*1 disagree Board of Education parties do not over the acted arbitrari- The hearing legal principle ly capriciously dismissing appel- established and a teach and the circuit court that examiner lant.” duty to reasonable care to has exercise er a recognized in We that while Rovello in the classroom from

protect students severe, dismissal was too a lesser sanction reasonably which can ant injuries those be case, inappropriate. was not In Mr. icipated.3 Oddly enough, we have not in February, was fired 1988. Chaddock We a case teacher has been found a where one-year suspension pay a believe without disciplined for fail dismissed or otherwise appropriate. to be ing brandishing a to disarm student who dangerous weapon the classroom.4 a Reversed and remanded with instruc- tions.

The factual case bears Superintending v.

analogy Wright Comm., Portland, City 331 A.2d

School of (Me.1975), a where teacher was fired gun bringing

for a and ammunition to gun sto- The and ammunition was

school. jacket pocket. his

len from outer reported principal

teacher the theft to the gun- explained that he was a licensed 398 S.E.2d repaired guns part time. He smith who Virginia STATE of West store, and, up picked gun at a after had school, he he realized that he arrived L., pocket. CHARLES carrying in his He decided EDWARD Sr. was gun not to leave the and ammunition No. 19004. inoperable. car since the locks were Supreme Appeals of Court of appeals uphold court the dismis- refused Virginia. West sal. Here, we do not believe the evidence July charge neglect supports the willful Sept. Dissenting Opinion duty. can said is that Mr. The most that exhausted all of not have Chaddock gun from opportunities to obtain therefore, We, find that the

the student. arbitrary.

Board’s dismissal was County In Bd. Rovello v. Lewis 122, 126,

Educ., 181 W.Va. the “lack of a we considered [covering incident], the policy

clear iso- offense, appellant’s

lated nature record, [good] and the minimal

otherwise system, the school

harm to [and concluded] inju- eye liability was out cut over the while teacher of teacher 3. For a discussion students, Annot., classroom. 34 A.L.R.4th ries to see (1984). that were other cases involved firearms Two instance, plays. being used in school one unloaded 4. Several had inserted a bullet in an the tort liabili- someone gun, courts have considered liability. injured found no Ferreira ty were as a court whose students teachers Sanchez, deadly P.2d 784 weap- 79 N.M. use of result of another student’s supervise Bd., other the teacher failed Landry Parish School Richard v. St. on. In shot, wadding, powder (La.App.1977), from the removal of the teacher was 344 So.2d shotgun play and used in a school where shell to be liable as a matter of law found not Page, Wesley cleaning liable. 514 S.W.2d found (Ky.1974). were classroom several students paring One of the students small knife. found a *4 L. meetings

Mrs. would attend of the Foun- Auxiliary tain Volunteer Firemen’s or visit neighbor leaving while children in the husband, care of her the appellant. The Frame, Frame, L. Clark B. William Wil- four-years-old alleged twins were when the son, Morgantown, Metheney, & Frame against crimes them occurred. L., Edward Charles Sr. On occasions when Mrs. L. not at Gen., Roger Tompkins, John Atty. W. E. home, C.L.’s revealed that Shank, Atty. Gen., Deputy Attorney Gener- appellant bedroom, took him into a took his Charleston, Office, al’s for State W.Va. off, clothes made the lie on his stom- penis (identified ach then inserted WORKMAN, Justice. “georgie”) trial the child upon This is before case the Court the boy’s into rectum. S.L. testified that appeal the conviction of Charles Edward cry she heard her brother out but that she 28, 1987, May County, L.1 on in Mineral go afraid to him because she was Virginia, of two West counts first-de- watching brother, D.L., younger her on the gree assault and counts of first- two *5 couch and he could have off the fallen degree appellant sexual abuse.2 The raises couch had she left. C.L. further testified assignments four on error based the up his finger father had stuck his the proceedings which occurred the low- before placed child’s and had on rectum his mouth 1) plain trial er court: the court committed boy’s “georgie”. the. permitting error in the state to make refer- and ences to unrelated sexual acts tenden- appellant The was accused of abuse 2) appellant; cies of the the trial court girl’s against daughter his as The well. allowing plain error in the state committed night indicated on a to elicit secondhand accounts sexual away, her she mother was was hearsay which constituted offenses evi- by in the abused her father She bathroom. dence; 3) the uncorroborated she and were testified that while her father inherently the child victims was incredible bathroom, up finger in the he stuck her his verdicts; guilty and not sustain the does (identified vagina by at trial the child as 4) appellant and the was denied effective “tweetie”). the screamed her When child find that assistance of counsel. We the her, appellant that this the desisted hurt lower committed no reversible error court attempted to appellant his action. The also appel- the proceedings in the and affirm girl’s vagina penis his into the but force lant’s convictions. attempt because it was ceased his The to Sharon L. appellant was married possible. July 1984. from 1977 until The October testimony at According the children’s to twins, children, boy couple and had three trial, able to silence appellant was respectively, girl and S.L. born named C.L. by threat- regarding children incidents 7, 1979, D.L., son August on and another ening boy’s “georgie” little to cut off the When the September 1983. bom on girl's threatening open cut and surrounding this case occurred events penis fit there that his living “tweetie” so would family to- the fall of was Virginia. anyone. if told gether County, in Mineral West involving Appellant’s trial was denied practice motion for new our in cases with Consistent matters, subsequently Appellant we the victim’s initials. use the lower court. sensitive Since, 2, 1988, related to February the victims are in this serve two sentenced on appellant by appellant, we have referred to year first on the to 25 terms consecutive 15 Benjamin R. v. his initial. See Orkin last name charges degree two one sexual assault Inc., Exterminating Company, W.Va. degree year sexu- each of the first five terms on (1990) (citing In re Jonathan n. 1 390 S.E.2d 814 running concurrently charges with al abuse 302, 303, P., 538 n. 1 assault sentence. (1989)); Murray, 180 W.Va. n. 1 S.E.2d victims, separat- S.L.; appellant and Mrs. L. were the two child C.L. and Trai- The 26, 1983, nor, psychologist; ed and divorced in evidentiary depo- on December July appellant 1984. The maintained visita- Ryland, gynecologist, sition5 Dr. subsequent mother, tion his with children ap- children’s L. Sharon The divorce. pellant’s defense of his consisted own testi- mony, denying charges stating all the According testimony, Mrs. L.’s it was accidentally he touched his son 1984 that she not until October observed daughter bathing them; while and the being by her strange behavior3 exhibited fiance, testimony of his which centered child his son. When she asked the about appellant’s good relationship around behavior, daddy he his told him to do said expert his children. No witnesses it, good. would feel When because appellant’s called on the behalf. At were further, questioned boy he be- mother evidence, close of the jury all con- gan told crying and said his father him not appellant victed two counts of first- her. Mrs. L. then asked a close tell friend, degree one question her sexual assault and count of son about his behav- first-degree against The told the friend about sexual his ior. abuse son and one father, performed first-degree him his against acts count abuse friend daughter. later told mother well. The at trial.4 called Subsequently, began display the child I. home, including problems at more behavior appellant’s assignment first of error flushing keys his mother’s down the toilet. permitting concerns the trial court child, according to his mother’s testi- *6 state make reference to unrelated sexual mony, told her that the reason he did it was appellant. acts and sexual tendencies of the “my daddy keys get had because in our Specifically, appellant the the contends that house, daddy you told if I ever me told permitted court trial the state introduce me, ‘geor- did he cut my what he would following 1985, objections the evidence over gie’ September off.” In C.L.’s first by appellant’s raised trial counsel: grade reported Mrs. L. teacher that C.L. point in class to the that was inattentive appellant baby The his 1. fondled infant yell have his the teacher would name boy through a diaper; gain his smack a book on desk to his atten- long appellant 2. The made distance A school counselor referred the mat- tion. telephone calls to clubs sex between psychologist, Greg Trai- ter to a licensed 1980 at and 1983 which he times made nor. Trainor treated C.L. and S.L. for sev- pre- the children listen to under the treatment, his con- eral months. From he Mickey tense Mouse on the that was sexually that both children had been cluded phone; by conveyed abused their father. Trainor appellant’s bag The found 3. wife the children to Mrs. L. his about daughter’s in her underwear the base- urged her to contact the authorities. insistence, ment of their home which the wife L. At Trainor's Mrs. contacted on, pre- ejaculated claimed had been prosecuting attorney’s office. the sumably by appellant; the appellant January in The was indicted pat May year. appellant frequently in The 4. The would 1987 and tried pants; prosecution’s testimony of of his case rested on front According testimony, year, Sharon months to one but did not take him into L.’s counseling strange boy this time. behavior exhibited included constantly bouncing riding the floor gynecologist's testimony that she 5.The revealed suggestive sexually chair arms in a manner. no either “found medical indicators would abuse," past L. Health confirm or rule out Mrs. contacted Potomac Mental seeking counseling pressure put hymen, on S.L.’s her son based on when Carolyn They that it hurt the same as when information disclosed to Durst. “exclaimed daddy period six touched her.” told her to observe him for a her had

647 Further, Jackson, in appellant fol- State v. 5. The would masturbate 181 W.Va. 447, 450, 79, 383 wife; S.E.2d 82 lowing sex his recognized Court that: appellant against the 6. The would lean attempt[s] the state to introduce [W]here during cycle washing spin machine wrongful evidence of other crimes or gratification; for sexual part prove acts on of a defendant to appellant masturbate 7. The would motive, system, intent or opportunity, as son, looking his at what front of while [404(b)], outlined Rule known as pornograph- at trial as were described rule, empha- collateral crime ‘we have 6 magazines stimulating himself ic admissible, sized that [to of] rectally, appellant also and that the collateral crimes must [relate magazines to the children. showed reasonably crimes occurred that] point present time to the close of Further, evi- counsel elicited defense Dolin, 688, 176 fense.’ State v. W.Va. had appellant from L. dence Mrs. 208, (1986). See, e.g., 214 347 S.E.2d child of inter- accused been haying Messer, 806, v. 166 W.Va. State dog in family front of course with curiam); (1981) (per Syllabus S.E.2d vasectomy out pulling stitches son and Withrow, 7, Point W.Va. specif- Both of these during masturbation. 522, (1957); Syllabus 96 S.E.2d 913 Point brought during out ic instances were Gargiliana, v. W.Va. State attorney’s cross-examination defense (1953); Syllabus Point S.E.2d attempt to im- in an appellant’s ex-wife Evans, 136 W.Va. credibility, and will be examined peach her (1951); Syllabus Point fully in of the fourth more our discussion Lewis, 133 S.E.2d relating to ineffective assignment of error of counsel. assistance 404(b)7 significance fur- of Rule appellant contends that the above- explained the Fourth Circuit Court ther highly was not mentioned evidence Masters, Appeals United States alleged acts none of the prejudicial but that (4th Cir.1980). 622 F.2d remotely relevant to or tendencies were stated that circumstances the court “[t]he *7 state, however, charged. ar- offenses such evidence be found under which evidentiary alleged of the gued that several under Rule and admissible the relevant appel- used by were elicited or the “errors” ‘infinite.’ of Some have been described himself. lant set forth in the circumstances are such itself, cataloguing is therein but the Rule Rule of Evidence Virginia West exclusionary.” not merely illustrative and 404(b) addressing in the issue provides that 404(b) is an Consequently, W.Va.R.Evid. evi admissibility of collateral crime of the evi- rule” in which all relevant “inclusive dence involving crimes or acts is ad- other dence purpose for trial unless the sole mitted at crimes, wrongs, or of [ejvidence other disposi- is to show criminal the admission prove to char- the is admissible acts Masters, 622 F.2d at 86. tion. that he person a in order show of acter may, It conformity in therewith. in- analysis acted collateral acts of the In our however, pur- case, for present begin other we be admissible in the volved motive, opportu- oc- proof examining just of those acts that such as poses, first intent, plan, the children close presence knowl- in the of preparation, curred nity, charged. From in to the offenses identity, of mistake time edge, or absence record, the is evident that of the review accident. defendant, 404(b) and W.Va.R.Evid. Fed.R.Evid. According 7. Both of the to the identical; 404(b) virtually when therefore kinds, are magazines in- all different were of the cluding fed- discussing involve both the situations Hustler, many of "showed them 404(b), Virginia refer Rule we the West eral and everything,” put as he it. 404(b). simply as Rule to it appel- guns types, including of all sawed-off shot- the phone clubs to which calls sex grenades, under on guns listen other customers lant make the children would on the Mickey charged Mouse was other than those pretense the occasions in front of the phone, willing agents. supply the masturbation them the was viewing graphic of appellant’s son and the Id. at 84-85. children, oc- all magazines with the Specifically, the court reasoned that of one or presence in the curred accepted of the bases the admis- [o]ne victims, of the but close time more of arises sibility of evidence other crimes charged. alleged offenses evidence, of part when such ‘furnishes admissibility other dealing the of with necessary the of the crime’ or is context 404(b), Rule courts have sexual acts under case, presentation’ the or is a ‘full un introduced such to be allowed intimately explan- so connected with and der number of different circumstances. against charged the the atory crime instance, Beahm, For in United States part defendant and is so much a of the Cir.1981), (4th in which a case F.2d setting of case and its ‘environment’ the charged counts with two defendant proof ‘to appropriate that its is order taking liberties with children indecent complete story of the crime on trial boys’ fondling genitals involving the proving its immediate context or installation, military on United States ‘uncharged gestae’ ‘res or the offense admissibility of the testi upheld the court together point so of time and linked witnesses, nei juvenile mony of two male charged circumstances with the crime in the ther victims of whom were fully that one cannot be shown without approached and the defendant had proving part other ... [and thus] them some made sexual advances toward gestae charged.’ res of the crime years prior to current offenses. three pro- is admissible to And where evidence The witnesses’ Id. at 415-16. presentation’ ‘full of- vide this similarity between revealed that there was fense, fragmen- is no reason ‘[t]here made toward them sexual advances inquiry’ by suppress- tize event under charged, constituting offense acts ing parts gestae.’ ‘res proximity the of along temporal Masters, (citing 622 F.2d at 86 United court, in charged. at 417. The fense Id. (4th Smith, 446 F.2d States v. decision, the defendant found since Cir.1971); Weems, 398 United States v. government contesting whether the Cir.1968), denied, (4th F.2d cert. sufficiently proved the intent as lascivious 894, 21 89 S.Ct. L.Ed.2d 790 U.S. statute, Virginia admis required by (1969); Spears, App.2d 58 Ohio wrongs or acts was not sion of these other (1978); 387 N.E.2d United States “the burden was error since *8 Howard, 1281, (8th v. 504 F.2d Cir. government the defendant’s to show that 1974); Beechum; 582 United States v. performed intent acts with lascivious were (5th 898, Cir.1978), F.2d 912 n. 15 cert. accident.” Id. and did occur 920, denied, 440 U.S. 99 S.Ct. oth- Fourth has also allowed The Circuit (1979); Cope L.Ed.2d 472 v. United States crimes, wrongs or to be specific er acts land, (4th Cir.1961), F.2d cert. they closely so con- are introduced because denied, 368 U.S. 82 S.Ct. charged they nected with the offense (1962); Gano, L.Ed.2d 388 United States part gestae of the res are found be (10th Cir.1977)). 993-94 560 F.2d Masters, 622 F.2d at 86.

the offense. See appli- reasoning particularly This seems Masters, a sexual offense while not in a child cable to the transactions involved case, charged deal- the defendant was with Certainly or assault case. sexual abuse ing in firearms or ammunition without a viewing involving process in the children permitted the in- valid license. The court listening explicit sexual material taped troduction conversations between highly probative agents graphic sexual which behavior defendant and undercover presentation presenting full that the had sold tended show defendant defense surrounding alleged through testimony. circumstances of- his his own Furthermore, intrinsically fenses. the acts were so alleged to the they related offenses that Finally, the issue of other sexual acts part of the considered transac- admissibility and their arose in Morgan tions with children and so interwoven Foretich, (4th Cir.1988). In 846 F.2d 941 pattern with of conduct toward the four-year-old female child and part gestae children that are of the res brought against mother her civil action charged. Lastly, they of the crimes were parents damages child’s father and probative highly the issue of on arising alleged out of child sexual abuse. this defendant committed sexual abuse Specifically admissibility at issue was against these children.10 prove of evidence tended to which plaintiff also child’s sister had been sexual- We now turn to a consideration of those ly visiting abused with while defendants. directly involving together acts victims Id. at 944. This evidence was offered not appellant with those acts which al- only to identify the defendants as the legedly boy ejacu- fondled this infant perpetrators disprove but also to several on his daughter’s lated underwear. We defenses the defendants includ- raised originally issue of addressed the collateral ing injuries of the and self-in- fabrication being crimes evidence admitted to show fliction. Id. Dolin, disposition lustful upholding admissibility

The court in long prior articulated as the that as acts Dolin, the defendant was accused of being disprove disputed were admitted to degree daughter first sexual assault of his case such issues involved as the age of who was under the eleven at the identity, defendant’s the absence of mis- time the crime was committed. crimes accident, take or or the intent of defen- prior years occurred within three dant commit the crimes which he 690, 347 indictment. 176 W.Va. at S.E.2d charged, was no violation of the then there trial, present- At only at 211. (citing rule. Id. other crimes evidence against the ed defendant was uncorrob- Comment, Evidence to Other Crimes sixteen-year- then orated of his ‘Corpus Prove the Delicti’ Child Sex- daughter old who was the victim of the L.Rev. Offense, ual 40 U.Miami charged. testimony, she crime In her (1985)). regarding specific details unable recall places of the in- and times incidents find that We therefore the acts daughter, in the indictment.11 volved presence occurred in the of either however, was able re- in her part one or both children or as specific involving six activity call collateral the children which consti transactions with acts which included: tuted the basis for the indictment were old, years 1. When she was seven 404(b). W.Va.R.Evid. admissible under quar- in a van to a defendant drove her int acts showed lascivious These perform ry, her to where he forced gratification9 part ent8 or sexual him; oral sex on appellant his children to of this towards eight years or nine charged, 2. When she was but also that *9 commit crimes old, accidentally shopping bicycle, after for a new acts not occur as did her to a motel in St. as of the defendant took attempted part to establish appellant Masters, 83, Beahm, (4th 622 F.2d F.2d 10. See United States v. 8. See United States v. Foretich, Cir.1980). (4th Cir.1981); Morgan v. F.2d also see Cir.1988). (4th daughter August, between The did 11. 1978, performed find, August, oral according she had jury to the instruc- had to 9. "‘[mjaybe trial, once or charges twice given sex on every defendant in three tions at say just exactly, you I can’t three months. against that the reason the defen- the defendant ” Dolin, at W.Va. at purpose know.' crimes was for dant committed the 211. gratifying desire. of his sexual (1981)). organ on Finally, and rubbed his sex S.E.2d 234 Albans ejaculated; her until he specifically stomach impermissible held Court “[i]t August she ten 3. of when was for collateral sexual offenses to be admit- old, a years the defendant drove her to solely into ted to show a defen- location in South Charleston remote improper disposition or lustful dant’s to- her; organ sex on and rubbed his ward his victim.” Id. 176 W.Va. at old, years she twelve 4. When was 210, Syl. 347 S.E.2d at Pt. 7. To the extent trip shopping her on defendant took a in- Dolin decision finds evidence they spent the Parkersburg, to where disposition show lustful troduced to to be night During night, in a motel. impermissible involving in cases child vic- organ sex rubbed his defendant tims, it is overruled. her; importance allowing of such evi- or thirteen 5. When she was twelve dispo- dence to admitted under a lustful be old, a years the defendant drove her to exception dissenting noted sition in the and forced hollow South Charleston McHugh, Dolin in which Justice to him; perform her oral sex on Brotherton, joined Justice stated that old, years she twelve 6. When Tennessee, her testimony defendant drove victim’s as a crucial ele- [t]he they stayed motel he where a ment case of the State’s must be exam- organ his sex on her. rubbed ined in context in order to establish a events, complete thereby record of reduc- n. Id. ing incredibility of the victim’s testi- jur- that other Although this Court noted Therefore, mony. carving out a sexual recognize propensity did sexual isdictions propensity exception allows the of finder opined exception, we weigh credibility facts of the vic- recognize propensity ex- a sexual [t]o unabridged testimony. tim’s ception in numerous ex- addition ceptions to the collateral crime rule 176 W.Va. at 347 S.E.2d at 220. We path dam- provide would a convenient particularly appli- find this rationale to be age a character and would defendant’s involving cable cases child victims. This sweep offenses evi- additional sexual into generally pit is evident since these cases obviously prejudice would dence which credibility against the child’s an adult’s jury in its and confuse consideration family credibility and often times an adult charged the crime the indictment. credibility. member's Since sexual abuse reasoning of those What renders the against children is such an committed aber- adopted pro- a sexual courts which have behavior, people find it rant most easier exception pensity so anomalous is their being as dismiss the child's acknowledge that crime failure to sexual up coached made or conclude that very likely their nature cases are touching private parts by of a child’s average jury. highly offensive In addi- adult must been accident. Thus, prejudice to further ability tion, greater difficulty children often have jury by admitting additional collateral establishing precise adults in dates of than apparent. sexual is even more offenses abuse, incidents of sexual because 695, 347 S.E.2d at Id. W.Va. possess small children don’t the same that since the This Court further reasoned adults,12 grasp of time but because the victim uncorroborated obviously may report acts a conviction in sexu- sufficient evidence for promptly, they are abuse either because cases, inherently incredi- al offense unless by primary care-taker and author- abused ble, particularly wary “courts should be ” figure are unaware such ity therefore sexual offense Id. collateral evidence.... Beck, wrong, (citing conduct is or because threats Syl. Pt. *10 "Children, Myers, Hearsay age young particularly sev- irrelevant to children.” those below en, Victim, differently conceptualize Baylor by time than do older Statements the Child Abuse 38 im- (1986). Dates and times—so children and adults. portant n. L.Rev. largely to schedule-bound adults —are son,15 upon physical by theory harm total con- that in one almost cases victims, involving disposition trol of their life. In most cases of sexual child a full against forming abuse children a care-taker or the facts the context of the crime relative, transpire the acts of sexual abuse presents opportunity a fairer for the triers time, period often over a substantial credibility of fact to assess the of the wit- years. Consequently, several under the ex- nesses. rule,

isting collateral acts a child victim is present complete record of unable Finally, appel the evidence that the forming events the context of the crime. patted pants, the front of his lant would misconception Lastly, there is a common sex,16 having masturbate after and would greater propensity that children have a against washing during lean machine imagine than adults to stories fabricate spin cycle was not relevant to the is indicates, of sexual abuse. Research how- trial, sues and its admission was error. ever, coaching, that absent children are far ap We reach this conclusion because it likely in the sexual less to lie about matters pears solely this evidence was introduced adults,13 than that absent sexual realm purpose proving for the the character of experience there is little means which propensity the defendant and for ob imagine transactions.14 children can sexual taining gratification in unusual factors, In of all these consideration ways. There was no evidence that these probative value of such far out- particular instances either occurred weighs potential prejudice. for unfair presence part children or find, with them. further transactions We Therefore, acts or crimes collateral however, that this error was harmless. We involving introduced in cases our decision on the Fourth Circuit base sexual assault or sexual abuse victims Appeals decision in United Court States perpetrator disposi had a lustful show the (4th Cir.1981). Davis, 657 F.2d 637 victim, disposi tion a lustful towards Davis, the court found harmless error generally, or a lustful dis tion to children where the lower court admitted children, provided position specific other concerning alleged sales of heroin to reasonably in time acts occurred close such thirteen-year-old children that twelve or incidents) giving rise to indict years six to eleven were made some before this conflicts with our ment. To the extent Dolin, conspiracy offenses of to dis the current 176 W.Va. decision supposed (1986) heroin were to have be it is overruled. tribute 347 S.E.2d 208 gun. exception to W.Va. such an adopting 404(b) of other

R.Evid. we follow number test for The court stated that permitted such evi jurisdictions “[t]he which have error is harmlessness for nonconstitutional in sexual assault or dence to be admitted error could probable it is that the when theory on the that such evi abuse cases by the affected the verdict reached have the accused’s incestuous dence shows jury particular in the circum- particular per- particular attitude toward that lustful concerning after 16. The evidence masturbation n. 13. Id. at 901-02 his wife was elicited sexual intercourse with 14. See id. L. on re-direct. This the state from Sharon however, permitted, question because the such uses in differ- 15. Jurisdictions have termed up opened issue of the marital sexu- defense permitted this evi- ent manners but still record, propen- relationship. from the “emotional al however, It was clear to show an accused’s dence aberration,” disposition,” sity inquiry, “lewd opening for sexual line of that in "propensity desires with to act out his sexual appel- attempting that the to show defense perversi- girls," disposition and young or "moral normally perfectly in a marital lant functioned context, 377, 379, ty.” Phillips, 102 Ariz. See State v. dispel obviously was intended to Maestas, (1967); State v. P.2d adult male whose sexual the notion that an Tarrell, 1974); (Iowa State v. N.W.2d sexually functioning abuse would was normal 647, 648, (1976); 247 N.W.2d 74 Wis.2d children. 128, 131, Shively, St. 172 Ohio N.E.2d *11 sort, of the trial.” Id. at 640 In cases of this where the victims (emphasis stances Nyman, United States added) (citing testify the defen- themselves and where (4th Cir.1980)). charges, it court testifies and denies the 649 F.2d dant jury to opined proper really it was consid- the further that comes down telling to show the the er other evidence which tended that the victims are believes guilt truth, “the they lying, and that this case are either defendant’s because supporting defen- Carter's a evidence of their own motivations or as result [the it Thus, was so conclusive that having conviction the been coached coerced. dant’s] unlikely error affect- altogether is that the improperly evi- likelihood that the admitted Davis, F.2d ed the verdict.” prejudicial had effect any dence whatsoev- jury the er on is minimal. Virginia, held Similarly, we have West determining whether the the test for II. improper evidence at trial introduction harmless error is: constitutes appellant contends the trial court ‘(1) must be re- it plain permitted the inadmissible evidence error when committed L., mother, deter- from the State’s case a and the moved the victim’s Sharon the Trainor, as to whether remain- Greg mination made con- psychologist, im- sufficient to convince ing extrajudicial evidence is cerning the children’s state- guilt partial of the defendant’s directly minds implicated appel- ments which doubt; beyond reasonable These statements were made be- lant. years remaining one and four after these sexu- (2) if the evidence found tween harmless; insufficient, allegedly place. took The state error is not al assaults be appellant fail contends that not did (3) remaining is sufficient if evidence testimony, appel- object to this but the conviction, analysis support an his utilized the to bolster lant to determine whether must then be made theory the case—which own was any prejudicial effect on error had coached their mother the children were jury.’ thereby alleged fabricated the offenses Maynard, State v. Syl. part, Pt. stemming appellant from the against (1990) (quoting Syl. parent’s testi- divorce —and that Trainor’s Smith, 178 W.Va. Pt. mony solely not offered to bolster the was At (1987); Syl. Pt. S.E.2d credibility of the witnesses but was kins, 163 W.Va. S.E.2d his give offered to as to wheth- also denied, 904, 100 S.Ct. cert. 445 U.S. profile fit the of child sexual er the children (1980)). 63 L.Ed.2d victims and whether were sexu- abuse present the evidence which ally abused. certainly introduced constitut- properly was In order to address the issue whether support the convic- ed sufficient basis psychologist’s testimony and the vic- obtaining gratification While sexual tions. properly ad- tims’ mother’s was washing of a machine from the movement helpful it is to examine each of the mitted unusual, certainly it is not sort First, testimony separately. witness’ preju- any real evidence which would have fol- psychologist’s testimony included the such as to against effect a defendant dicial lowing excerpts: jury convict him. Since cause a description that there’s one You know actually of masturbation involved evidence dad, believe, his I Bubbie said adult, activity defen- pornographic conjunction with some wife, seem to indicate the it would dant’s know, masturbating in magazines, you normalcy in sexual arena. defendant’s doing he Bubby and front of while direct evidence as the face of such other, taking inserting victims, this testimony of the two inserting finger in his other hand and had seriously considered cannot rectum, again_ jury’s consid- prejudicial effect eration issues. *12 Evidence,” where, Virginia Rules of as of the West

... we had a session after that earlier, we, had, factually distinguishable from had her that case I described we any way instant case. It did not in story girl a in the third tell a about 803(4) story in concern W.Va.R.Evid. or what is ad- person and so she described the person girl had missible thereunder. the third where a little finger in his into her dad a bathtub insert Murray, nine-year-old girl, In a made so, girl’s vagina, the little and at our secretary principal to a and a statements acknowledged that next session ... she protective her school and a child services that’s, I happened to her ... think she worker to the effect had been she described earlier that she was sexually by assaulted the defendant some the, heard, magazines the tele- and and two weeks earlier. 375 S.E.2d at 408-09. calls, too, actually any phone but denied principal protective services The school we contact with them. And then as went permitted worker were about further, acknowledged along she appeal, at trial. this these statements On dad, one had inserted his had on occasion found that the statements were inad- Court then, finger vagina in her on another they because failed to meet the missible occasion, his attempted intercourse with exception excited utterance criteria for the put penis in penis and tried to his her.... 803(2). See Syl. in of Evid. found W.Va.R. 309, Young, Pt. 166 W.Va. psychologist’s deciding whether the S.E.2d 592 introduced, properly (1) the state contends that: statements case, contrast, present in given profession to the medical health were regarding by statements made the children purpose diagnosis and treat- for the by father were made the sexual abuse their admissible; and ment17 and are therefore psychologist who the children were hearsay (2) are not since the statements Similarly, seeing therapeutic in context. a prove in not “offered were Lucas, N.C.App. Matter of asserted,” the truth of the matter Appeals the Court of S.E.2d 563 support by used cited as rather were determining North was faced with Carolina forming opinion. his psychologist three-year- statements made a doctor when she was old child to a medical 803(4) Virginia Rule of Evidence West hospital within fourteen taken to a local provides that: alleged sexual assault incident days of an following not excluded ... [is] were admissible. for medical attention rule, though the declar- hearsay even Lucas, at 566. Matter of 380 S.E.2d (4) as a witness: ... ant is available Di- Purposes of Medical for permitted Statements In that the doctor was made agnosis conducting or Treatment —Statements an exam testify that while diagnosis or medical purposes of there was evidence determine whether describing histo- medical abuse, told him that the treatment the child symptoms, pain, or present pulled ry, past juvenile or offender fourteen-year-old sensations, inception general pants or the pulled the victim’s penis out and external source permitted cause or was further character The doctor down. reasonably pertinent testify: insofar thereof diagnosis or treatment. put he said that And then A. [child] her, questioned I spring in me and previously held though we

Even spring?’, this ‘On Murray, 180 W.Va. ‘Where Syl. Pt. put he it hurt when Did (1988) whacker’. “[o]ut- yes. Did he you? said spring in She by the victim a made statements of-court she spring you that he had tell introduced may not be sexual assault did her ‘Where Then I asked yes. said qualify statements unless the party third me?’ you, you can show 803(2) put it in he Rule under utterance as an excited 801(c). 803(4). of Evid. 18. See W.Va.R. of Evid. See W.Va.R. (citing Renville, baby doll he 779 F.2d on the where United States me

Show Cir.1985)). her doll pull (8th court, I asked put it and *13 did he pants down and ‘Where baby’s application to the of this test facts before vaginal in?’; pointed the put she it, it child’s found that the statements to her doll. I female Then asked area of the psychologist properly at were admissible her, this one and she ‘Did he do time?’ heavily upon relied trial. The court the times. She said that indicated two decision which concluded that Renville days. different was two only young “not the a would victim have purpose

motive with the of treat consistent culture, obtaining ment, also, A. the rectal by In a child ... but ‘[s]tatements Ronnie physician during stated that this where ex she abuse victim to a I did the put When his ‘whacker’. abuser is a amination that the member exam, said, is she ‘This not vaginal the victim’s immediate household are rea ” put his ... Ronnie whacker.’ where sonably pertinent to treatment.’ Mor (emphasis appeared gan, original) A. structure to be F.2d The rectal at tears, no Renville, 436.) There were lacera- (quoting normal. 779 F.2d at or abnormalities or altera- tions other Consequently, than normal not we conclude that the

tion [word audible] a normal examina- by tone. It was the to their statements made children ..., Trainor, tion. treating psychologist, proper were ly adopting In admitted at trial. the two- Id. at 565. Circuit, part applied by the Fourth we test that “the trial court The court found only find was the motive behind Dr. Fisher’s properly admitted by the made the children con statements of the out-of-court statements to the treatment, promoting sistent since the 803(4).” at 568. pursuant to Rule Id. child brought psychol mother the children to the Carolina Court reasoned that North ogist purpose the of treatment at a statements of the doc- above-mentioned prior being time criminal action even since the doctor used tor admissible were also, contemplated; statements making diagnosis those statements they were such that would been rea recommending follow-up and on treatment sonably diag upon by Trainor in his relied by psychologist. Id. nosis and treatment of the children. Foretich, Morgan v. 846 F.2d Likewise Cir.1988), (4th court considered permitted also trial court victims’ psychologist of a whether the testify objection regard- mother to without spent over one hundred hours who had ing by her extrajudicial statements made working examining and with the victim was involving It is son the sexual assaults. permitted out-of-court about note, however, important to extremely by made the child. Id. at 948. statements regarding mat- each child also testified case the trial court Morgan ters contained in the statements made give opin- permitted psychologist to Trainor, to Dr. and was mother and child’s abuse and exclud- ion as to the appel- subject by to cross-examination out-of-court state- testifying ed from about lant. statements do fall under These by child to him. Id. ments made exception hear- the excited utterance 803(2) say in W.Va.R.Evid. be- rule found The Fourth Circuit indicated cause were not statements made admitting two-part “the test set for these “relating startling to a event the declarant (1) declarants hearsay statements ‘the while declarant was condition ... making the statement must be motive in of excitement caused under the stress purposes promoting consistent with the However, Id. the event or condition.” treatment’; and, (2) ‘the content like other have admitted statements courts reasonably such as statement must be parent by child victims to a these made physician upon by relied in treatment ” omitted) hearsay rule. (footnotes exceptions under diagnosis.’ other Id. at 949 opportunity prepare Lucas, with a fair court admitted In Matter it, three-year-old made meet his intention to offer the state- statements juvenile boy it, had sexu including her mother that a particulars ment girl anally. 380 ally assaulted the little name and address of the declarant. admis upheld The court S.E.2d at 565. —State, Miss. -, Mitchell made several sibility of these statements (1989) indicated that the court So.2d 803(4) days after the incident under Rule babysitter’s testimony in the mother’s and pur statements made for which involve by a volving hearsay statements made five- *14 diagnosis or treatment. poses of medical analyzed female child should year-old be Lucas, at 566. The Matter of 803(24)exception Rule on remand.19 under reasoned that “the child’s statements court court, the its instructions to the lower In pertinent diagnosis and treatment were to Mississippi Supreme Court stated: doctors, the na they suggested to the problem in turn directed that, ture of the which ap- courts have note as other We examination of the the doctors their ‘catch-all’ to a child’s out-of- plied the case, Likewise, in the instant child.” Id. sex- statement an incident of court about concerning her testimony the mother’s abuse, found that the they have ual primarily presented son’s statements was not fit under the excited statements did to the explain why she the children took excep- exception or under the utterance purpose prov psychologist, not for the seeking tion for medical treatment. ing the matter asserted. determining equivalent guarantees of the trustworthiness, con- these courts have hearsay permitted courts have Other child, age the under the sidered the statements, present before such as those pos- young that children do not Court, 803(24). Virgi- rationale Rule West the under 803(24) knowledge to provides: enough sexual fabri- sess nia Rule of Evidence These courts fur- cate such incidents. by the following not excluded are report- length delay ther look at rule, though the declarant hearsay even surrounding rea- ing the incident and the as a witness: is available fear, threats, delay, such as sons for the (24) statement not Exceptions: Other —A They report. opportunity lack of by any of the fore- specifically covered persons to whom also consider having equivalent exceptions going reported-family, social incident was guarantees of trustworthi- circumstantial workers, officers. (A) law enforcement ness, if court determines of a offered as evidence statement (citing Mitchell, at 1370 U.S. v. 539 So.2d fact; (B) is more the statement material Cir.1986); (8th Dorian, U.S. 803 F.2d 1439 it is point for which probative on the (8th Cir.1985); Renville, F.2d 430 which any other evidence than offered Robinson, 735 P.2d 153 Ariz. through rea- procure proponent can Brown, (1987); 341 N.W.2d (C) pur- efforts; general sonable Note, (Iowa 1983)); A Com generally See interests of rules and the poses of these Hearsay State prehensive Approach to by admission be served justice will best Cases, 83 Colum.L. Abuse ments in Sex How- into evidence. statement of the Rev. ever, admitted be a statement examining made the statements propo- unless the exception under this in the by the child victim mother to the adverse known to the of it makes nent require at the we must look present of the trial sufficiently in advance party in order for a has set out ments this Court party the adverse hearing provide 404(b), "specifically exception limited Rule to de- and remanded case was reversed be- to those relations of other sexual hearsay of the evidence statements termine particular victim.” and the the defendant Evi- tween the Rules of under were admissible victim Therefore, dence, evidentiary Id. at 1371-72. rules set out rather than Further, exposed to children other himself Mitchell, had defendant at 1369. 539 So.2d law. case improperly at tri- admitted though Mississippi than the victim found that even court exception al. Id. disposition recognizes a lustful psychologist any- of mother added come under W.Va.R. nor statement 803(24). previously held thing We have to the children’s Evid. substantive testimo- grave It ny. cause us concern as to would 804(b)(5) mother’s if language propriety of Rule of the [t]he Virginia Rules Evidence and gave sketchy West a barebones or children 803(24) requires that counterpart Rule occurred, and account of then the what must met in order general factors be five expand permitted upon mother admissible hearsay evidence such add detail and substance to impor- First the rules. and most under through extra-judicial the children’s state- state- trustworthiness of the tant is the ments. here. Such was case equivalent ment, must be which Judge Berger and Professor Weinstein underlying specific trustworthiness availability have written that of the “[t]he Second, hearsay exceptions to rule. vitiates the main concern declarant at trial prove must be offered the statement rule, hearsay the lack of Third, must fact. the statement material *15 adversary any opportunity for the to cross- probative more on the be to be shown examine declarant.”21 the absent any it is offered than for which issue hearsay dangers minimized only Not are proponent reason- the can other evidence declarant, presence Fourth, by the of the such of the but procure. admission ably comport general appearance potential the must with removes confronta- statement Furthermore, the rules of evidence and the purpose of tion as well.22 clause issues Fifth, adequate no- justice. interests since the defendant claimed maternal statement must afforded tice of the be children, coaching the of the mother’s ac- provide party a party to that the other gave to count the child’s statements her meet opportunity to the evidence. fair jury opportunity to her the a fuller observe Smith, 178 demeanor her motivations in recount- Syllabus Point and (1987); Syl. See ing such of the W.Va. statements. Bailey, Pt. presented psychologist mother and the de- (1987). S.E.2d 46 explore opportunity fendant to on cross- an coaching or examination motive on be- set forth with factors were These psychologist help half of the mother or to evaluating the reliabil- eye towards obvious in the fabricate the accusations. light of what children ity hearsay evidence present legal testify, as the four is have described When child witness to writers misperception, faulty hearsay:20 however, generally dangers of seem to be a it would memory, narration, insincer- inaccurate practice permit a parent better not to to dangers of these ity. If the likelihood testify extrajudicial as to the child’s state- reliability of the is en- slight, the testimony clearly falls ments unless such hanced. exceptions. hearsay one But it into when, spectrum in the viewed harmless Furthermore, important it is to bear evidence, no prejudice of all it creates analyzing most of the cases mind comport The statements defendant. hearsay statements un admissibility general hearsay exception and the to this 803(24)(5) have been decided der Rule they rules evidence because declarant was not contexts where probativeness re- relevancy meet extreme person. It is present to quirements the fact that children but recognize in the defen ly important subject to cross- testified trial and were at trial, testi present, child was each dant’s the real risks of ameliorates court, examination fied in and was cross-examined Finally, we Furthermore, admitting hearsay. examine neither defense counsel. 22.Myers, supra note 13 at 896. Myers, supra note 13 at 896. See also Weinstein and n. 471. J. Id. at 896 Evidence, 803(24)[01], Berger, § M. Weinstein's at 803-377 giving adequate ultimate issue trier requirement of notice to be decided case, fact.” opposing party. this only did defendant have notice that expert psychologist tes- witness, Mrs. L. called as a would be but tified as followed: provide ordered the state to court (By prosecuting attorney): copy of the defendant with a written state- Q: Okay, do you have an ment of Mrs. L. if she were called as wit- Bubby sexually was assaulted ness. A review of the statement which sexually abused? in the record was contained indicates that Yes, that, A: it’s my opinion Bub- the defendant did have notice as was, by, little [E.L.], sexually nature of the evidence the state would of- abused. through testimony. fer L.’s Mrs. expert give point went on to Therefore we conclude that the mother’s Later, opinion.23 for his in the basis ex- properly admitted at trial pert’s testimony, prosecutor asked the court, the lower since the children were following regards to both children: cross-examined; present testify and Q: professional opinion Your then is nothing the mother added substantive to children, were, that both of these testimony, primari- direct the children's fact, abused and assaulted as ly related the child’s statements not to reported you? asserted, prove the matter the truth of That’s, opinion, yes. my A: that’s explain psy- why she took them the *16 McCoy, 179 W.Va. 366 chologist; moti- and because mother’s (1988) 731 was faced S.E.2d this Court with by vations an issue raised the de- were testimony admissibility expert fense, appearance her and therefore on the post-rape behavior, testimony regarding i.e. provided opportuni- stand the defendant an syndrome. rape trauma 179 W.Va. at and the ty jury her cross-examine at held that: 366 S.E.2d 734. We chance her demeanor and to observe assess credibility. testimony regarding [qualified expert her and motivations rape trauma is relevant syndrome III. prosecution rape in for admissible argues that appellant The also the trial is consent. ex- where defense psy- permitting family court erred in alleged pert may testify that the victim Trainor, express chologist, Greg rape exhibits behavior consistent sexually had opinion the children been syndrome, expert may trauma but the ar- appellant. state assaulted give expressly implicit- opinion, an gues distinguished should be that this case alleged ly, as to or not the vic- whether involving expert from cases who raped. tim was syndrome.” “rape trauma testifying about 229, 366 S.E.2d at 737. Id. 179 W.Va. at holding concern The reason for Rule of Evidence 702 Virginia West scientific, technical, permitting in danger over involved or oth- states that “[t]he “[i]f a com- expert to that because knowledge tri- an include specialized er will assist the syn- rape trauma plainant suffers from the evidence or to er of fact to understand was, therefore, issue, drome, complainant quali- in a witness determine a fact skill, raped conclusion knowledge, expe- ... expert a] fied as an [since] ‘[such credibili- too much for the victim’s rience, education vouches training, or supplies for her on the opinion ty other- verisimilitude form of an thereto in the rape did critical issue of defendant Further, provides 704 W.Va.R.Evid. wise.” ” 228, 366 S.E.2d at Id. 179 at opinion form of an her.’ “[t]estimony in the omitted) (citing (footnote State is not 736 otherwise admissible or inference (Mo. 235, 241 Taylor, 663 an v. S.W.2d solely because embraces objectionable being properly laid attorney specifi- foundation not did to the Although the defense question. opinion given, object she asked cally object did 658 testified, Jackson, expert] uncertainty becomes

1984)); 181 W.Va. see State (1989).24 when an abuser who fulfills a confusion caring-parenting role in the child’s life in- of this case do not the facts While wrong child that seems tells the what syndrome, rather rape trauma volve fact, child, is, right. all Because chil- sexual assault on abuse and confusion, shame, guilt, child’s dren, analogy can be drawn in that an fear, long disclosure of the abuse is often sexually or as- who are abused children complain delayed. the child does When display frequently indications saulted abuse, the mother’s reaction of sexual profile may comport to a which disbelief, frequently is and she fails to developed by psy- has been victims report allegations to the authorities. experi- chologists and social workers with By explaining the emotional antecedents expertise. In State v. in this area of ence peculiar of the victim’s conduct and — -, Minn. 359 N.W.2d Myers, impact of the crime on other members of (1984) Supreme Court was Minnesota expert jury family, can assist the whether the trial court to determine asked evaluating credibility of the com- admitting expert psychological tes- erred plainant. symp- describing the behavior timony Middleton, 610; see State v. Or. Id. by children who typically exhibited toms (1983); further, see also 657 P.2d sexually abused and have been Kim, P.2d 64 Hawaii opinion that the child vic- expressing an allegations not fabricated. tim’s were Appeals in Similarly, the Ohio Court of ad- Specifically, the court at 606. N.W.2d App.3d Timperio, Ohio or not the issue of “whether dressed the (1987) expert was faced with N.E.2d psychological characteristics emotional and very at trial which was offered is a sexually children abused observed expert’s testimony in the similar to the testimony.” expert Id. at proper subject of expert psy- present Timperio, case. symptoms sex- chologist testified about the ually children exhibit and stated abused such The court ruled that *17 in opinion in the child that case that her though the indirect result admissible even 528 N.E.2d at sexually had been abused. credibility25 of the vic- was to bolster permissi- The court held that 595. “[i]t finding that tim witness expert testify for the permit an ble sexual abuse of nature ... [t]he helping jury to assess purpose a disadvan- places lay juror at children child,” sexually abused and credibility of a almost prohibited all or tage. Incest opinion further, expert may her state “[a]n experience cultures, common and the all sexually Id. has abused.” that a child been represent a less than jury may of the 2; 1 and see v. Hum SyLPts. State assessing the for adequate foundation 9th, 1985), App. Nos. fleet, (Sept. Clermont com- young child who credibility of a CA84-05-036, unreport and CA84-04-031 If the victim of a plains of sexual abuse. WESTLAW, 1985 WL on ed [available report the crime burglary failed to 224 Mont. 7728]; Geyman, good reason promptly, jury a would (1986); Middleton, 657 P.2d P.2d 475 A credibility. person’s to doubt abuse, subjected to sexual young pointed out that McCoy, In this Court however, time either may for some phrase coined to syndrome is a criminality rape trauma or uncertain unaware physical and emotional those As describe conduct. ... of the abuser’s [the those character- holding McCoy and that he had observed clarify is limit- abuse in that We this Hence, physician complainant. testified a He further of that case. istics in the ed to the facts opinion, her based on extremely that in his or to fabricate can physical rare for children that it is raped. findings, particular victim was a opined that the sexual abuse and incidents of allegations. Myers, truthful in her victim was expert Myers testified as to the charac- 25. The at 609. 359 N.W.2d generally victims of sexual exhibited teristics allowing experi- symptoms frequently testimony and no error in evi- behaviors by rape 179 W.Va. McCoy, enced victims. dence. Similarly, 366 S.E.2d 731. children

who are the victims sexual abuse IV. frequently manifest identifiable assault appellant argues next that the emotional and char- physical and behaviors testimony uncorroborated of the children Certainly, then, qualified ex- acteristics. inherently incredible and does not sus pert regarding testimony may be taken guilty appellant tain verdict. The of child behavioral and emotional indicia lapse his contention on the from based time victims, expert may sexual abuse and an actually when the crimes occurred until alleged testify that an exhibits be- victim reported approximately four were profile. consistent with havior such later, years allegation on the appellant’s physician is no There valid reason that a the children exhibited no unusual be give opinion physical cannot an based on during time, havior and the fact that sexually findings person that a has been physical no either there was evidence that Similarly, is no valid rea- assaulted. there sexually child had been assaulted.26 should psychologist psychiatrist son a give McPherson, based not be allowed an W.Va. findings as to individ- objective (1988) whether an 371 S.E.2d 333 v. Hum child, ual, particularly most has been phrey, 351 S.E.2d It such an sexually assaulted. is true that (1986), this Court dealt the issue of expert opinion aids the verisimili- victim’s inherently testimony. incredible tude, proper it is a fair basis McPherson, “[ijnherent we held in doing probative of such so and the value is more credibility, ... than contradiction outweighs potential for far lack of corroboration.” 179 W.Va. at Furthermore, prejudice. unfair (footnote omitted). at 338 is not person sexually has been assaulted incredibility requires thus “a Inherent jury. issue for a The ultimate the ultimate ‘complete showing of untrustworthiness’ committed issue is whether defendant [testimony physical ... defies which] the assault. Id. laws.” Consequently, adopt we case; present the chil- In the we find courts which holding and rationale of the inherently in- far from dren’s psychological testimony permit expert finding base this on the chil- credible. We involving child sexual incidents of cases happened to descriptions of what dren’s abuse, expert may determine Although they obviously upset were them. *18 as to state a conclusion whether they related testifying, at and embarrassed sexual alleged to be the victim of who is Also, clearly. children incidents the the exhibits consist or assault behavior abuse thorough subject to cross-examination were victimized, give being so and ent with during the children consistent were child has been opinion as to whether the an maintaining their of what tran- accounts may not expert Such sexually abused. judge their spired. jury was able to personally on he an whether give di- credibility and assess their demeanor child, of nor on the issue the believes testimony does sustain rectly. Their perpetrator defendant was the the guilty verdict. assault, that would of the abuse the prejudicially invade and improperly V. Thus, that jury. we find province of the appeal on Finally, appellant’s counsel was in this case expert’s the of counsel an ineffective assistance committed raises and the trial court permissible testify. therefore competent We conclude appears question to appellant also to the 26. The properly trial. its discre- competency of the children to at court exercised the trial that However, properly we find that the trial court competency See State issue. tion on this truth-telling chil- the abilities of the examined Stacy, S.E.2d 614 179 W.Va. they were and determined that at trial dren (1) being the defendant’s behalf argument upon based defense and the defendant’s sexual conduct or miscon- thorough a denial counsel at trial conducted voir 27 (2) object duct; the to the as- dire, failure statement, gave opening an effective prosecuting during attorney the sertion of provided affirmative defense of appellant’s statements that the di- opening appellant, including appellant’s cur- fondling of his was result vorce girlfriend ap- rent who as to the testified (3) baby; coun- four-month-old defense children, pellant’s relationship with his questioning defense28 con- sel witnesses placed the stand defendant on the who cerning improper appel- sexual acts sexually testified that he did not assault his lant; (4) request that the failure children, closing argument made a based court have the child victims exam- lower on defendant’s theories of fabrication and independent psychologist for ined an coercion, finally appropriate and made ob- (5) purposes; and competency failure jections specificity motions with testimony concerning lack expert offer vigor throughout the trial. physical evidence of assault sexual abuse. it is defense While true that coun Syl.Pt. part, relating sel did introduce the evidence Thomas, 157 W.Va. S.E.2d regarding the Sharon L.’s statements de this Court held having dog family fendant sex with of a an the determination claim that [i]n masturbating he defendant until tore prejudiced by as accused was ineffective surgical loose the stitches from his vasecto ... courts should sistance counsel my, necessary to it is read the cross-exami questioned compare measure nation of Mrs. L. to discern trial counsel’s performance by whether he ex counsel’s all, allegation strategy. First of con customary the normal and decree hibited dog place cerning supposedly took as attorneys possessed by are of skill who children, part of the transactions with the reasonably knowledgeable criminal and therefore would have been admissible law.... part gestae as the res of the offense had 21, Thomas, Pt. Syl. also held We attempted introduce it. state Sec performance, at- counsel’s [w]here ondly, question defense counsel’s cross- ineffective, arises occur- from tacked dog makes that the examination clear was strategy, tactics, involving and ar- rences extremely such small animal de action, his will guable courses of conduct show attempting fense counsel was effectively deemed of his assistive patently unbelievable that a would be interests, reasonably unless no client’s grown accomplish man could a sex act attorney so qualified defense would have Similarly, ques it. former wife in the defense of an accused. acted previ by defense as to her tioned counsel at S.E.2d 157 W.Va. relating ous on the incident statement bar, vasectomy stitches. The defense counsel applying case at Thomas attempting to that it thorough pre-trial were filed in was demonstrate motions *19 admissibility appellant to how al- 29.We do not need address the We are unable to discern leges evidentiary ineffective perspective spe- that this constituted assistance. of the two from an assignment explains Appellant this nor neither involving sexual acts cific instances other since further, argues we therefore deem it to be defendant, it brought by in both were in this without merit. credibility previous impeach the of case to testi- 404(a)(1). pros- mony. If the See W.Va.R.Evid. appears appellant complain means to It attempted bring to two instanc- ecution in these being propounded questions such to state of es, family dog would have been incident witnesses, as well as defense and we witnesses however, part gestae; of admissible as the res assignment such. with this As to de- deal involving vasectomy stitches incident being questioned improper as to fense witnesses been inadmissible. acts, would have certainly it did not inef- sexual constitute to elicit of fective assistance of counsel denials by he acts once decided such defendant testify in own defense. grand jury indicted. Nor there person a derive was would believe absurd acting Mrs. L. was such self-muti- basis to believe out of gratification from husband, any animosity toward her former tearing that of lating painful act as strategy passage The be- both because of time and surgical stitches. obvious reported questions only was to she the offenses defense counsel’s because hind Also, urging psychologist. L. could upon ludicrous stories Mrs. show what regarding they her former husband’s that concoct the reason victims stated de- There is no propensities. doubt disclose these events sooner was due didn’t attacking attorney’s strategy in Mrs. upon bodily fense to threats of harm made them argua- in credibility this manner was appellant. L.’s ble, obviously was not successful and she scrutiny perform- of counsel’s ‘Judicial representation her client in that he in It highly ance must be deferential. is all acquitted. was tempting for too a defendant to second- guess counsel’s assistance after convic- Finally, regarding of the de- the failure sentence, all tion adverse and is too request that the child vic- fense counsel court, easy examining for a counsel’s psy- independent be examined tims unsuccessful, proved after it has defense chologist competency purposes, we particular or omis- to conclude that a act competency is- already discussed the sion of counsel was unreasonable....’ supra note 27. There we concluded sue at its dis- properly Bordenkircher, trial court exercised rel. State ex Levitt competency issue. (1986) cretion on the See S.E.2d 686, 371 Stacy, 179 W.Va. S.E.2d (citing Washington, 466 Strickland v. U.S. 2052, 2065, 689, 104 S.Ct. 80 L.Ed.2d (1984)). reviewing attorney’s primary difficulty defense counsel The pressed hard performance, overall we are she not have trial was that did had this to conclude that it amounted to an ineffec- way go of evidence much tive of counsel. assistance As is fre- favorable to the defendant. Therefore, foregoing opin- based on the charge, quently type case it ion, judgment affirm the of the Circuit When we really credibility contest. County. Mineral Court of has young children defendant sexually and the defendant abused them Affirmed. charges, defense denies such testifies and attempt elicit evidence and MILLER, Justice, dissenting:

counsel must argument why they lie. as to would make majority in- My disagreement with the attempt- counsel In this the defense The variety major- of issues. volves a wide the chil- throughout to demonstrate that only ed several settled ity has not overruled coached their had coerced or points jurisdiction, dren been law but has our their mother meager mother or that either most authori- done so with girlfriend’s upset principles at the defendant’s ty support position. life. The defen- defendant’s clearly role are the main- adopted has outside testified, however, girlfriend dant’s stream. accompanied the defendant had

she I. home on a number of occasions L.’s Sharon 28,1987, was con- May On the defendant children, Mrs. L. al- and that to visit the degree sexual addition, of first victed of two counts her feel welcome. In ways made degree sex- two counts first tended assault and lack of evidence which was a there sentenced defendant was had coached ual abuse. the children been show that *20 of fifteen-to- consecutive sentences pursue prosecu- to serve mother did not since their each of the two sexu- allegations twenty-five years for time after the until some tion sen- with concurrent she al assault convictions Even after re- to her attention. came authorities, years for the sexual of one-to-five it tences prosecutorial it ported years abuse convictions. approximately two before 662 acknowledges majority tacitly The led to these convictions

The events which sion[.]” “exception” of Dur- inconsistency in the fall 1983. of its allegedly occurred time, the defendant resid- ing period 404(a)by this of failure to cite or W.Va.R.Evid. twins, wife, four-year-old his his ed with rule. discuss this girl, infant son. boy and a and an disposi- In order to establish its “lustful 1983, of the defendant and December exception, majority tion” had to over- time the defen- separated, at which wife Dolin, 8 of Syllabus rule Point v. 176 State family. The living ceased with dant 688, (1986).2 The 347 S.E.2d 208 July of 1984. divorce was finalized opinion cites from oth- majority four cases later, years ex- Approximately two jurisdictions represents as sanc- er which reported authorities that her wife disposition tioning lustful collateral act sexually had abused the twins husband exception.3 Though the United four of had during the fall 1983. defendant of hardly represent of the Ameri- States most rights during twins this visitation with jurisdictions, prevalence ma- can of the relationship ap- period, their two-year jority’s view is even less than it as- new The twins received peared to be normal. jurisdictions, serts. Ohio and Two and, sessions, therapy both of after several Wisconsin, have abandoned their ill-con- sexually father had them stated that their disposition exceptions. ceived lustful See physical no evi- abused them. There was 66, 330 Curry, 43 Ohio St.2d State v. allegations. these supported dence Fishnick, (1975); 720 127 N.E.2d State v. majority misap- I has Because believe the 247, 378 Wis.2d N.W.2d 272 facts of I plied the law to the this logic majority’s position against sound respectfully dissent. overwhelming authority, weight and the of which holds that acts are inad- collateral

II. disposition. show a missible to lustful First, disposition” “lustful majority’s purpose serves no other than Such evidence 404(b) Virgi- exception to Rule of the West prove in con- that the defendant acted permit of will admis- nia Rules Evidence1 is, there- formity with a character trait and particular of evidence of a character sion fore, charged. guilty E.g., of the crime of a accused a sexual trait defendant State, (Alaska 727 1062 Johnson v. P.2d order to show that defendant offense Tassell, 77, App.1986); People v. 36 Cal.3d in accordance with the trait. Noth- acted 567, (1984); Cal.Rptr. 201 679 P.2d 1 Getz ing directly contrary to the could be more State, (Del.1988); Hearing v. A.2d 726 538 404(a): explicit admonition of W.Va.R.Evid. State, 122 (Fla.App.1987), v. 513 So.2d deci- character a trait person’s “Evidence or quashed grounds, sion on other 559 So.2d his character is not admissible for the (Fla.1990); 207 v. purpose proving that he acted in con- Pendleton Common- particular wealth, People 549 formity (Ky.1985); on a occa- 685 S.W.2d therewith victim, 404(b) disposition provides: W.Va.R.Evid. lustful toward the Crimes, are overruled." Wrongs, “Other or Acts.—Evidence crimes, wrongs, other or acts is not admis- 15, 651, prove person character of a 3.In 183 W.Va. S.E.2d at sible note 133, conformity majority he acted in however, order show that states: may, therewith. It admissible uses in dif- "Jurisdictions termed such motive, purposes, proof other such as permitted manners but still have ferent intent, plan, opportunity, preparation, knowl- pro- an evidence to show accused's 'emotional edge, identity, absence of mistake or acci- aberration,’ disposi- pensity for sexual 'lewd dent.” tion,’ ‘propensity to act sexual desires out his Syllabus girls,’ young disposition of Dolin states: Point 8 or 'moral perversity.’ 377, 379, Phillips, 102 Ariz. See Beacraft, "To the extent that State 139, (1967); 895, (1944), 430 P.2d State v. W.Va. Lohm, 30 S.E.2d 541 248, 1974); Maestas, (Iowa 652, 224 N.W.2d 97 W.Va. 125 S.E. Tarrell, Driver, State v. Wis.2d State v. (1921), 88 W.Va. 107 S.E. 189 (1976); Shively, 172 sexual offenses to be N.W.2d allow collateral (1961).” improper admitted to show Ohio St. N.E.2d into evidence

663 Major, prejudice v. the or mis- 394, N.W.2d 660 or confuse issues Mich. 285 407 Schumann, 470, unfairly surprise party v. (1979); jury State 111 N.J. lead the or Curry, v. su ground State (1988); who has not had reasonable to 545 A.2d 168 Shively, pra; v. anticipate Commonwealth 492 such would be Pa. that evidence v. Burch State 411, (1981); offered. 424 A.2d 1257 State v.

field, 664 S.W.2d (Tenn.1984); 284 “16. to In the exercise of discretion Harris, 746, Wash.App. P.2d 677 202 36 or of collateral admit exclude evidence State, v. Lehiy (1984). N.E.2d 501 451 overriding charges, the con- crimes and Cf. adopted aff'd, 509 (Ind.App.1986), trial scru- siderations for the court are to (Ind.1987) (limiting prior acts N.E.2d 1116 right pulously protect the accused showing depraved sexual instinct acts of adequately preserv- a fair trial while incest). sodomy and ing right prove the the evi- of State legally con- dence which is relevant and Dolin there recognized We are charge nected the for which the prior sexual acts could be occasions when being tried.” accused is 404(b). We admissible under W.Va.R.Evid. Pancake, 690, v. followed Thomas State consistently W.Va. 296 have cited 170 We (1982), prior balancing held that the test is recognized S.E.2d 37 where we See, against victim or other forcible acts 403.4 now embodied W.Va.R.Evid. Hanna, e.g., State v. persons 598, victim could be known 180 378 W.Va. Stacy, State v. fear of (1989); shown establish the victim’s her 179 S.E.2d 640 Lucas, also v. attacker. See State v. State 178 686, (1988); 614 W.Va. 371 S.E.2d State v. Johnson, 686, (1987); 619, 364 S.E.2d 179 W.Va. 371 S.E.2d Miller, Dolin, v. S.E.2d supra; State 175 W.Va. (1988); Dolin Nicholson, (1985). acknowledged spe- also 252 S.E.2d 894 162 W.Va. of character grounds, exceptions on other cific admission overruled State (1979), 404(b). Thus, under W.Va.R.Evid. Petry, v. evidence 166 W.Va. purposes there for which evi- are several jurisdictions uniformly agree Other involving prior dence sex- of collateral acts of acts is that before evidence collateral admissible, properly episodes ual are admissible, probative must be its value excep- disposition approach none lustful weighed prejudicial against its effect despite adopted by majority

tion its See, v. e.g., United States defendant. jurisdiction. rejection by every almost other Johnson, Unit (1st Cir.1990); F.2d 451 Scarfo, 850 F.2d 1015 (3rd ed States v. ignores is point majority Another denied, cert. Cir.), S.Ct. 488 U.S. applied balancing heretofore test has United States (1988); 102 L.Ed.2d 251 404(b) the admission W.Va.R.Evid. Conners, Cir.1987); v. (9th F.2d 1384 Syllabus 15 and evidence. Points 16 of Cuch, (10th United States v. 842 F.2d 1173 Thomas, v. State 157 W.Va. State, supra; Cir.1988); Getz we how use S.E.2d 445 outlined Just, (1979); 602 P.2d 957 Mont. balancing test: Micko, (N.D.1986). 393 N.W.2d 741 proper of discre- “15. exercise Moreover, held in Point 3 tion, Syllabus as we may trial court exclude evidence Dolin, charges if trial court should conduct crimes of collateral in camera hearing to determine probative finds that value is court its act prejudicial effect of the collateral outweighed by the that its admission risk probative outweighs value.5 danger of evidence will create substantial undue or,, time, presentation waste needless 4. W.Va.R.Evid. 403 states: evidence." cumulative Evidence of Relevant “Exclusion Confusion, Syllabus 3 of Dolin states: Prejudice, Point or Waste Grounds relevant, Although of Time. a trial court can determine "Before substantially probative if its value is collateral crimes is admissible excluded evidence of exceptions, prejudice, outweighed by danger an in camera of unfair under one of issues, misleading hearing necessary to allow a trial court confusion of the admissibility collat- delay, carefully consider jury, of undue considerations *22 664 objection

Furthermore, neglected to raise an Syllabus in Point 9 of that counsel explained customary that it is opinion, inflammatory prejudicial this evidence. we limiting jury give VI(C). instruction a I address this failure Part will is not offered to that the collateral crime, present but is to guilt of the prove III. determining exclusively in be considered astounding to me is Also rather the ma- properly is particular issue on which it (but “limiting” 24 jority’s footnote for all intent, motive, offered, etc.6 e.g., identity, overruling) McCoy, intents v. 179 State crimes that evidence of collateral The rule 223, (1988).7 731 In S.E.2d prove guilt of the crime is not admissible two-year-old opinion, on subor- unanimous we held charged, rather to bear motive, system, or Syllabus qualified expert such as Point 2 that a dinate issues intent, explicitly letter law and is opine is black could the victim a sexual 404(b). in W.Va.R.Evid. See United stated rape syn- assault suffered from trauma (6th Cir.), Steele, 727 F.2d 580 v. States drome, expert give may “but the an denied, Scarborough v. United cert. opinion, expressly implicitly, or as to 2396, States, U.S. 104 S.Ct. alleged or not victim was whether (1984); United States v. Bart L.Ed.2d 353 raped.” (8th Cir.1988); 855 F.2d 547 ley, isolation, possible it is to read the Ariz. 737 P.2d Enriquez, 153 Ramirez majority’s apply only 24 to footnote a Walls, 541 A.2d (App.1987); v. State physician, making situation where the after denied, (Del.1987), cert. U.S. victim, physical a examination of the states (1989); 412, 107 L.Ed.2d 377 110 S.Ct. physical findings that there are that are Guinn, 114 Idaho 752 P.2d 632 person having raped consistent with a been (App.1988); Madyun, Commonwealth sexually or assaulted. a conclusion is Such (1983); Mass.App. 458 N.E.2d 745 However, entirely permissible. this rule 630, 343 S.E.2d Paige, 316 N.C. require would not the limitation on McCoy. springs Syllabus The confusion from suggested that ad courts have Several majority opinion Point 7 of the prior collateral acts mission of evidence states, perplexingly, expert rather that “an is deferred until after of the defendant best opinion may state an as to whether the case, in to see the defendant’s order wheth comports psychological with the motive, intent, identity actually are er profile behavioral of a child sexual abuse See, v. Bene disputed. e.g., United States victim, may opinion (2d Cir.1978). offer an based on detto, 571 F.2d 1246 this objective findings that the child has been safeguards were fol none of these added). lowed, sexually (Emphasis trial abused.”9 I mainly because defendant’s properly opinion, balance in his or her based on eral crime evidence and against physical findings, particular probative a value of such evidence victim was prejudicial raped.” effect." Syllabus provides: of Dolin Point 9 Syllabus McCoy 8. The full text of Point 2 of customary give jury limiting “It is states: regard consideration of instruction with to its generally expert testimony regarding "Qualified a collateral crime. This instruction rape provides that the evidence of a collateral syndrome trauma is relevant and admissible proof crime is considered as prosecution rape not to be in a where the defense is guilt present charge, but expert may testify defendant’s on the consent. The that the al- deciding giv- leged be considered in victim exhibits behavior consistent with present rape syndrome, expert may en issue or element relevant to the charge trauma but the proven. a defendant give opinion, expressly implicitly, has been When instruction, requests limiting must be alleged this or not victim was to whether given.” raped.” majority’s opinion, 183 7. Footnote 24 of the complete Syllabus Point 7 is: 9. The text “We W.Va. at 398 S.E.2d at states: permissi- clarify holding "Expert psychological McCoy limited in that Hence, involving physician can ble in cases incidents of child sexual the facts of that case. question *23 majority’s statement mate the reconcile the cannot findings” might sexually had abused. The child been ex- “physical 24 that footnote pert only testified that the child exhibited that sexual physician a to conclude enable characteristics consistent with sexual shift to the had occurred with its abuse Moreover, 25, in footnote findings” Syl- in abuse.10 183 phrase “objective broader 658, 140, majori- W.Va. at 398 S.E.2d at the 7. Point labus suggests ty incorrectly that the Minnesota psychologist, Mr. Trai- In this the the prosecutor’s court sanctioned elicitation nor, years did see the children until two not expert’s opinion of as to the the truthful- alleged incidents. He the abuse after line questioning ness of the victim. This of the physical no examination of chil- made only sanctioned because the defense not there and did state that were dren challenged credibility during the victim’s findings with sexual physical consistent cross-examination.11 Instead, testimony Mr. abuse. Trainor’s of the children and about his observation only permitted expert Myers quite behavioral characteristics was their explain often the erratic and ambivalent McCoy. He to that condemned in similar sexually Sig- of children. conduct abused opinion the chil- gave permissible nificantly, Myers opinion ap- the cites with syndrome. from child dren suffered abuse proval Saldana, the earlier case of State v. However, point this beyond the State went (Minn.1982), 324 227 N.W.2d where the if, directly Mr. in his and asked Trainor Supreme expert Minnesota Court ruled that opinion, sexually the children had been testimony regarding rape syn- trauma abused; responded in he the affirmative. drome was because such “tes- inadmissible timony jurors, furnishes no assistance McCoy, the conviction was reversed capable expert as in who are as the assess- expert indicated that the victim because the credibility alleged ing rape the of the adult raped. type this had been Not does N.W.2d 610. The victim.” 359 Minneso- opinion credibility of bolster the unfounded Supreme simply did Myers ta Court in point testimony, a that we em- the victim’s rule, espoused by adopt majority, the where, here, McCoy, as phasized in but psychological expert opine can that a undisputed, it identity perpetrator physically child victim has been abused. prove is- purports directly the ultimate Furthermore, guilt. of the sue of because Kim, majority The also cites State v. 64 credentials, opinion carries expert’s (1982); however, P.2d Haw. 645 1330 legitimacy stamp of scientific with solely expert testimony case dealt this obviously weigh heavily upon will which credibility of child abuse regarding the jury. Myers, per- the Kim court victim. As testimony only after the defen- authority for mitted majority offers scant credibility. chiefly on dant had attacked the victim’s position. new It relies State its credibility (Minn.1984),in The same issue was involved 604 Myers, 359 N.W.2d v. Middleton, Or. P.2d expert was not asked the ulti- State which psychological may opinion emotional characteris- expert an and abuse an state comports psy- typically sexually with the observed in abused chil- to whether child tics profile chological complainant of a child and behavioral dren and those observed victim, opinion offer an background providing abuse giving other data findings objective has child based on insight conduct and demean- relevant into the expert may sexually Such an abused. been jury complainant which or personal- give opinion he as to whether an bring to evaluation of could not otherwise child, opinion ly nor as to believes credibility.” her sexual assault was committed whether the defendant, improperly and as these would Syllabus Myers the Minnesota Point 5 of province jury.” prejudicially invade the opened the door to stated: "Defendant court Myers regarding the Syllabus demonstrates this truthfulness Point 4 of allegations by eliciting opin- complainant’s point: complainant’s about the truthful- mother ion the trial court's discretion "It is within daughter’s allegations.” testimony describing expert of her qualified ness admit Geyman, (1983), ing turned into contests between what (1986), oath-helpers P.2d also cited would amount to modern Mont. majority. largely usurp fact-finding The same cases relied on by the who would State v. Mor- majority judge were used the Ohio jury. function of Timperio, an, Appeals Court of 151 Ariz. 728 P.2d App.3d N.E.2d 594 overwhelming majority Ohio issue, credibility expressly talked about the impliedly reject- courts have *24 Kim. implications to discuss of the join failed ed We these courts and hold expert’s opinion 608(a)(1) that the child had been rule bars admission of an sexually abused. expert’s as to the truthfulness particular of a witness on a occasion.” reliance on Kim Certainly, majority’s omitted).13 (Footnote Indeed, misplaced. majority does not credibility attempt any analysis of the issue impossible majority’s opin- It is from the appropriate beginning point, any degree accuracy under ion to state with of 608(a), limits attacks W.Va.R.Evid. which I what its view is on this issue. take some credibility “to evidence in the form of Syllabus on comfort from the of last sentence opinion reputation, subject or but to these majority 7 that does Point not sanction (1) may only refer expert expressing opinion limitations: an an as to the for truthfulness or untruthful- credibility: expert may character child’s an “Such Indeed, Supreme give the Utah opinion personally an as to whether he ness[.]”12 Rimmasch, 775 P.2d 388, Court in State v. child, opinion believes nor an as to (Utah 1989), sharply critical of 392 the sexual assault was committed Kim’s analyze properly failure Rule defendant, improperly as this would 608(a): prejudicially province invade the of the 608(a)] represents important jury.”14 Certainly, as illustrated an

“[Rule Supreme policy prevents analysis choice: trials from be- Utah Court’s careful Walker, 608(a) (1981); 597, People v. Mich.App. full of W.Va.R.Evid. is: 150 12. The text Jackson, 704, (1985); State v. 389 N.W.2d 707 and Conduct of “Evidence of Character 463, 470, 232, (1986); 239 Kan. 721 P.2d Witness, 238 (a) Opinion Reputation Evi- 604, Myers, (Minn. v. 359 N.W.2d 611 credibility of a wit- dence Character. —The 235, 1984); Taylor, State v. 663 S.W.2d 239 supported by or evi- ness be attacked J.W.K., (Mo.1984); re Mont. 724 [223 1] opinion reputation, or dence in the form State, 164, (1986); Townsend v. P.2d 166 103 subject to these limitations: 113, 705, (1987); People v. Nev. 734 P.2d 709 (1) only may refer to character the evidence Reid, 1084, 1087, 123 Misc.2d 475 N.Y.S.2d untruthfulness; (2) for truthfulness 741, (1984); Staples, State v. 743 120 N.H. is admissible evidence of truthful character 278, 281-82, 320, (1980); State v. 415 A.2d 322 of the after the character witness Heath, 337, (1986); 316 N.C. 341 S.E.2d 565 by opinion truthfulness has been attacked Milbradt, 621, 628-29, State v. 305 Or. 756 reputation evidence or otherwise.” Seese, 620, (1988); Commonwealth v. P.2d 624 Rimmasch, 392, 439, 920, (1986); P.2d at State v. In note 2 of 775 512 Pa. 517 A.2d 922 Castore, jurisdictions 321, Supreme (R.I.1981); Court listed State v. Utah A.2d 435 326 credibility 652, 656-57, Fitzgerald, Kim’s rejected have rule: Wash.App. 39 694 P.2d Haseltine, 1117, (1985); State v. 1121 120 Azure, 336, "E.g., United States v. 801 F.2d 92, 96-97, 673, (1984); Wis.2d N.W.2d 676 Binder, 352 (8th Cir.1986); United States v. 341 State, 1110, (Wyo. Brown v. 736 P.2d 1115 595, Cir.1985); (9th State v. 602 769 F.2d Earley, 1987); see United States v. F.Supp. Moran, 382-86, 248, 505 378, 728 P.2d 151 Ariz. Black, (S.D.Iowa 1981); State v. State, 632, 117 537 A.2d (1986); Johnson v. 292 Ark. 252-56 Buell, 1154, (Me.1988); State v. 1156-57 22 639-40, 817, (1987); People 732 S.W.2d 819-21 124, 795, 803-04, Roscoe, cert. 1093, 1098-99, Ohio St.3d 489 N.E.2d 871, Cal.App.3d 168 215 denied, 240, 45, 479 U.S. 107 S.Ct. 93 L.Ed.2d People, (1985); Tevlin Cal.Rptr. 49-50 151, Logue, (1986); State, State v. 338, (Colo.1986); 165 372 N.W.2d Wheat 715 P.2d 341 Feeney, Expert Psy (S.D.1985); State, see also 269, (Del.1987); 157 Kruse v. 527 A.2d 275 1383, Issues, chological Testimony Credibility (Fla.Dist.Ct.App. 483 So.2d 1387-88 121, (1987) State, (discussing 575, 1986); Mil.L.Rev. 134-35 Simmons v. 504 N.E.2d courts)." military 91, prohibition (Ind.1987); same Myers, State v. 382 N.W.2d Carter, (Iowa 1986); Commonwealth v. 680, 681-82, 7, Syllabus see note Mass.App. 403 N.E.2d 14.For the full text of Point (1980), aff'd, supra. Mass. 417 N.E.2d 438 period tíme, general Rimmasch, not be such that their expert should able acceptance give opinion community the truthfulness of in the scientific as to judicially can be noticed.” the victim. permit- have

Finally, while some courts adoption Since W.Va.R.Evid. expert testify that a qualified child ted a acknowledged adoption we symptoms displays of sexual abuse victim may have the admissibility liberalized typical profile, there is abuse scientific v. Armstrong, tests. See State agreement expert universal almost (1988); 179 W.Va. 369 S.E.2d 870 express an is not entitled either to v. McCoy, 179 W.Va. the victim or to

as to the truthfulness of most recent Our state, findings, physical in the absence Woodall, 182 W.Va. S.E.2d sexually the child has abused.15 been approach sets forth the used under is, position simply put, majority’s Syllabus W.Va.R.Evid. 702 Points 1 and wrong. 2: *25 W.Va.R.Evid., 702, “1. Under Rule

IV. expert testimony concerning generally recognized presumptively tests is admis- point the ma- Yet another overlooked excluding sible and of such the burden of jority question is the threshold testimony upon seeking the side is exclu- expert’s testimony regard to the with However, sion. when a test novel or is syndrome necessary abuse had the accepted, that generally circumstance degree reliability of scientific render requirement alone meets the threshold of This unfortunately admissible. issue was rebutting presumption any of admissibili- at trial is not raised defense counsel and, therefore, ty under Rule part of the assistance of counsel ineffective regard generally to tests that are not VI, I claim that discuss in Part infra. accepted proof of the burden that majority The instead cites W.Va.R.Evid. proponent. test is remains on reliable 702, generally permits expert which testi- appellate “2. When senior courts if of mony it “will assist the trier fact to generally have concluded that a test is understand the evidence or to determine a accepted by community, scientific a in have never fact We inter- issue[.]”16 judicial may trial court take notice of a open preted W.Va.R.Evid. 702 as an door to reliability.” test’s any supposed testimony admit scientific case, present In the the State made no inquiry reliability. without some into attempt reliability of adoption demonstrate Before the of W.Va.R.Evid. profile.” the so-called “child sexual abuse general rules on we formulated two Syllabus in admissibility of tests scientific Supreme The Utah Court addressed this Clawson, 7 and 8 of Points Rimmasch, precise in issue (1980): 270 S.E.2d 659 W.Va. observing P.2d at there was In order test “7. for a scientific to be “unanimity legal any of in the absence admissible, gener- initially there must be community reliability to the inherent of acceptance principle of al the scientific profile a child sexual abuse to show that underlies the test. actually respect has occurred with abuse specific alleged court in There are scientific victim.”17 The

“8. certain tests surveyed scientific widely long over a Rimmasch literature that have been used supra. in the form an 15. See cases cited in note thereto otherwise.” complete 16. The text of W.Va.R.Evid. states: following cited the au- 17.The Rimmasch court scientific, "Testimony Experts. If tech- thorities for this statement: nical, specialized knowledge or other will as- Kim, "Compare 645 P.2d Haw. sist the trier fact to understand the evi- issue, (1982) (admitting); Kruse v. dence or to determine a fact in a wit- 1338-39 State, (Fla.Dist.Ct. by knowledge, qualified expert 483 So.2d 1385-86 ness skill, as an Roscoe, (admitting); App.1986) People experience, training, ... or education (1985) (compilation 705-08 came to these conclusions studies this area and abuse); [Note, on victims of sexual reversing the conviction: Unreliability Expert Testimony on is there a lack of con- “Not Typical Characteristics Sexual ability profile of the sensus about Victims, 74 Geo.L.J. Abuse at 439- 429] abuse, but the scientific litera- determine (Footnote [(1985)]” 775 P.2d at 401. as to the relia- ture raises serious doubts omitted).18 used bility profile when attempt In this the State made no purposes to demonstrate forensic reliability expert establish the testi- actually ac- occurred. Scholars abuse Clawson-Woodall mony under stan- knowledge uniformly that no identifiable admissibility.19 dard for sexually profile applies to psychological children as a class.... abused V. then, say, the litera-

“Suffice it to disparate majority and contra- has also mishandled the ture the area experts hearsay recounting have mother’s dictory and that child abuse agree addressing her son her. unable to on a universal what told been abuse, espe- symptomology of sexual mother’s recitation of her son's out-of-court statement, precise majority says cially symptomology suf- it “must look requirements ficiently confidentially used under reliable to be ... 803(24)” setting quotes gener- forensic as a determinant of R.Evid. and then *26 The v. Cerkovnik, See Sexual language Syllabus al of Point 5 of abuse. Research, Smith, Myths, Abuse 104, Children: 178 W.Va. 358 S.E.2d 188 of Policy Implications, and (1987).20 citation, Dick.L.Rev. From its I think that 89 at 1098-1101, 1093, Cal.App.3d Cal.Rptr. Myers]. Golding, 215 See also Health Pro- [Mental 168 Hudnall, 45, (1985) (excluding): Exper- State v. 59, and the The 49-50 Courts: Ethics fessionals of 97, 100, (1987) ], 6, [_Int’l Psychiatry 293 S.C. 359 S.E.2d 61-62 J.L. tise note at 32 n. Pullins, Mich.App. (excluding); People 414, [(1989)] ('Currently, strong 145 8 absent certain 420-21, 502, (1985) (ex- 378 N.W.2d 505 physical signs (e.g. presence of venereal dis- 235, cluding); Taylor, trauma), see State v. 663 S.W.2d vaginal ease or blatant or anal there (Mo.1984) syndrome (rape trauma evi- 240-42 scientifically acceptable are no scientific data occurred); prove rape dence inadmissible to profiles” upon psycho- on "sexual abuse based Myers, Child Witness Law and Practice [J. ] data.’)” logical 4.16; Comment, Syndrome Testimony in § The Child Abuse Prosecutions: Wave Woodall, of empha- 19. In both Clawson and we Future?, 207, U.Pub.L.Rev. 8 St. Louis 218 reliability sized that even where the of the test is Comment, (1989); Admissibility Expert The of recognized, generally it must also be shown that Involving Psychological Testimony in Cases proper the test was conducted in a manner Child, Sexual Misuse 42 U-Miami L.Rev. of 3, qualified expert. Syllabus Point See 1033, McCord, (1988); Syndromes, 1048-50 Woodall, Clawson, supra; W.Va. at 165 and Other Mental Exotica: A New Profiles 620, 270 S.E.2d at 677-78. Approach Admissibility to the Nontradition- Cases, Psychological al Evidence in Criminal Syllabus Point states: 5 of State v. Smith 19, (1987)." 66 Or.L.Rev. 41 775 P.2d at 400. 804(b)(5) language "The of Rule of the West Rimmasch, 401, 18.In footnote 10 of 775 P.2d at Virginia Rules of Evidence and its counter- given: these authorities were 803(24) general part requires in Rule that five hearsay must factors be met in order for "The views of a number of these scholars evidence to be admissible under the rules. McCord, length Psy- Expert are set out at in important First and most is the trustworthi- chological Testimony Complain- About Child statement, equiva- ness of the which must be Foray ants in Sexual Abuse Prosecutions: A underlying spe- lent to the trustworthiness Admissibility into the Novel Evi- Scientific Second, exceptions hearsay dence, cific rule. Criminology 77 J.Crim.L. & 18-24 McCord, prove (1986) the statement must be offered to a ma- 77 J.Crim.L. & [hereinafter Third, Note, the statement must Criminology]; terial fact. be Unreliability The Ex- probative shown to be more on the issue for pert Testimony Typical on the Characteristics Victims, any which it is offered than other evidence Sexual Abuse 74 Geo.LJ. 440- (1985) Note]; reasonably procure. Georgetown proponent the Fourth, can and [hereinafter Myers, admission of the statement must com- in J. Witness Law and Practice Child 4.15, (1987) port general purpose at with the of the rules of § 151-52 & n. 107 [hereinafter Smith, ing. where we discussed this majority agrees that the mother’s least exception counterpart, and its Rule of her son’s out-of-court state- recitation 803(24) 804(b)(5), hearsay. we warned “that Rule ments was 804(b)(5) open cannot be viewed as an door age-old rule is that a witness’s in- hearsay to thrust into a trial.” statements about out-of-court state court at at Our ment, prove the truth of the if offered to corresponding is feder- rule identical asserted, is hearsay, is matter rule al of evidence. The notes the Sen- merely because the declar- made admissible Judiciary ate Committee as to the for cross-ex ant testifies and available scope residuary exception intended The Second Circuit Court of amination. telling: are Pedroza, United States v. Appeals “It is intended that the hear- residual denied, cert. (2d Cir.1984), F.2d say exceptions very rarely, will used States, Pelaes United 479 U.S. exceptional circumstances. (1986), quoting L.Ed.2d S.Ct. intend committee does not to estab- States v. United its earlier decision from judges to lish a broad license for trial Check, (2d Cir.1978), 582 F.2d hearsay admit statements that do not fall analysis: agreed with this “ exceptions con- within one other recognize courts federal do ‘[T]he 804(b). tained in Rule 803 and The resid- rule, or, exception hearsay exceptions ual are not meant authorize except the limited circumstances set major judicial hearsay revisions of the 801(d), any in Fed.R.Evid. exclusion forth rule, including present exceptions. hearsay, the definition of from are major Such revisions best accom- relating permit in court would legislative plished by action.” Commit- prior of a out-of-court statements 93-1277, S.Rep. Judiciary, tee on the No. merely witness witness because the Paragraph Note F.R. U.S.C.A. available trial cross-examination Evid. 583 subject concern- to cross-examination ” 21 *27 ing those statements.’ Kim, 595 E.g., States v. 755 United F.2d Bailey, States v. (D.C.Cir.1979); United Davis, People Ill.App.3d See also v. 130 (3rd Cir.1978). 581 F.2d 341 (1984); Daly Ill.Dec. N.E.2d 387 State, (1983); 665 P.2d 798 Nev. declarant, this case out-of-court (Utah Velasquez, 672 P.2d son, testify. and did was available 1983). ne- Consequently, absolutely there was no cessity to the Furthermore, to have mother any attempt I believe that is true exception child’s out-of-court statements. It hearsay in to utilize residual standpoint, 803(24) purely that a technical to shoehorn the moth- from W.Va.R.Evid. 803(24) require that admissibility is unavail- W.Va.R.Evid. does er’s into Fifth, ny express justice. im- is offered to rebut an or interest of evidence and the plied charge against recent him of fabrication adequate must be af- notice of statement motive, (C) improper one provide party or influence or or party a forded other per- person of of a made after identification opportunity to meet the evidence." fair him; ceiving or provisions in our Rule 21. We have the same (2) Party-Opponent. by Admission —The 801(d) provides that out-of-court certain (A) against party a and is statement is offered hearsay. W.Va.R.Evid. are not statements statement, or either his individual his own in 801(d) provides: (B) capacity, representative or a statement a "(d) Hearsay. adoption Which are not his or Statements he has of which manifested —A truth, hearsay (C) by if— statement its or a statement belief in by (1) person Witness.—The de- a state- Prior Statement authorized him make (D) hearing concerning subject, trial and is or a state- testifies at the or clarant ment concerning concerning agent subject statement, his or servant to cross-examination ment (A) agency scope or em- within the of and the statement is inconsist- matter ployment, during testimony, given the existence of under made and was ent with (E) relationship, a co-con- subject penalty perjury a statement at a oath trial, party during in proceeding, spirator the course and of a hearing, or in a or other conspiracy." (B) deposition, with his testimo- furtherance consistent unavailable, play in these circumstances. declarant be into We must the out-of-court in remember that our rules of evidence counterpart W.Va.R.Evid. also as does Nevertheless, for all cases and must be more 804(b)(5). several courts are written in narrowly construed the criminal than in occasion to consider this have had This is because in a crimi- held that there is an the civil arena. particular point have testify, does not unavailability. nal case where the victim implied requirement of Amendment Confrontation Clause Sixth language in implication arises from This consideration would arise. None of the 803(24) proponent that the W.Va.R.Evid. majority’s cases held that a Confrontation statements must demonstrate out-of-court occurred, violation had but none had Clause probative statement “is more Supreme the benefit of the United States offered than point for which it is Wright, Idaho v. Court’s recent decision proponent can other evidence which —, 110 111 L.Ed.2d 497 U.S. S.Ct. procure through reasonable efforts.” type which decided that Mathis, Thus, F.2d United States of situation the Confrontation Clause (5th Cir.1977), the court found that violated. admitting judge erred in an extra- the trial Renville, States v. United of an available witness 779 F.2d judicial statement (8th Cir.1985) 803(24): typifies the confusion that under Rule addressing this is- can be encountered “Although introductory clause of sue. Renville involved dep- of a appears dispense with avail- Rule 803 uty sheriff who offered the out-of-court analy- re-enters the ability, this condition identifying statement of the child victim sis of or not to admit statements the defendant as the abuser. victim under the last subsection of into evidence also testified to this fact at trial. The requirement Rule 803 because of the any responsibility defendant denied for the proponent efforts to use reasonable court, finding act. The instead of that the probative evidence on procure the most out-of-court statement was one identifi- sought proved. Rule points to be cation and thus under admissible W.Va.R. 803(24), thus, requirement has a built-in 801(d)(1)(C),22proceeded Evid. to discuss necessity. Here there was no necessi- the trustworthiness statement ty to use the statements when the wit- 803(24). under W.Va.R.Evid. ness was within the courthouse.” confusion, majority’s opinion Besides Taylor, 684 F.2d 1193 also Steele v. See majority demonstrates that the fails to un- denied, Cir.1982), cert. (6th 460 U.S. extremely purpose derstand the limited 1501, 1502, (1983); L.Ed.2d 932 103 S.Ct. *28 hearsay exception. the residual Where the State, 515 So.2d 869 (Miss. Cummins v. out-of-court declarant is to tes- unavailable State, supra; 1987); Daly v. State v. tify, provides key piece but his statement Smith, (1985); 337 S.E.2d 833 N.C. evidence, absolutely it is crucial to deter- supra. Velasquez, mine whether the strictures of W.Va.R. majority The cases cited for the then, 804(b)(5) Evid. can be met. Even it is exception to proposition that courts use gravely doubtful that Amend- Sixth 803(24) par- permit third W.Va.R.Evid. question ment confrontation can also be testify out-of- ties to to child abuse victims’ v. See Idaho satisfactorily resolved. persuasive. court statements are not Wright, supra. Dorian, 803 F.2d 1439 United States v. Robinson, v. (8th Cir.1986), Ariz. I cannot conceive that W.Va.R.Evid. 803(24) designed provide a means of 735 P.2d 801 Brown, 1983), (Iowa corroborating the in-court of a 341 N.W.2d 10 incompetent by permitting parties third come child victims found witness were and, therefore, testify “unavailable.” forward at trial and that the witness 804(b)(5) story prior have come had told them a similar in a W.Va.R.Evid. would 801(d)(1)(C), supra. of W.Va.R.Evid. see note For full text Had that been majority out-of-court conversation. strictures the rule. The over- rule, certainly could in Idaho Supreme the intent of the it looks the Court’s Wright, supra, expressed. have been better which dealt with Idaho’s 803(24). counterpart to Rule The issue be- sought daresay I if a defendant that Supreme fore the Court involved the Con- tactic, rejected. use this it would be This frontation Clause because the child victim point aptly Mississippi is illustrated in two testify.25 did not Her statements about the Supreme announced one Court cases within alleged sexual abuse were related at trial State, Clanton month of each other. pediatrician. Supreme Court’s (Miss.1989), reject- 539 So.2d 1024 the court analysis striking parallel bore a to the re- ed the defendant’s efforts to introduce two quirements 803(24): of W.Va.R.Evid. police out-of-court statements he made officers he had wherein said that victim question presented “The crux of the consented to have sex with him. The court State, pro- therefore whether the as the rejected the statements because were ponent of presumptively barred hearsay and de- were consistent hearsay rule and the Confronta- testimony.23 fendant’s trial The defen- Clause, tion has carried its burden of 803(24) dant’s reliance on Rule was dis- proving younger daughter’s in- missed almost out of hand. “Clanton over- criminating statements to Dr. Jambura 803(24)(B) requires looks which ‘the reliability bore sufficient indicia of point probative statement is more on the scrutiny withstand under the Clause.” is offered than other evi- —, at U.S. 110 S.Ct. at proponent produce dence which the can L.Ed.2d at 652-53. ” through reasonable efforts.’ 539 So.2d at Supreme began The United States Court analysis by recognizing that Rule State, Mitchell v. hand, On the other 803(24) firmly hearsay is not “a rooted (Miss.1989), 539 So.2d 1366 the issue was exception ... satisfies the constitu- [that] whether two witnesses to whom the child requirement reliability tional because of story victim had related her could abuse weight long-standing judicial accorded testify as to these statements. The child legislative experience assessing victim testified at trial. The court conclud- types trustworthiness of certain of out-of- ed these statements had admitted been —, court statements.” at U.S. wrong theory, suggested under a (Cita- S.Ct. at L.Ed.2d at 653. upon proper analysis they might be ad- omitted). Supreme tions Court went Mississippi’s counterpart mitted under on to determine that the State must show 803(24).24 disparate Rule I find this treat- “particularized guarantees of trustworthi- disturbing. ment irrational and —, ness.” 497 U.S. S.Ct. at “ Finally, I if believe that even we assume 111 L.Ed.2d at 655. ‘The circumstantial 803(24) applicable, guarantees that W.Va.R.Evid. of trustworthiness on which the specific exceptions hearsay evidence in this case does not meet various *29 Clanton, 23.The court reasoned in 539 So.2d at 24. The Court's remarks in Mitchell were: "[On 1028, remand], as follows: upon it will be incumbent the trial hearsay. judge proceeding “These statements Ordinari- from the court before him to were decisions, ly, prerules under would have hearsay first determine and find that the testi- been inadmissible even if Clanton had testi- fied, mony is not otherwise admissible under M.R.E. attempt as an to bolster his testimo- 803, 803(24).” qualify but could under 539 ny. ... This has been carried over into the omitted). (Citations So.2d at 1371. Mississippi Rules of Evidence. Rule 613 rec- ognizes prior inconsistent statements standpoint, 25. From a technical the trial court's may impeachment purposes, be used for finding incapable that the child victim was prior consistent statements cannot be used to testifying rendered the witness unavailable. And, bolster a when a witness witness.... circumstances, 804(b)(5) these W.Va.R.Evid. testifies, prior consistent statements are like- play. would come into Both this rule and inadmissible, except special wise circumstances, in rare and however, 803(24), W.Va.R.Evid. are identical as present none of which are to the criteria that have to be met. (Citations omitted.) here.” spoke neigh- those that existed at the She about behavior to a are based are rule bor, baby-sit and do agreed the statement was made not who to her two other time by using bath, be giving include those that added children. her son a While ” —, at 110 S.Ct. at hindsight.’ 497 U.S. why bouncing asked mother then he was 655, 3149, at quoting 111 L.Ed.2d down, he up “daddy told her that Huff (7th 286, Corp., Motor F.2d White it, good.” me do it feels She then told Cir.1979). if inquired daddy anything had done said or The else. mother testified that child Following point, Supreme Court he stated could not tell her. She asked if point pains to out that the Wright in took neighbor, he could “Aunt Kika.” tell possess must indicia of relia- “evidence ... According mother, child’s by of its inherent trustworthi- re- bility virtue was, “well, ness, by to other evidence at sponse daddy say not reference didn’t I —, at at 497 U.S. S.Ct. nobody except you, mommy[.]” trial.” couldn’t tell (Citations omitted). 111 L.Ed.2d at The then asked “Aunt Kika” mother Wright in majority’s rejection Idaho v. room, and, according into come corroborating evidence of consideration mother, then the child disclosed reliability of out-of-court enhance the abuse incident.26 sparked majori- the dissent. The statement begins suggested If analysis as unequivocal statement: ty made this Supreme Wright, that “the Court Idaho short, corroborating “In use of evi- properly presumptive on the focused unreli- support hearsay statement’s dence ability statements[,]” of the out-of-court ‘particularized guarantees of trustwor- —, 497 U.S. at at S.Ct. pre- permit admission of á thiness’ would L.Ed.2d then little to at there is lend by sumptively statement boot- unreliable any reliability to the declarant’s statement. strapping trustworthiness of other on the after statement was made soon trial_” —, at at 497 U.S. spontaneous It event. even 3150, 111 at 110 S.Ct. L.Ed.2d at sense, made a volunteered because it hearsay exception Because embodied interrogation by came about as a result of 803(24) has no historical W.Va.R.Evid. Supreme the mother. The Wright Court trustworthiness, pre- it is guarantee of special emphasis point placed on this latter to over- sumptively unreliable. order by stating possible that “we note that it is presumption, a statement come this before prior there is evidence of interro- ‘[i]f under will be admitted W.Va.R.Evid. gation, prompting, manipulation 803(24), test it must meet the strict adults, spontaneity may an inaccurate Wright. ” indicator of trustworthiness.’ atU.S. problem reci- Another with the mother’s —, 659-60, 111 L.Ed. at S.Ct. story is that no one tation the son’s Robinson, Ariz. quoting State v. attempted elicit coherent statement 735 P.2d According said to her. of what I am convinced that there is no evidence October, testimony, in the mother’s trial compel son, the conclusion that the child’s 1984, she noticed her who was then “particu- statement to the mother had the bouncing years age, “constantly five guarantee floor, larized of trustworthiness” nec- at times I’d catch him ridin’ the 803(24) arms, and, essary to just I knew it wasn’t natu- admit under Rule as chair ral.” circumscribed the Confrontation him, mother, sex, any, story, maybe oral I asked well 26. The child's related so *30 [E.L.], daddy put was: at time did his did put georgie, opened up daddy your and said had his mouth on and he said mom- “[H]e hurt, daddy georgie in butt and it and had my, his I told him not to that brown stuff in with hurt, daddy put finger mouth, well, snuff, cried, butt in his and it he Ed used [E.L.j's georgie, meaning played my it, had georgie, with point, my only at at this I lost concern white, daddy’s georgie peed I’m until God, my help.” my time son needs get year tryin see if on a five level to there conditions, physical including causative guarantee This of trustworthi- Clause.27 admitted, factors, primary always factor been be as the is set out ness Smith, supra, patient 5 of has a selfish interest Syllabus Point cause requirement appro for admissi- speak truthfully outlines in order to receive which 803(24): “First and most under Rule bility priate treatment. This “self interest” of the is the trustworthiness important guarantees the trustworthiness of the out- equivalent to the generally must be See statement which statements. E. of-court specific ex- underlying the (3d McCormick on Evidence § trustworthiness Cleary, hearsay rule.” ceptions to 1984); Annot., (1971 37 A.L.R.3d 778 & ed. recognized exception Supp.1990). We this VI. Point 8 of Sutherland v. Kro Syllabus approval rush to throw a blanket its Co., ger 144 W.Va. 110 S.E.2d 716 psycholo- hearsay testimony of the over the (1959).30 Trainor, majority misunder- gist, Mr. adoption of Prior to the W.Va.R.Evid. 803(4), purpose of W.Va.R.Evid. stands the 803(4), consistently courts held that state- physician involving made to a statements patient nontreating by ments made to a diagnosis or treat- purposes of medical for patient for physician who examined the Sylla- two-part test set out ment. The purposes of trial were not admis- opinion miscon- majority 5 of the bus Point generally Cleary, supra sible. See E. requirements of the rule.28 ceives the Syllabus 293. We adhered to this view § 803(4) is language of W.Va.R.Evid. initial Point 9 of Sutherland.31 purpose for “[sjtatements made diagnosis or medical treatment[.]”29 803(4) and adoption of Fed.R.Evid. accompanying explana- committee note by the dis- its language indicates As broadening “or,” has resulted in a of this are two alternate tion junctive there statements by phy- hearsay exception to include permitting testimony a grounds for pur- physician consulted for the by pa- him made to a of statements made to sician is treating pose diagnosis when no treatment to a patient’s A statement tients. gener- anticipated by the declarant.32 See past present mental physician as to 27. Part 29. The full about the record in answered most actually much more elaborate statements states: or no. promoting the statement ments must be consistent relied statements (1) hearsay diagnosis." Diagnosis or Treatment. available ment and Syllabus Point 5 of the "The “(4) "The present the declarant’s what the child victim purposes ^[******] of the upon Statements two-part following rule, from adults text of W.Va.R.Evid. as a witness: describing pursuant to W.Va.R.Evid. treatment, symptoms, pain, about. this case where both problem of medical must be even test motive in physician in treatment or are not excluded for them the victim is able to questions with either set for though This is demonstrated medical such as is Purposes of Medical with with the told them is diagnosis (2) admitting hearsay majority Statements made making admitting their history, the content 803(4) is: sensations, declarant purposes of reasonably the state- or treat- children 803(4) is usually or such past yes by or 30. 32. The 803(4) ment.” reasonably pertinent adas. be based cause or external source patient for treatment fy hearsay for the made patient with ness, toms, disappears.” clusions doctor who examines Syllabus Syllabus "Where an examination “It is a well "Conventional doctrine as to his medical hearsay exception, patient inception Advisory state in material within the for the purpose purpose rule that based on exception on the Point 8 of Sutherland Point 9 may testify regard Committee purpose or of treatment but recognized exception history given regard of Sutherland states: doctor-patient a general using doctor conclusions, history as to part: of treatment as not within subjective symptoms.” patient the doctor as notes to hearsay diagnosis has excluded thereof insofar as by character who examines a his medical con- subjective given a doctor is for states: made relationship Fed.R.Evid. him the rule, purpose to him may or treat- of the by symp- solely a wit- guar- from testi- *31 674 Mosteller, began conclude that Mr. Trainor his Abuse “treat- R. Sexual

ally, Child foregone “diagnosis” Medi- ment” with his con- Purpose For the and Statements Treatment, clusion. 67 N.C.L. Diagnosis cal (1986). majority I think the has 257 Rev. expressed courts have concern Other separate, alternative grasp failed very young where children are in available under grounds W.Va.R.Evid. competence volved whose testimonial is 803(4). failure from its reliance This stems findings questionable, physical and no (4th Foretich, 846 F.2d 941 Morgan on involved, physician’s are abuse testimo Cir.1988). two-part Morgan followed supposedly ny as to statements made Renville, set out test United States the children not be admissible. At (8th Cir.1985), joins F.2d 430 779 age, young can lack the their children ma grounds admissibility to alternative appreciate turity to the link between their test,33 in which two-part a combined make treatment. Cassidy statements i.e., roles, physician may occupy both as State, Md.App. 74 A.2d cert. treating physician as one who also denied, Md. 541 A.2d 965 diagnosis. gives a required courts Colorado State to legal very young majority’s from the incorrect demonstrate camera Aside reading obligation my pro I of Mr. children understand the analysis, doubt from rambling of his contact vide the doctor with accurate information Trainor’s account treating for the the children that he was a order statements be admissible with attempt counterpart not under physician. State did W.Va.R.Evid. 803(4). 732 P.2d People, a foundation that he was a treat- See Olden v. establish (Colo.1986); by showing People, treatment ing physician what W.C.L.v. P.2d 176 Likewise, (Colo.1984). actually he rendered. attempt to isolate what statements

did specifically Trainor Mr. was never direct- actually him. the children made to separate to define his ed role or to what the testimony suggests actually that on him from Mr. Trainor’s children told what their case, the sexual mother said that told. his first contact with the she had been Fur- told he story was to him mother. ther confusion arose when discussed abuse children, general began to with the characteristics of the abuse He then work syndrome explaining the son not able to particularly who was without Certainly, present in hand. I the abuse.34 the were the case at dis- talk about deficiency of given to Mr. Trainor cussed the foundation mother’s statements III, son her do in Part Defense supra. what her had told coun- about pertinent patient’s objections statement under sel made no qualify 803(4). help points. I cannot these W.Va.R.Evid. truthfulness, physi- highly opinions to a take in two antee of statements influential from purpose Appeals cian consulted abling for the en- the United States Court of for the Circuit, Shell, testify. Eighth these him to While statements States v. Iron United evidence, denied, (8th Cir.1980), were not admissible as substantive F.2d 77 cert. U.S. expert basis of was allowed to state the S.Ct. L.Ed.2d [101 203] including Renville, opinion, statements of kind. and United States v. 779 F.2d 430 Cir.1985). See, Foretich, one (8th The distinction thus called for was most e.g., Morgan v. by juries. unlikely Cir.1988).” (4th to be made The rule ac- F.2d 949-50 rejects position cordingly the limitation. This provision Rule consistent with the is 34. Mr. Trainor’s was: expert the facts on which I, a, when, "[I]nitially, we had I when when need not be in evidence if based admissible my had first contact with the much of ordinarily upon by experts in a kind relied a, story family had been told to to a friend field.” repeated by, by Mrs. and it was to me [L.]. started, area is

33. The courts’ confusion in this dis- got great When we first had a [E.L.] Mosteller, supra it, R. at 274 n. 68: cussed in talking thing deal of trouble about one joining commonly happens sexual abuse “The error committed here of requirements two cases disclosure, suppression relatively is a one after a there is a common courts, arising typically phase[.]” same from the mis- *32 testifying, though

VII. while even the witness jury. could be observed We fol- A. Coy’s in Syllabus lowed dictates Point 5 of majority brushes aside the defen- 41, v. Murray, 180 W.Va. 375 S.E.2d (1988): dant’s claim of ineffective assistance of 405 However, replete

counsel. is record Iowa, Coy [1012], “Under v. U.S. only with incidents where counsel not 2798, (1988), 108 S.Ct. 101 L.Ed.2d 857 object matters, evidentiary failed to Blair, and State ex rel. Grob v. might also to substantive issues that well 647, (1975), 214 S.E.2d 330 produced a different result at trial or right to confrontation assured Const, appeal. addition, ques- on this In counsel Sixth Amendment and W.Va. art. Ill, tioned faulty witnesses such a manner as 14 is violated where a witness tes- § prosecution to award the tifies at trial and the an erroneous and defendant is denied opportunity to confront advantage. impossi- unwarranted I the witness find it face-to-face.” ble to conclude that counsel’s error can be away

washed strategy under the rubric of acknowledged Supreme We in Murray the and tactics. Coy Court’s caveat in leave for “[w]e however, day, question another wheth First, the record discloses that the two any exceptions er exist. they Whatever permitted child victims were testify by be, may they surely would be allowed way of a closed-circuit television. The necessary when important to further an placed child witness was judge’s public policy.” Murray, office with a television camera. The defen- 3, 3, W.Va. at 48 n. n. dant, attorneys, judge, jury were in the 1021, 108 quoting 2803, 487 U.S. at S.Ct. at courtroom where could view the tele- 101 L.Ed.2d at 867. questions vision screen and hear the This issue weighty difficult. They the child’s answers. could not be event, by failing to raise a Sixth seen the child witness. For some unex- right Amendment objec of confrontation reason, plained judge’s office with tion, grievous counsel made a mistake. I who, trooper the witness was a state ac- that, recognize tried, after this case was record, cording participated had Supreme the United States Court held in a investigation. arrangement This entire 5-4 in certain instances live by agreement prosecutor between the permissible television at trial and defense counsel. by a child who is a victim sexual abuse. guarantees The Sixth Amendment that Maryland -, Craig, 497 U.S. proceedings, all criminal the accused “[i]n S.Ct. 111 L.Ed.2d 666 How right enjoy shall ... to be confronted ever, grant Craig ap does not a blanket against with the witnesses U.S. him[.]” proval technique. of this In order to in Const. amend. As the United VI. States procedure, Supreme voke the de Court Supreme explained in Court California cided that it must impor be shown that an Green, 149, 157, U.S. S.Ct. tant state interest could be furthered: “We (1970): 26 L.Ed.2d “Our own today likewise conclude that a State’s inter recognized decisions seem to have at an physical psychological est in the well- early right date that it is this literal being of child abuse victims be suffi ‘confront’ the witness at the time of trial ciently important outweigh, at least in core of values that forms the furthered cases, right some a defendant’s to face his by Clause.” Confrontation at -, or her accusers in court.” 497 U.S. 110 S.Ct. at 111 L.Ed.2d at 683. The Iowa, Coy 487 U.S. 108 S.Ct. Supreme spell Craig Court went on in Supreme 101 L.Ed.2d 857 requisite finding out in some detail how a right Court found the Sixth Amendment should be made: the trial confrontation was violated when sexually finding necessity permitted requisite court abused child “The case-specific from the defendant must of course be a one: witness to be screened *33 camera, the officer not on procedure. and With evidence must hear the trial court to one-way potential the for him influence the child use of the determine nodding signals is nec- procedure by or other television witness head closed circuit par- of the by jury the welfare the or essary protect to detection court without short, to testi- who seeks I ticular child witness do not believe that available. court must also find fy.... The trial comports in procedure used this case trauma- would be that the child witness Craig, I believe that a violation of with and tized, generally, by the courtroom not right Amendment of confronta- the Sixth of the defendant.... presence has tion occurred. find that the Finally, court must the trial Furthermore, pains used is more than Md. State], de witness tions reluctance to 543-544 at 289 ion, emotional ‘mere S.Ct. “the must to 19 Utah reliability of the omitted). nervousness [ emphasize (1987) in the (1899).” 497 ensure distress 111 L.Ed.2d ]; see also presence of the 505, 511-512, testify,’ [496], minimus, Supreme suffered that excitement U.S. Wildermuth 530 A.2d i.e., at 685. at -, by the child Court procedures more than defendant or P. Mann (Cita some ^[275] took sub- [v. supra. Counsel to bility that were victims conclusion that the children reliability no quacy omissions consequence, I have prove objection led no physical to previously this threshold issue. trial of clearly his child abuse expert’s the State was was counsel’s findings made abuse even demonstrate expert’s made to Mr. addressed the admissi- B. testimony in Part no representation. of abuse. objection never so-called tests profile. had been though Moreover, Trainor’s required to These inade- there As a IV, testing rigorous jecting it adversarial C. preserving] the essence of thereby Because there confrontation. effective II, I in Part counsel As discussed defense dispute that the child witnesses is no preclude prosecu- no attempt made oath, under were sub- case this testified offering from evidence of collateral tion cross-examination, and were ject to full 404(b). crimes W.Va.R.Evid. Coun- under jury, judge, able be observed hearing in camera request an sel did not testified, we con- defendant as prejudicial to determine if the effect this that, proper the extent that a clude testimony outweighed probative value made, finding necessity has been required by under W.Va.R.Evid. and as such would admission of Dolin, supra. Finally, counsel did the Confrontation consonant with limiting request in- cautionary not at-, 110 S.Ct. at 497 U.S. Clause.” jury struction that such collateral 3170, 111 L.Ed.2d at 686. crimes not be considered as evidence could present objection no was made In the guilt. totally was ineffective in Counsel television, testimony by closed-circuit regard, no doubt that this and there can be there is no record of whether the initial severely prejudiced. the defendant was Craig, finding could be requisite met. regarding expert testimony there was D. particular that the child witnesses trauma question- Defense counsel’s ill-conceived to con- experienced if forced would witnesses, coupled ing of the failure with front the defendant face to face. prosecutor’s questions, led object point A further critical is embedded devastating results the defendant. present in Craig. case was not First, testified defendant’s ex-wife Here, the child witness was the room telephone had made defendant of the State’s adult who one present She not calls to sex clubs. investigating I officers. do believe telephone made and type when the calls were any would sanction this court “Q So, appear not hear the conversations. Defense there doesn’t did to be any phone connection between these objection. no calls counsel made children, abuse of the isn’t that The ex-wife also testified the defen- correct? dant had masturbated front of his son. true, my “A That’s not because children events, She did witness these but testi- said that their father made them listen to *34 that informed of fied she had been them phone these calls.” years approximately her son two after- In a attempt impeach bizarre to the ex- Again, did not object, wards. counsel al- credibility, wife’s defense counsel unac- very though begin- clear from the was countably brought into evidence another ning of the ex-wife’s that she act collateral of the defendant in- going observed, was to relate not what she dog. volved sex with a Not was this related her but what was her son. hearsay, statement ex-wife Defense counsel’s cross-examination managed expand on the statement ex-wife, the defendant’s who was include the threat to the defendant’s son.35 witness, key and was State’s who hostile unenlightened Further cross-examination defendant, towards the led to disas- some of the ex-wife brought defense counsel consequences. Despite trous defense coun- jury’s to the that attention defendant object sel’s failure to to the direct testimo- pulled vasectomy had his out stitches be- clubs, ny calls to about the defendant’s sex he “playing cause had with him- been linkage there was no of these calls to the self.”36 Even with defense counsel’s ab- children defense counsel this until asked objections, sence of the State had not tried following question and received the an- to introduce these acts on direct examina- tion of the defendant’s ex-wife. swer: questioning you, you relay "Q The as follows: You there and 35. was sit this impossible you, physically another, statement it’s that "Q you ... made other state- happen, for that to isn’t it? in the course of ments the officer the inves- there, know, just tigation, you “A I I wasn’t I want to maintain that don’t was do now report everything you you my said in that accurate tellin son told me.” what and true? Yes, nobody. exchange “A I haven’t lied to The the record is as from follows: making you "Q recall a Would statement "Q your the course of discussions with [I]n dog? respect with to a Trainor, your Mr. as in discussions with the Yes, "A I did. officer, police you made a number state- "Q that statement true? Uh-huh is regarding your, your ments husband’s sexual it, my I what "A didn’t see that’s son told behavior, you point, one stated that he and at me. pulled vasectomy stitches. minute, you "Q told the a officer and Wait company came "A I had that from the quote, that he sex I ‘she also indicated had visiting Auxiliary me and the chil- ... there poodle in front of at with the terrier [E.L.] dren, sitting talking we were there and Ed time,’ point is that statement true or some could come in the bath- hollered ask if I false? did, him, he with and when I showed room told "A I had me that his [E.L.] stated that loose, pulled where had been me the stitches daddy dog, poodle, which was had let the a do, guess you’ll supposed I I said I what am Mitzi, georgie, her ride and if name was room, go emergency up have to back dog mommy would let the eat he told he loose, did, you’ve pulled I so he think [a 'em off, georgie myself. see I did not that [E.L.]’s brought neighbor] got him and him went and Uh-huh, dog? "Q how old was this home, pre- that Dr. Khurana had he said half, years year Maybe a two old. "A "Q couple prescriptions so there scribed Uh-huh, big is it? how infections, I and made the wouldn't be it, got it. “A I seen he’s haven’t gonna do world of comment that it’s Well, you "Q it when lived in the he had you good handcuffs on the bot- if didn’t have you? together, didn’t house it came from prescription tom of the because time, Oh, yeah, she was about "A playing with himself.” (at high, long, maybe stood about this Now, you going "Q to maintain that are time, approximate showed the the witness by your eyes? own as seen the truth dog by showing length height of the pat the front of "A I’ve seen him sit hands). her pants I even want dog? times than would "Q more sex was the What try of time.” the amounts estimate "A Female. counsel asked the Finally, defense when defendant had she and the ex-wife whether Robert CRAIGO life, responded: “I sex she a normal end, until thought up it was normal redirect, prose- end.” towards the On points LEGURSKY, pulverizing

cutor several more made Carl Warden West “opening the Virginia Penitentiary. on defense counsel's based normal sex door” the defendant’s about No. able to have the prosecutor life. inability to ex-wife describe defendant’s Supreme Appeals Court of masturbating. orgasm without Virginia. West the defendant's also described ex-wife leaning washing ma-

practice against the *35 4, Oct. in the masturbating when was chine and cycle. spin that all of this help

I cannot believe information would cast

bizarre sexual pervert

defendant as a monstrous

who, easily eyes jury, in the accomplishing the sexual abuse

capable of defense counsel to

of his children. For

bring to the attention of this information explicit questions jury by direct and logic. Syllabus words

defies Thomas, 157 W.Va.

Point 21 of State v. reasonably “no attorney would so have

qualified defense accused.” defense of an acted majori-

I am loss to at a account glossing over of the ineffective assist-

ty’s claim.

ance of counsel

Conclusion elegiac Per- on a note.

I conclude rather

haps majority’s I read into have more meant; perhaps it did than was in this area on

intend to stand law judges and circuit

head. I trust our cau- approach this area with a

counsel will law it ex-

tionary as balanced view here, elsewhere, I hope as it will exist

ists attempted to outline.

and as I have that Chief Jus-

I am authorized to state joins in this dissent.

tice NEELY me action, effectively will deemed Syllabus conduct Point 21 of Thomas 37. The full text interests, client’s unless no states: assistive qualified attorney reasonably would defense performance, attacked “Where a counsel’s ineffective, an accused.” occurrences involv- so acted in the defense of arises from ing strategy, arguable courses tactics and