State of West Virginia v. Kenneth Bernard Nelson ( 2023 )

FILED
April 5, 2023
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
State of West Virginia,
Plaintiff Below, Respondent
vs.) No. 21-0797 (Cabell County No. 18-F-293)
Kenneth Bernard Nelson,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Kenneth Bernard Nelson appeals the September 20, 2021, order sentencing him
for his conviction on his eighteen-count indictment (nine counts of second-degree sexual assault,
and nine counts of sexual abuse by a parent, guardian, or custodian) to a cumulative term of 180
to 405 years in prison, to be followed by fifty years of supervised release. 1 Upon our review, we
determine that oral argument is unnecessary and that a memorandum decision affirming the circuit
court’s order is appropriate. See W. Va. R. App. P. 21.
Petitioner’s girlfriend’s daughter, “C.J.,” 2 accused petitioner of sexually abusing her when
she was between thirteen and sixteen years old. Following his indictment, petitioner sought copies
of the recordings and transcripts of C.J.’s forensic interviews. The court allowed petitioner to
review the recordings and transcripts, but only in his counsel’s office. Thereafter, petitioner asked
to be allowed to review the recordings outside his counsel’s office. The trial court denied that
motion finding the recordings were only two hours long and contained very sensitive information
about the minor victim.
At trial, petitioner’s counsel questioned police officer Matt Null about his report claiming
that, in a 2017 recorded interview with C.J., C.J. said petitioner sexually assaulted/abused her at
her grandmother’s house. Petitioner intended to use the recording to show that the victim’s
testimony was not credible because petitioner had irrefutably never been to C.J.’s grandmother’s
house. However, at petitioner’s trial, Null testified that he had reviewed C.J.’s recorded interview
1
Petitioner appears by counsel Jason T. Gain. Respondent appears by Attorney General
Patrick Morrisey and Assistant Attorney General Mary Beth Niday.
2
Because of the sensitive nature of the facts alleged in this case, we use the initials of the
affected parties. See State v. Edward Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127
n.1 (1990) (“Consistent with our practice in cases involving sensitive matters, we use the victim’s
initials. Since, in this case, the victim . . . [is] related to the appellant, we have referred to the
appellant by his last name initial.” (citations omitted)); see also W. Va. R. App. P. 40(e).
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the night before his testimony and realized that C.J. never said petitioner abused her at her
grandmother’s house. Petitioner’s counsel objected arguing that the State failed to provide
petitioner any information about C.J.’s recorded interview. While the State claimed it had given a
copy of the recording to petitioner’s prior counsel, the trial court gave petitioner’s trial counsel
time to review the recording during the lunch recess. However, during the recess, petitioner left
the courthouse and sustained injuries in a car accident that required the trial be recessed for six
days. Trial counsel was allowed to review the recording during that recess. When trial resumed,
the recording was played for the jury. A jury convicted petitioner on all eighteen counts. The trial
court sentenced petitioner to a cumulative sentence of 180 to 405 years in prison, to be followed
by fifty years of supervised release. Petitioner now appeals.
In reviewing challenges to the findings and conclusions of the circuit court,
we apply a two-prong deferential standard of review. We review the final order and
the ultimate disposition 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. 2, Walker v. W. Va. Ethics Comm’n, 201 W. Va. 108, 492 S.E.2d 167 (1997).
Petitioner raises four assignments of error on appeal. Petitioner first argues that the trial
court erred by failing to declare a mistrial after it learned of the State’s discovery violation, i.e., its
alleged failure to disclose Officer Null’s recorded interview of C.J. to petitioner. Petitioner claims
material prejudice because his counsel intended to show that petitioner had never been to the
grandmother’s home as a means of proving the victim lied to the police.
“The decision to declare a mistrial, discharge the jury, and order a new trial in a criminal
case is a matter within the sound discretion of the trial court.” Syl. Pt. 1, State v. Costello, 245 W.
Va. 19, 857 S.E.2d 51 (2021) (internal quotation omitted) (quoting Syl. Pt. 8, State v. Davis, 182
W. Va. 482, 388 S.E.2d 508 (1989)). We review a trial court’s response to a discovery violation
under an abuse of discretion standard. State v. Rusen, 193 W. Va. 133, 140, 454 S.E.2d 427, 434
(1994).
The State contends that Officer Null’s recorded interview of C.J. was disclosed to
petitioner’s prior trial counsel in this case. On appeal, petitioner does not refute that statement.
Further, during petitioner’s trial when petitioner’s current counsel learned of the recorded
interview of C.J., counsel admitted that he was “not suggesting that [the recording] was hidden
from [him]. What I’m suggesting is that I’ve never seen it.” Thus, petitioner fails to show that the
State violated any discovery order. Moreover, once petitioner and his current trial counsel learned
of the recording, they had six days to review it and make any necessary adjustments to his defense
before his trial resumed. Petitioner therefore fails to show how he was prejudiced by the admission
of the recording at his trial. Thus, we find no error.
Petitioner also argues that the circuit court abused its discretion by preventing him from
viewing recordings and transcripts of C.J.’s forensic interviews outside his attorney’s office. Under
West Virginia Rule of Criminal Procedure Rule 16(d)(1), a circuit court, “[u]pon a sufficient
showing . . . may at any time order that the discovery or inspection be denied, restricted or deferred,
or make such other order as is appropriate.” Here, we find that the circuit court, under its inherent
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authority to manage this case, did not abuse its discretion in limiting petitioner’s review of the
material to his counsel’s office because the evidence was not extensive and contained sensitive
information regarding the sexual abuse/assault of a minor. Petitioner does not claim that he was
unable to get to his counsel’s office or that his counsel did not provide him access to, or adequate
time to review, the recordings and transcripts. Accordingly, we find no error.
In petitioner’s third assignment of error, he argues that the circuit court erred by holding
critical stage hearings (two pretrial hearings and petitioner’s sentencing hearing) when petitioner
was not physically present but, instead, appeared remotely via Skype and Microsoft Teams. We
recently ruled that “[a] defendant has a due process right to be present at all critical stages of a
criminal proceeding pursuant to Article III, Section 10 of the West Virginia Constitution and the
Fifth Amendment of the United States Constitution.” Syl. Pt. 3, State v. Byers, 247 W. Va. 168,
875 S.E.2d 306 (2022). In Byers, we found that a defendant has a right to be physically present at
a critical stage hearing and cannot be compelled to appear by video. One of the keys to our holding
in Byers was that “Mr. Byers, through counsel, objected to appearing by video conference.” 247
W. Va. at ___, 875 S.E.2d at 310.
Here, however, petitioner admits that his counsel did not object to petitioner’s physical
absence at his pretrial and sentencing hearings. Accordingly, we must review this assignment for
plain error. See Syl. Pt. 7, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995) (“To trigger
application of the ‘plain error’ doctrine, there must be (1) an error; (2) that is plain; (3) that affects
substantial rights; and (4) seriously affects that fairness, integrity, or public reputation of the
judicial proceedings.”).
Petitioner does not allege that he could not fully participate in the hearings by video, nor
does he state how he was prejudiced by appearing remotely. Petitioner asserts only that his lack of
physical presence in the courtroom constituted “per se reversible error”; however, he cites to no
authority for this claim. Moreover, the record shows that, at his first pretrial hearing, petitioner
appeared remotely and did nothing more than waive his speedy trial rights. At the second pretrial
hearing, the court granted the State’s motion to amend petitioner’s indictment to name him as the
victim’s “custodian” rather than “guardian,” finding the amendment was neither material, nor a
surprise. No evidence suggests that if petitioner had been physically in the courtroom the court
would have ruled differently at either hearing. The same is true for petitioner’s sentencing hearing
at which petitioner was given the opportunity to allocute. Further, petitioner’s counsel took
advantage of petitioner’s remote appearance to argue for home confinement so that he could avoid
the then-current spike in Covid-19 cases. Finally, nothing in the record suggests that petitioner’s
remote appearance affected the outcome of petitioner’s case or contributed to his criminal
conviction. Accordingly, we find no error, let alone one that is plain.
In petitioner’s fourth and final assignment of error, he argues that his indictment was
invalid due to errors during the grand jury proceedings. Specifically, petitioner claims that the
officer who investigated his case made materially false statements to the grand jury, including that
“there’s no doubt in my mind [the victim] didn’t make this up.” Petitioner adds that the officer was
allowed to remain in the grand jury room during its deliberations. Thus, petitioner argues his
indictment should have been quashed and his case should be dismissed with prejudice. Conversely,
petitioner argues he should be given a new trial.
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Pretrial, petitioner raised no issues with the form or contents of his indictment. Rule 12(b)
of the West Virginia Rules of Criminal Procedure regarding “Pretrial Motions” provides:
Any defense, objection or request which is capable of determination without the
trial of the general issue may be raised before trial by motion. Motions may be
written or oral at the discretion of the judge. The following must be raised prior to
trial:
....
(2) Defenses and objections based on defects in the indictment or information (other
than that it fails to show jurisdiction in the court or to charge an offense which
objections shall be noticed by the court at any time during the pendency of the
proceedings)[.]
(Emphasis added.) “The well-settled rule in West Virginia is that ‘[e]xcept for willful, intentional
fraud the law of this State does not permit the court to go behind an indictment to inquire into the
evidence considered by the grand jury, either to determine its legality or its sufficiency.’” State v.
Spinks, 239 W. Va. 588, 602, 803 S.E.2d 558, 572 (2017) (quoting Syl., Barker v. Fox, 160 W.
Va. 749, 238 S.E.2d 235 (1977)).
Petitioner does not allege willful, intentional fraud or prosecutorial misconduct in the grand
jury proceedings. Instead, he challenges the investigating officer’s response to the State’s question
regarding whether the victim fabricated her allegations against petitioner. Officer Null replied,
“There’s no doubt in my mind she didn’t make this up.” Even if Null’s statement was materially
false, petitioner was convicted by a petit jury beyond a reasonable doubt so any error in his grand
jury proceeding is harmless. “[T]he petit jury’s verdict of guilty beyond a reasonable doubt
demonstrates a fortiori that there was probable cause to charge the defendant[] with the offenses
for which [he was] convicted.” United States v. Mechanik, 475 U.S. 66, 67 (1986). Thus, the petit
jury’s verdict renders harmless petitioner’s unsupported claim that Null gave a materially false
statement. State ex rel. State v. Hummel, 247 W. Va. 225, ___, 878 S.E.2d 720, 728 (2021) (“We
have long held that once a trial is had, an error in the grand jury proceedings is cured[.]”).
Accordingly, we find no error.
Affirmed.
ISSUED: April 5, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
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