State of West Virginia v. Nicholas Varlas

787 S.E.2d 670, 237 W. Va. 399, 2016 W. Va. LEXIS 525
West Virginia Supreme Court·Decided June 16, 2016·No. 15-0037·Published·Cited by 13 cases

Opinions

Chief Justice Ketchum:

In this appeal from the Circuit Court of Brooke County, defendant Nicholas Varias appeals an order convicting him of second-degree sexual assault and of attempting to commit first-degree sexual abuse. Because the circuit court erred in excluding relevant evidence critical to Varlas’s defense, we reverse its order of conviction and remand the case for a new trial.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant Varias lived in Follansbee, West Virginia. According to the prosecution’s evidence at trial, at about 11:00 p.m. on August 12, 2012, a group of people drove to Varlas’s residence so thát some of them could “hang out and drink.” The visitors arrived at the same time, but in separate vehicles. In one car -rode Varlas’s friend, Jeremy Smith; Smith’s girlfriend, Jena Lindsey; and Lindsey’s two young children. Alone in her own ear was Lindsey’s friend, N.S.1 Lindsey had previously given N.S.’s cell phone number to Varias, and, the day before, Varias and N.S. had exchanged a brief series of friendly, flirtatious text messages. After the group had socialized for two hours or longer, Lindsey left to drive her elder child around for a while so that he might fall asleep.

At 2:08 a.m., as N.S. sat in the den on a sofa, Varias, from elsewhere in the house, began to send her text messages of an explicit nature suggesting that they engage in certain sexual acts. N.S. responded to those texts with one-word negatives. At about the [402]*402same time, N.S. was conversing via text with her boyfriend, Travis Shepard, to let him know where she was. Shepard initiated the final three exchanges in that conversation:

2:16: You promised no other guys, and now you two [Lindsey and N.S.] are with a different guy, not cool at all.
2:16: He’s 33.
2:17: Why did you guys go there?
2:17: Idk [probably “I don’t know.”]
2:18: Well, I’m gonna trust you, just remember, if you do something with someone else, I’m gone for good.
2:19: I knoww [sic].

After a while, Lindsey returned with her son still awake, then left again with Smith and both of her children to drive around for a bit longer. N.S. admitted some discomfort at the prospect of being alone with Varias and conveyed her trepidation to Lindsey, but she nonetheless remained behind.

According to the prosecution, after Lindsey and Smith’s exit, N.S. accompanied Var-ias to the living room and sat down on the couch. Varias played a pornographic movie on the television; he then removed his shirt, sat down next to N.S., and began to kiss her. N.S. tided to fend off Varias, but—the prosecution contended—his kisses and gropes became more insistent. N.S. told the jury that Varias pushed her shorts and underwear aside, forcing sexual intercourse. After Var-ias finished and vacated the room, Lindsey and Smith returned for a bit before the entire group departed the residence for the evening. N.S. did not tell Lindsey or Smith that she had been assaulted.

N.S. met Shepard in person to tell him what'had happened, and then she went home to sleep. From shortly after 6:00 a,m. until almost 8:00 a.m., a period of slightly less than two hours, Shepard sent the following twenty-nine texts to N.S.:

[6:03]: You need to call the cops!
[6:26]: Where are you?
[6:42]: [N.], you need to go to the hospital tad you need to file charges. If you don’t file charges, that just shows me you wanted to have sex with him.
[6:46]: Then why can’t you go to the hospital and file charges? You need to have justice served on him.
[6:46]: So you just let it happen? That’s real [expletive] nice. [H]e’s getting his ass beat tomorrow.
[6:49]: You still need to file charges. Please [N.], do this for me.
[6:61]: The cops will' keep it private, no one will know, just the cops and court, The news won’t get your name or anything, I promise.
[6:62]: You don’t have to, they’ll keep it down low, I promise. Just please, go to the cops with me.
[6:64]: You need to, this guy needs to go to jail for what he did to you, he [expletive] raped you, who knows if he has any [sexually transmitted diseases]. If he [ejaculated], if he’s a sex offender you need to file charges.
[6:66] (1): Are you going to file charges?
[6:56] (2): No, T swear I didn’t. -
[6:67]: No, I didn’t tell your parents, but [i]f you don’t press charges, I will.
[6:69]: You need to press charges [N], [I]t pissed me off more than anything that someone [expletive] you tonight, all I asked was no other guys, then I find out you went along with him to watch a movie? Wtf.
[7:02]: It just bothers me that you won[’]t file charges, did you have sex with [him] then regret [i]t afterw[a]rds? Tell me what really happened.
[7:04]: You need to file charges on him, he ' [expletive] raped you, you can’t let him get away with it. -
[7:07]: Time is a big factor in rape cases [N]. [Y]ou need to talk to the cops soon.
[7:10]: Because, they need to see if they can collect a semen sample, check you for STDs, and internal injuries, and get you help.
[7:1⅜]: Then whatever, I’m done trying, obviously there’s something more than you[’re] telling me, I told you, if you had sex with him, and it wasn’t rape just tell me now, because if it was rape, [you] wouldn’t be keeping it to yourself, and not [403]*403getting yourself [expletive] tested. Goodnight.
[7:23]: All I wanted to do was help, and you wanna let him get away with it.
[7:34]:- I told you, have sex with anyone else. I’m gone.
[7:35]: You shouldn’t [have] ever went there. Goodnight.
[7:36]: Nor should you [have] walked away with him by yourself to watch a movie.
[7:41]: Apparently, you were next to him on the [expletive] couch and [expletive], and left his hand on your leg for a long time. I don’t know what to [expletive] believe, if you honestly got raped, or you just [expletive] him. I[’]m going to bed.
[7:44]: I told you before you [expletive] went, no other boys, or I’m gone, you say you got raped but won’t file charges, seems like you’re hiding something and trying to keep me from not getting mad. [B]ut until you press charges, I’m done. Bye.
[7:48]: It was such a simple [expletive] request, no other boys, or I’m gone, you say you got raped but won’t file charges, seems like you’re hiding something and trying to keep me from not getting mad. [B]ut until you press charges, I’m done. Bye.
[7:51]: I’m done until you prove to me that it was rape and not just you [expletive] him and regretting it, if you go file charges by the time I wake up, but until then, I’m going with you [expletive] him, [G]ood-night. :

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State of West Virginia v. Nicholas Varlas, 787 S.E.2d 670, 237 W. Va. 399, 2016 W. Va. LEXIS 525 (W. Va. 2016).

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