State of West Virginia v. Crockett ( 2021 )

STATE OF WEST VIRGINIA FILED
SUPREME COURT OF APPEALS
April 26, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
State of West Virginia, OF WEST VIRGINIA
Plaintiff Below, Respondent
vs.) No. 19-1030 (Monongalia County 18-F-312)
Timmy Crockett,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Timmy Crockett, by counsel Robert F. Evans, appeals the October 17, 2019,
order of the Circuit Court of Monongalia County denying petitioner’s post-trial motion for
judgment of acquittal or, alternatively, a new trial. Respondent the State of West Virginia, by
counsel Elizabeth Grant, filed a response in support of the trial court’s order. Petitioner filed a
reply.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the order of the trial court is appropriate under Rule 21 of the
Rules of Appellate Procedure.
Petitioner was indicted on one count of sexual assault in the second degree for the assault
of a student athlete (“the victim”) at West Virginia University (“WVU”), in the early morning
hours of March 9, 2018, in Monongalia County, West Virginia. The indictment alleged petitioner
subjected the victim “to an act of sexual intercourse by forcible compulsion and/or while [the
victim] was physically helpless.” Throughout the proceedings below, petitioner admitted to having
sex with the victim, but he claimed that she was conscious at the time and that the encounter was
consensual.
Before his trial, petitioner filed a motion in limine asking that the trial court permit him to
introduce certain DNA evidence during his trial. The motion stated:
On or about March 8, 201[8] [petitioner] met the victim out for drinks upon
the victim’s request through a mutual friend 1 . . . Upon the conclusion of the
1
The mutual friend is a gay male.
1
evening the parties separated with the mutual friend and the victim going back to
the victim’s apartment. [Petitioner] ultimately ended up having sex with the victim.
After [petitioner] left the apartment the victim apparently went to bed for the
evening. She went to the hospital the next morning stating the sex was not
consensual.
(footnote added). The motion noted that various parts of the victim’s body were swabbed for DNA
evidence during her examination at the hospital. Petitioner stated that testing revealed that the
DNA of at least two male contributors was found on the swab of the victim’s neck, and he asked
that he be permitted to introduce this evidence at trial, arguing that “[t]he jury must hear that
additional DNA was present and make their own determination if someone other than [petitioner]
had sex with the victim.” Petitioner asserted that the DNA evidence was admissible under Rule
412 of the West Virginia Rules of Evidence. 2 The State opposed the motion, asserting that the
evidence was irrelevant and inadmissible under the rape shield law. 3 The trial court agreed with
the State and entered an order on June 13, 2019, denying petitioner’s motion.
Petitioner filed a second motion in limine seeking to exclude evidence that “[t]he victim
obtained a personal safety order against the [petitioner] in magistrate court.” 4 During the hearing
on the motion, petitioner’s counsel argued, “I certainly think if you look at it from an evidentiary
403 perspective, the probable [sic] value does not outweigh the potential for prejudice. The jury
hearing that another tribunal has felt that [petitioner] did something wrong[.]” The State objected
to the motion, arguing that evidence that the victim obtained a personal safety order against
petitioner was relevant. In ruling on the motion, the trial court said, “It may prove his guilt. . . .
The State cannot put on evidence that there was a protective order [sic] [against petitioner]. Now,
if it comes in some other way other than -- you know, then it can possibly come in.” The trial court
granted petitioner’s second motion in limine in the June 13, 2019, order.
Petitioner’s jury trial began on June 27, 2019. The jury heard testimony from the victim; a
mutual friend of the victim and petitioner; the director of operations for the victim’s sports team
at WVU (“the director”); the senior associate athletic director at WVU; a forensic scientist with
the West Virginia State Police laboratory; a sexual assault nurse examiner (“SANE”); a detective
with the Granville Police Department; and petitioner.
2
Rule 412 of the West Virginia Rules of Evidence is discussed infra.
3
“Our rape shield law is comprised of West Virginia Code § 61-8B-11(b) and Rule 412 of
the West Virginia Rules of Evidence[.]” State v. Timothy C., 237 W. Va. 435, 439 n.6, 787 S.E.2d
888, 892 n.6 (2016).
4
A person may seek a personal safety order against another person by filing a petition with
the magistrate court alleging the other person has committed “a sexual offense or attempted sexual
offense,” has engaged in harassment as described in West Virginia Code § 61-2-9a(a), or has made
“repeated credible threats of bodily injury when the person making the threats knows or has reason
to know that the threats cause another person to reasonably fear for his or her safety.” W. Va. Code
§ 53-8-4(a).
2
Testimony provided at trial established that on the evening of March 8, 2018, the victim,
the mutual friend, and petitioner met at a bar in Morgantown, West Virginia. The mutual friend
introduced the victim to petitioner, and petitioner bought them all food and alcoholic drinks. The
trio then walked to a second bar in Morgantown and continued drinking until the victim decided
she wanted to go home in the early morning hours of March 9, 2018. Although petitioner offered
to arrange a ride for the victim, she declined the offer and drove herself and the mutual friend back
to her apartment. Upon arriving at her apartment, the victim changed into a bra, underwear, and a
bathrobe, and she got into her bed. Shortly thereafter, the victim became ill, vomiting into a trash
can next to her bed. 5 She testified that she then blacked out.
After the victim became ill, the mutual friend sent a message to petitioner, asking him to
come to the victim’s apartment. The mutual friend testified that he asked petitioner to come help
him care for the victim. The mutual friend provided petitioner with directions to the apartment,
and upon his arrival petitioner joined the victim and the mutual friend in the victim’s bedroom. At
the time, the victim was in her bed, and the mutual friend was in a chair adjacent to the bed. The
victim testified she was unconscious when petitioner arrived. She further testified:
So I felt someone on top of me. I felt someone kissing on me. And I felt
penetration. I could not open my eyes. I was still kind of unconscious. Initially, God
honest truth, I thought it was [the mutual friend] and I remember saying, “Stop,”
you know, “Get off. I want to go to sleep.” And once he had finally stopped, I --
the door opened in my room. The kitchen is right by my room. The light in the
kitchen shined in my room. And I was able to open my eyes. As blurry as it was, I
saw two shadows in my room. That’s when I immediately put my face in the pillow.
I just started crying and I kept telling myself, I’m like, “Don’t say anything. Don’t
wake up. Don’t let them see you.” Because I didn’t know what had happened. And
I guess I kind of just dozed right back off.
The next morning -- the next morning, I had got up, rolled over. [The mutual
friend] was laying in my bed with boxers on, just nothing but boxers. That night
when I did see two shadows, I saw [the mutual friend] kissing on another man. And
so me waking up that morning -- and after seeing him, I just -- I felt hung over. The
first thing -- my instinct, I had practice. I was going to get up and get in the shower.
I go get in the shower, and there was -- I go get in the shower and there’s blood.
And I immediately closed the door. I called my director of [] operations, and I told
him, I think something had happened to me.
The mutual friend and petitioner both testified that the victim was conscious and spoke
with petitioner before the sexual encounter. They also testified that the sexual encounter between
the victim and petitioner was consensual, and that the petitioner left shortly after the sexual
encounter ended. The mutual friend testified that he was trying to sleep in the chair while petitioner
had sex with the victim. It was undisputed that the mutual friend is gay, and no testimony was
presented during petitioner’s trial indicating that the mutual friend and the victim had ever engaged
5
The evidence indicated that the vomit-filled trash can remained next to the victim’s bed
throughout the night.
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in sexual contact with each other.
After the victim called him, the director drove to the victim’s apartment. He transported
petitioner to Ruby Memorial Hospital where she underwent a sexual assault examination. The
examination revealed a “suction bite mark” on the victim’s right breast, a suction or bite injury to
her neck, bruises on her inner left thigh and the back of her arm, and a bleeding abrasion on the
victim’s posterior vaginal wall. The male DNA collected from the victim’s breasts and vagina was
consistent with petitioner’s DNA profile. The mutual friend was excluded as the donor of the male
DNA collected from the victim’s breasts and vagina.
The director testified that after the victim’s examination at the hospital, he took her to the
Monongalia courthouse. The State questioned the director as follows:
Q. Okay. And so after her SANE examination was complete, did she
come back with you?
A. Yes. So at that point in time, we were just sort of, you know, talking
to the police officers, who were great. We talked about what are the next steps we
should do to protect her, you know. And we went down to the courthouse here and
filed a temporary protective order [sic] against [petitioner] and [the mutual friend].
Q. And to your knowledge, were those granted? If you can’t answer,
just say it.
A. I can’t.
Petitioner’s counsel objected, stating, “This was clearly ruled upon that there would be no
reference to a protective order [sic] filed against [petitioner]. The [c]ourt said no. She just asked
him, and he said, yes.” Petitioner then requested that the trial court declare a mistrial. The State
responded:
I would argue that this isn’t unfairly prejudicial to the jury. This witness
didn’t even know the answer to my question. In addition to that, he’s cross-
examined the victim on protective order [sic] issues. And so I acknowledge the
[c]ourt’s previous ruling and apologies to the [petitioner] and to the [c]ourt. But I
don’t think this is cause for a mistrial.
The trial court refused to declare a mistrial and, at petitioner’s request, gave the following curative
instruction to the jury: “The last question asked of the prosecuting attorney was objected to. And
I granted that objection. In other words, I sustained it. Therefore, you should act as if you never
heard the question or the witness’s answer.” Thereafter, the State continued to question the director
about what happened at the courthouse. The director testified that the victim was visibly upset and
that she collapsed in a restroom.
Petitioner’s motions for judgment of acquittal made during the trial were denied. After
deliberating for approximately two hours and fifteen minutes, the jury returned its verdict, finding
petitioner guilty of sexual assault in the second degree. By order entered on October 17, 2019, the
trial court ordered that petitioner serve a sentence of ten to twenty-five years of incarceration.
4
Petitioner filed a post-trial motion for judgment of acquittal or, alternatively, a new trial.
First, petitioner argued that he was entitled to acquittal or a new trial on the ground that the State
introduced evidence concerning a personal safety order against petitioner during the trial in
violation of the trial court’s June 13, 2019, pretrial order. Petitioner asserted the director’s
testimony was prejudicial and that it was not remedied by a curative instruction. Second, petitioner
argued that the trial court denied him his right to a fair trial by excluding the DNA evidence
obtained from the swab of the victim’s neck.
By a second order entered on October 17, 2019, the trial court denied petitioner’s post-trial
motion. With regard to the director’s testimony, the trial court noted, “No evidence regarding a
judicial determination related to the [personal safety] order was ever admitted,” and “the State’s
question relating to the victim seeking a [personal safety] order against [petitioner] did not create
manifest necessity to discharge the jury.” The trial court further found “that the jury did not convict
the [petitioner] on the question posed by the State and that there was sufficient other evidence upon
which to find the [petitioner] guilty.” With regard to the DNA evidence obtained from the swab of
the victim’s neck, the trial court reasoned: “The defense offered in this case was consent. The DNA
identified on the victim’s vagina was found to only have one male contributor, the [petitioner].
Evidence of a second contributor on the victim’s neck would have been irrelevant and possibly
violative of the Rape Shield Law.”
Petitioner now appeals the trial court’s October 17, 2019, order denying his post-trial
motion for judgment of acquittal or, alternatively, a new trial. He claims that errors committed by
the trial court warrant the reversal of his conviction.
This Court reviews a trial court’s order denying a motion for judgment of acquittal de novo.
See State v. LaRock, 196 W. Va. 294, 304, 470 S.E.2d 613, 623 (1996) (“The trial court’s
disposition of a motion for judgment of acquittal is subject to our de novo review; therefore, this
Court, like the trial court, must scrutinize the evidence in the light most compatible with the
verdict, resolve all credibility disputes in the verdict’s favor, and then reach a judgment about
whether a rational jury could find guilt beyond a reasonable doubt.”). The Court applies the
following standard of review to a trial court’s order denying a motion for a new trial:
In reviewing challenges to findings and rulings made by a circuit court, we
apply a two-pronged deferential standard of review. We review the rulings of the
circuit court concerning a new trial and its conclusion as to the existence of
reversible error under an abuse of discretion standard, and we review the circuit
court’s underlying factual findings under a clearly erroneous standard. Questions
of law are subject to a de novo review.
Syl. Pt. 3, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000).
In his first assignment of error, petitioner argues that the trial court erred by refusing to
declare a mistrial after the State introduced evidence of a personal safety order entered against
petitioner. Petitioner asserts that the evidence was unfairly prejudicial because the risk of unfair
prejudice created by the admission of the evidence substantially outweighed its probative value,
because the trial court’s pretrial order specifically prohibited introduction of any evidence of the
5
personal protective order, and because the State drew inferences to the personal safety order
against petitioner after the trial court instructed the jury to disregard the evidence.
We review a trial court’s decision to grant or deny a motion for mistrial under an abuse of
discretion standard. State v. Lowery, 222 W. Va. 284, 288, 664 S.E.2d 169, 173 (2008). A trial
court is empowered to declare a mistrial only when
there is a “manifest necessity” for discharging the jury before it has rendered its
verdict. This power of the trial court must be exercised wisely; absent the existence
of manifest necessity, a trial court’s discharge of the jury without rendering a
verdict has the effect of an acquittal of the accused and gives rise to a plea of double
jeopardy.
Id. (quoting State v. Williams, 172 W. Va. 295, 304, 305 S.E.2d 251, 260 (1983)). “Before a
manifest necessity exists which would warrant the declaring of a mistrial and the discharging of
the jury and ordering a new trial, the circumstances must be prejudicial, or appear to be prejudicial,
to the accused . . . .” Syl. Pt. 3, State ex rel. Brooks v. Worrell, 156 W. Va. 8, 190 S.E.2d 474(1972). In evaluating whether prejudice giving rise to a manifest necessity exists, the Court
considers remedial measures taken by the trial court, such as the giving of a curative instruction.
See Lowery, 222 W. Va. at 288-89, 664 S.E.2d at 173-74 (finding that a spectator’s “brief outburst,
followed by an immediate ejection of the spectator from the courtroom, and a curative instruction,
did not create a manifest necessity for a declaration of a mistrial”).
We conclude that the trial court did not abuse its discretion by refusing to declare a mistrial.
No evidence was presented during petitioner’s trial—through the director or any other witness—
indicating or implying that the victim obtained a personal safety order against petitioner. The
testimony established only that the victim applied for a personal safety order. The introduction of
this evidence—that the victim applied for a personal safety order—was not prohibited by the
pretrial order, and it was both highly relevant and probative to explaining the victim’s behavior
and demeanor following the assault. 6 Thus, the pretrial order was not violated. 7 Had any prejudice
resulted from the State’s question as to whether the victim obtained a personal safety order, any
such prejudice would have been marginal, at most, and it would have been entirely mitigated by
the court’s curative instruction. Therefore, we can find no prejudice, or even the appearance of
prejudice, that would have amounted to a manifest necessity for the declaration of a mistrial.
To the extent that petitioner claims that testimony concerning the victim’s presence at the
courthouse was unfairly prejudicial, even if such testimony did not violate the pretrial order, we
6
See W. Va. R. Evid. 401 (stating that “[e]vidence is relevant if: (a) it has any tendency to
make a fact more or less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.”).
7
We find that it was improper for the State to ask the director whether the victim had
obtained a personal safety order against petitioner; however, the question did not result in the
admission of evidence in violation of the trial court’s order, and the State apologized for the
question, explaining the question was inadvertent.
6
disagree. As noted above, the questioning was both relevant and probative. Its probative value far
outweighed any danger of unfair prejudice. See W. Va. R. Evid. 403 (“The court may exclude
relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair
prejudice[.]”). Consequently, a manifest necessity for the declaration of a mistrial was not created
by the admission of this evidence, and the trial court did not err by denying petitioner’s motion for
judgment of acquittal or for a new trial on this ground.
In his second and final assignment of error, petitioner argues that the trial court erred by
excluding evidence of the DNA of a second male donor discovered on the victim’s neck. Petitioner
claims that “the DNA of another male being present on the [victim]’s neck makes it more probable
that another male is guilty of the offense for which Petitioner stands convicted.” He asserts that
the evidence was admissible under our rape shield law and that there is a reasonable possibility
that the exclusion of the DNA evidence contributed to his conviction. He further claims that the
exclusion of the evidence deprived him of his due process right to a fair trial under the United
States and West Virginia Constitutions.
We have previously held that “[a] trial court’s evidentiary rulings, as well as its application
of the Rules of Evidence, are subject to review under an abuse of discretion standard.” Syl. Pt. 4,
State v. Rodoussakis, 204 W. Va. 58, 511 S.E.2d 496 (1998); see also Syl. Pt. 2, State v. Peyatt,
173 W. Va. 317, 315 S.E.2d 574 (1983) (“‘Rulings on the admissibility of evidence are largely
within a trial court’s sound discretion and should not be disturbed unless there has been an abuse
of discretion.’ State v. Louk, [171] W.Va. [639], [643], 301 S.E.2d 596, 599 (1983)[, overruled on
other grounds by State v. Jenkins, 191 W. Va. 87, 443 S.E.2d 244 (1994)].”). Thus, we review the
circuit court’s decision to exclude the DNA evidence for an abuse of discretion.
Our rape shield law exists “to protect the victims of sexual assault from humiliating and
embarrassing public fishing expeditions into their sexual conduct; to overcome victims’ reluctance
to report incidents of sexual assault; and to protect victims from psychological or emotional abuse
in court as the price of their cooperation in prosecuting sex offenders.” State v. Guthrie, 205 W.
Va. 326, 339, 518 S.E.2d 83, 96 (1999). Under our rape shield law,
[t]he following evidence shall not be admissible in a civil or criminal proceeding
involving alleged sexual misconduct:
(1) evidence offered to prove that a victim engaged in other sexual behavior;
(2) evidence offered to prove a victim’s sexual predisposition; or
(3) evidence of specific instances of the victim’s sexual conduct, opinion
evidence of the victim’s sexual conduct and reputation evidence of the victim’s
sexual conduct in any prosecution in which the victim’s lack of consent is based
solely on the incapacity to consent because such victim was below a critical age,
mentally defective, or mentally incapacitated.
W. Va. R. Evid. 412(a). Certain evidence is admissible under the rape shield law:
(A) evidence of specific instances of a victim’s sexual behavior, if offered
to prove that someone other than the defendant was the source of semen, injury, or
other physical evidence; [and]
7
....
(D) evidence whose exclusion would violate the defendant’s constitutional
rights.
W. Va. R. Evid. 412(b), in part.
“The test used to determine whether a trial court’s exclusion of proffered
evidence under our rape shield law violated a defendant’s due process right to a fair
trial is (1) whether that testimony was relevant; (2) whether the probative value of
the evidence outweighed its prejudicial effect; and (3) whether the State’s
compelling interests in excluding the evidence outweighed the defendant’s right to
present relevant evidence supportive of his or her defense. Under this test, we will
reverse a trial court’s ruling only if there has been a clear abuse of discretion.” Syl.
Pt. 6, State v. Guthrie, 205 W.Va. 326, 518 S.E.2d 83 (1999).
Syl. Pt. 2, State v. Timothy C., 237 W. Va. 435, 787 S.E.2d 888 (2016).
In applying the test set forth in Timothy C. to the facts of this case, we are satisfied that the
circuit court did not abuse its discretion by excluding the DNA evidence. First and foremost, the
evidence was wholly irrelevant. During petitioner’s trial, there was no question that petitioner had
sex with the victim because petitioner admitted to having sex with the victim. There was also no
question that the victim alleged she did not consent to the sexual contact to which she was
subjected. Even if the victim had been assaulted by a second individual, that assault would not
vitiate petitioner’s culpability for his own admitted acts. The presence of another man’s DNA on
the victim’s neck had no bearing whatsoever on whether petitioner subjected the victim to the
assault alleged in the indictment. Second, in that the evidence was irrelevant, it had no probative
value that might outweigh its prejudicial effect. Third, the State had a compelling interest in
excluding the evidence: preventing embarrassment of the victim in that the evidence might have
been perceived as showing that the victim engaged in other sexual behavior. Thus, the balance of
interests weighs entirely in favor of the exclusion of the evidence, and the trial court did not err by
denying petitioner’s motion for judgment of acquittal or for a new trial on this ground.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: April 26, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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