                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


State of West Virginia,                                                              FILED
Plaintiff Below, Respondent                                                        June 13, 2014
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
vs) No. 13-1138 (Jefferson County 09-F-14)
                                                                                OF WEST VIRGINIA


Terry W. Jackson,
Defendant Below, Petitioner


                               MEMORANDUM DECISION
        Petitioner Terry W. Jackson, by counsel Richard D. Stephens, appeals from the Circuit
Court of Jefferson County following his conviction of incest and sentence to five to fifteen years
in prison. The State of West Virginia, by counsel Brandon C. H. Sims, filed a response.
Petitioner filed 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 January 19, 2010, sentencing order
is appropriate under Rule 21 of the Rules of Appellate Procedure.

                                               Facts

        In January of 2009, petitioner was indicted on six felony charges. Counts I and II of the
indictment alleged sexual abuse by a parent, guardian, or custodian; Counts III and IV alleged
incest; and Counts V and VI alleged sexual assault in the second degree. Counts I, III, and V
involved acts that were to alleged to have occurred in 2001, and Counts II, IV, and VI involved
acts that were alleged to have occurred in 2003. The victim in each of the alleged offenses was
petitioner’s teenage biological daughter, A.B.

       Count II was dismissed prior to trial without objection by the State,1 and the State
presented the remaining five charges at a jury trial on October 20, 2009. Petitioner was convicted
of incest2 as alleged in Count IV of the indictment and acquitted of the remaining charges. The

       1
         Sexual abuse by a parent, guardian, or custodian, as set forth in West Virginia Code §
61-8D-5(a), requires the victim to be a child at the time of the offense. A.B. turned eighteen
years old before the alleged sexual abuse occurred in 2003.
       2
           West Virginia Code § 61-8-12 provides, in pertinent part, as follows:


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circuit court denied petitioner’s post-trial motions by order entered December 17, 2009, and
sentenced petitioner to five to fifteen years in prison by order entered January 19, 2010.3

         At trial, the State called A.B. to testify, as well as two detectives and an expert witness,
who supervised DNA testing and opined that petitioner fathered a child by A.B. Petitioner
testified in his own defense and also presented the testimony of Delores Jackson, his wife and
A.B.’s stepmother at the time of the alleged events. A.B., who was sixteen and eighteen years
old at the time of the alleged offenses, and twenty-four years old at the time of trial, testified that
she did not know her father as a child because she was raised by her mother, maternal
grandmother, and aunt and uncle in Berkeley County. After her relationship with her mother
deteriorated, she sought out and eventually moved in with her father and his then wife, Ms.
Jackson,4 in Jefferson County.

        A.B. testified that in June of 2001, shortly after she moved in with her father and Ms.
Jackson, she and petitioner were watching television in the den when petitioner assaulted her.5
Specifically, A.B. testified that petitioner “pinned me up against the side of the chair and put his
hand up my shorts and touched my privates.” A.B. testified that petitioner rolled on top of her,
forced her pants off, and raped her. The jury acquitted petitioner of the charges stemming from
these allegations.

        A.B. testified that petitioner assaulted her again on or about November 16, 2003, while
Ms. Jackson was at work. A.B. testified that she went into the kitchen and her father came “up
behind me and put his hand over my mouth and forced me to the floor and forced my pants off
and his pants off and raped me.” A.B. testified that during the period of November and
December 2003, she became pregnant and in mid-September 2004, gave birth to a boy, N.B.
Although A.B. believed that her then-boyfriend was the father, a paternity test required as part of
a petition for child support determined he was not the father. A.B. testified that, despite the
results of the paternity test, she was in denial that petitioner could be the father of N.B. A.B.


           (b) 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.

           (c) Any person who violates the provisions of this section shall be guilty of a
           felony, and, upon conviction thereof, 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.
           3
        The parties indicate that the circuit court resentenced petitioner in October of 2013, for
purposes of this appeal.
           4
               Petitioner and Ms. Jackson divorced around 2005.
           5
               A.B. testified that Ms. Jackson was asleep in a different room at the time of the alleged
assault.
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testified that she did not report either of the alleged sexual assaults committed by petitioner
because she was afraid of him and feared that people would not believe her. A.B. eventually
reported the alleged assaults in 2008.

        To establish that petitioner fathered N.B., the State relied on the testimony of Kelly
Beatty, a parentage analyst supervisor at Marshall University Forensic Science Center. Ms.
Beatty tested buccal swabs with known samples from petitioner, A.B., and N.B., and compared
those samples for parentage analysis. Ms. Beatty testified that based on her analysis of the DNA
testing results, petitioner was 99.9999 percent certain to be the father of N.B.

         At the end of the State’s case-in-chief, petitioner moved for directed verdict for judgment
of acquittal, which motion was denied. Petitioner and Ms. Jackson then testified. Petitioner
denied any sexual contact with A.B, and the State did not cross-examine him. Ms. Jackson
testified that A.B. never gave her any indication that anything had occurred between A.B. and
petitioner.

        Following the guilty verdict on the incest charge in Count IV of the indictment, petitioner
moved for new trial and for judgment of acquittal, both of which motions were denied. The
circuit court sentenced petitioner to five to fifteen years in prison, and this appeal followed.

                                            Discussion

         Petitioner raises four assignments of error on appeal. First, he challenges the circuit
court’s denial of his motion judgment of acquittal at close of State’s case-in-chief and at the end
of all the evidence. Petitioner contends that if the date of the sexual intercourse was on or about
November 16, 2003, as alleged by the State in Count IV, then N.B. would have been born much
earlier than mid-September 2004, given a normal forty-week gestation cycle. Citing a scientific
journal, the State counters that the gestational cycle can vary from the typical forty weeks by as
much as thirty-seven days. See Anne Marie Jukic, Donna D. Baird, Clarice R. Weinberg, D.R.
McConnaughey, and Allen J. Wilcox, Length of Human Pregnancy and Contributors to its
Natural Variation, 28 Oxford Journals: Human Reproduction (Issue 10) at pp. 2848-2855.

       Petitioner essentially argues that the evidence at trial was insufficient to sustain his
conviction of incest. With respect to alleged insufficiency of the evidence, we held as follows in
Syllabus Points one and three of State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995):

       The function of an appellate court when reviewing the sufficiency of the evidence
       to support a criminal conviction is to examine the evidence admitted at trial to
       determine whether such evidence, if believed, is sufficient to convince a
       reasonable person of the defendant’s guilt beyond a reasonable doubt. Thus, the
       relevant inquiry is whether, after viewing the evidence in the light most favorable
       to the prosecution, any rational trier of fact could have found the essential
       elements of the crime proved beyond a reasonable doubt.

       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

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       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. To the extent that our prior cases are
       inconsistent, they are expressly overruled.

        Upon our review of the record in the present matter, we do not find that the evidence was
insufficient to sustain petitioner’s incest conviction. A.B. testified that the intercourse with
petitioner occurred on or about November 16, 2003. If A.B.’s gestational cycle was forty-two
weeks and five days, as hypothesized by the State, conception would have been on or about
November 20, 2003, which is consistent with A.B.’s testimony. Moreover, the State’s forensic
scientist and expert witness testified that of the fifteen genetic markers tested to establish
paternity, petitioner could not be excluded in any of them. The expert testified that petitioner was
2,482,848 times more likely than a random man from the same ethnic group to be the father of
N.B. She addressed the fact that some DNA would be shared between petitioner and N.B. due to
the grandfather relationship, but at most it would be one-fourth. The pattern of DNA established
with 99.9999 percent certainty that that petitioner was N.B.’s father. Given the scientific
evidence that petitioner fathered N.B., and based on the standard of review set forth in Guthrie,
we believe the evidence was sufficient to sustain petitioner’s conviction.

       Petitioner’s second assignment of error is that the circuit court erred in denying his
motion for a new trial. Rule 33 of the West Virginia Rules of Criminal Procedure states as
follows:

       The court on motion of a defendant may grant a new trial to that defendant if
       required in the interest of justice. If trial was by the court without a jury the court
       on motion of a defendant for a new trial may vacate the judgment if entered, take
       additional testimony, and direct the entry of a new judgment. A motion for a new
       trial based on the ground of newly discovered evidence may be made only after
       final judgment, but if an appeal is pending the court may grant the motion only on
       remand of the case. A motion for a new trial based on any other grounds shall be
       made within ten days after verdict or finding of guilty or within such further time
       as the court may fix during the ten-day period.

         Specifically, petitioner argues that the circuit court improperly denied his request to
examine A.B.’s medical records from her hospitalization due to stress caused by the pending
trial; the circuit court allowed the State to lead the expert witness and essentially read the DNA
test results into the record; there may have been juror misconduct as evidenced by the fact that
the jury completely acquitted petitioner on all counts except for incest stemming from the 2003
sexual contact.

       We disagree with petitioner that he is entitled to a new trial. Denial of a motion for new

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trial is not subject to appellate review unless the trial judge abuses his or her discretion. See State
v. White, 228 W.Va. 530, 722 S.E.2d 566 (2011). With respect to A.B.’s medical records, the
circuit court reviewed them in camera prior to denying petitioner’s motion to review them. The
court reviewed the records and determined there was no probable cause to believe they raised
any issue regarding A.B.’s competency to testify. Petitioner cites no authority to suggest the
court abused its discretion.

       Regarding the State’s alleged leading of the expert witness, Rule 611(c) of the West
Virginia Rules of Evidence provides that

       [l]eading questions should not be used on the direct examination of a witness
       except as may be necessary to develop the witness' testimony. Ordinarily, leading
       questions should be permitted on cross-examination. When a party calls a hostile
       witness, an adverse party, a witness identified with an adverse party, or an expert
       witness, interrogation may be by leading questions.

(Emphasis added). In addition, “[t]he allowance of leading questions rests largely in the
discretion of the trial court, and absent an abuse of such discretion, the trial court’s ruling will
not be disturbed.” Syl. Pt. 6, State v. Fairchild, 171 W.Va. 137, 298 S.E.2d 110 (1982).
Petitioner fails to explain how the State’s method of questioning Ms. Beatty amounted to an
abuse of discretion.

       With respect to petitioner’s contention that there may have been juror misconduct
because of the inconsistent verdicts, that argument has been soundly rejected. In United States v.
Powell, 469 U.S. 57, 65-66 (1984), the United States Supreme Court stated that

       inconsistent verdicts—even verdicts that acquit on a predicate offense while
       convicting on the compound offense—should not necessarily be interpreted as a
       windfall to the Government at the defendant’s expense. It is equally possible that
       the jury, convinced of guilt, properly reached its conclusion on the compound
       offense, and then through mistake, compromise, or lenity, arrived at an
       inconsistent conclusion on the lesser offense. But in such situations the
       Government has no recourse if it wishes to correct the jury's error; the
       Government is precluded from appealing or otherwise upsetting such an acquittal
       by the Constitution's Double Jeopardy Clause. See Green v. United States, 355
       U.S. 184, 188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957); Kepner v. United States,
       195 U.S. 100, 130, 133, 24 S.Ct. 797, 804, 805, 49 L.Ed. 114 (1904).

       Inconsistent verdicts therefore present a situation where “error,” in the sense that
       the jury has not followed the court’s instructions, most certainly has occurred, but
       it is unclear whose ox has been gored. Given this uncertainty, and the fact that the
       Government is precluded from challenging the acquittal, it is hardly satisfactory
       to allow the defendant to receive a new trial on the conviction as a matter of
       course. . . . For us, the possibility that the inconsistent verdicts may favor the
       criminal defendant as well as the Government militates against review of such
       convictions at the defendant's behest. This possibility is a premise of Dunn [v.

                                                  5

       United States, 284 U.S. 390 (1932)]’s alternative rationale—that such
       inconsistencies often are a product of jury lenity. Thus, Dunn has been explained
       by both courts and commentators as a recognition of the jury's historic function,
       in criminal trials, as a check against arbitrary or oppressive exercises of power by
       the Executive Branch. See, e.g., United States v. Maybury, 274 F.2d 899, 902
       (CA2 1960) (Friendly, J.); Bickel, Judge and Jury—Inconsistent Verdicts in the
       Federal Courts, 63 Harv.L.Rev. 649, 652 (1950). Cf. Duncan v. Louisiana, 391
       U.S. 145, 155–156, 88 S.Ct. 1444, 1450–1451, 20 L.Ed.2d 491 (1968).

469 U.S. at 64. Both Powell and Dunn recognize that inconsistent verdicts may in fact benefit a
criminal defendant, and accordingly, an inconsistent verdict militates against a review of such
convictions. We have followed the analysis in Powell and Dunn in our state jurisprudence. State
v. Hall, 174 W.Va. 599, 328 S.E.2d 206 (1985). The circuit court, therefore, did not abuse its
discretion in denying petitioner’s motion for new trial.

       Petitioner next argues, similarly as above, that the circuit court erred in refusing to release
A.B.’s medical records for his use in cross-examination. In Syllabus Point 3 of Nelson v.
Ferguson, 184 W.Va. 198, 399 S.E.2d 909 (1990), we held as follows:

              When the mental health records of a prospective witness are sought for the
       purpose of impeaching the witness’ credibility, the circuit court should first
       examine the records ex parte to determine if the request is frivolous. If the court
       finds probable cause to believe that the mental health records contain material
       relevant to the credibility issue, counsel should be allowed to examine the records,
       after which an in camera hearing should be held in which the requesting party’s
       counsel designates the parts of the records he believes relevant, and both sides
       present arguments on the relevancy of those parts.

Petitioner asserts that A.B. was hospitalized due to stress requiring emergency psychiatric care
because of the pending trial. He argues that the court should have allowed a psychiatric expert to
review the records, rather than reviewing them in camera.

        Upon our review of the record, we see no error with respect to the circuit court’s handling
of A.B.’s medical records. As the State points out, after the State moved for a continuance of the
trial due to A.B.’s hospitalization in August 2009, the circuit court ordered the State to provide
the court with A.B.’s medical records from A.B.’s hospital visit for an in camera review to
determine if there was an issue with A.B.’s competency as a witness. The State complied, and by
order entered October 16, 2009, the circuit court ruled that the records did not create any
competency issues and denied petitioner’s request to review the same. Petitioner presents no
information that supports his argument that this ruling was an abuse of discretion.

        Petitioner’s final assignment of error is that the circuit court erred by allowing improper
expert testimony. Petitioner argues that the actual technician who conducted the DNA testing did
not testify; rather, it was her supervisor, Ms. Beatty, who supervised the testing and interpreted




                                                  6

the results.6 However, petitioner failed to preserve this issue for appeal by not objecting to the
supervisor testifying at trial. In Syllabus Point 5 of Tennant v. Marion Health Care Foundation,
Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995), this Court held:

       “ ‘ “ ‘Failure to make timely and proper objection to remarks of counsel made in
       the presence of the jury, during the trial of a case, constitutes a . . . [forfeiture] of
       the right to raise the question thereafter in the trial court or in the appellate court.’
       Point 6, Syllabus, Yuncke v. Welker, 128 W.Va. 299 [36 S.E.2d 410 (1945)].”
       Syllabus point 7, State v. Cirullo, 142 W.Va. 56, 93 S.E.2d 526 (1956).’ Syl. Pt.
       5, State v. Davis, 180 W.Va. 357, 376 S.E.2d 563 (1988).” Syllabus Point 1,
       Daniel B. by Richard B. v. Ackerman, 190 W.Va. 1, 435 S.E.2d 1 (1993).

In fact, at trial, petitioner’s counsel took the opposite position to what he argues on appeal. At
trial, he objected to the technician testifying, arguing she lacked the education and experience to
be considered an expert, and he admitted he had no grounds to object to Ms. Beatty testifying.
Thus, we find no abuse of discretion in the circuit court permitting Ms. Beatty’s testimony.

       For the foregoing reasons, we affirm.

                                                                                             Affirmed.

ISSUED: June 13, 2014

CONCURRED IN BY:

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




       6
         Petitioner also reiterates his argument that the State excessively led the expert witness
on direct examination by reading the results and having the witness merely confirm them.
Because we have already rejected that argument, we do not address it again.
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