*1
STATE HARVEY, Prosecuting
Matthew
Attorney, Petitioner YODER, Judge, Circuit John C.
Honorable Circuit,
Twenty-third Judicial and Ger- Rankin, Jr., Respondents
ald G.
No. 17-0419 Virginia. Appeals
Supreme Court 4, 2017
Submitted: October
Filed: October
Concurring Opinion Justice Workman 2, 2017
. November
782 Helman,
Timothy Prosecuting D. Assistant Attorney, Town, Virginia, Charles At- West torney for Petitioner Kirkland, Bailey, J. Daniel Arnold & PLLC, Town, Virginia, Charles Attor- ney for Gerald G. Davis, Justice: petition This was filed as a for a prohibition, original juris- writ under the Court, by diction Office Prosecuting Attorney County of Jefferson (hereinafter State”). “the proceeding, prohibit the State seeks to have this Court of an enforcement the Circuit Court County1 Respon- Jefferson that allows the dent, (hereinafter Rankin, Gerald Jr. G. “Mr. Rankin”), to at his criminal testify trial about history victim, the sexual of his adolescent carefully reviewing briefs, M.Y.2 After arguments parties, legal of the au- cited, thority presented and the record consideration, granted, part, the writ is denied, part. I.
FACTUAL AND PROCEDURAL HISTORY court, April grand In the 2016 term of a eight felony indicted Rankin on order, trial'judge McLaughlin 1. The replace Judge that entered the Hon- able Debra MH Yoder; orable John C. died while this case was Yoder. pending. presented The issue in this case is not Judge Syl. pt. mooted 4, the death of Yoder. See practice follow our traditional in cases in- Found., part, Tennant v. Marion Health Care volving children and sensitive facts and do not Inc., 194 W. Va. S.E.2d Roy, use the name of the victim. See State v. (“Once limine, judge a trial rules aon motion in n.2, W. Va. n.2 case, becomes the law of the unless court.”). by subsequent ruling modified appointed Governor Jim Justice has the Honor- arrested, degree, third After Mr. Rankin was he was of sexual assault counts police. felony During eight counts sexual abuse interviewed that inter-. view, spending person position he admitted time with M.Y. parent, guardian, or having relationship ever but denied allegedly The crimes took trust to a child. purchasing her. Mr. Rankin 17, with admitted July place between June *3 M.Y., B pill explaining Plan for that she victim, M.Y., years 2015. was fourteen The purchase him to it asked because she had fifty at the time. Mr. Rankin was old about unprotected had sex with someone else. Mr. M.Y.’smother and Mr. Rankin old. had provided explanation Rankin when asked relationship for an a romantic undisclosed why engaging M.Y. accuse him of would point period of time. At some after that with her on numerous sex occasions. ended, expressed an relationship Mr. Rankin friendship renewing his with M.Y. interest in indictment, Subsequent to Mr. Rankin’s he It after this her mother.3 was overture and seeking filed motions two introduce stay at Mr. Ran- M.Y. was history. In of first dence M.Y.’s kin’s on occasions between residence several motion, sought to Mr. Rankin introduce evi- 12, 2015, July 2015. June and that M.Y. another man accused when sexual assault she eleven relationship M.Y. first disclosed the sexual Mr. Rankin mo- old.5 contended the first family with Mr. Rankin a friend with that this was critical staying while her mother was she was whom physically him to harm that M.Y. had asked honeymoon. family report- on her The friend prosecution go if his did not defendant mother the matter to M.Y.’s mother. The ed way. Mr. Rankin asserted further that he reported police. promptly matter to that, agree request refused to and as a investigation in- police an The launched refusal, result of his M.Y. retaliated false- During M.Y. the inter- cluded interview accusing him of ly sexual assault. view, M.Y. stated motion, sought In the second sex with Mr. Rankin between consensual history to introduce evidence M.Y.’ssexual eight twelve times. M.Y. also informed pill. B it to the Plan The State related that, police because the encounter ground opposed both motions on the sex, pur- unprotected Mr. Rankin had been of Evi- 412 of the West Rules contracep- emergency B” a “Plan chased her prohibited the of such evi- getting preg- prevent her from pill tive ruled, as to the first The trial dence. phone police nant.4 cell records The obtained motion; that if Rankin took the stand Mr. Rankin. Those records re- M.Y. and involving testify he could introduce evidence a so- between them on vealed conversations claims when she was sexual assault MY.’s messenger “KiK.” The app cial media called motion, years old. As to the second eleven messenger app M.Y. Mr. Ran- disclosed court ruled that Mr. Rankin could the trial they texting numerous kin times loved about whether she told cross-examine M.Y. messenger app other. The also revealed each anyone engaged in with sex anatomy. making remarks about their them seventy-two period prior hour conversation, to Mr. Ran- one M.Y. stated pill. purchase of the Plan B okay my kin “I think would be mother proceeding to my you to filed the instant exploring sexual desires with The State me of the circuit court’s prohibit enforcement be honest.” time, seeing defendant in that was indicted another 5.The 3. At the M.Y.’smother was July charges. man on or about man. She married assault and abuse several sexual ultimately plea 2015. of no entered a contest July degree in the assault third to sexual Bledsoe, See No. W2012-01643-CCA- State was sentenced to one to five 2016. The defendant R3-CD, (Tenn. *1 n.3 2013 WL Crim. assaulting prison sexually years in for 31, 2013) ("A July pill App. B is used to Plan following unprotected pregnancy prevent inter- (internal quota- contraceptive or failure.” course omitted)). tions citation permitting oft repeated per- is an error or order manifests history. disregard procedural sistent either law; and whether the
substantive
lower
important
tribunal’s
raises new and
order
II.
problems.or
impres-
of first
issues
sion,
OF
STANDARD
REVIEW
general guidelines
These
are
factors
starting point
a useful
serve as
case,
seeks a writ
State
determining
discretionary
whether a
writ
prohibition
pre-
enforcement of a
prohibition
Although
should issue.
all
trial
the circuit court. There are
satisfied,
five
factors need
be
is clear
may
in which
limited
seek
factor,
that the third
the existence of clear
prohibition
criminal
writ
matter. We
(cid:127)
law,
given
error as
should
held that
have
'
weight.
substantial
may
prohibi-
seek a
writ
[t]he
*4
mind,
foregoing
With
we turn
in a criminal
tion in this Court
case where
issues presented.
has
or
the trial court-
acted out-
exceeded
its'jurisdiction.
side
Where
State
III.
legiti-
claims that the trial
its
court abused
powers,
mate
the State must demonstrate
DISCUSSION
flagrant
so
that the
action was
court’s
proceeding
In this
we aré called
deprived
prosecute
it
of its
was
First,
address two issues.
we are asked
deprived
or
of a
In
valid conviction.
properly
decide
the circuit court
ruled
event,
prohibition
any
proceeding
must
testify
Mr. Rankin could
about M.Y.’s sexual
the Double Jeopardy
offend neither
Clause
against
assault claims
another defendant
nbr
speedy
to a
trial.
defendant’s
Second,
when she was eleven
old.
we
Furthermore,
application
for a writ
been
have
asked
whether the
determine
prohibition
presented.
promptly
must be
correctly
circuit court
found that Mr. Rankin
5,
Lewis,
pt.
Syl.
State
W. Va.
422 could cross-examine M.Y. about her sexual
(1992), superseded by
S.E.2d 807
statute
history seventy-two
pur-
hours before
recognized
grounds
other
v. But
as
pill.
chase
the Plan B
willWe
address each
ler, 239 W.
Va.
separately
issue
below.
Syllabus point 4
ex
of State
rel. Hoover v.
A.
Prior
Evidence about a
Sexual
(1996),
Berger, 199 W.
Va.
483 S.E.2d
of the
Assault
Victim
following
forth the
we set
issu
standard
presented
issue
involves the
prohibition;
of a writ of
ance
circuit court’s
that Mr. Rankin could
determining
Whether
entertain and
M.Y,’s
testify
history
about
with an
sexual
prohibition
issue the
writ
for cases
person
other
she
eleven
old.
when
was
‘involving
jurisdiction
an absence of
but
n
argues
The State
of this evi
admission
only where
it
claimed that
the lower
dence violates the
as set
legitimate powers,
its
tribunal exceeded
Virginia
fourth under Rule 412
the West
(1)
this Court
five factors:
will examine
contends,
Rules of Evidence.6 Mr. Rankin
party seeking
whether
writ has
found,
and the circuit
that the
evidence
adequate means,
ap-
other
such
direct
as
present
necessary
a
for him
defense.
relief; (2)
peal, to obtain the desired
wheth-
disagree.
We
petitioner
damaged
preju-
will
or
er
way
412(a)
that is not
general prohibition
diced
correctable on
Rule
sets out a
(3)
appeal;
introducing
history
lower
tribunal’s
sexual
a victim
clearly
412(a)
erroneous as
provides
order is
a matter
of sexual crimes. Rule
as
(4)
law; whether the lower tribunal’s order
follows:
6. See
(B) (a)(3), provided judge may “a trial not make an except evidentiary evidence specific deprives instances of a victim’s sexual which criminal defendant of respect rights, person ac- certain such as the ... behavior with offer misconduct, if support of the sexual offered of his cused or her defense ..., or if prove pursu the defendant consent [is] which essential a fair trial prosecutor; due-process offered ant to the clause found (C) specific Fourteenth Amendment the Constitution evidence III, § persons the United States and article 14 of conduct with other victim’s sexual Constitution.”). defendant, Our test opinion than the determining reputation evi- has a victim’s sexual conduct right to solely victim’s sexual constitutional admit evidence that is conduct impeaching credibility, if not shield law was State v. Guth previous Syllabus point his or set 6 of the victim makes out rie, (1999), an issue in sexual conduct the trial W. Va. S.E.2d 83 thereto; part, introducing respect as follows: The test used determine whether a (D) evidence whose exclusion would vio- proffered trial court’s exclusion of rights. late defendant’s constitutional under our shield law violated a defen any process right The circuit court’s did not cite to dant’s due to a fair trial is *6 412(b)(1) relevant; (2) specific provision Rule that under as admitting probative basis for evidence that M.Y. was whether the value of the evi effect; sexually age However, outweighed prejudicial at eleven. its assaulted (3) clearly compelling the record Mr. Rankin whether the State’s inter shows. argued exception excluding outweighed in below constitutional ests the evidence 412(b)(1)(D).7 right present in Rule as contained Insofar defendant’s relevant defense.[9 supportive Mr. and the Rule of his or .State áddressed her Rankin ] 412(b)(1)(D) proceeding, below and we this Mr, below, pleadings argu- 412(b)(1)(D), 7. Rankin's and his we need not reach the circuit during hearing, application injustice” ment indicated that he was court’s of the "manifest 412(c)(2)(B). relying exception provision on the contained in Rule contained in Rule See 1 412(b)(1)(D). Palmer, Jr., Davis, correctly The State summarized the Louis J. Robin Jean “Now, during hearing Cleckley, as follows: D. Handbook Franklin on Evidence for 412.05[3][c], (6th potential you Virginia § exception Lawyers there' is a if read down West at 577 D, 2015) 412(b)(1) (discussing possible problems further under Rule Subsection ed. cited, excep- applying injustice” which [Defense "manifest standard under counsel] there’s 412(c)(2)(B) conjunction excep [excluded] where evidence would violate the Rule 412(b)(1)). rights[.]" defendant's constitutional tions Rule developed 8. The circuit court’s order cited to the 9.The Guthrie test was under the injustice” provision prior adoption "manifest in Rule existed to the contained 412(c)(2)(B). test, however, interpret-the We circuit court’s or Rule 412 in 2014. The still der, challenge upon arguments parties based workable for a constitutional under made below, C., 412(b)(1)(D). Timothy applying injustice” the "manifest stan Rule See State v. 237 435, 444, dard once it 787 S.E.2d 897 determined that constitutional test). 412(b)(1)(D). (applying violation occurred Be the Guthrie Mr. Rankin contends under inapplicable applies cause of our ultimate that Guthrie it
787 added). (Footnote argued ing must be The State has shield law relevant. See proposed testimony not Stephen Saltzburg, Martin, should 2 A. Rankin’s Michael M. Mr. upon the second and third Capra, be admitted based and Daniel J. Federal Rules Evi the Guthrie test. In our review Manual, (11th factors under 412.02[3], § at 412-6 ed. evidence, we find was not relevant 2015) (“[T]he right constitutional to an effec satisfy therefore fails factor guarantee tive defense not does defen test. under the Guthrie they dants can introduce whatever evidence desire.”). might Rule 402 of the Rules expressly “[i]rrele- states that Evidence case, instant Mr. Rankin contends is not admissible.”10 “This ceil vant evidence falsely that M.Y. accused him of the sexual admissibility lightly. ing is not be taken charged. crimes of which he order to relevant, definition, is not Evidence that falsity allegations, establish the 1 proper purpose^]” cannot be offered Rankin to show that M.Y. seeks had a motive Palmer, Davis, Cleckley, on Ev & Handbook this, falsely accuse him. To do Mr. Rankin reason, 402.04, idence, § at For it is seeks to show he had conversation recognized generally “[a] defendant’s concerning with M.Y. the defendant who sex- right present constitutional a defense does ually assaulted her when she was eleven ... to irrelevant not extend evidence.” purported At of this old. the time 780, 786, Gipson, App. 364 v. P.3d Wash. conversation, the defendant in that ease was See also United States indicted, yet but not tried. Mr. Rankin as- (9th 2016) Perez, Fed.Appx. Cir. physically him to serts that M.Y. asked harm (“[T]he require not Constitution does ad things go way not the defendant did history, of the victim’s sexual which mission trial. claims that the defendant’s Mr. Rankin play would serve other than agree he refused to to harm the defendant. surrounding prejudices activi social argues falsely that M.Y. now Norris, 923, 926 ty!!.]”); 651 F.3d Jackson him of accused assault retaliation (8th (“Jackson’s, Cir. constitutional agree refusal to to harm the defen- his present impaired, not right to a defense was Consequently, dant.11 further as- right because that does extend that the trial court was correct find- serts evidence.”); irrelevant United ing presented evidence could Thompson, F.Supp.3d States v. testimony.12 disagree. his direct 2016) (“[T]he (W.D.N.Y. Due Process Clause previously record is clear. M.Y. was give a criminal does sexually she was eleven evidence.”); assaulted when irrelevant State v. perpetrator old. The was convicted and sen- (La. Calderon, App. Ct. 220 So.3d of that crime prison. tenced to The facts have 2017) (holding present “a defendant’s *7 relevancy prosecution of Mr. Ran- no the require not a trial court to a defense does Elbert, v. 561 kin. See States F.3d that is United permit the introduction of evidence 2009) (8th irrelevant”). 771, (holding that because requires Consequently, 777 Cir. Guthrie legally consent to sex showing minor victims not that evidence contraven- could a threshold admits, excludes, argued reta- below that M.Y. when trial court not also a against he rebuffed her sexual We dis- liated him because evidence a defendant seeks to introduce. wording The circuit court's agree. advances toward him. order The of the test under Guthrie acknowledges generally permit simply is did not this issue. that the issue However, recogni- brought by defendants. this by preclude does not its use in the the test argued below that he had a 12. Mr. Ranldn also when the rare case State seeks a writ M.Y. about constitutional cross-examine rape evidence in of admission of violation the history. court's order re- her The circuit sexual shield law. part. jected argument in The circuit court's if M.Y. introduced evidence order indicated that ("Evidence history when she was eleven her sexual W. Va. R. Evid. Rule 401 is about 10.See (a) testimony, any tendency Mr. Ran- fact old her direct relevant if: it has to make a her to cross-examine probable kin would then be allowed more or less than it would be without evidence; (b) consequence not before us on the matter. This is and the fact is of the action.”). proceeding. determining 788 Thereafter, prior
trafficking, their be- with M.Y. was mother reported police its exclusion was irrelevant did who havior investigation Fifth This not violate the Amendment caused the to occur. uneon- defendant’s Breaux, rights); simply No. tested chain of not process due events does reveal (La. 6141636, retaliatory *11 KA 2011 WL at a motive reveals a 2011 M.Y.—it (Hughes, J., reporting daughter dissent- mother App. Ct. Dec. her adolescent (“It again.13 ing) to think-of a five was the victim of once makes sexual assault sense facts, having ‘past year as sexual behavior.’ view these we find that Rule old 412(b)(1)(D) five-year Anything with a that occurs old did not allow Mr.. Rankin obviously present not be consensual and would irrelevant evidence defense to would a crime.”); Varlas, jury. a State v. Mercado-Vas- See at constitute 15, 23, J., dissenting) (Benjamin, 998 P.2d at quez, App. 166 Or. 747 S.E.2d (“The (“A juries .legiti that a child has conclusion victim rule ensures that hear a defense, relationships,’ ... amounts to mate a had ‘sexual rather than dis defense traction.”). that nothing more a conclusion the child than past.”). crimes in been a victim sex A supports that our conclusion is “larger correctly been a It has noted that (9th Payne, United States F.2d 1458 protect is to laws] [of 1991). Payne, Cir. was con- defendant victims from the trauma caused sexually assaulting year old victed a twelve experiences, past review of and this daughter. victim—his foster is- One in- protection especially needed cases appeal sues raised concerned the district Townsend, volving minor victims.” State v. ruling that not Court’s the defendant could 162, 159-60, 366 Ark. S.W.3d previously he that Saltzburg, Capra, See also Martin & caught engaged the victim in sexual conduct Manual, 412.02[3], § at 412-9 Evidence allegedly another child. The defendant (“There legitimate clearly interest punished victim this conduct. The protecting the victim from the trauma of defendant wanted introduce evidence having prior to relate or sexual activ- address prior the victim’s sexual conduct trial.”). ity during the punishment he inflicted , try In an effort to to make irrelevant falsely show the victim was motivated prior facts sexual assault of M.Y. punishment. him in accuse retaliation relevant, Mr. Rankin has an uncorrob- made The district court ruled falsely assertion orated that M.Y. accused jury punished inform he could once to physically he refused harm child, he inform-the but could sexually person who her when assaulted punishment. The reason eleven old. The facts of how appellate agreed court district prosecution began clearly as follows: that his uncorroborated assertion reveal the trailer inci- We find that evidence of lacks merit. alleged to have [vriiere dent victim (if record indicates minimally did in sexual conduct] all) investigation Payne’s of Mr. Rankin probative initiate the claim bias. police. family reporting Payne [The the’ M.Y. revealed friend victim’s] having relationship that she was with Mr. occurred than had molested her more sev- *8 brief, According Rankin. to the State’s M.Y. en months after the incident and trailer family resulting discipline, long- informed the friend that Mr. Rankin af- and almost as her, Paynes’ to that their victim] wad “like father ter had left [the the home. relationship something Moreover, she to sexual want- the extent that trailer the family The probative ques- ed and friend informed incident value on the desired.” had bias, of [the victim’s] M.Y.’s mother conversation value was she had that During police, 13. M.Y.'s she interview Rankin consensual. her sexual encounter with Mr. characterized by permitting prejudicial protected the curred. The value of the evi- trial court’s low, purpose admitting conduct a cross-exami- dence is as the of Payne to “sanitized incident, the is not to imply promiscuity, the trailer which nation” about evidence jury credibility. to attack apprised [the .victim] the that had but M.B.’s In this by Payne way, type the is of disciplined as a result evidence not -the been incident, Rape but did reveal the nature Shield statute was intended to ex- not sum, underlying that- of the incident. The clude. we find the balance of facts of sim/ply weighs interests in this in [the were not favor incident relevant B., therefore, purported Jonathan victim’s] motivation fabricate admissible, Thus, subject proper charges. trial court not authentica- did excluding in the evi- tion. abuse its discretion the exclusion did violate the dence and not B., 240-41, Jonathan Va. at confrontation clause.' simple at 268-69. One fact distin- added).14 (emphasis
Payne,
ted
rebut that
with inadmissible
agree
in this
circuit
I
with the result
ease
both
evidence as
court.
authorized
issue,
agree
State,
the first
I
1143 issues. On
See Docekal v.
So.2d
(Fla.
prohibiting
to relief
App.
(holding
Dist.
entitled
Ct.
another man
prohibit
from that M.Y. accused
reversible error
a defendant
regarding
past
she was eleven
old. On
cross-examining
victim
assault when
issue,
agree
history
I
that Mr. Rankin
presented state-
second
when she
evidence).
opened
to cross-examine M.Y.
ments
the door to this
should be allowed
Consequently,
deny
request
that she had sex
we
the State’s
to whether she stated
statutory
nothing
version of Rule
to show
the State avoided the
have found
the record
attempted
412(b)(1)(C)by redacting
the State
have
trial
that would
a statement
permit
part
it to redact that
of Mr. Rankin’s
pres-
opened the door for the defendant to
have
alleged
statement
she needed the
stated
victim).
history
the sexual
ent evidence of
pillBPlan
of sexual conduct with some-
on whether such a redaction
We make
Marenkovic,
11-1764,
one else. See State v.
No.
proper.
would be
(W.
12, 2013) (where
April
period prior to Mr. Rankin’s the context the defendant’s pill. tangentially rape B I to to at Plan concur offer further discus- least erode the Thus, protection. regarding the second issue. shield sion appears element of to constitute the authorizing cross-examination proverbial opening of the can worms and to whether M.Y. defense determine said she violating unnecessary risk of during sex someone else the seven- with shield rule. ty-two Majority points period, the hour out that the circuit ruled that Mr. very If the State to embark this decides M.Y,’s accept to required response would be risky undertaking, must be the lower court “yes” questioning. or “no” further without very firm in permitting the defendant to However, the circuit court’s that her testify protec in manner that invades the response “yes” accepted to “no” has tions of rule. The wiser questioning is further without before State, especially light course of all for the were not to Court. We asked address wheth- not evidence, the other would be accept “yes” or “no” er Mr. Rankin must anything relating conversation the to the de answer. alleges concerning fendant occurred the Plan purchase. B if majority, As stated Nevertheless, it is clear that the defense (cid:127) does, State1 then defendant is should not be bound M.Y.’s one-word M.Y., answer. Rule Rules ... ask cross-exami- of Evidence a witness to nation, allows be cross- him whether told she had sex credibility to test the of the wit- examined during else the seventy-two with someone responses exami- period ness’s made direct purchased hour before he the Plan expansive A more pill nation. cross-examination B for her. Under the circuit court’s 412(b)(1)(c) is also consistent with Rule ruling, required accept Rankin is victim, ie., prosecution, response “yes" where or “no” without M.Y.’s previous conduct makes victim’s questioning further area. Moreover, an issue at trial. defense I am to state that Chief Justice authorized accept required response herein Loughry joins opinion. me in this cross-examination, “no” without further Rankin would need decide
compromise his silent and remain response. the stand to
take refute
Workman, Justice, joined by Justice Chief concurring,
Loughry, (Filed November GASTAR INC. and Rona EXPLORATION McCardle, Below, Lee Defendants opinion I majority concur Petitioners separately emphasize potential write introducing quagmire may the State create relating birth Plan B Gary RINE, the Administrator pill. control It’s 'somewhat 'curious Okey Yoho, et Estate of Franklin al. considering introducing State is even Below, Respondents Plaintiffs purchase of a Plan defendant’s pill alleged B control 16-0962 birth No. victim—on alleged day after he to have assaulted Supreme Virginia. Appeals Court of of West defendant) (according her—because she told rela- Submitted: October prior seventy- tions another man Filed: October hours; perceive potential I rather two limited light probative evidence in value apparently
the other