No. 12-0301 - State of West Virginia v. Bryan Maggard
                                                                            FILED
                                                                            October 7, 2013

                                                                         released at 3:00 p.m.

                                                                       RORY L. PERRY II, CLERK

                                                                     SUPREME COURT OF APPEALS

                                                                          OF WEST VIRGINIA


LOUGHRY, Justice, dissenting:

              The majority’s startlingly terse opinion, which reverses the petitioner’s

conviction following a two-day jury trial, smacks of the worst kind of result-oriented

jurisprudence.   On the basis of cursory and incomplete legal analysis, the majority

deprives the victim in this case of the justice which she deserves and suggests to similarly

situated victims that review of the proceedings in their cases are not worthy of this

Court’s thorough and fully developed analysis. Specifically, the majority incorrectly

concludes that there was an erroneous admission of evidence prohibited by West Virginia

Rule of Evidence 404(a).       More troubling, however, is the fact that the majority

completely fails to undertake a harmless error analysis as to this perceived error. Had it

done so, it would have reached the inescapable conclusion that the jury’s verdict

demonstrably renders any purported error utterly harmless. For these reasons, I dissent.



              In the case at bar, the victim and the petitioner made plans to “hang out”

and “maybe watch a movie” after the victim got off work with the express understanding

“that nothing was going to happen sexually.” The two met, as planned, and the victim

gave the petitioner a ride home. Upon arriving at his place of residence, which was a

room in the Marshall University Rugby House, the petitioner asked the victim if she
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would come in and watch a movie. The victim testified that she “wanted to go home,”

but agreed to go in for “a little bit” because the petitioner was “very persistent.” As part

of this narrative testimony, upon direct examination, the prosecutor asked the victim why

she was reluctant to accompany the petitioner into his room. The victim responded, “I

heard how he is.”      Defense counsel offered a vague objection, asserting that this

statement was “completely outside of the scope of what is going on here.” The trial court

overruled the objection and the victim briefly elaborated that the petitioner “just wants to

get one thing from girls.” With little analysis, the majority determines that this testimony

was inadmissible Rule 404(a) evidence, which alone warrants reversal of the petitioner’s

conviction. I strongly disagree.



              First, I do not believe that the testimony at issue constitutes Rule 404(a)

evidence. Rule 404(a) provides that “[e]vidence of a person’s character or a trait of

character is not admissible for the purpose of proving that he or she acted in conformity

therewith on a particular occasion[.]” In State v. Mills, 219 W.Va. 28, 631 S.E.2d 586

(2005), we reiterated that character evidence prohibited by Rule 404(a) is limited to

evidence which is offered “to prove that he acted in conformity therewith.” Id. at 39, 631

S.E.2d at 597. In finding that evidence that the victim was afraid of the defendant was

not inadmissible in Mills, we stated:

              Based upon our review of the issue of admissibility of
              evidence of the victim’s fear of the [defendant], we agree
              with the contention of the State that even if the victim’s fear
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              of the [defendant] could be construed as evidence of the
              [defendant’s] character, Rule 404 has not been violated since
              that evidence was not introduced to prove that the
              [defendant] acted in conformity with that impression the
              victim had of him. Rule 404 apples only where evidence of a
              person’s character is introduced to prove that he acted in
              conformity therewith. We consequently find that the
              admissibility issue was properly within the discretion of the
              lower court, and we find no abuse of such discretion.

Mills, 219 W.Va. at 39, 631 S.E.2d at 597 (footnoted omitted) (emphasis added).

Similarly, in the case at bar, the State argued that this testimony was not offered for the

purpose of proving that the petitioner acted in conformity therewith. I agree. This

conclusion is supported by the nature of the statement itself. The victim’s testimony,

fairly construed, suggests that the petitioner had a propensity for seeking out sexual

encounters with women. This sort of general (and non-criminal) character trait does not

equate to the crimes with which the petitioner was charged. The petitioner was charged

with having non-consensual sexual contact with the victim; as such, the State would have

no motivation to prove merely that the petitioner “only wanted one thing from girls” as it

does nothing to prove an element of their case. Rather, if the State were theoretically

attempting to introduce character evidence to prove that the petitioner acted “in

conformity therewith,” it would have elicited testimony that the petitioner was known for

forcing himself on women.        Said differently, the “character” or “trait” that the

prosecution would have been attempting to prove that the petitioner acted in conformity

with was having non-consensual sex with women. Nothing about the statement that the

petitioner only “wanted one thing” suggests, in and of itself, that he was necessarily a
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“sexual predator” (as the majority characterizes it) who engaged in sexual encounters

with women by force.



              The more reasonable construction of the statement is that it was provided as

context for the victim’s testimony as to why she was hesitant to go to the petitioner’s

room, why she felt it had been necessary to make certain that the petitioner understood

that “nothing was going to happen sexually,” and as further evidence of her subsequent

lack of consent to the petitioner’s unlawful conduct. Not only does the majority simply

jump to the conclusion that such a statement was character evidence, it fails entirely to

address the State’s reasonable assertion that it was not offered to show conformity.

Nowhere in its ten-page opinion does the majority dedicate so much as a sentence to

discounting the alternative uses for this testimony before declaring it inadmissible. I

believe this testimony was not Rule 404(a) evidence and, thus, the trial court did not

abuse its discretion by admitting it at trial. Syl. Pt. 4, State v. Rodoussakis, 204 W.Va.

58, 511 S.E.2d 469 (1998) (“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.”).



              Second, assuming, arguendo, that the majority is somehow correct in its

conclusion that the questioned testimony is, in fact, Rule 404(a) evidence, it is patently

obvious that any purported error was harmless. In an effort to reach its desired outcome,

the majority blatantly omits altogether any such harmless error analysis from its

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opinion—an analysis which this Court has repeatedly held is a necessary predicate to

overturning a conviction. This Court has expressly held: “‘A judgment will not be

reversed because of the admission of improper or irrelevant evidence when it is clear that

the verdict of the jury could not have been affected thereby.’ Syllabus point 7, Torrence

v. Kusminsky, 185 W.Va. 734, 408 S.E.2d 684 (1991).” Syl. Pt. 3, State v. Swims, 212

W.Va. 263, 569 S.E.2d 784 (2002). Moreover, in State v. Blake, 197 W.Va. 700, 705,

478 S.E.2d 550, 555 (1996), this Court explained that:

              Even when a trial court has abused its discretion by admitting
              or excluding evidence, the conviction must be affirmed unless
              a defendant can meet his or her burden of demonstrating that
              substantial rights were affected by the error. In other words, a
              conviction should not be reversed if we conclude the error
              was harmless or “unimportant in relation to everything else
              the jury considered on the issue in question.” Instead, this
              Court will only overturn a conviction on evidentiary grounds
              if the error had a substantial influence over the jury.

(emphasis added) (citations omitted). See also State v. McFarland, 228 W.Va. 492, 505,

721 S.E.2d 62, 74 (2011) (Davis, J. and McHugh, J., dissenting) (observing that the

majority’s summary reversal of a sexual assault conviction on the basis of tenuous

evidentiary grounds avoided harmless error analysis “because the majority wanted to

reach a result that was not supported by the record”).



              With respect to harmless error, this Court has articulated the following test:




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             Where improper evidence of a nonconstitutional nature is
             introduced by the State in a criminal trial, the test to
             determine if the error is harmless is: (1) the inadmissible
             evidence must be removed from the State’s case and a
             determination made as to whether the remaining evidence is
             sufficient to convince impartial minds of the defendant’s guilt
             beyond a reasonable doubt; (2) if the remaining evidence is
             found to be insufficient, the error is not harmless; (3) if the
             remaining evidence is sufficient to support the conviction, an
             analysis must then be made to determine whether the error
             had any prejudicial effect on the jury.

Syl. Pt. 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979), cert. denied, 445 U.S.

904 (1980); see also Mills, 219 W.Va. at 39 n.5, 631 S.E.2d at 597 n.5. (noting necessity

of harmless error analysis even if 404(a) erroneously admitted).



             The first step of the Atkins harmless error test requires the removal of the

victim’s testimony from the State’s evidence in the case sub judice followed by an

evaluation of the remaining evidence at trial to determine whether it was sufficient to

support the jury’s verdict.   In considering the sufficiency of the evidence at trial, this

Court has held:

             An appellate court must review all the evidence, whether
             direct or circumstantial, in the light most favorable to the
             prosecution and must credit all inferences and credibility
             assessments that the jury might have drawn in favor of the
             prosecution. The evidence need not be inconsistent with every
             conclusion save that of guilt so long as the jury can find guilt
             beyond a reasonable doubt. Credibility determinations are for
             a jury and not an appellate court. Finally, a jury verdict
             should be set aside only when the record contains no
             evidence, regardless of how it is weighed, from which the
             jury could find guilt beyond a reasonable doubt.



                                             6

Syl. Pt. 3, in part, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). As this Court

has further explained, “all the evidence, direct and circumstantial, must be viewed from

the prosecutor’s coign of vantage, and the viewer must accept all reasonable inferences

from it that are consistent with the verdict.” Syl. Pt. 2, in part, State v. LaRock, 196

W.Va. 294, 470 S.E.2d 613 (1996).



              Here, the evidence showed that the victim went with the petitioner into his

room at the rugby house because he was “very persistent” in asking her to do so. The

victim testified that the only consensual act once inside the petitioner’s room was kissing.

When asked whether she thought the kissing would lead to sex, she responded, “[n]o”

because she had previously made it clear to the petitioner that they “were not going to

have sex.” Notwithstanding the victim’s prior admonishments, she testified that the

petitioner kept trying to “touch” her “crotch,” that she “kept pushing his hand away,” and

that each time she pushed his hand away, she “told him ‘[n]o.’” The prosecutor

questioned the victim regarding the petitioner’s sexual assault of her as charged in Count

One of the indictment, as follows:

              Q. And what happened after he kept trying to touch you?
              A. He ended up showing [sic] his hand down my pants.
              ····
              Q. What happened then?
              A. I tried to pull his hand away.
              Q. When he put his hand down there did his hand touch any
              part of your body?
              A. Yes.
              Q. What part?
              A. My vagina.
              Q. What part of his hand touched your vagina?

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              A. His fingers.
              Q. Do you recall whether that was the outside of that area or
              actually inside your vaginal area?
              A. Inside.
              Q. And what was he doing when his finger was inside your
              vagina?
              A. He had his finger in me.

              · · · ·

              Q. Did you consent to him placing his finger in your vagina?
              A. No.
              Q. And how did you let him know at that particular point in
              time that you were not consenting?
              A. Because I was trying to pull his hand away.

              · · · ·

              Q. Okay. After he took his fingers out of you - - out of your
              vagina, what is the next thing that happened?
              A. He jerked my shorts off of me.

              · · · ·

              Q. What happened to your underwear?
              A. They came off at the same time.

              · · · ·

              Q. When he jerked off your shorts and your underwear, what
              did you do at that point.
              A. Nothing, I had no time to react.
              Q. Okay. You had no time to react. Any why is that?
              A. Because he jumped on me right after.1

(Footnote added.).2 The victim also testified that she “was really scared”3 and that she

waited until after the petitioner had “passed out” before leaving his room. The victim

       1
        The victim’s testimony regarding the sexual assault charged in Count Two of the
indictment is equally disturbing. The victim testified that she “put [her] hands on his hips
and was trying to push him off,” that the petitioner “had his penis sitting on the top of
[her] vagina,” that she told him “‘[n]o,’ I don’t want your penis there,” and that he then
“shoved” his penis into her vagina. She further testified that during the sexual assault,
the petitioner held her arms down while he raped her. The victim testified that at some
point during the penile sexual assault, she was able to twist her legs and move out from
under the petitioner, who “jerked [her] back down by [her] legs[]” and put his penis back
into her vagina. Reviewing the evidence at trial from the “coign of vantage” of the
prosecution, I believe that the petitioner is incredibly fortunate not to have been convicted
on both counts charged in the indictment. See LaRock,196 W.Va. 294, 470 S.E.2d 613.

                                             8

explained that she was crying so hard as she was driving home that she had to pull her car

over to the side of the road. She then telephoned a friend, who took her to the emergency

room.



                  Nurse King, who performed the “rape kit” on the victim at the hospital,

testified that she “cried during most of the exam” and “sat in a ball with a sheet wrapped

around her and cried with her eyes kind of cast down.” Nurse King further testified that

when she asked the victim questions, “tears would run down her face,” that when she

would leave the room and return, the victim would be crying again; and that the victim

was “just visibly shaken.” Nurse King also testified that she wrote down on the Sexual

Assault Information Form that the victim was “crying intermittently, appears frightened,

nervous, anxious, quiet and only speaks when spoken to.”



                  Clearly, a reasonable jury could and did, in fact, conclude that the victim

did not consent to the digital penetration charged in count one.                      Credibility

determinations are for the jury, and a verdict “should be set aside only when the record

contains no evidence, regardless of how it is weighed, from which the jury could find

guilt beyond a reasonable doubt.” Syl. Pt. 3, in part, Guthrie, 194 W.Va. 657, 461 S.E.2d

163 (emphasis added).            After removing the scant testimony the majority found

        2
            The transcript reflects that the victim cried throughout her trial testimony.
        3
        The record reflects that the petitioner, a college rugby player, was much larger
than the victim, who was five feet five inches tall and weighed 130 pounds.

                                                  9
inadmissible, the remaining evidence at trial was more than sufficient for the jury to find

the petitioner guilty of sexually assaulting the victim beyond a reasonable doubt.



              Having determined that the remaining evidence at trial was sufficient to

convict, the final step of the Atkins harmless error test requires a determination of

whether the testimony in question had any prejudicial effect on the jury.      Atkins, 163

W.Va. 502, 261 S.E.2d 55.       The majority cursorily states (in the context of assessing

whether the error was preserved) that the testimony “could have prejudicially swayed the

jury.” (emphasis added). Not only is this an entirely baseless conclusion—which would

have been revealed in the course of any substantive discussion thereof—but it is a

complete misapplication of our standard of review.          Atkins requires this Court to

determine if the erroneous evidence “had any prejudicial effect on the jury.” Atkins, 163

W.Va. 502, 261 S.E.2d 55. This does not permit the Court to engage in a conjectural and

speculative analysis of the theoretical possibility of prejudice; it requires the Court to

assess the verdict before it in the context of the inadmissible evidence.



              Had the majority undertaken an analysis of the verdict along with the nature

of the purportedly inadmissible evidence, it would necessarily have concluded that the

jury’s verdict objectively and demonstrably reveals no prejudice to the petitioner

whatsoever. Had the subject testimony been prejudicial in any degree, the jury would

have undoubtedly convicted the petitioner on both counts of second degree sexual assault

as charged in the indictment. It defies logic to conclude that the jury inferred that the

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petitioner was a sexual predator on the basis of the victim’s “prejudicial” testimony for

purposes of the digital penetration count, but discounted that same testimony in order to

acquit him on the second charge.



                 Accordingly, even if the subject testimony were Rule 404(a) evidence,

under the harmless error test as set forth in Atkins, this Court was required to uphold the

petitioner’s conviction. The majority’s reversal of this conviction on the basis of flawed

and inadequate analysis is nothing but a thinly-veiled substitution of its judgment for that

of the jury. I am deeply concerned that this decision may send a message to victims that,

despite a perpetrator receiving a fair trial and judgment by a twelve-member jury of his

peers, the victim must still convince three members of this Court (sitting as a “super

jury”) that she demonstrated sufficient “earnest resistance”4 to satisfy their sensibilities.

       4
           West Virginia Code, 61-8B-4(a) [2010], states, in pertinent part, that:

                 A person is guilty of sexual assault in the second degree
                 when:

                 (1) Such person engages in sexual intercourse or sexual
                 intrusion with another person without the person’s consent,
                 and the lack of consent results from forcible compulsion[.]

For purposes of the second degree sexual assault, “forcible compulsion” means:

                 (a) Physical force that overcomes such earnest resistance as
                 might reasonably be expected under the circumstances; or
                 (b) Threat or intimidation, expressed or implied, placing a
                 person in fear of immediate death or bodily injury . . .[.]

W.Va. Code, 61-8B-1(1) [2010] (emphasis added).


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              For the forgoing reasons, I respectfully dissent. I am authorized to state

that Justice Workman joins in this dissent.




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