State v. Rash

697 S.E.2d 71, 226 W. Va. 35, 2010 W. Va. LEXIS 64
CourtWest Virginia Supreme Court
DecidedJune 7, 2010
Docket34708
StatusPublished
Cited by22 cases

This text of 697 S.E.2d 71 (State v. Rash) 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. Rash, 697 S.E.2d 71, 226 W. Va. 35, 2010 W. Va. LEXIS 64 (W. Va. 2010).

Opinions

PER CURIAM:

The Appellant, Ray Rash, appeals his convictions in the Circuit Court of Mercer County of one count of sexual abuse in the first degree, one count of sexual assault in the first degree, and one count of sexual abuse by a custodian. For the reasons that follow, we affirm the convictions.

I.

FACTUAL AND PROCEDURAL HISTORY

On October 13, 2005, Appellant was indicted on two counts of sexual abuse in the first degree, three counts of sexual abuse by a custodian, and one count of sexual assault in the first degree following allegations that the Appellant had illegal sexual encounters with two minor females under the age of eleven years old. Counts One through Four, which included charges for sexual abuse in the first degree, sexual abuse by a custodian, sexual assault in the first degree and sexual abuse by a custodian, involved alleged incidents occurring between the Appellant and a minor child named E.C.H.1 between November and December 1989. Counts Five and Six, sexual abuse in the first degree and sexual abuse by a custodian, involved alleged incidents between Appellant and a minor child named A.L. between November 2001 and February 2002.

On November 7, 2005, Appellant moved to sever Counts One through Four from Counts Five and Six on the basis that the first four counts involved incidents alleged to have occurred many years before those in the last two counts, and that the child involved in the first four counts was substantially older than the child involved in the last two counts.2 Following that motion, the State filed a Notice of Intent to Move the Court for Admission of Rule 404(b) Evidence to introduce evidence of the inappropriate touching by Appellant of E.L., the sister of alleged victim A.L. referenced in Counts Five and Six. The State also filed a response to Appellant’s motion to sever on January 17, 2006, asserting that introduction of 404(b) evidence concerning Appellant’s inappropriate touching of E.L. was probative to show that the Appellant’s repeated inappropriate touching was not a mistake or acts that were simply misconstrued by the victims.

The circuit court conducted a McGinnis3 hearing on March 6, 2006. At the hearing, the circuit court heard testimony from the alleged victims E.C.H., A.L, and testimony from E.L., A.L.’s sister.4 At the conclusion [39]*39of said testimony, the State argued that the testimony was being offered as 404(b) evidence “for the absence of mistake or inadvertence, ... lustful disposition for children, common mode, plan, scheme or design.” In analyzing the evidence, the circuit court explained that it was necessary to examine Rule 404(b) because if the evidence was admissible under Rule 404(b), the counts should not be severed. In conducting said analysis, the circuit court noted that the following similarities in the testimony of E.C.H., A.L. and E.L:

a) Certain physical eharacteristies/resemblanee;
b) At the time of the alleged offenses, all were prepubescent females;
c) The defendant’s girlfriend (A.L. and E.L.’s grandmother) was always absent;
d) In the charged counts, the victims were sleeping or feigning sleep;
e) On two occasions the defendant told E.C.H. and E.L. not to tell; and
f) The circumstances of the touchings belie a mistake.

As required under McGinnis, the circuit court found that the acts to which E.L. testified occurred and that the Appellant committed said acts. The court found this evidence to be relevant. It then balanced the probative value of the evidence against its prejudicial effect, and found that E.L.’s testimony should be permitted, with a cautionary instruction given to the jury at the time of trial.

After continuing the trial on four separate occasions at the Appellant’s request, Appellant pled guilty to two counts of sexual abuse in the first degree (Counts One and Five) and two counts of sexual abuse by a custodian (Counts Two and Six) on December 12, 2006. As part of that plea agreement, the State agreed to dismiss the remaining counts. The court accepted the plea on December 14, 2006. However, on February 26, 2007, Appellant withdrew his guilty plea. The matter went to trial on April 3, 2007. On the second day of deliberations, the jury advised the court that it was unable to reach a verdict. The court gave an Allen instruction, and the jury continued its deliberations. The jury again advised the court that it was unable to reach a verdict, and a mistrial was declared on April 5, 2007.

A second trial was held on May 29 and 30, 2007. At the time of trial, Appellant filed and argued a motion in limine to prevent E.C.H. from testifying that she was treated for several years at Southern Highlands for sexual abuse because the Appellant had not been provided treatment records from Southern Highlands and allowing such evidence would violate his due process rights and his sixth amendment rights to confront his accusers and effectively cross-examine the witnesses against him. Appellant had previously asked for the treatment records in discovery and only received three pages of records which did not contain any treatment notes. The circuit court denied Appellant’s motion, permitting E.C.H. to offer testimony at trial regarding the treatment she received at Southern Highlands. E.C.H., A.L. and [40]*40A.L.’s sister provided testimony at trial.5 Following their testimony, the circuit court gave an instruction regarding 404(b) evidence, stating that “[s]ueh evidence was admitted and should be considered by you only so far as in your opinion it may go to show the absence of mistake or inadvertence, common scheme, plans and design, and the lustful disposition of the defendant.”

Following the presentation of the defendant’s case, the State moved to dismiss Count Two and the circuit court granted this motion. The jury then found the Appellant guilty of Counts One, Three and Four. Appellant was found not guilty of Counts Five and Six. On June 21, 2007, the Appellant moved for a new trial, but that motion was denied by the circuit court. Thereafter, on August 13, 2007, Appellant was sentenced to one to five years for Count One, fifteen to thirty-five years for Count Three, and ten to twenty years for Count Four. The sentences were set to run consecutively. However, the circuit court suspended the sentences for Counts One and Three and ordered that when the Appellant discharged his sentence under Count Four, he be placed on probation for fifty years. On November 5, 2007, Appellant moved for reconsideration of that sentence. Appellant’s motion was denied. It is from that order that Appellant now appeals.

II.

STANDARD OF REVIEW

This Court has held that “[e]ven where joinder or consolidation of offenses is proper under the West Virginia Rules of Criminal Procedure, the trial court may order separate trials pursuant to Rule 14(a) on the ground that such joinder or consolidation is prejudicial. The decision to grant a motion for severance pursuant to W.Va.R.Crim.P. 14(a) is a matter within the sound discretion of the trial court. Syl. Pt. 3, State v. Hatfield, 181 W.Va. 106, 380 S.E.2d 670 (1988).” Syl. Pt. 1, State v. Ludwick, 197 W.Va. 70, 475 S.E.2d 70 (1996).

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State v. Rash
697 S.E.2d 71 (West Virginia Supreme Court, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
697 S.E.2d 71, 226 W. Va. 35, 2010 W. Va. LEXIS 64, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rash-wva-2010.