                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS

State of West Virginia,
Plaintiff Below, Respondent                                                             FILED
                                                                                   September 6, 2016
vs) No. 15-0877 (Wirt County 14-F-22)                                                   RORY L. PERRY II, CLERK
                                                                                      SUPREME COURT OF APPEALS
                                                                                          OF WEST VIRGINIA
Thomas H.,

Defendant Below, Petitioner



                               MEMORANDUM DECISION
        Petitioner Thomas H., by counsel Robin S. Bonovitch, appeals the Circuit Court of Wirt
County’s August 12, 2015, order sentencing him to an aggregate term of fifteen to forty years of
incarceration following his convictions on multiple counts of sexual crimes.1 The State, by
counsel Zachary Aaron Viglianco, filed a response. On appeal, petitioner argues that there was
insufficient evidence to convict him and the circuit court erred in imposing his sentence.

        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.

        In December of 2013, petitioner was indicted on one count of second-degree sexual
assault, one count of third-degree sexual assault, and one count of incest. The charges stemmed
from the allegation that petitioner, his father, and his brothers repeatedly sexually abused his
teenage sister.

         In June of 2015, petitioner’s trial commenced. At trial, the victim testified regarding two
incidents of assault by petitioner. She testified that petitioner forcibly sexually assaulted her on at
least two occasions and that she was afraid to disclose the sexual assaults. Two individuals
testified that the victim eventually disclosed to them that petitioner sexually assaulted her.
Additionally, a psychologist and a pediatrician both testified that they believed that the victim
had been sexually assaulted. The investigating police officer also testified that petitioner

       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).


                                                      1


provided a voluntary written statement after his arrest in which he admitted to having engaged in
at least one instance of sexual intercourse with the victim. Petitioner testified in his own defense
and admitted to engaging in inappropriate sexual contact with the victim.

        Ultimately, petitioner was convicted of one count of second-degree sexual assault, one
count of third-degree sexual assault, and one count of incest and sentenced to a period of not less
than ten years nor more than twenty-five years of incarceration for second-degree sexual assault,
a period of not less than one nor more than five years of incarceration for third-degree sexual
assault, and a period of not less than five nor more than fifteen years of incarceration for incest.
The circuit court ordered that the sexual assault sentences run concurrently to one another and
the incest sentence to run consecutively, resulting in an aggregate sentence of fifteen to forty
years of incarceration. It is from the sentencing order petitioner now appeals.

       When discussing the sufficiency of the evidence, we have held that

               [a] criminal defendant challenging the sufficiency of the evidence to
       support a conviction takes on a heavy burden. An appellate court must review all
       the evidence, whether direct or circumstantial, in the light most favorable to the
       prosecution and must credit all inferences and credibility assessments that the jury
       might have drawn in favor of the prosecution. The evidence need not be
       inconsistent with every conclusion save that of guilt so long as the jury can find
       guilt beyond a reasonable doubt. Credibility determinations are for a jury and not
       an appellate court. Finally, a jury verdict should be set aside only when the record
       contains no evidence, regardless of how it is weighed, from which the jury could
       find guilt beyond a reasonable doubt.

Syl. Pt. 3, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). It is clear from the record
that the evidence before the jury was more than sufficient for it to find petitioner guilty on all
charges.

       To sustain his convictions, West Virginia Code § 61-8B-4 requires proof of the
following: “[s]uch person engages in sexual intercourse or sexual intrusion with another person
without the person's consent, and the lack of consent results from forcible compulsion; or [s]uch
person engages in sexual intercourse or sexual intrusion with another person who is physically
helpless.” Additionally, West Virginia Code § 61-8B-5 requires proof of the following: “[t]he
person, being sixteen years old or more, engages in sexual intercourse or sexual intrusion with
another person who is less than sixteen years old and who is at least four years younger than the
defendant and is not married to the defendant.” Finally, West Virginia Code § 61-8-12 requires
proof of the following: “[a] person is guilty of incest when such person engages in sexual
intercourse or sexual intrusion with his or her father, mother, brother, sister, daughter, son,
grandfather, grandmother, grandson, granddaughter, nephew, niece, uncle or aunt.”

        At trial, the victim testified that petitioner, her brother, forcibly sexually assaulted her on
at least two occasions and that she did not give him her consent. She also testified that she was
afraid to disclose the sexual assaults. According to the record, several other witnesses testified



                                                      2


and supported the victim’s testimony that she was sexually assaulted by petitioner.2 Petitioner
himself corroborated the victim’s testimony when he took the stand and admitted to engaging in
inappropriate sexual contact with the victim. As outlined above, there was sufficient evidence for
the jury to find that petitioner committed the sexual offenses as charged in the three-count
indictment. As such, we find no error in this regard.

        Regarding petitioner’s claim that the circuit court erred in imposing his sentence, we have
previously held that “[s]entences imposed by the trial court, if within statutory limits and if not
based on some [im]permissible factor, are not subject to appellate review.” Syllabus Point 4,
State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982). Syl. Pt. 3, State v. Georgius, 225
W.Va. 716, 696 S.E.2d 18 (2010). We note that petitioner’s sentences for his crimes are within
the applicable statutory limitations.

         Specifically, West Virginia Code § 61-8B-4 provides that any person convicted of
second-degree sexual assault “shall be imprisoned in the penitentiary not less than ten nor more
than twenty-five years, or fined not less than one thousand dollars nor more than ten thousand
dollars and imprisoned in the penitentiary not less than ten nor more than twenty-five years.”
Additionally, West Virginia Code § 61-8B-5 provides that any person convicted of third-degree
sexual assault “shall be imprisoned in a state correctional facility not less than one year nor more
than five years, or fined not more than ten thousand dollars and imprisoned in a state correctional
facility not less than one year nor more than five years.” Finally, West Virginia Code § 61-8-12
provides that any person convicted of incest “shall be imprisoned in the penitentiary not less than
five years nor more than fifteen years, or fined not less than five hundred dollars nor more than
five thousand dollars and imprisoned in the penitentiary not less than five years nor more than
fifteen years.” It is clear that petitioner was sentenced within the applicable statutory guidelines
and his sentence is not reviewable on appeal.

        Petitioner argues that his sentence is excessive based upon his expectation of receiving a
lighter sentence. The Court, however, notes that such an argument does not constitute an
allegation that the circuit court based petitioner's sentence on an impermissible factor. As such,
we reiterate that petitioner's sentence is, therefore, not reviewable on appeal.

       For the foregoing reasons, the circuit court’s August 12, 2015, sentencing order is hereby
affirmed.


                                                                                         Affirmed.

ISSUED: September 6, 2016




       2
         We have previously held that “[a] conviction for any sexual offense may be obtained on
the uncorroborated testimony of the victim, unless such testimony is inherently incredible, the
credibility is a question for the jury.” Syl. pt. 5, State v. Beck, 167 W.Va. 830, 286 S.E.2d 234
(1981).
                                                     3


CONCURRED IN BY:

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




                                 4
