David Ballard, Warden v. Richard Lee Hunt, Jr.

772 S.E.2d 199, 235 W. Va. 100, 2015 W. Va. LEXIS 248

Opinions

KETCHUM, Justice:

The petitioners, the Warden of the Mount Olive Correctional Complex (the “Warden”) and the Commissioner of the West Virginia Division of Corrections (the “Commissioner”), appeal from the January 21, 2014, order of the Circuit Court of Calhoun County (the “habeas court”) which granted habeas relief to the respondent, Richard Lee Hunt, Jr. (“Hunt”). The habeas court vacated Hunt’s convictions and sentence for sexual abuse in the first degree and sexual abuse by a custodian and granted Hunt a new trial.

Hunt’s convictions concerned offenses committed against an eleven year old boy. The sole basis for the relief granted by the habeas court was the State’s references to Hunt during the underlying trial as a pedophile. According to the habeas court, the references, made by the State’s expert witness (and by the prosecutor), constituted inadmissible character evidence and denied Hunt the right to a fair trial.

We find that the references to pedophilia, while improper, were harmless error. The appendix record before us includes a transcript of Hunt’s underlying trial. A review thereof makes clear that the evidence of the State overwhelmingly established Hunt’s guilt of the crimes charged.

Accordingly, the January 21, 2014, order of the habeas court is reversed, and Hunt’s convictions and sentence are reinstated.

I.

Factual and Procedural History

On May 4, 1999, a Calhoun County grand jury retened a four-count indictment charging Hunt with sex offenses against AK., an eleven year old male.¹ Counts one and two alleged that Hunt committed sexual abuse in the first degree against A.K., in violation of W.Va.Code, 61-8B-7 [1984]. Counts three and four alleged that Hunt committed sexual abuse by a custodian against AK. in violation of W.Va.Code, 61-8D-5(a) [1998].

The indictment alleged that the sexual offenses occurred between September 1998 and December 1998. Hunt at that time was twenty-four years old and worked an exten sive, evening newspaper route which included various rural areas. Hunt drove the route in his 1993 - Ford Festiva and delivered the newspapers throughout the night. According to the State, Hunt invited A.K. to join him from time to time. Hunt allegedly committed the sexual offenses against AtK. in the car.

Hunt’s trial began on May 16, 2000, and concluded three days later. During opening statements, the prosecutor referred to Hunt as a pedophile. The prosecutor further stated, during opening statements, that Hunt “has a lustful disposition toward young children” and that, “consistent with being a pedophile,” Hunt participated in only the minimum amount of therapy and counseling while incarcerated for a previous sexual -offense involving a young girl.

The State called A.K., thirteen years old at the time of trial, who testified that he met Hunt in September 1998; that Hunt sexually abused him in the ear with Hunt’s penis while on the newspaper route; and that, during a telephone call initiated by Hunt to A.K., Hunt asked, “When are we gonna have sex again?” A.K.’s father, Michael K., testified that he overheard the telephone conversation. The State presented evidence that A.K.’s parents, Michael K. and Denise K., reported their suspicions that A.K. had been sexually abused by Hunt to the State Police. Moreover, A.K.’s parents took A.K. to a psychologist, Michael Carter, for treatment and counseling. In addition, the State presented evidence that Hunt had been convicted upon a plea of guilty, and was imprisoned, for the 1994 sexual abuse of his nine year old stepsister.

’ Finally, the State’s evidencé included the testimony of Lonnie Kishbaugh, who testified as an expert in the treatment and counseling of sex offenders. Hunt had been under Kishbaugh’s counseling at the Denmar Correctional Center in Hillsboro, West Virginia, during Hunt’s incarceration concerning the abuse of his stepsister. Kishbaugh discussed the term pedophilia for the jury and indicated that Hunt had undergone minimal counseling while at Denmar. Kishbaugh further testified that there is “a diagnostic impression on file at Denmar” (emphasis added) stating that Hunt is a pedophile.² Kishbaugh’s testimony was allowed by the trial court over Hunt’s objection. During the •State’s closing, the prosecutor referred to the minimal counseling and the diagnostic impression that Hunt is a pedophile.

Hunt took the stand at trial and denied committing any offenses against A.K. In support, Hunt testified that various people accompanied him and A.K. on the newspaper route and that, consequently, he had never been alone with A.K. In addition, Hunt asserted that A.K. was often mistreated by A.K.’s father and that A.K. had been pressured at home into making false'statements against Hunt. Finally, acknowledging the pri- or conviction "concerning his stepsister, and his resulting registration as a sex offender, Hunt denied that the offense against his stepsister took place.

The jury found Hunt guilty on all four counts: two counts of sexual abuse in the first degree and two counts of sexual abuse by a custodian. On July 28, 2000, Hunt was sentenced to serve consecutive terms in the penitentiary. Hunt’s direct, appeal to this Court was subsequently refused.

II.

The Habeas Corpus Proceeding

On September 27, 2006, Hunt filed a pro se petition for a writ of habeas corpus in the Circuit Court of Calhoun County (the “habeas court”). An amended petition was filed after he was appointed counsel. Hunt alleged that his federal and State due process rights were violated because of unfair preju dice resulting from the references to him, at trial, as a pedophile.³

In September 2009, the habeas court conducted an omnibus hearing. Thereafter,'-'by order entered on January 21, 2014, the court granted relief and vacated Hunt’s convictions and sentence.

The sole basis for the habeas court’s ruling concerned the testimony of Kishbaugh, (as well as the statements of the prosecutor) that Hunt is a pedophile. The habeas court determined that Kishbaugh’s testimony constituted inadmissible character evidence under Rule 404(a) of the West Virginia Rules of Evidence.4 The January- 21, 2014, order states:

To be diagnosed as a “pedophile” is not evidence of a prior bad act or crime but evidence of the character (propensity) of the Petitioner to engage in particular conduct. * * * This evidence was also highly prejudicial to the- Petitioner and not necessary for the legitimate purposes of the State. The State had already proven Petitioner’s prior conviction for sexual abuse of a child [and] the fact that Petitioner was imprisoned for the prior offense.

A stay of Hunt’s release from prison, pending this appeal, has been granted. The Warden and the Commissioner ask this Court to reverse the January 21, 2014, order and reinstate Hunt’s convictions and sentence.

HI.

Standards of Review Concerning Habeas Corpus

Syllabus point -1 of Mathena v. Haines, Warden, 219 W.Va. 417, 633 S.E.2d 771 (2006), states:

In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three1 prong standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standard; and questions of law are subject to a de novo review.

Accord syl. pt. 1, Ballard, Warden, ex rel. Mount Olive Correctional Center v. Meckling, No. 14-0245, 235 W.Va. 109, 772 S.E.2d 208, 2015 WL 1719101 (W.Va. April 9, 2015); syl. pt. 1, Ballard, Warden v. Dilworth, 230 W.Va. 449, 739 S.E.2d 643 (2013). See W.Va. Code, 53-4A-9 [1967] (providing for judicial review), of the West Virginia Posh-Conviction Habeas Corpus Act. '

IV.

Discussion

The admission in evidence during Hunt’s underlying trial of his conviction of the 1994 sexual abuse of his nine year old-stepsister is not contested in this appeal. Instead, the issue before this Court concerns the testimony of the State’s expert witness, Lonnie Kishbaugh, (as well as the statements of the prosecutor) that Hunt is a pedophile. The appendix record indicates that both the 1994 conviction and Kishbaugh’s references to Hunt as a pedophile were admitted at trial under Rule 404(b) of the West Virginia Rules of Evidence. Rule 404(b) states:

(b) Other crimes, wrongs, or acts. — Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. -It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.⁵

Sexual offenses against children, however, are in a special category in relation to Rule 404(b), as this Court emphasized in our leading case, State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990).

In Edward Charles L., the defendant was convicted of two counts of sexual assault in the first degree and two counts of sexual abuse in the first degree. The victims were the defendant’s four year old twin son and daughter. At trial, the State was permitted to make reference to various unrelated sexual acts of the defendant. Some of the unrelated acts were committed in front of the twins and included: masturbating in front of his son, exposing the children to pornographic magazines and making the children listen to telephone calls the defendant made to sex clubs. Noting that those acts occurred close in time to the offenses charged, this Court, in Edward Charles L., determined that the acts were admissible under West Virginia Rule of Evidence 404(b), to show absence of mistake or accident. Moreover, this Court concluded that the acts were “so interwoven with [the defendant’s] pattern of conduct toward the children that they are part of the res gestae of the crimes charged.” 183 W.Va. at 649, 398 S.E.2d at 131.

In Edward Charles L., the State was also'permitted to make reference to unrelated sexual acts of the defendant which indirectly involved the children, such as the defendant ejaculating on underwear having been worn by his daughter. Considering those acts, along with the sexual acts committed in front of the children, this Court found that the probative value thereof outweighed any assertion of unfair prejudice. Articulating a “lustful disposition exception” to the general exclusion of such evidence, syllabus point 2 of Edward Charles L. states, in part:

Collateral acts or crimes may be introduced in cases involving child sexual assault or sexual abuse victims to show the perpetrator had a lustful disposition towards the victim, a lustful disposition towards children generally, or a lustful disposition to specific other children provided such evidence relates to incidents reasonably close in time to the incident(s) giving rise to the indictment.

(Emphasis added) Accord syl. pt. 3, State v. Parsons, 214 W.Va. 342, 589 S.E.2d 226 (2003); syl. pt. 3, State v. Lola Mae C, 185 W.Va. 452, 408 S.E.2d 31 (1991). See R. P. Davis, Annotation, Admissibility, in Prosecution for Sexual Offense, of Evidence of Other Similar Offenses, 77 A.L.R.2d 841 (1961).⁶

Edward Charles L. clearly establishes that a lustful disposition may be shown by collate eral acts or crimes. It does not stand for the proposition that opinion evidence or comments by a prosecutor as to pedophilia are admissible to show a defendant likely engaged in such conduct on a particular occasion.

In Hunt’s underlying trial, the jury was given a limiting instruction stating (1) that other acts committed by Hunt were not admitted as proof of his guilt under the indictment, (2) that the evidence of prior sexual abuse could only be considered to show that Hunt had a lustful disposition toward children, and (3) that any such evidence was not relevant to Hunt’s character or to whether he is a bad person. Nevertheless, while Hunt’s conviction of the 1994 sexual abuse of his nine year old stepsister was properly admitted in conformity with Edward Charles L. and. Rule 404(b), our case law has yet to address the situation where, in a prosecution for sexual offenses committed against a child,

an expert .witness called by the State opined that the accused is a pedophile.

As a preliminary matter, we note that the admissibility of testimony by. an expert is a matter within the discretion of the trial court. State v. McKinley, 234 W.Va. 143, 764 S.E.2d 303, 322 (2014); State v. Black, 227 W.Va. 297, 306-07, 708 S.E.2d 491, 500-01 (2010). See Rule 702 of the West Virginia Rules of Evidence. Kishbaugh was employed as a therapist at the Denmar Correctional Center. His qualifications for assessing sex offenders was largely based on practical experience at Denmar. Although this Court finds no abuse of discretion in allowing Kishbaugh to testify, Kishbaugh was not a licensed psychologist and had not completed the course work required for a Masters Degree in psychology. Moreover, the diagnostic impression of Hunt on file at- Denmar, referred to during -Kishbaugh’s testimony, was not included in the appendix record before this Court. Kishbaugh’s testimony at trial relating to Hunt was rather cursory and consisted largely of discussing the general nature of pedophilia.

Many of the cases from other jurisdictions concerning the terms pedophile and pedophilia are limited, in context, to the sentencing stage in a criminal prosecution or to a proceeding seeking to commit an offender to a mental health facility. However, in the circumstances now before us, the more reasoned view is that the use of those terms by the prosecution, merely to establish a character trait of the accused, is improper, but subject to a harmless error analysis. See State v. Person, 20 Conn.App. 115, 564 A.2d 626, 631 (1989) (The defendant’s proffer of expert testimony on whether he fit the profile of a pedophile was properly rejected, with the observation that a majority of the courts that have considered the issue [of showing various profiles] “have rebuffed attempts on the part of the state as well as the defendant to present testimony of this kind.”); State v. Floray, 715 A.2d 855, 858 n. 8 (Del.Super.1997) (citing Person, supra, for the same principle); Phillips v. State, 589 So.2d 1360, 1362 (Fla.App. 1st Dist.1991) (The use of pedophile profile testimony as substantive evidence of guilt is reversible error, but a harmless error analysis may be applied in certain cases.); Knight v. State, 206 Ga.App. 529, 426 S.E.2d 1 (1992) (“There is no authority for the admission of an expert opinion that the defendant who is on trial for sex crimes against a child is or is not a pedophile.”); State v. Hester, 114 Idaho 688, 760 P.2d 27, 33 (1988) (“Using evidence of a person’s characteristics in the prosecution’s case in chief simply to support the ultimate conclusion that he acted in conformance with those characteristics in committing a crime, is not permissible.”); Dyer v. Commonwealth, 816 S.W.2d 647, 654 (Ky. 1991), overruled on other grounds by Baker v. Commonwealth, 973 S.W.2d 54 (Ky.1998) (Concepts such as “pedophile” have no bearing on a criminal ease, except in relation to the accused’s mental condition at the time of the alleged offense, and may not be used to convict or acquit without further testimony from an expert qualified in the field “positively establishing that the condition is a recognized scientific entity, and then tying the accused to this mental state.”); State v. Nelson, 331 S.C. 1, 501 S.E.2d 716, 719 (1998) (citing cases from several states that have rejected character related testimony or evidence showing that the defendant is a pedophile).⁷

Upon those authorities and the facts before us, we hold that the opinion evidence of an expert witness proffered by the State in a criminal prosecution, merely to show that the accused has the character trait of a pedophile under the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association, is inadmissible pursuant to Rule 404(a) of the West Virginia Rules of Evidence to prove that on a particular occasion .the accused acted in accordance with that character trait. However, where such evidence is improperly ad mitted at trial, the error is subject to a harmless error analysis. In conjunction with our holding,' we note that comments by the prosecutor on such evidence are improper, yet are also subject to a harmless error analysis.

Consequently, this Court is in agreement with the habeas court Judge that the prosecutor’s comments and the opinion evidence as to pedophilia were not admissible under Rule 404(b) because they did not relate to collateral acts or crimes. They were solely related to a character trait to engage in wrongful conduct. Therefore, the testimony of Kishbaugh and the comments by the prosecutor were erroneous.

Although the error was prejudicial to Hunt at trial, this Court is of the opinion that the prejudice was not unfair to the extent that Hunt should be granted a new trial. Our principles guiding a harmless error analysis are well settled. In State v. Bowling, 232 W.Va. 529, 542-43, 753 S.E.2d 27, 40-41 (2013), cert. denied, — U.S.-, 134 S.Ct. 1772, 188 L.Ed.2d 603 (2014), this Court stated: “When the alleged error involves the infringement of a petitioner’s constitutional rights, the burden is on the State to show that the error is harmless beyond'a reasonable doubt.” Moreover, as expressed in syllabus point 20 of State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974): “Errors involving deprivation of constitutional rights will be regarded as harmless only if there is> no reasonable possibility that the violation contributed to the conviction.” Accord syl. pt. 4, State v. Jenkins, 195 W.Va. 620, 466 S.E.2d 471 (1995).

The evidence of the State overwhelmingly established Hunt’s guilt of the crimes charged. In addition to Hunt’s prior conviction for the sexual abuse of his nine year old stepsister, the evidence included the telephone conversation during which Hunt asked A.K., “When are we gonna have sex again?” Hunt has not challenged that statement in this appeal. Hunt’s extensive, evening newspaper route, which included rural areas, clearly provided him with opportunities to commit the offenses. According to A.K., he sustained bruises on his legs and buttocks caused by Hunt during those encounters.

Psychologist Michael Carter, who provided treatment and counseling to A.K., testified that A.K exhibited “a severe level of trauma which is consistent with and would suggest that he had been molested.” In addition, A.K.’s school' counselor testified that, during the period in question, A.K. went from being social and outgoing to being easily emotional and suffering academically. The school counselor testified further: “And also at times he stated that he wanted to kill himself or hurt himself; and he also stated that he wanted to run away.” Finally, the State produced evidence that in 1999, after the suspicions of sexual abuse against AK. had been reported, Hunt went to A.K.’s home and began harassing him. The police were called, and Hunt was cited for trespassing.

In State v. Rollins, 233 W.Va. 715, 732, 760 S.E.2d 529, 546 (2014), this Court stated: “If a trial court has admitted ‘bad characteri evidence in error, a petitioner is only entitled to reversal if the error affected his substantial rights.” See Rule 103(a) [1985] of the West Virginia Rules of Evidence (“Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.”). See also State v. McKinley, 234 W.Va. 143, 764 S.E.2d 303, 314 (2014) (citing Rollins). In this case, the prosecutor’s references and opinion testimony concerning pedophilia were absolutely unnecessary to establish Hunt’s guilt. However, this error did not rise to the level of a constitutional violation or otherwise violate Hunt’s substantial rights. This Court concludes that the error, was 'harmless. See n. 6, supra.

V.

Conclusion

For the reasons stated above, the January 21, 2014, order of the habeas court is reversed, and Hunt’s convictions and sentence are reinstated.

Reversed.

Justice LOUGHRY, joined by Chief Justice WORKMAN, concurs, in part, and dissents, in part, and reserves the right to" file a separate Opinion.

Footnotes

1

. This Court follows its past practice in sensitive matters and shall refer to the names of certain individuals herein by initials. See State v. Jason H., 215 W.Va. 439, 441 n. 2. 599 S.E.2d 862, 864 n. 2 (2004). See also Rule 40(e), Rules of Appellate Procedure West Virginia Supreme Court of Appeals.

2

. In discussing the term pedophilia, Kishbaugh cited the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the Ameri- : can Psychiatric Association. Both the 1994 Fourth Edition and the 2000 Revised Fourth Edition set forth diagnostic criteria for pedophilia. Among the criteria is the following, referenced in Kishbaugh’s testimony: "Over a period of at least 6 months, recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child or children (generally age 13 years or younger).”

3

. U.S. Const, amend. V and amend. XIV provide that no person shall be deprived of-life, liberty or property without -due process of law. - Similarly, W.Va. Const. Art. Ill, § 10; provides that no person shall be deprived of life, liberty or property without due process of law.

4

. Rule 404(a) of the West Virginia Rules of.Evidence provides, in part:

(a) Character evidence generally. — Evidence 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[.]

It should be noted that Rule 404 of the West Virginia Rules of Evidence was amended in 2014. The 2014 version of the Rule is not applicable in this case.

7

. See generally Gregory ,G. Samo, Annotation, Admissibility of Expert Testimony as to Criminal Defendant's Propensity Toward Sexual Deviation, 42 A.L.R.4th 937 (1985); Thomas M. Fleming, Annotation, Negative Characterization or Description of Defendant, by Prosecutor During Summation of Criminal Trial, as Ground for Reversal, New Trial, or Mistrial—Modem Cases, 88 A.L.R.4th 8 (1991).

5

. The State argued that the diagnostic impression that Hunt is a pedophile was admissible under Rule 404(b) to show motive and intent.

6

. The unrelated acts of the defendant in Edward Charles L. also included the defendant's frequent patting of the front of his pants and his masturbation after having had sex with his wife. This Court found the admission of those matters to be error because they had no relation to the defendant’s conduct toward the children. However, this Court concluded, in Edward Charles L., that, in view of the conclusive effect of the remaining evidence and the lack of unfair prejudice to the defendant, the error was harmless.