State of West Virginia v. Paul H., 16-0047

Background

Paul H. was indicted on counts including first- and second-degree sexual assault and incest for sexual assaults against his younger sister K.H.; he was convicted and sentenced to 20–50 years imprisonment.
The State sought and the trial court admitted, under West Virginia Rule of Evidence 404(b), testimony from another sister, S.H., that Paul had sexually abused her as a child in a similar manner. A McGinnis (in-camera/404(b)) hearing was held pretrial.
S.H. had given multiple statements with some inconsistencies; at the 404(b) hearing she testified about repeated abuse beginning at age six and described digital and intercourse acts. The court found her credible and that the evidence showed a "lustful disposition."
A supervised psychologist, Sandra Walls, evaluated K.H. for treatment purposes and testified about K.H.’s symptoms and opined that K.H. comported with a child sexual-assault victim; she also recited a statement by K.H. that she had been raped by her brother. Defense objected to both the opinion and the victim’s reported statement as hearsay.
Trial evidence included medical testimony (Dr. Phillips) that physical findings supported penetration/trauma. The defendant was convicted on the charged counts and appealed, arguing (1) erroneous admission of 404(b) evidence (S.H.); and (2) improper expert opinion and hearsay via Ms. Walls.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of S.H.'s testimony under Rule 404(b)	Evidence shows similar acts to prove lustful disposition; admissible for non-character purpose	Admission was improper and prejudicial under Rule 404(b)	Court affirmed: sufficient proof other acts occurred, acts closely related, properly admitted to show lustful disposition and more probative than prejudicial (McGinnis/LaRock framework)
Qualification and scope of expert opinion (Ms. Walls)	Expert may testify about whether child comports with profile of sexual-abuse victim under Rule 702 and Edward Charles L.	Ms. Walls was not qualified to render such opinion and her evaluation was not treatment so exception/hearsay rules don't apply	Court affirmed: Ms. Walls was qualified; evaluation was for diagnosis/treatment; she could opine that victim fit profile and based opinion on objective findings (but not identify perpetrator)
Hearsay from victim repeated by Ms. Walls	Statements made for medical diagnosis/treatment or otherwise admissible; victim testified and was cross-examined	Repetition of the victim’s statement by Ms. Walls was inadmissible hearsay (relying on Pettrey)	Court rejected Pettrey as inapplicable; found statements fell within treatment/diagnosis context and/or were cumulative to victim’s own testimony, producing no prejudice
Prejudice from collateral-act details (e.g., air compressor allegation)	State: collateral-act testimony permissible; no timely specific objection to portions challenged on appeal	Defense: graphic/unrelated details were prejudicial and should have been excluded	Court declined to reverse; noted lack of specific objection in record on some details and appellate courts do not reweigh credibility; any error was not shown to be prejudicial

Key Cases Cited

State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (standard of review for mixed questions of law and fact)
State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (three-step test for Rule 404(b) admission review)
State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (procedural safeguards and favoring admissibility when reviewing 404(b))
State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (expert testimony and limits: expert may state victim profile but not vouch for truth or identify perpetrator; discussion of hearsay exceptions when victim testifies)
State v. Pettrey, 209 W.Va. 449, 549 S.E.2d 323 (noting limits of medical-diagnosis hearsay exception in play-therapy context; distinguished by court here)