                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Dennis K.,
Petitioner Below, Petitioner                                                     FILED
                                                                            November 17, 2017
vs) No. 16-0857 (Mason County 11-C-70)                                        EDYTHE NASH GAISER, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
David Ballard, Warden,

Mt. Olive Correctional Complex,

Respondent Below, Respondent



                               MEMORANDUM DECISION
        Petitioner Dennis K.,1 by counsel Paul A. Knisley and Kevin Hughart, appeals the August
17, 2016, order of the Circuit Court of Mason County that denied, in part, and granted, in part,
his petition for writ of habeas corpus following his jury conviction on forty-three counts relating
to the sexual abuse and assault of three minors. The State of West Virginia, by counsel Benjamin
F. Yancey, III, filed a response in support of the circuit court’s order. Petitioner submitted a
reply.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        On May 6, 2008, a grand jury returned a sixty-five count indictment against petitioner
alleging eleven counts of sexual assault in the first degree; six counts of sexual abuse by a
custodian; eight counts of sexual assault in the second degree; eight counts of sexual assault in
the third degree; six counts of child abuse resulting in bodily injury; thirteen counts of sexual
abuse by a parent; and thirteen counts of incest. The crimes were alleged to have occurred in
Mason County between 1994 and 2005. The victims were petitioner’s two daughters and step­
daughter who, when the crimes herein commenced, ranged in ages from six to fourteen.

       Following a three-day trial, which concluded on February 27, 2009, the jury convicted

       1
          Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W.
Va. 641, 398 S.E.2d 123 (1990).


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petitioner on forty-three counts of the indictment.2 The circuit court denied petitioner’s motion
for a new trial. In a renewed motion for judgment of acquittal, petitioner sought to set aside the
guilty verdicts as to Counts 56, 57, 58, and 59 on the ground that each count alleged that the
crimes occurred in 2003 whereas the evidence demonstrated that the sexual abuse ended in 2002.
The circuit court granted petitioner’s motion and dismissed these four counts. The trial court
sentenced petitioner on the remaining counts on June 4, 2009. Petitioner’s direct appeal to this
Court was filed on November 10, 2009, and was refused by order entered on May 10, 2010.

        Thereafter, petitioner, through counsel, filed an amended petition for writ of habeas
corpus in which he alleged that the circuit court imposed an illegal sentence for his convictions
on six counts of sexual abuse by a parent or custodian, under West Virginia Code § 61-8D-5,
because the sentences were imposed under the statute in effect at the time of sentencing rather
than at the time the crimes occurred; that petitioner received an unfair trial due to the bias of two
jurors, one of whom was acquainted with two of the victims’ step-father and petitioner’s ex-wife
and who also failed to disclose during voir dire that her brother was allegedly sexually assaulted
in 1964, while the other juror failed to disclose that his brother was previously accused of
sexually assaulting a young girl; and that counsel was ineffective based upon allegations that trial
counsel failed to hire an investigator until twelve days before trial, failed to respond to
petitioner’s request that psychological evaluations of the victims be performed, failed to
interview the State’s witnesses, failed to request a bill of particulars, failed to use impeachment
and exculpatory evidence, failed to engage in effective cross-examination of the State’s
witnesses, failed to strike certain jurors, failed to retain and/or use an expert witness, failed to
adequately investigate the case, failed to object to allegedly prejudicial or inflammatory
statements by the prosecutor, failed to give an effective closing argument, failed to investigate
double jeopardy issues, and failed to poll the jury.

        Petitioner’s request for habeas relief also included allegations that the prohibition against
double jeopardy was violated; that there was prosecutorial misconduct based upon allegations
that the prosecutor “testified” before the grand jury, interjected her belief that petitioner was
guilty during closing argument, shifted the burden of proof to petitioner, bolstered the testimony
of the State’s witnesses, violated her duty of fairness and impartiality, and attacked petitioner’s
character in her opening statement. Finally, petitioner’s habeas petition alleged that the
indictment was faulty, that evidence was improperly admitted at trial under West Virginia Rule
of Evidence 404(b), and that the testimony of one of the State’s expert, Susan McQuaid, violated
the prohibition against inadmissible hearsay under West Virginia Rule of Evidence 803(4).

        In lieu of an omnibus hearing, at petitioner’s request, deposition testimony was taken
from a trial juror, defense counsel, an expert, and petitioner, and considered by the circuit court.
By order entered August 17, 2016, the circuit court granted petitioner’s request for relief only
insofar as it found that his sentence should be amended to reflect the proper sentencing under the
statute in effect during the time that the six violations of West Virginia Code § 61-8D-5



       2
          During the course of the trial, the court dismissed Count 40 of the indictment as
duplicative of Count 51 and granted petitioner’s motion for judgment of acquittal or dismissal as
to Count 17.
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transpired.3 This appeal followed.

       This Court reviews appeals of circuit court orders denying habeas corpus relief under the
following standard:

       In reviewing challenges to the findings and conclusions of the circuit court in a
       habeas corpus action, we apply a three-prong standard of review. We review the
       final order and the ultimate disposition under an abuse of discretion standard; the
       underlying factual findings under a clearly erroneous standard; and questions of
       law are subject to a de novo review.

Syl. Pt. 1, Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771 (2006).

        On appeal, petitioner raises the same arguments that he presented in the habeas
proceeding below, with the exception of his claims that the prosecutor acted with prejudice by
effectively testifying before the grand jury, that the indictment was faulty, and that Rule 404(b)
evidence was improperly admitted, all of which petitioner has explicitly withdrawn on appeal.
As to petitioner’s remaining assignments of error, we find no error or abuse of discretion by the
circuit court. Our review of the record supports the circuit court’s decision to deny habeas relief
based on these errors, which were also argued below. Indeed, the circuit court’s fifty-six page
order includes well-reasoned findings and conclusions as to the assignments of error now raised
on appeal. Given our conclusion that the circuit court’s order and the record before us reflect no
clear error or abuse of discretion, we hereby adopt and incorporate the circuit court’s findings
and conclusions as they relate to petitioner’s assignments of error raised on appeal and direct the
Clerk to attach a copy of the circuit court’s August 17, 2016, “Comprehensive Order Denying
Post-Conviction Habeas Corpus Relief[,] in part, Granting Post-Conviction Habeas Corpus
Relief[,] in part, and Amending Sentencing Order,” to this memorandum decision.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: November 17, 2017

CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker



       3
         Petitioner was sentenced to not less than ten nor more than twenty years on each of the
six counts. The statute in effect at the times the crimes herein were alleged to have occurred
(1994 through 1998) provided for a sentence of not less than five nor more than fifteen years.
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