                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

State of West Virginia,

Plaintiff Below, Respondent                                                         FILED

                                                                                  March 28, 2014
                                                                              RORY L. PERRY II, CLERK
vs) No. 13-0561 (Berkeley County 10-F-163)                                  SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

Melvin G. S.,

Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner Melvin G. S.1, by counsel James P. Riley IV, appeals his conviction of four
counts of sexual assault by a parent, guardian, or custodian, and three counts of sexual assault in
the third degree. Petitioner was sentenced by the Circuit Court of Berkeley County on February
4, 2013. Respondent State of West Virginia, by counsel Cheryl K. Saville, filed a response to
which petitioner replied.

       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 trial court’s order is appropriate under Rule 21 of
the Rules of Appellate Procedure.

        In October of 2010, petitioner was indicted on four counts of sexual abuse by a parent,
guardian, or custodian, and three counts of sexual assault in the third degree. Petitioner was
forty-six or forty-seven years old at the time of the alleged crimes. The victim was petitioner’s
girlfriend’s daughter. Petitioner had lived with the victim and her mother since the victim was
three years old. Petitioner began assaulting the victim when she was thirteen. At age fourteen, the
victim discovered she was pregnant. She terminated the pregnancy; however, DNA testing of the
fetus showed that petitioner was the father.

        Prior to trial, petitioner sought to enter the testimony of Brittany F., the victim’s friend,
pursuant to Rule 404(a)(3) of the West Virginia Rules of Evidence. At a hearing on the matter,
Ms. F. testified that the victim told her that she (the victim) had sex in a gas station bathroom
with a boy and he might have impregnated her. The trial court denied petitioner’s motion to enter
Ms. F.’s testimony at trial because it was not “specifically related” to the acts for which
petitioner was charged pursuant to Rule 404(a)(3), and manifest injustice would not result from
its exclusion. However, the trial court noted that Ms. F.’s testimony might be admissible under

       1
          Consistent with our practice in cases involving sensitive matters, we have replaced
petitioner’s last name with his last initial. See State v. Edward Charles L., 183 W.Va. 641, 645
n.1, 398 S.E.2d 123, 127 n.1 (1990); see also W.Va. Rule of App. P. Rule 40(e)(1).


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the Rape Shield Statute, West Virginia Code § 61-8B-1l (b), if the victim’s sexual history was
made an issue at trial.

       The case went to trial on October 16, 2012. The jury found petitioner guilty of all seven
counts of the indictment on October 23, 2012. Petitioner’s post-trial motion for a new trial was
denied by the trial court.

        On February 4, 2013, the trial court sentenced petitioner to ten to twenty years in prison
for each of the four counts of felony sexual abuse by a parent, guardian, or custodian to be served
consecutively, and one to five years in prison for each of the three counts of felony sexual abuse
to be served concurrently with each other, but consecutively to the prior four counts.

        Petitioner now appeals his conviction and the trial court’s denial of his post-trial motion
for a new trial.

       Petitioner raises five assignments of error on appeal. Petitioner first argues that the trial
court erred in denying his pretrial motion to allow Brittany F.’s to testify at trial. Petitioner
claims that Ms. F.’s testimony was relevant because the State’s expert and the defense’s expert
disagreed as to whether DNA testing had proved that petitioner had fathered the victim’s fetus.
Thus, petitioner claims there was a valid and probative reason to allow Ms. F.’s testimony into
evidence.

       Before we begin our analysis of this assignment of error, we first note that petitioner’s
characterization of the experts’ “disagreement” regarding whether petitioner fathered the fetus is
inaccurate. Although petitioner’s expert witness had concerns regarding a second and more
thorough DNA test of the fetal tissue, the defense’s expert admitted that—once he understood
the process for the second DNA test—his concerns were allayed. Importantly, the first test
showed that it was 99.69% likely that petitioner had fathered the fetus, and the second test
showed that it was 99.99% likely that he was the father.

        Turning now to petitioner’s claim that the trial court erred in denying his pretrial motion
to enter Ms. F.’s testimony at trial, we have said, “‘A trial court’s evidentiary rulings, as well as
its application of the Rules of Evidence, are subject to review under an abuse of discretion
standard.’ Syl. Pt. 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).” Syl. Pt. 2,
State v. Payne, 225 W.Va. 602, 694 S.E.2d 935 (2010). Specifically, we review petitioner’s
claims regarding the exclusion of the proffered evidence pursuant to Syllabus Point 6 of State v.
Guthrie, 205 W. Va. 326, 518 S.E.2d 83 (1999), which provides that,

       [t]he 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. Under this test, we will reverse
       a trial court’s ruling only if there has been a clear abuse of discretion.



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Id. at 330, 518 S.E.2d at 87. Applying the facts in this case to Guthrie, it is clear that the trial
court did not abuse its discretion in denying petitioner’s motion to introduce Ms. F.’s testimony.
First, the testimony was not relevant to the determination of whether petitioner engaged in
felonious sexual contact, intrusion, and/or intercourse with the victim. Second, the prejudicial
effect of Ms. F.’s testimony did not outweigh its probative value due to the high risk of unfair
prejudice to the State, and the testimony’s lack of probative value to the crimes charged. Third,
the State’s interests in excluding Ms. F.’s testimony far outweighed petitioner’s interests in
introducing it because the State had an interest in upholding West Virginia’s Rape Shield Law,
West Virginia Code § 61-8B-1l (b), which requires that

       [i]n any prosecution under this article 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 shall not be admissible: Provided, That such evidence shall be admissible
       solely for the purpose of impeaching credibility, if the victim first makes his or
       her previous conduct an issue in the trial by introducing evidence with respect
       thereto.

Guthrie, 205 W.Va. 333, 518 S.E.2d 90. Therefore, the only manner in which Ms. F.’s testimony
could have been entered at trial was for the purpose of impeachment if the State or the victim
made her past sexual conduct an issue at trial.

        Petitioner’s second assignment of error is that, at trial, the lower court erred in denying
his renewed motion to admit Ms. F.’s testimony where the motion was made immediately after
the victim put her past sexual conduct into evidence. In support of this argument, petitioner cites
to the following portion of defense counsel’s cross-examination of the victim:

       DEFENSE COUNSEL: Now, [the State] asked you on direct did your mom get
       mad at you. I believe your answer was no, she didn’t. Correct?

       THE VICTIM: Correct.

       DEFENSE COUNSEL: And, she didn’t make you feel like you had done
       anything wrong? Is that correct?

       THE VICTIM: Yes

       DEFENSE COUNSEL: And, she didn’t get mad at you because you falsely
       accused [petitioner] of being the father of your child? She was mad at him and not
       you? Is that correct? [Emphasis added.]

       THE STATE: Your Honor, that’s argumentative and he’s putting words in her
       mouth. She never falsely accused him.

       THE COURT: Well this is cross.



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       THE STATE: Well he’s still putting words in her mouth.

       DEFENSE COUNSEL: I said “is that correct”? She can answer yes or no judge,
       as the case may be.

       THE VICTIM: I don’t understand what you’re saying because I never falsely
       accused him. I know it was him because I wasn’t having sex with anybody else.
       [Emphasis added.]

       DEFENSE COUNSEL: I think that’s all I have at this time judge.

       Petitioner claims that the victim’s answer, “I know it was him because I wasn’t having
sex with anybody else[,]”put her past sexual conduct into question at trial. Therefore, Ms. F.’s
testimony was admissible to impeach the victim’s credibility pursuant to West Virginia Code §
61-8B-1l(b). Petitioner admits that the trial court denied his motion on the ground that defense
counsel invited the error, but argues that the victim’s answer was not invited because it was not
sought by defense counsel, and was not related to the question she was asked: “And, she didn't
get mad at you because you falsely accused [petitioner] of being the father of your child? She
was mad at him and not you? Is that correct?” Petitioner contends that he was merely asking
whether the victim’s mother was angry with her.

        Before we address this assignment of error, we highlight the following exchange which
petitioner omitted in his brief on appeal. The exchange occurred just prior to the testimony
excerpted above by petitioner:

       DEFENSE COUNSEL: Are you sure you didn’t know you were pregnant before
       that phone call on September 3rd at City Hospital?

       THE STATE: Your Honor, may I ask the relevance of this question, what it has to
       do with the elements of this crime or credibility?

       THE COURT: If we’re going to go into it more, we need to have a sidebar.

       DEFENSE COUNSEL: Let me ask it this way.

       THE COURT: All right.

       DEFENSE COUNSEL: Prior to September the 3rd, did you suspect that you were
       pregnant?

       THE VICTIM: No.

       DEFENSE COUNSEL: Never did?

       THE VICTIM: No.



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       DEFENSE COUNSEL: Never had a conversation with any of your close friends?

       THE VICTIM: No.

       THE STATE: Again, Your Honor, I don't understand whether or not-

       THE COURT: Sustained.

        In light of the exchange in total, we find that the trial court did not err in finding that
defense counsel posed the above-referenced line of questioning for the specific purpose of
eliciting a response from the victim about her past sexual conduct. In denying petitioner’s
renewed motion to enter Ms. F.’s testimony, the trial court properly relied upon State v.
Crabtree, 198 W.Va. 620, 482 S.E.2d 605 (1996), in which we said,

       Where inadmissible evidence is introduced solely as a result of the rigorous
       examination of the complaining party, the error is deemed invited error. State v.
       Hanson, 181 W.Va. 353, 363, 382 S.E.2d 547, 557 (1989); Fluharty v. Wimbush,
       172 W.Va. 134, 137, 304 S.E.2d 39, 42 (1983).

                “Invited error” is a cardinal rule of appellate review applied to a wide
       range of conduct. It is a branch of the doctrine of waiver which prevents a party
       from inducing an inappropriate or erroneous response and then later seeking to
       profit from that error. The idea of invited error is not to make the evidence
       admissible but to protect principles underlying notions of judicial economy and
       integrity by allocating appropriate responsibility for the inducement of error.
       Having induced an error, a party in a normal case may not at a later stage of the
       trial use the error to set aside its immediate and adverse consequences. In Syllabus
       Point 1 of State v. Compton, 167 W.Va. 16, 277 S.E.2d 724 (1981), we stated:

               “‘An appellant or plaintiff in error will not be permitted to
               complain of error in the admission of evidence which he offered or
               elicited, and this is true even of a defendant in a criminal case.’
               Syl. pt. 2, State v. Bowman, 155 W.Va. 562, 184 S.E.2d 314
               (1971).”

Id. at 627, 482 S.E.2d. 612. In the case at bar, it is clear that defense counsel was attempting to
get the victim to “open the door” regarding her past sexual conduct and, therefore, invited the
error of which he now complains. Such invited error cannot defeat the proscriptive language of
West Virginia Code § 61-8B-1l(b).

        Petitioner next argues that the trial court erred in denying his motion to dismiss the
indictment because it was legally insufficient under Article III, Section 14 of the West Virginia
Constitution and West Virginia Rule of Criminal Procedure 7(c)(1). Petitioner specifically claims
that the counts of the indictment charging petitioner with sexual abuse by a parent, guardian, or
custodian (Counts One, Three, Five, and Seven) (1) did not specify which acts petitioner was
accused of perpetrating (i.e., sexual intercourse or sexual intrusion or sexual contact); (2) did not

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specify whether the acts were perpetrated or only attempted; and (3) did not provide a time or
date when the alleged violations occurred. Counts One, Three, and Five of petitioner’s
indictment read as follows:

                That MELVIN G. [S.] between the _ day of August 2009 and the _ day of
        September 2010 in the said County of Berkeley, State of West Virginia, did then
        and there unlawfully, intentionally and feloniously engage or attempt to engage in
        sexual intercourse, sexual intrusion, or sexual contact with [the victim], the said
        [victim] then being a minor child under the care, custody or control of the said
        MELVIN G. [S.], her parent, guardian, or custodian, in violation of Chapter 61,
        Article 8D, Section 5(a) of the West Virginia State Code, as amended, against the
        peace and dignity of the State.

      Petitioner highlights that Count Seven is identical to Counts One, Three, and Five with the
exception that the “August, 2009” date in Counts One, Three, and Five, was replaced with a
“July, 2010” in Count Seven. Petitioner claims that taken together, these errors precluded him
from providing all possible defenses and may, at some future date, violate the constitutional
proscription against double jeopardy.

                 “Generally, the sufficiency of an indictment is reviewed de novo. An
        indictment need only meet minimal constitutional standards, and the sufficiency
        of an indictment is determined by practical rather than technical considerations.”
        Syl. pt. 2, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996).

Syl. Pt. 3, State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999). Further,

               [a]n indictment is sufficient under Article III, § 14 of the West Virginia
        Constitution and W. Va. R. Crim. P. 7(c)(1) if it (1) states the elements of the
        offense charged; (2) puts a defendant on fair notice of the charge against which he
        or she must defend; and (3) enables a defendant to assert an acquittal or
        conviction in order to prevent being placed twice in jeopardy.

Syl. Pt. 6, id.

        Counts One, Three, Five, and Seven of petitioner’s indictment followed the language of
the relevant statute, West Virginia Code §61-8D-5(a); fully informed petitioner of the particular
offense with which he was charged; and enabled the court to determine the statute upon which
the charge was based: West Virginia Code §61-8D-5(a). Further, both the citation and the
language of the counts made clear that petitioner was being charged for sexual acts (as opposed
to sexual exploitation) perpetrated upon the victim, who is identified by name. Regarding
whether the alleged acts were completed or merely attempted; or whether the act was sexual
intercourse, sexual intrusion or sexual contact; any completed or attempted such act would have
sufficed to sustain a conviction under West Virginia Code § 61-8D-5(a). Hence, the trial court
did not err in determining that the indictment met minimal constitutional standards and followed
the guidelines of West Virginia Rule of Criminal Procedure 7.



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        As for petitioner’s complaint regarding the absence of definitive dates in the indictment,
we addressed that issue in State v. David D.W., 214 W.Va. 167, 588 S.E.2d 156 (2003). In
David D.W., the defendant asserted that his 206 count indictment—which included multiple
counts of sexual abuse by a parent, guardian, or custodian—was insufficient because it lacked
specific dates on which the alleged offenses purportedly occurred. Id. at 172, 588 S.E.2d at 161.
This Court disagreed and concluded that the indictment was sufficient pursuant to West Virginia
Code § 62–2–10, which provides that “[n]o indictment or other accusation shall be quashed or
deemed invalid . . . for omitting to state, or stating imperfectly, the time at which the offense was
committed, when time is not of the essence of the offense[.]” This Court concluded that, because
time was not an element of the sexual crimes charged against the defendant, the lack of definitive
dates did not render defendant’s indictment legally insufficient. Based on our ruling in David
D.W., we likewise find in the case sub justice that the absence of definitive dates in petitioner’s
indictment does not affect its legal sufficiency because time was not an essential element of the
crimes charged against petitioner.

        The defendant in David D.W. also argued that without definitive dates in his indictment,
“it would be impossible for him to plead his convictions as a bar to a later prosecution, since the
State could draft a new indictment alleging that the same offenses occurred on one of the days of
the month not alleged in the previous indictment.” 214 W.Va. at 173, 588 S.E.2d at 163.
However, as we found in David D.W., the lack of specific dates in such an indictment does not
vitiate a defendant’s ability to plead double jeopardy upon an acquittal or conviction. “A
conviction under an indictment charged, though the proof was at variance regarding immaterial
dates, precludes a subsequent indictment on the exact same material facts contained in the
original indictment.” Id. (citing State ex rel. State v. Reed, 204 W.Va. 520, 524, 514 S.E.2d 171,
175 (1999)). Hence, because the indictment did not violate the constitutional proscription against
double jeopardy, we find that the trial court did not err in denying petitioner’s motion to dismiss
it.

       Petitioner next argues that, given the insufficiency of his indictment, the trial court erred
in denying his motion for a bill of particulars.

       “The ruling of a trial court concerning the sufficiency of a bill of particulars will not be
reversed on appeal unless the trial court abused its discretion.” Syl. Pt. 5, State v. Meadows, 172
W.Va. 247, 304 S.E.2d 831 (1983). Furthermore,

               “[i]t is fundamental that the accused must be fully and plainly informed of
       the character and cause of the accusation. The Constitution so requires . . . . A bill
       of particulars is for the purpose of furnishing details omitted from the accusation
       or indictment, to which the defendant is entitled before trial.” State v. Counts, 90
       W.Va. 338, 342, 110 S.E. 812, 814 (1922). See State v. Koski, 101 W.Va. 477,
       133 S.E. 79 (1926). See also 3A M.J. Bill of Particulars § 3 (1976).

Id. at 254, 304 S.E.2d 838. Following a hearing on the matter, the trial court denied petitioner’s
motion for a bill of particulars because the State had given the defense all of the information that
it had in its possession and furnished all details to which petitioner was due under the law. As
such, we find that the trial court did not abuse its discretion in denying petitioner’s motion for a

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bill of particulars because petitioner’s indictment was not legally insufficient and the State fully
complied with petitioner’s discovery requests.

        Petitioner’s fifth and final assignment of error is that the trial court erred in denying his
post-trial motion for a new trial due to the cumulative errors at trial, including those noted above,
as well as the court’s failure to grant access to medical records.

               “‘“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).

        In addressing this assignment of error, we first note that petitioner fails to list which
medical records he was denied or how any denial allegedly impacted his defense. As for
petitioner’s claim of cumulative error, it does not apply herein because we have found no error.
Therefore, because petitioner fails to show that the trial court acted under some misapprehension
of law or evidence, we find that it did not abuse its discretion in denying petitioner’s motion for a
new trial.

       For the foregoing reasons, we affirm.
                                                                                          Affirmed.

ISSUED: March 28, 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




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