This matter was filed as a petition for a writ of prohibition, under the original jurisdiction of this Court, by the Office of the Prosecuting Attorney of Jefferson County (hereinafter “the State”). In this proceeding, the State seeks to have this Court prohibit enforcement of an order of the Circuit Court of Jefferson County
I.
FACTUAL AND PROCEDURAL HISTORY
In the 2016 April term of court, a grand jury indicted Mr. Rankin on eight felony
M.Y. first disclosed the sexual relationship with Mr. Rankin to a family friend with whom she was staying while her mother was on her honeymoon. The family friend reported the matter to M.Y.’s mother. The mother promptly reported the matter to the police. The police launched an investigation that included an interview of M.Y. During the interview, M.Y. stated that she had engaged in consensual sex with Mr. Rankin between eight and twelve times. M.Y. also informed the police that, because the first encounter had been unprotected sex, Mr. Rankin purchased her a “Plan B” emergency contraceptive pill to prevent her from getting pregnant.
After Mr. Rankin was arrested, he was interviewed by the police. During that inter-. view, he admitted to spending time with M.Y. but denied ever having a sexual relationship with her. Mr. Rankin admitted to purchasing the Plan B pill for M.Y., explaining that she asked him to purchase it because she had had unprotected sex with someone else. Mr. Rankin provided no explanation when asked why M.Y. would accuse him of engaging in sex with her on numerous occasions.
Subsequent to Mr. Rankin’s indictment, he filed two motions seeking to introduce evidence of M.Y.’s sexual history. In the first motion, Mr. Rankin sought to introduce evidence that M.Y. accused another man of sexual assault when she was eleven years old.
In the second motion, Mr. Rankin sought to introduce evidence of M.Y.’s sexual history as it related to the Plan B pill. The State opposed both motions on the ground that Rule 412 of the West Virginia Rules of Evidence prohibited the introduction of such evidence. The trial court ruled, as to the first motion; that if Mr. Rankin took the stand to testify he could introduce evidence involving MY.’s sexual assault claims when she was eleven years old. As to the second motion, the trial court ruled that Mr. Rankin could cross-examine M.Y. about whether she told him she had engaged in sex with anyone during the seventy-two hour period prior to the purchase of the Plan B pill.
The State filed the instant proceeding to prohibit enforcement of the circuit court’s
II.
STANDARD OF REVIEW
In this case, the State seeks a writ of prohibition to prevent enforcement of a pretrial order of the circuit court. There are limited instances in which the State may seek a writ of prohibition in a criminal matter. We have held that •
' [t]he State may seek a writ of prohibition in this Court in a criminal case where the trial court- has exceeded or acted outside of its'jurisdiction. Where the State claims that the trial court abused its legitimate powers, the State must demonstrate that the court’s action was so flagrant that it was deprived of its right to prosecute the case or deprived of a valid conviction. In any event, the prohibition proceeding must offend neither the Double Jeopardy Clause nbr the defendant’s right to a speedy trial. Furthermore, the application for a writ of prohibition must be promptly presented.
Syl. pt. 5, State v. Lewis,
In determining Whether to entertain and issue the writ of prohibition for cases not ‘involving an absence of jurisdiction but only where it is ■ claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal’s order raises new and important problems.or issues of law of first impression, These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.
With the foregoing in mind, we turn to the issues presented.
III.
DISCUSSION
In this proceeding we aré called upon to address two issues. First, we are asked to decide if the circuit court properly ruled that Mr. Rankin could testify about M.Y.’s sexual assault claims against another defendant when she was eleven years old. Second, we have been asked to determine whether the circuit court correctly found that Mr. Rankin could cross-examine M.Y. about her sexual history seventy-two hours before the purchase of the Plan B pill. We will address each issue separately below.
A. Evidence about a Prior Sexual Assault of the Victim
The first issue presented involves the circuit court’s ruling that Mr. Rankin could testify about M.Y,’s sexual history with another person when she was eleven years old. The State argues that admission of this evidence violates the rape shield law as set fourth under Rule 412 of the West Virginia Rules of Evidence.
Rule 412(a) sets out a general prohibition on introducing the sexual history of a victim of sexual crimes. Rule 412(a) provides as follows:
(a) Prohibited Uses.—The 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.
The function of the Rule has been stated as follows:
Rule 412 has two primary underlying functions. The first function is to promote the reporting of sexual assaults and other sexual misconduct by victims, by vitiating their fear that in reporting the incident they will be opening up their private life to be put on display through the course of discovery and at trial. The rule’s second function seeks to combat the sexual stereotyping of victims, ie., to prevent the jury from subverting the substantive law of rape by making the guilt of the defendant turn on the jury’s assessment of the moral worth of the victim.
1 Louis J. Palmer, Jr., Robin Jean Davis, and Franklin D. Cleckley, Handbook on Evidence for West Virginia Lawyers, § 412.02[1], at 543 (6th ed. 2015) (internal citations and quotations omitted) (footnotes omitted). See also State v. Varlas,
Here, the State has specifically relied upon Rule 412(a)(1) and 412(a)(3), That is, the State argues that Mr. Rankin’s proposed testimony is prohibited by Rule 412(a)(1) because it would constitute evidence offered to prove that the victim engaged in other sexual behavior, and by Rule 412(a)(8)(2) because it would constitute evidence of a specific instance of the victim’s sexual conduct when she was below the age of consent. The circuit court’s order summarily cited to all of the provisions under Rule 412(a).,We must interpret the circuit court’s treatment of Rule 412(a) as an implicit finding that' testimony by Mr. Rankin, regarding M.Y.’s sexual history when she was eleven, was, prohibited under the rule..
We agree with the State that Rule 412(a)(1) and Rule 412(a)(3) prohibit 'the testimony Mr. Rankin seeks to introduce. Mr. Rankin seeks to inform the jury that M.Y. had a sexual relation with' a man when she was eleven years old. This evidence strikes at the heart of what Rule 412(a)(1) and Rule 412(a)(3) are designed to prevent from being introduced at a trial. See United States v. Bordeaux,
In this proceeding, Mr. Rankin relied upon an exception to the prohibitions of Rúle 412(a). Rule 412(b)(1) delineates the exceptions to the prohibitions contained in Rule
The court may admit the following evidence in a criminal case:
(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;
(B) except as provided in (a)(3), evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor;
(C) evidence of specific instances of the victim’s sexual conduct with persons other than the defendant, opinion evidence of the victim’s sexual conduct and reputation evidence of the victim’s sexual conduct solely for the purpose of impeaching credibility, if the victim first makes his or her previous sexual conduct an issue in the trial by introducing evidence with respect thereto; and
(D) evidence whose exclusion would violate the defendant’s constitutional rights.
The circuit court’s order did not cite to any specific provision under Rule 412(b)(1) as the basis for admitting evidence that M.Y. was sexually assaulted at age eleven. However, the record clearly shows. that Mr. Rankin argued below the constitutional exception contained in Rule 412(b)(1)(D).
Under Rule 412(b)(1)(D), a criminal defendant may introduce evidence prohibited under Rule 412(a) if the exclusion would violate the defendant’s constitutional rights. See Syl. pt. 3, in part, State v. Jenkins,
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.[9 ]
Rule 402 of the West Virginia Rules of Evidence expressly states that “[i]rrele-vant evidence is not admissible.”
In the instant case, Mr. Rankin contends that M.Y. falsely accused him of the sexual crimes of which he was charged. In order to establish the falsity of the allegations, Mr. Rankin seeks to show that M.Y. had a motive to falsely accuse him. To do this, Mr. Rankin seeks to show that he had a conversation with M.Y. concerning the defendant who sexually assaulted her when she was eleven years old. At the time of this purported conversation, the defendant in that ease was indicted, but not yet tried. Mr. Rankin asserts that M.Y. asked him to physically harm the defendant if things did not go her way at the defendant’s trial. Mr. Rankin claims that he refused to agree to harm the defendant. Mr. Rankin now argues that M.Y. falsely accused him of sexual assault in retaliation for his refusal to agree to harm the defendant.
The record is clear. M.Y. was previously sexually assaulted when she was eleven years old. The perpetrator was convicted and sentenced to prison. The facts of that crime have no relevancy in the prosecution of Mr. Rankin. See United States v. Elbert,
, In an effort to try to make the irrelevant facts of the prior sexual assault of M.Y. relevant, Mr. Rankin has made an uncorroborated assertion that M.Y. falsely accused him because he refused to physically harm the person who sexually assaulted her when she was eleven years old. The facts of how the prosecution of Mr. Rankin began clearly reveal that his uncorroborated assertion lacks merit.
The record indicates that M.Y. did not initiate the investigation of Mr. Rankin by the’ police. M.Y. revealed to a family friend that she was having a relationship with Mr. Rankin. According to the State’s brief, M.Y. informed the family friend that Mr. Rankin wad “like a father to her, and that their sexual relationship was something she wanted and desired.” The family friend informed M.Y.’s mother of the conversation she had with M.Y. Thereafter, it was M.Y.’s mother who reported the matter to the police and caused the investigation to occur. This uneon-tested chain of events simply does not reveal a retaliatory motive by M.Y.—it reveals a mother reporting her adolescent daughter was the victim of sexual assault once again.
A case that supports our conclusion is United States v. Payne,
We find that evidence of the trailer incident [vriiere the victim was alleged to have engaged in sexual conduct] is minimally (if at all) probative of Payne’s claim of bias. [The victim’s] first reporting that Payne had molested her occurred more than seven months after the trailer incident and resulting discipline, and almost as long- after [the victim] had left the Paynes’ home. Moreover, to the extent that the trailer incident had probative value on the question of [the victim’s] bias, that value wasprotected by the trial court’s permitting Payne to conduct a “sanitized cross-examination” about the trailer incident, which apprised the jury that [the .victim] had been disciplined by Payne as a result of the incident, but did not reveal the nature of the incident. The underlying facts of the incident sim/ply were not relevant to [the victim’s] purported motivation to fabricate the charges. Thus, the trial court did not abuse its discretion in excluding the evidence and the exclusion did not violate the confrontation clause.'
Payne,
Mr. Rankin has also argued .that the rape shield law does not apply, because he “is not seeking to .introduce evidence of M.Y.’s prior incident of sexual abuse to imply promiscuity[.]” Mr. Rankin relies upon the decision in State v. Jonathan B.,
We find that the notebook is relevant evidence for the purpose of evaluating M.B.’s credibility. In the notebook, which Jonathan B. asserts was written after the alleged rape, M.B. stated that she had only ever had sexual intercourse with one person: “Chris.” As noted supra, in this case, where the State’s case relies almost completely on the testimony of M.B., the-evidence is highly probative for Jonathan B.’s defense because the notebook was supposedly . created after the alleged rape occurred. The prejudicial value of the evidence is low, as the purpose of admitting the evidence is not to imply promiscuity, but to attack M.B.’s credibility. In this way, the evidence is not of -the type the Rape Shield statute was intended to exclude. In sum, we find that- the balance of interests in this case weighs in favor of Jonathan B., and therefore, the evidence is admissible, subject to proper authentication.
Jonathan B.,
In view of the foregoing, the State is entitled to- the writ of prohibition as it relates to the issue of M.Y. being a victim of sexual assault at the age of eleven.
B. Evidence about the Victim’s Sexual History Seventy-Two Hours Before the Purchase of a Plan B Pill
The next issue raised involves the State’s intent to introduce a statement made by Mr. Rankin concerning his purchase of the Plan B pill for M.Y. As a result of this, the circuit court ruled that during Mr. Rankin’s cross-examination of M.Y., he would be permitted to ask her whether she told him she had engaged in sex with anyone else within the seventy-two hour period prior to his purchase of the Plan B pill for her.
The State is correct in arguing that, under Rule 421(a)(3), evidence of specific instances
As previously stated, Rule 412(b)(1)(C) is an exception under the rape shield law which permits a defendant to introduce “evidence of specific instances of the victim’s sexual conduct with persons other than the defendant ..., if the victim first makes - his or her previous sexual conduct an issue in the trial by introducing evidence with respect thereto.”
The purpose of Rule 412(b)(1)(C) is to prevent the State from selectively introducing evidence of a victim’s sexual history, and denying the defendant the right to rebut such evidence. The rule appears to express the concern that is found in the curative admissibility rule. See United States v. Rucker,
The curative admissibility rule allows a party to present otherwise inadmissible evidence on an evidentiary point where an opponent has “opened the door” by introducing similarly inadmissible evidence on the same point. Under this rule, in order to be entitled as a matter of right to present rebutting evidence on an evidentiary fact: (а) The original evidence must be inadmissible and prejudicial, (b) the rebuttal evidence must be similarly inadmissible, and (c) the rebuttal evidence must be limited to the same evidentiary fact as the original inadmissible evidence.
We believe that the purpose of Rulé 412(b)(1)(C) is consistent with the curative admissibility rule. Therefore, we hold that, in order to rebut evidence on an évidentiary fact under Rule 412(b)(1)(C) of the West Virginia Rules of Evidence, (1) the original evidence must be inadmissible under Rule 412; (2) the rebuttal evidence must be similarly inadmissible; and (3) the rebuttal evidence must be limited to' the same evidentia-ry fact as the original inadmissible evidence. We now apply this test' to the facts under consideration.
Mr. Rankin gave a recorded statement to the police wherein, he stated that he purchased a Plan B pill for M.Y. because she informed him that she had unprotected sex with someone else. The State informed the circuit court that it was going to introduce the recorded statement in full at trial. Although the State was only interested in letting the jury know that Mr. Rankin purchased the Plan B pill for M.Y., it was also willing to have the jury hear Mr. Rankin
Applying the above facts to the test we have developed, we find that, under the first factor of our test, it is clear that the State’s introduction of part of Mr. Rankin’s statement, that M.Y. had unprotected sex with someone else, is inadmissible under Rule 412(a)(3). See State v. Wenthe,
As a result of our analysis, it is clear that the State seeks to introduce inadmissible evidence and that Mr. Rankin should be permitted to rebut that evidence with inadmissible evidence as authorized by the circuit court. See Docekal v. State,
IV.
CONCLUSION
We prohibit enforcement of that pari of the circuit court’s order allowing Mr. Rankin to introduce evidence that M.Y. accused another man of sexual assault when she was eleven years old. Furthermore, we deny the State’s request to prohibit enforcement of that pari of the circuit court’s order permitting Mr. Rankin to cross-examine M.Y. about whether she told him she had sex with anyone else during the seventy-two hour period prior to his purchase of the Plan B pill.
Writ granted in part and denied in part.
Notes
. The trial'judge that entered the order, the Honorable John C. Yoder; died while this case was pending. The issue presented in this case is not mooted by the death of Judge Yoder. See Syl. pt. 4, in part, Tennant v. Marion Health Care Found., Inc.,
. We follow our traditional practice in cases involving children and sensitive facts and do not use the name of the victim. See State v. Roy,
. At the time, M.Y.’s mother was seeing another man. She married the man on or about July 24, 2015.
. See State v. Bledsoe, No. W2012-01643-CCA-R3-CD,
.The defendant in that case was indicted on several sexual assault and abuse charges. The defendant ultimately entered a plea of no contest to sexual assault in the third degree on July 12, 2016. The defendant was sentenced to one to five years in prison for sexually assaulting M.Y.
. See Syl. pt. 3, State v. Varlas,
. Mr, Rankin's pleadings below, and his argument during the hearing, indicated that he was relying on the exception contained in Rule 412(b)(1)(D). The State correctly summarized the matter during the hearing as follows: “Now, there' is a potential exception if you read down further under Rule 412(b)(1) Subsection D, which [Defense counsel] cited, there’s an exception where evidence [excluded] would violate the defendant's constitutional rights[.]"
. The circuit court’s order cited only to the "manifest injustice” provision contained in Rule 412(c)(2)(B). We interpret-the circuit court’s order, based upon arguments made by the parties below, as applying the "manifest injustice” standard once it determined that a constitutional violation occurred under Rule 412(b)(1)(D). Because of our ultimate ruling under Rule 412(b)(1)(D), we need not reach the circuit court’s application of the "manifest injustice” provision contained in Rule 412(c)(2)(B). See 1 Louis J. Palmer, Jr., Robin Jean Davis, and Franklin D. Cleckley, Handbook on Evidence for West Virginia Lawyers § 412.05[3][c], at 577 (6th ed. 2015) (discussing the possible problems in applying the "manifest injustice” standard under Rule 412(c)(2)(B) in conjunction with the exceptions in Rule 412(b)(1)).
.The Guthrie test was developed under the rape shield law that existed prior to the adoption of Rule 412 in 2014. The test, however, still is workable for a constitutional challenge under Rule 412(b)(1)(D). See State v. Timothy C.,
.See W. Va. R. Evid. Rule 401 ("Evidence 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.”).
. Mr. Rankin also argued below that M.Y. retaliated against him because he rebuffed her sexual advances toward him. The circuit court's order did not permit testimony on this issue.
. Mr. Ranldn also argued below that he had a constitutional right to cross-examine M.Y. about her sexual history. The circuit court's order rejected this argument in part. The circuit court's order indicated that if M.Y. introduced evidence about her sexual history when she was eleven years old during her direct testimony, Mr. Rankin would then be allowed to cross-examine her on the matter. This ruling is not before us in this proceeding.
. During M.Y.'s interview with the police, she characterized her sexual encounter with Mr. Rankin as consensual.
. We note that, unlike the facts in Payne, Mr. Rankin has not asked to simply inform the jury that M.Y. was retaliating against him for refusing to physically harm someone.
. The decision in the case was decided under the rape shield statute, W. Va. Code § 61-8B-11.
. The ruling did not permit Mr. Rankin to "pursue the matter any further or offer extrinsic evidence of her sexual conduct.”
.Rule 412(b)(1)(C) specifically references to evidence introduced by the "victim.” It has been noted that the term "victim” under the rule should be construed "to mean the 'prosecution,’ and that any relevant rebuttal evidence is admissible despite the manner in which it was opened up by state witnesses.” 1 Palmer, Davis, & Cleckley, Handbook on Evidence, § 412.04[2][c], at 563.
. The circuit court's order did not expressly cite to Rule 412(b)(1)(C). However, its ruling is implicitly based upon this rule.
. “This provision is not contained in the federal counterpart. Rule 412(b)(1)(C) was taken from the rape shield statute, W. Va. Code § 61-8B-11.” Palmer, Davis, & Cleckley, Handbook on Evidence, § 412.04[2][c], at 562.
. We have found nothing in the record to show that the State attempted to have the trial court permit it to redact that part of Mr. Rankin’s statement that alleged M.Y. stated she needed the Plan B pill because of sexual conduct with someone else. See State v. Marenkovic, No. 11-1764,
Concurrence Opinion
concurring:
I agree with the result in this ease on both issues. On the first issue, I agree that the State is entitled to relief prohibiting evidence that M.Y. accused another man of sexual assault when she was eleven years old. On the second issue, I agree that Mr. Rankin should be allowed to cross-examine M.Y. on whether she stated that she had sex with
In authorizing cross-examination by the defense to determine whether M.Y. said she had sex with someone else during the seventy-two hour period, the Majority points out that the circuit court ruled that Mr. Rankin would be required to accept M.Y,’s response of “yes” or “no” without further questioning. However, the circuit court’s ruling that her “yes” or “no” response has to be accepted without further questioning is not before this Court. We were not asked to address whether Mr. Rankin must accept her “yes” or “no” answer.
Nevertheless, it is clear that the defense should not be bound by M.Y.’s one-word answer. Rule 611 of the West Virginia Rules of Evidence allows a witness to be cross-examined to test the credibility of the witness’s responses made during direct examination. A more expansive cross-examination is also consistent with Rule 412(b)(1)(c) where the victim, ie., the prosecution, first makes the victim’s previous sexual conduct an issue at trial. Moreover, if the defense herein is required to accept a response of “no” without further cross-examination, Mr. Rankin would need to decide whether to compromise his right to remain silent and take the stand to refute M.Y.’s response.
Concurrence Opinion
joined by Chief Justice Loughry, concurring,
(Filed November 2, 2017)
I concur with the majority opinion and write separately to emphasize the potential quagmire the State may create in introducing the evidence relating to the Plan B birth control pill. It’s 'somewhat 'curious that the State is even considering introducing evidence of the defendant’s purchase of a Plan B birth control pill for the alleged victim—on the day after he is alleged to have assaulted her—because (according to the defendant) she told him she had engaged in sexual relations with another man in the prior seventy-two hours; I perceive rather limited potential probative value in that evidence in light of the other evidence the State apparently has against this defendant when considered in the • context of the defendant’s consequent right to at least tangentially erode the rape shield protection. Thus, introduction of that element of evidence appears to constitute the proverbial opening of the can of worms and an unnecessary risk of violating the rape shield rule.
If the State decides to embark on this very risky undertaking, the lower court must be very firm in not permitting the defendant to testify in a manner that invades the protections of the rape shield rule. The wiser course for the State, especially in light of all the other evidence, would be not to introduce anything relating to the conversation the defendant alleges occurred concerning the Plan B purchase. As stated by the majority, if the State1 does, then the defendant is only •
permitted ... to ask M.Y., on cross-examination, whether she told him she had sex with someone else during the seventy-two hour period before he purchased the Plan B pill for her. Under the circuit court’s ruling, Mr. Rankin is required to accept M.Y.’s response of “yes" or “no” without further questioning in this area.
I am authorized to state that Chief Justice Loughry joins me in this opinion.