criminal case:

                    (A) evidence of specific instances of a victim’s sexual
              behavior, if offered to prove that someone other than the
              defendant was the source of semen, injury, or other physical
              evidence;

                     (B) except as provided in (a)(3), evidence of specific
              instances of a victim’s sexual behavior with respect to the
              person accused of the sexual misconduct, if offered by the
              defendant to prove consent or if offered by the prosecutor;

                     (C) evidence of specific instances of the victim’s sexual
              conduct with persons other than the defendant, opinion evidence
              of the victim’s sexual conduct and reputation evidence of the
              victim’s sexual conduct solely for the purpose of impeaching
              credibility, if the victim first makes his or her previous sexual
              conduct an issue in the trial by introducing evidence with respect
              thereto; and

                    (D) evidence whose exclusion would violate the
              defendant’s constitutional rights.

The circuit court’s order did not cite to any specific provision under Rule 412(b)(1) as the

basis for admitting evidence that M.Y. was sexually assaulted at age eleven. However, the

record clearly shows that Mr. Rankin argued below the constitutional exception contained

in Rule 412(b)(1)(D).7 Insofar as Mr. Rankin and the State addressed Rule 412(b)(1)(D)


              7
                  Mr. Rankin’s pleadings below, and his argument during the hearing, indicated
                                                                                (continued...)

                                               10

below and in this proceeding, we will address the matter as the basis for the circuit court

ruling admitting evidence of the prior sexual assault of M.Y.8



              Under Rule 412(b)(1)(D), a criminal defendant may introduce evidence

prohibited under Rule 412(a) if the exclusion would violate the defendant’s constitutional

rights. See Syl. pt. 3, in part, State v. Jenkins, 195 W. Va. 620, 466 S.E.2d 471 (1995)

(holding that “a trial judge may not make an evidentiary ruling which deprives a criminal

defendant of certain rights, such as the right . . . to offer testimony in support of his or her

defense . . . , which [is] essential for a fair trial pursuant to the due process clause found in

the Fourteenth Amendment of the Constitution of the United States and article III, § 14 of

the West Virginia Constitution.”). Our test for determining whether a defendant has a


              7
               (...continued)
that he was relying on the exception contained in Rule 412(b)(1)(D). The State correctly
summarized the matter during the hearing as follows: “Now, there is a potential exception
if you read down further under Rule 412(b)(1) Subsection D, which [Defense counsel] cited,
there’s an exception where evidence [excluded] would violate the defendant’s constitutional
rights[.]”
              8
                The circuit court’s order cited only to the “manifest injustice” provision
contained in Rule 412(c)(2)(B). We interpret the circuit court’s order, based upon arguments
made by the parties below, as applying the “manifest injustice” standard once it determined
that a constitutional violation occurred under Rule 412(b)(1)(D). Because of our ultimate
ruling under Rule 412(b)(1)(D), we need not reach the circuit court’s application of the
“manifest injustice” provision contained in Rule 412(c)(2)(B). See 1 Louis J. Palmer, Jr.,
Robin Jean Davis, and Franklin D. Cleckley, Handbook on Evidence for West Virginia
Lawyers § 412.05[3][c], at 577 (6th ed. 2015) (discussing the possible problems in applying
the “manifest injustice” standard under Rule 412(c)(2)(B) in conjunction with the exceptions
in Rule 412(b)(1)).

                                               11

constitutional right to admit evidence that is not permitted under the rape shield law was set

out in Syllabus point 6 of State v. Guthrie, 205 W. Va. 326, 518 S.E.2d 83 (1999), in part,

as follows:

                       The test used to determine whether a trial court’s
                exclusion of proffered evidence under our rape shield law
                violated a defendant’s due process right to a fair trial is (1)
                whether that testimony was relevant; (2) whether the probative
                value of the evidence outweighed its prejudicial effect; and (3)
                whether the State’s compelling interests in excluding the
                evidence outweighed the defendant’s right to present relevant
                evidence supportive of his or her defense.[9]

(Footnote added). The State has argued that Mr. Rankin’s proposed testimony should not be

admitted based upon the second and third factors under the Guthrie test. In our review of the

evidence, we find it was not relevant and therefore fails to satisfy the first factor under the

Guthrie test.




                9
               The Guthrie test was developed under the rape shield law that existed prior
to the adoption of Rule 412 in 2014. The test, however, still is workable for a constitutional
challenge under Rule 412(b)(1)(D). See State v. Timothy C., 237 W. Va. 435, 444, 787
S.E.2d 888, 897 (2016) (applying the Guthrie test). Mr. Rankin contends that Guthrie is
inapplicable because it applies only when a trial court excludes, not admits, evidence a
defendant seeks to introduce. We disagree. The wording of the test under Guthrie simply
acknowledges that the issue generally is brought by defendants. However, this recognition
by the test does not preclude its use in the rare case when the State seeks a writ to prevent
admission of evidence in violation of the rape shield law.

                                              12

              Rule 402 of the West Virginia Rules of Evidence expressly states that

“[i]rrelevant evidence is not admissible.”10 “This ceiling on admissibility is not to be taken

lightly. Evidence that is not relevant, by definition, cannot be offered for a proper

purpose[.]” 1 Palmer, Davis, & Cleckley, Handbook on Evidence, § 402.04, at 274. For this

reason, it is generally recognized that “[a] defendant’s constitutional right to present a

defense does not extend to irrelevant . . . evidence.” State v. Gipson, 191 Wash. Ct. App.

780, 786, 364 P.3d 850, 853 (2015). See also United States v. Perez, 662 F. App’x 495, 496

(9th Cir. 2016) (“[T]he Constitution does not require the admission of the victim’s sexual

history, which would serve no purpose other than to play on social prejudices surrounding

sexual activity[.]”); Jackson v. Norris, 651 F.3d 923, 926 (8th Cir. 2011) (“Jackson’s

constitutional right to present a defense was not impaired, because that right does not extend

to the introduction of irrelevant evidence.”); United States v. Thompson, 178 F. Supp. 3d 86,

91 (W.D.N.Y. 2016) (“[T]he Due Process Clause does not give a criminal defendant the right

to introduce irrelevant evidence.”); State v. Calderon, 220 So. 3d 830, 837 (La. Ct. App.

2017) (holding “a defendant’s right to present a defense does not require a trial court to

permit the introduction of evidence that is irrelevant”). Consequently, Guthrie requires a

threshold showing that evidence contravening the rape shield law must be relevant. See

2 Stephen A. Saltzburg, Michael M. Martin, and Daniel J. Capra, Federal Rules of Evidence


              10
                 See W. Va. R. Evid. Rule 401 (“Evidence is relevant if: (a) it has any
tendency to make a fact more or less probable than it would be without the evidence; and (b)
the fact is of consequence in determining the action.”).

                                             13

Manual, § 412.02[3], at 412-6 (11th ed. 2015) (“[T]he constitutional right to an effective

defense does not guarantee that defendants can introduce whatever evidence they might

desire.”).



              In the instant case, Mr. Rankin contends that M.Y. falsely accused him of the

sexual crimes of which he was charged. In order to establish the falsity of the allegations,

Mr. Rankin seeks to show that M.Y. had a motive to falsely accuse him. To do this, Mr.

Rankin seeks to show that he had a conversation with M.Y. concerning the defendant who

sexually assaulted her when she was eleven years old. At the time of this purported

conversation, the defendant in that case was indicted, but not yet tried. Mr. Rankin asserts

that M.Y. asked him to physically harm the defendant if things did not go her way at the

defendant’s trial. Mr. Rankin claims that he refused to agree to harm the defendant. Mr.

Rankin now argues that M.Y. falsely accused him of sexual assault in retaliation for his

refusal to agree to harm the defendant.11 Consequently, Mr. Rankin further asserts that the

trial court was correct in finding this evidence could be presented during his direct

testimony.12 We disagree.

              11
                Mr. Rankin also argued below that M.Y. retaliated against him because he
rebuffed her sexual advances toward him. The circuit court’s order did not permit testimony
on this issue.
              12
               Mr. Rankin also argued below that he had a constitutional right to cross-
examine M.Y. about her sexual history. The circuit court’s order rejected this argument in
part. The circuit court’s order indicated that if M.Y. introduced evidence about her sexual
                                                                              (continued...)

                                            14

              The record is clear. M.Y. was previously sexually assaulted when she was

eleven years old. The perpetrator was convicted and sentenced to prison. The facts of that

crime have no relevancy in the prosecution of Mr. Rankin. See United States v. Elbert, 561

F.3d 771, 777 (8th Cir. 2009) (holding that because minor victims could not legally consent

to sex trafficking, evidence of their prior sexual behavior was irrelevant and its exclusion did

not violate the defendant’s Fifth Amendment due process rights); State v. Breaux, No. 2011

KA 0015, 2011 WL 6141636, at *11 (La. Ct. App. Dec. 8, 2011) (Hughes, J., dissenting) (“It

makes no sense to think of a five year old as having ‘past sexual behavior.’ Anything that

occurs with a five year old would obviously not be consensual and would constitute a

crime.”); State v. Mercado-Vasquez, 166 Or. App. 15, 23, 998 P.2d 743, 747 (2000) (“A

conclusion that a child victim has had “sexual relationships,” . . . amounts to nothing more

than a conclusion that the child has been a victim of sex crimes in the past.”). It has been

correctly noted that a “larger purpose [of rape shield laws] is to protect rape victims from the

trauma caused by the review of past sexual experiences, and this protection is especially

needed in cases involving minor victims.” State v. Townsend, 366 Ark. 152, 159-60, 233

S.W.3d 680, 686 (2006). See also 2 Saltzburg, Martin & Capra, Evidence Manual, §




              12
               (...continued)
history when she was eleven years old during her direct testimony, Mr. Rankin would then
be allowed to cross-examine her on the matter. This ruling is not before us in this
proceeding.

                                              15

412.02[3], at 412-9 (“There is clearly a legitimate interest in protecting the victim from the

trauma of having to relate or address prior sexual activity during the trial.”).



              In an effort to try to make the irrelevant facts of the prior sexual assault of

M.Y. relevant, Mr. Rankin has made an uncorroborated assertion that M.Y. falsely accused

him because he refused to physically harm the person who sexually assaulted her when she

was eleven years old. The facts of how the prosecution of Mr. Rankin began clearly reveal

that his uncorroborated assertion lacks merit.



              The record indicates that M.Y. did not initiate the investigation of Mr. Rankin

by the police. M.Y. revealed to a family friend that she was having a relationship with Mr.

Rankin. According to the State’s brief, M.Y. informed the family friend that Mr. Rankin was

“like a father to her, and that their sexual relationship was something she wanted and

desired.” The family friend informed M.Y.’s mother of the conversation she had with M.Y.

Thereafter, it was M.Y.’s mother who reported the matter to the police and caused the

investigation to occur. This uncontested chain of events simply does not reveal a retaliatory

motive by M.Y. – it reveals a mother reporting her adolescent daughter was the victim of

sexual assault once again.13 In view of these facts, we find that Rule 412(b)(1)(D) did not



              13
               During M.Y.’s interview with the police, she characterized her sexual
encounter with Mr. Rankin as consensual.

                                              16

allow Mr. Rankin to present irrelevant evidence as a defense to the jury. See Varlas, 237 W.

Va. at 409, 787 S.E.2d at 680 (Benjamin, J., dissenting) (“The rule ensures that juries hear

a legitimate defense, rather than a defense of distraction.”).



              A case that supports our conclusion is United States v. Payne, 944 F.2d 1458

(9th Cir. 1991). In Payne, the defendant was convicted of sexually assaulting a twelve year

old victim – his foster daughter. One of the issues raised on appeal concerned the district

court’s ruling that the defendant could not introduce evidence that he had previously caught

the victim engaged in sexual conduct with another child. The defendant allegedly punished

the victim for this conduct. The defendant wanted to introduce evidence of the victim’s prior

sexual conduct and the punishment he inflicted upon her in order to show that the victim was

motivated to falsely accuse him in retaliation for the punishment. The district court ruled that

the defendant could inform the jury that he once punished the child, but that he could not

inform the jury of the reason for the punishment. The appellate court agreed with the district

court as follows:

              We find that evidence of the trailer incident [where the victim
              was alleged to have engaged in sexual conduct] is minimally (if
              at all) probative of Payne’s claim of bias. [The victim’s] first
              reporting that Payne had molested her occurred more than seven
              months after the trailer incident and resulting discipline, and
              almost as long after [the victim] had left the Paynes’ home.
              Moreover, to the extent that the trailer incident had probative
              value on the question of [the victim’s] bias, that value was
              protected by the trial court’s permitting Payne to conduct a
              “sanitized cross-examination” about the trailer incident, which

                                              17

              apprised the jury that [the victim] had been disciplined by Payne
              as a result of the incident, but did not reveal the nature of the
              incident. The underlying facts of the incident simply were not
              relevant to [the victim’s] purported motivation to fabricate the
              charges. Thus, the trial court did not abuse its discretion in
              excluding the evidence and the exclusion did not violate the
              confrontation clause.

Payne, 944 F.2d at 1469 (emphasis added).14



              Mr. Rankin has also argued that the rape shield law does not apply, because he

“is not seeking to introduce evidence of M.Y.’s prior incident of sexual abuse to imply

promiscuity[.]” Mr. Rankin relies upon the decision in State v. Jonathan B., 230 W. Va. 229,

737 S.E.2d 257 (2012), to support his contention that the rape shield law does not apply to

the evidence he seeks to introduce. The defendant in Jonathan B. was convicted of second

degree sexual assault, incest, and other offenses. On appeal, the defendant argued that the

trial court erred in applying the rape shield law to preclude evidence found in a notebook

purportedly created by the victim after the rape, in which she described her only sexual

encounters as being with a person other than defendant. We agreed with the defendant that

the evidence was not prohibited by the rape shield law.15




              14
              We note that, unlike the facts in Payne, Mr. Rankin has not asked to simply
inform the jury that M.Y. was retaliating against him for refusing to physically harm
someone.
              15
             The decision in the case was decided under the rape shield statute, W. Va.
Code § 61-8B-11.

                                             18

              We find that the notebook is relevant evidence for the purpose
              of evaluating M.B.’s credibility. In the notebook, which
              Jonathan B. asserts was written after the alleged rape, M.B.
              stated that she had only ever had sexual intercourse with one
              person: “Chris.” As noted supra, in this case, where the State’s
              case relies almost completely on the testimony of M.B., the
              evidence is highly probative for Jonathan B.’s defense because
              the notebook was supposedly created after the alleged rape
              occurred. The prejudicial value of the evidence is low, as the
              purpose of admitting the evidence is not to imply promiscuity,
              but to attack M.B.’s credibility. In this way, the evidence is not
              of the type the Rape Shield statute was intended to exclude. In
              sum, we find that the balance of interests in this case weighs in
              favor of Jonathan B., and therefore, the evidence is admissible,
              subject to proper authentication.

Jonathan B., 230 W. Va. at 240-41, 737 S.E.2d at 268-69. One simple fact distinguishes the

evidentiary issue resolved in Jonathan B. from the evidentiary issue presented by Mr.

Rankin. In Jonathan B. we determined that the evidence sought to be admitted was relevant.

In the instant proceeding, we have determined that the evidence Mr. Rankin seeks to

introduce is not relevant. Consequently, Mr. Rankin cannot rely upon Jonathan B.



              In view of the foregoing, the State is entitled to the writ of prohibition as it

relates to the issue of M.Y. being a victim of sexual assault at the age of eleven.



              B Evidence about the Victim’s Sexual History Seventy-Two

                     Hours Before the Purchase of a Plan B Pill


              The next issue raised involves the State’s intent to introduce a statement made

by Mr. Rankin concerning his purchase of the Plan B pill for M.Y. As a result of this, the

                                             19

circuit court ruled that during Mr. Rankin’s cross-examination of M.Y., he would be

permitted to ask her whether she told him she had engaged in sex with anyone else within the

seventy-two hour period prior to his purchase of the Plan B pill for her.16 The State contends

that this evidence is prohibited by Rule 412(a)(3). Mr. Rankin argues that this evidence is

permitted under the exception contained in Rule 412(b)(1)(C).



              The State is correct in arguing that, under Rule 421(a)(3), evidence of specific

instances of a victim’s sexual conduct is prohibited. Mr. Rankin is also correct in pointing

out that Rule 412(b)(1)(C) permits evidence of specific instances of a victim’s sexual

conduct when the victim is the first to introduce evidence regarding the same.17 The question

we must resolve is whether Rule 412(b)(1)(C) supports the circuit court’s ruling.18



              As previously stated, Rule 412(b)(1(C) is an exception under the rape shield

law which permits a defendant to introduce “evidence of specific instances of the victim’s



              16
                 The ruling did not permit Mr. Rankin to “pursue the matter any further or
offer extrinsic evidence of her sexual conduct.”
              17
               Rule 412(b)(1)(C) specifically references to evidence introduced by the
“victim.” It has been noted that the term “victim” under the rule should be construed “to
mean the ‘prosecution,’ and that any relevant rebuttal evidence is admissible despite the
manner in which it was opened up by state witnesses.” 1 Palmer, Davis, & Cleckley,
Handbook on Evidence, § 412.04[2][c], at 563.
              18
               The circuit court’s order did not expressly cite to Rule 412(b)(1)(C).
However, its ruling is implicitly based upon this rule.

                                             20

sexual conduct with persons other than the defendant . . . , if the victim first makes his or her

previous sexual conduct an issue in the trial by introducing evidence with respect thereto.”19

This is the first opportunity we have had to determine how this rule should be applied.



              The purpose of Rule 412(b)(1)(C) is to prevent the State from selectively

introducing evidence of a victim’s sexual history, and denying the defendant the right to

rebut such evidence. The rule appears to express the concern that is found in the curative

admissibility rule. See United States v. Rucker, 188 F. App’x 772, 778 (10th Cir. 2006)

(“‘Opening the door’ is also referred to as the doctrine of ‘curative admissibility.’”). We

have noted that “the curative admissibility rule comes into play when irrelevant evidence is

introduced without objection and the opponent seeks to introduce rebuttal evidence that is

also irrelevant.” State v. McKinley, 234 W. Va. 143, 157, 764 S.E.2d 303, 317 (2014)

(internal quotations and citation omitted). It has been said that the rule “does not permit a

party to introduce inadmissible evidence merely because the opponent brought out some

evidence on the same subject. The rule is merely protective and goes only as far as is

necessary to shield a party from adverse inferences.” People v. Manning, 182 Ill. 2d 193,

216-17, 695 N.E.2d 423, 433-34 (1998). This Court set out guidelines for the application of




              19
              “This provision is not contained in the federal counterpart. Rule 412(b)(1)(C)
was taken from the rape shield statute, W. Va. Code § 61-8B-11.” Palmer, Davis, &
Cleckley, Handbook on Evidence, § 412.04[2][c], at 562.

                                               21

the curative admissibility rule in Syllabus point 10 of State v. Guthrie, 194 W. Va. 657, 461

S.E.2d 163 (1995):

                     The curative admissibility rule allows a party to present
              otherwise inadmissible evidence on an evidentiary point where
              an opponent has “opened the door” by introducing similarly
              inadmissible evidence on the same point. Under this rule, in
              order to be entitled as a matter of right to present rebutting
              evidence on an evidentiary fact: (a) The original evidence must
              be inadmissible and prejudicial, (b) the rebuttal evidence must
              be similarly inadmissible, and (c) the rebuttal evidence must be
              limited to the same evidentiary fact as the original inadmissible
              evidence.



              We believe that the purpose of Rule 412(b)(1)(C) is consistent with the curative

admissibility rule. Therefore, we hold that, in order to rebut evidence on an evidentiary fact

under Rule 412(b)(1)(C) of the West Virginia Rules of Evidence, (1) the original evidence

must be inadmissible under Rule 412; (2) the rebuttal evidence must be similarly

inadmissible; and (3) the rebuttal evidence must be limited to the same evidentiary fact as the

original inadmissible evidence. We now apply this test to the facts under consideration.



              Mr. Rankin gave a recorded statement to the police wherein he stated that he

purchased a Plan B pill for M.Y. because she informed him that she had unprotected sex with

someone else. The State informed the circuit court that it was going to introduce the

recorded statement in full at trial. Although the State was only interested in letting the jury

know that Mr. Rankin purchased the Plan B pill for M.Y., it was also willing to have the jury

                                              22

hear Mr. Rankin allege that M.Y. had unprotected sex with someone else.20 As a result of

the State’s decision to introduce the full statement, the circuit court permitted Mr. Rankin to

ask M.Y. whether she told him she had sex with someone else during the seventy-two hour

period before he purchased the Plan B pill. This question was deemed necessary and

permissible because the jury could infer that the State only introduced the statement because

it was false. Consequently, the circuit court determined that Mr. Rankin had a right to rebut

this adverse inference by asking M.Y., in essence, to affirm or deny the truth of his statement.



              Applying the above facts to the test we have developed, we find that, under the

first factor of our test, it is clear that the State’s introduction of part of Mr. Rankin’s

statement, that M.Y. had unprotected sex with someone else, is inadmissible under Rule

412(a)(3). See State v. Wenthe, 865 N.W.2d 293, 306-07 (Minn. 2015) (“The rape-shield law

applies equally to evidence offered by the prosecution and the defense.”). As to the second

factor, it is equally clear that Rule 412(a)(3) prohibits Mr. Rankin from asking M.Y. whether

she told him she had sex with someone else within the seventy-two hour period prior to his

purchase of the Plan B pill for her. Finally, under the third factor of the test, the single


              20
                 We have found nothing in the record to show that the State attempted to have
the trial court permit it to redact that part of Mr. Rankin’s statement that alleged M.Y. stated
she needed the Plan B pill because of sexual conduct with someone else. See State v.
Marenkovic, No. 11-1764, 2013 WL 1501426 (W. Va. April 12, 2013) (where the State
avoided the statutory version of Rule 412(b)(1)(C) by redacting a statement that would have
opened the door for the defendant to present evidence of the sexual history of the victim).
We make no ruling on whether such a redaction would be proper.

                                              23

question that Mr. Rankin is permitted to ask is limited to the inadmissible evidence the State

seeks to introduce.



              As a result of our analysis, it is clear that the State seeks to introduce

inadmissible evidence and that Mr. Rankin should be permitted to rebut that evidence with

inadmissible evidence as authorized by the circuit court. See Docekal v. State, 929 So. 2d

1139, 1143 (Fla. Dist. Ct. App. 2006) (holding that it is reversible error to prohibit a

defendant from cross-examining a victim regarding her past sexual history when she

presented statements that opened the door to this evidence). Consequently, we deny the

State’s request to prohibit enforcement of that part of the circuit court’s order that permitted

Mr. Rankin to ask M.Y., on cross-examination, whether she told him she had sex with

someone else during the seventy-two hour period before he purchased the Plan B pill for her.

Under the circuit court’s ruling, Mr. Rankin is required to accept M.Y.’s response of “yes”

or “no” without further questioning in this area.



                                              IV.


                                       CONCLUSION


              We prohibit enforcement of that part of the circuit court’s order allowing Mr.

Rankin to introduce evidence that M.Y. accused another man of sexual assault when she was

eleven years old. Furthermore, we deny the State’s request to prohibit enforcement of that


                                              24

part of the circuit court’s order permitting Mr. Rankin to cross-examine M.Y. about whether

she told him she had sex with anyone else during the seventy-two hour period prior to his

purchase of the Plan B pill.



                                                   Writ granted in part and denied in part.




                                            25

