State v. Leep

569 S.E.2d 133, 212 W. Va. 57
CourtWest Virginia Supreme Court
DecidedJuly 26, 2002
Docket30018
StatusPublished
Cited by20 cases

This text of 569 S.E.2d 133 (State v. Leep) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Leep, 569 S.E.2d 133, 212 W. Va. 57 (W. Va. 2002).

Opinions

DAVIS, Chief Justice.

The defendant below and appellant herein, Samuel Aubrey Leep [hereinafter referred to as “Mr. Leep”], appeals his convictions by a Wayne County jury of one count of first degree sexual assault,1 one count of first degree sexual abuse,2 and two counts of sexual abuse by a parent,3 which convictions resulted from an alleged encounter between Mr. Leep and his then six-year-old daughter. Following the jury trial, these1 convictions were memorialized in a trial order entered January 3, 2000, by the Circuit Court of Wayne County. Thereafter, the circuit court, by order entered February 6, 2001,4 sentenced Mr. Leep to 15-35 years for his sexual assault conviction, 1-5 years for his sexual abuse conviction, and two terms of 10-20 years for each of his sexual abuse by a parent convictions, with all of these sentences to run concurrently.

From the trial and sentencing orders, Mr. Leep appeals to this Court claiming that the trial court erred by (1) employing the wrong standard to determine the admissibility of EIA test results;5 (2) admitting these test results into evidence; and (3) improperly commenting to the jury as to the reliability of such scientific evidence. Upon a review of the parties’ arguments, the record designated for appellate review, and the pertinent authorities, we reverse the verdict of the Wayne County jury and the resultant circuit [62]*62court orders, and remand this case for further proceedings consistent with this Opinion. Although we find no error attending the trial court’s admission of the State’s EIA test results evidence, we conclude that the court's sua sponte comments regarding the reliability thereof, which comments immediately followed the testimony of Mr. Leep’s expert who questioned such reliability, constitute reversible error.

I.

FACTUAL AND PROCEDURAL HISTORY

The evidence presented to the jury suggests the following facts. Mr. Leep and his wife were married in 1990, with two children being born of the marriage: a daughter, 5.L.,6 in 1991, and a son, R.L., in 1993. Thereafter, Mr. and Mrs. Leep separated and ultimately were divorced by final order entered March 18, 1997. During the ensuing custody proceedings, it was determined that Mr. Leep was the primary caretaker of the couple’s children, and custody of S.L. and R.L. was awarded to him. Visitation was granted to Mrs. Leep.

Following the divorce’s finalization, Mrs. Leep visited her six-year-old daughter, S.L., at school on May 6,1997, and conversed with her for approximately one-half horn*. The next day, May 7, 1997, S.L. disclosed to her teacher that she and her father were taking a nap, and “when she woke up, she was on top of him and her underwear was pulled down.” S.L.’s teacher relayed this information to the school’s principal who, in turn, reported the incident to the Wayne County Department of Health and Human Resources [hereinafter referred to as “D.H.H.R.”].7 Child Protective Services [hereinafter referred to as “C.P.S.”] then began an investigation of these charges, in late May, 1997, and interviewed S.L. in accordance therewith.

Subsequently, on June 6, 1997, during an overnight visitation between the children and Mrs. Leep, S.L. told her mother of the alleged misconduct that she reported to her teacher in early May.8 Mrs. Leep then transported S.L. to Cabell-Huntington Hospital for a medical examination. During this exam, no abrasions or lacerations consistent with sexual assault or abuse were observed, however a test9 for the sexually transmitted disease, chlamydia, returned a positive result.10 This test result, dated June 9, 1997, suggested the likelihood that penetration had occurred as that is the most likely method for the transmission of this disease. Following this positive result, a repeat test was performed on June 11, 1997, which re-test also returned a positive result.11

In July, 1998, Mr. Leep was indicted by a Wayne County grand jury on the charges of first degree sexual assault,12 first degree sex[63]*63ual abuse,13 and sexual abuse by a parent.14 A trial was had on these charges in January, 1999, but because the jury was unable to reach a verdict, a mistrial resulted.

Prior to the second trial on these charges, Mr. Leep’s counsel, on June 22, 1999, filed a motion in limine requesting the court to exclude from evidence “[a]ny notes, reports, testimony or any reference to the chlamydia antibody testing performed on the alleged victim that is the subject of this indictment.” In support of his motion, Mr. Leep averred that

the above-referenced [materials] are outside the C.D.C.’s [United States Centers for Disease Control’s] national guidelines that have been established for laboratory [64]*64testing in cases of suspected sexual abuse and that the test used (non-cultured) has a very high possibility of false-positives and the standard calls for all positive (non-culture) tests to be verified with a second test based on a different principal and are thus without adequate foundation or scientific support and are therefore inadmissible as evidence.

A hearing was had on the motion during which both parties presented expert testimony in support of them positions.15 The trial court ruled on Mr. Leep’s motion at the beginning of the second trial, on December 7, 1999, outside of the hearing of the jury, and determined that such evidence would be admissible:

A prior motion was made by the defendant to exclude any evidence from the State’s expert with regard to the Chlamydia testing and results. The defense has brought in substantial evidence in his motion in limine to challenge the admissibility of the State’s evidence on the basis it did not fit the national guidelines. It’s my belief that both methods have been testified to by the experts from both sides of this case. We have a reasonable basis in the scientific community and both are accepted by the scientific community. The procedures and the methods used by either or both goes to the weight and credibility that should be given to the methods used in the Chlamydia testing. Therefore, I think it’s a factual issue for the jury to determine and can be handled and addressed appropriately on cross examination and rebuttal with the expert that the defense has presented. Therefore, I will rule that the State’s testing is admissible. It may be cross examined and challenge[d] through rebuttal of an expert witness as to its weight and credibility.

The second trial on the aforementioned charges resulted in a December 8,1999, jury verdict of guilty, and corresponding convictions of one count of first degree sexual assault, one count of first degree sexual abuse, and two counts of sexual abuse by a parent. These convictions were memorialized in the circuit court’s January 3, 2000, trial order. By sentencing order entered May 22, 2000,16 the circuit court sentenced Mr. Leep to 15-35 years for his sexual assault conviction, 1-5 years for his sexual abuse conviction, and two terms of 10-20 years for each of his convictions of sexual abuse by a parent, with all sentences to ran concurrently. From these orders, Mr. Leep appeals to this Court.

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Bluebook (online)
569 S.E.2d 133, 212 W. Va. 57, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-leep-wva-2002.