State v. James B.

511 S.E.2d 459, 204 W. Va. 48, 1998 W. Va. LEXIS 209
West Virginia Supreme Court·Decided December 10, 1998·No. No. 24671·Published·Cited by 6 cases

Opinion

PER CURIAM:

This case is before the Court upon the appeal of James B.,1 Sr., from the July 7, 1995, final order of the Circuit Court of Clay County sentencing the Appellant to not less than one nor more than five years for his conviction of one count of sexual abuse in the first degree and not less than fifteen nor more than thirty-five years for his conviction on one count of sexual assault in the first degree. The Appellant asserts that the trial court committed the following errors: 1) improperly allowed the Appellee to introduce into evidence the hearsay statements of the alleged victim; 2) improperly allowed the Appellee to let its expert psychologist, Olga Gioulis, give her opinion that the children had been sexually abused by the Appellant; 3) improperly allowed the Appellee to use the victim, C.T., as a witness, when it failed to disclose its intention to use him until the trial had begun; and 4) improperly upheld a jury verdict which was against the weight of the evidence. Based upon our review of the record, the parties’ briefs and all other matters submitted before this Court, we conclude that the lower court did not err and, accordingly, we uphold the lower court’s decision.2

I.

FACTS

On February 2, 1992, the Appellant was living with his wife Barbara B., his two stepchildren (the victims in this case), C.T., age 5, and B.T., age 3, as well as the Appellant’s two children, T.B., age 2, and J.B., an infant. On February 5, 1992, the Department of Health and Human Resources (“DHHR”) entered the home and removed all four children as a result of a physical abuse and neglect proceeding.

The children were placed in the foster home of Brenda and Randy Nichols on February 18, 1992. Within one month of their arrival, Mrs. Nichols found C.T. performing oral sex on his sister, B.T., while his youngest sister, T.B., observed. Upon questioning by Mrs. Nichols as to why he would do this, C.T. responded that “it was a game that they played with mom3 and Shorty.”4 C.T. described to Mrs. Nichols how the children would get in bed with their mother and the Appellant, watch movies, and then “the kids were made to do this to each other, and then they would do it with mom and Shorty.” Mrs. Nichols also testified to observing other sexual behavior between the children on several occasions.

Mrs. Nichols immediately reported this improper sexual activity to the DHHR foster care case worker, Karen Conner. Mrs. Nichols initially requested that the children, or at least C.T., be removed from the home. Ms. Conner asked the Nichols to keep the sibling group together and offered to pay them an additional sum of money. The Nichols ultimately agreed to keep the children together.5

According to Mrs. Nichols testimony, C.T. was taken the very next day to be interviewed by DHHR. The children were also taken to the sexual abuse clinic at Women’s and Children’s Hospital in Charleston, West Virginia. There was no physical evidence of penetration on either child and they both tested negative for venereal disease.

C.T. was interviewed by State Trooper Mark DeBord on March 2, 1993. C.T. revealed to the trooper that someone had [52] touched his private parts. According to the trooper’s testimony, he used anatomically correct dolls with the child. C.T. first unclothed the dolls, then demonstrated to the officer different sexual acts performed by the doll that the child designated as the “Shorty” doll and the doll representing C.T. Trooper DeBord testified that based upon his interview with C.T., he referred the child to Olga Gioulis, a psychologist, for an evaluation.

Ms. Gioulis testified that C.T. told her that the Appellant told the child to “suck his bird.”6 Ms. Gioulis stated that C.T. had indicated to her that the incident had occurred in his mother’s bedroom, with his mother present. C.T. also indicated to Ms. Gioulis, through the use of anatomically-eor-rect dolls, that Shorty had sexual intercourse with C.T.’s sister, B.T. Ms. Gioulis further testified that the position of the dolls indicated sexual intercourse, but she could not tell if there was penetration. Additionally, C.T. demonstrated to Ms. Gioulis, again with anatomically-correct dolls, that the Appellant forced him to have oral sex with him, in his mother’s presence. Ms. Gioulis testified that C.T. also demonstrated with the dolls that he had oral sex with his mother. Ms. Gioulis testified that the reasons supporting her professional opinion that the children had been sexually abused was that C.T. used phrases such as “[s]uck my bird,” even though he was just six years old. The child was also able to demonstrate sexual positions revealing that this young child possessed knowledge of sexual information. Ms. Gioulis testified that “[cjhildren don’t usually have knowledge of sexual behaviors at that age [referring to a six-year-old], and they don’t usually understand what they [referring to sexual behaviors] are.” Finally, Ms. Gioulis gave her professional opinion that C.T. had been sexually abused by the Appellant.7'

C.T. also testified at trial. The child, who was eight years old at the time of the trial, testified about “the game,” which occurred when the Appellant made him play with his sister’s “bird” or her “private part.” C.T. was also made to play with his mother’s and the Appellant’s private parts by touching them with his hand. He testified that the Appellant touched his private part using his hand. C.T. also testified that the Appellant had “peed” in his mouth.

The Appellant and the children’s mother each testified on his/her own behalf. . Both witnesses denied the respective allegations made against them. In addition to offering testimony that the foster care mother, Mrs. Nichols, had fabricated the sexual abuse allegations in order to get more money from the DHHR for caring for the children, the Appellant also attempted to shift the focus to the children’s biological father. The Appellant testified that C.T. would use the term “bird” when he returned from visiting with his natural father. There was no other evidence submitted to support this claim. The Appellant also contended that he had never been alone with the children. His wife corroborated the fact that she had never left the children alone with the Appellant.

At the close of all the evidence, the jury convicted the Appellant of one count of sexual assault of C.T. and one count of sexual abuse of B.T.

II.

HEARSAY STATEMENTS

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State v. James B., 511 S.E.2d 459, 204 W. Va. 48, 1998 W. Va. LEXIS 209 (W. Va. 1998).

511 S.E.2d 459 (State v. James B.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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