                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                      FILED
                                                                                 April 12, 2013
                                                                            RORY L. PERRY II, CLERK
vs) No. 11-1416 (Preston County 10-F-9)                                   SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

Charles Richard Lamar Jr.,
Defendant Below, Petitioner

                             MEMORANDUM DECISION
        Petitioner Charles Richard Lamar Jr., by counsel Kevin T. Tipton, appeals the Circuit
Court of Preston County’s “Order Denying Defendant’s Motion for Judgment of Acquittal or a
New Trial,” entered on February 22, 2011. Petitioner was convicted by a jury of one count of
first degree sexual abuse and one count of sexual abuse by a guardian, custodian, or person in a
position of trust. The State, by its counsel Laura Young, filed a summary response.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        In the spring of 2009, petitioner Charles Richard Lamar Jr., allegedly touched C.M.’s1
vagina on two occasions while she was seated on petitioner’s lap in a chair in her home. C.M.’s
parents were not home at the time. C.M. was nine-years-old; petitioner was in his early twenties.
Petitioner is C.M.’s brother-in-law.

       On March 2, 2010, petitioner was indicted on two counts of first degree sexual assault
and two counts of sexual abuse by a guardian, custodian, or person in a position of trust.

        The State and C.M.’s court-appointed guardian ad litem (“GAL”), Cheryl Warman, filed
a joint motion asking that C.M. be allowed to testify outside the witness box because it was
located just a few feet from the defendant’s seat in the courtroom. The motion stated that C.M.,
who had received counseling for petitioner’s alleged crimes, would find it difficult to testify in
close proximity to petitioner. The State asked that C.M. be allowed to testify from a chair placed
to the left of the jury box, and to allow C.M.’s GAL to sit near C.M. when she testified.
Petitioner objected. By order entered December 28, 2010, the trial court granted the joint motion
and cautioned the GAL that she would not be able to speak to C.M. while she testified.


1
 In keeping with the Court’s policy of protecting the identity of minors and the victims of sexual
crimes, C.M. will be referred to by her initials.
                                                1

       Following petitioner’s January 18-19, 2010, trial, the jury found petitioner guilty of one
count of first degree sexual abuse in violation of West Virginia Code § 61-8B-7 (2010), and one
count of sexual abuse by a guardian, custodian, or person in a position of trust in violation of
West Virginia Code § 61-8D-5 (2010).

        By order entered February 22, 2011, the trial court denied petitioner’s post-trial motions
for a judgment of acquittal or a new trial.

        By order entered on October 11, 2011, the circuit court sentenced petitioner to not less
than five nor more than twenty-five years in prison for first degree sexual abuse and not less than
ten nor more than twenty years in prison for sexual assault by a custodian. The sentences were
ordered to run consecutively.

       On appeal, petitioner first argues that the State presented insufficient evidence to convict
him of sexual abuse by a parent, guardian, or custodian because the State failed to prove beyond
a reasonable doubt that petitioner was acting as C.M.’s custodian or babysitter at the time of the
alleged abuse.

                “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.” Syl. Pt. 1, State v.
       Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

Syl. Pt. 1, State v. Juntilla, 227 W.Va. 492, 711 S.E.2d 562 (2011). We have also stated 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. To the extent that our prior cases are
       inconsistent, they are expressly overruled.” Syl. pt. 3, State v. Guthrie, 194 W.Va.
       657, 461 S.E.2d 163 (1995).

Syl. Pt. 2, State v. McFarland, 228 W.Va. 492, 721 S.E.2d 62 (2011). Having applied these
standards to the evidence at trial as set forth in the record on appeal, and having considered the
parties’ arguments in this regard, we find that a jury could have found sufficient evidence to
support petitioner’s convictions. At trial, C.M., C.M’s mother, C.M.’s younger sister, and C.M.’s

                                                2

older sister all testified that petitioner had babysat C.M. on at least one occasion. Moreover,
petitioner admitted to having babysat C.M. on one occasion. The determination of whether a
babysitter was acting as a custodian under West Virginia Code § 61-8D-5 is a question for the
jury. In the instant case, the jury was given an instruction regarding West Virginia Code § 61­
8D-5 to which petitioner did not object. The jury then found petitioner guilty as charged.

       Petitioner next argues that the circuit court erred by allowing the victim to testify outside
of the witness box and by allowing the victim’s guardian ad litem to sit within four feet of the
victim while she testified. Petitioner contends that he was prejudiced by this seating arrangement
and that the prejudice outweighed any difficulty C.M. might have faced by testifying in close
proximity to petitioner. Petitioner also argues that allowing C.M. to testify outside the witness
box unfairly bolstered her testimony and magnified it beyond that of the other witnesses.

        Petitioner presents no law or fact showing that the testimony of a child victim is bolstered
when the child victim testifies in a location other than the witness box. Therefore, his claims of
prejudice are merely speculative. In the courtroom where the case at bar was tried, the witness
box is located between the State’s table and the Defense’s table. C.M.’s therapist believed that
C.M. might be traumatized by testifying in such close proximity to petitioner. Rule 611(a) of the
Rules of Evidence provides that a trial court “shall exercise reasonable control over the mode
and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation
and presentation effective for the ascertainment of truth, (2) avoid needless consumption of time,
and (3) protect witnesses from harassment or undue embarrassment.” Furthermore, it is not
unusual for a witness to step outside of a witness box to highlight something on an exhibit or to
testify outside a witness box if the witness’s physical condition requires. Thus, we find that the
trial court did not err in allowing C.M. to testify outside the witness box.

        Petitioner’s final argument is that the trial court erred by not striking for cause Juror No.
17 who admitted during voir dire that she had been a victim of sexual abuse at the age of eight or
nine. Petitioner argues that he was thereby wrongfully forced to use one of his preemptory strikes
to remove Juror No. 17 from the jury.

        The record on appeal reveals that petitioner failed to ask the trial court to strike Juror No.
17 for cause. Therefore, petitioner waived his right to raise the issue on appeal. “When a
defendant has knowledge of grounds or reason for a challenge for cause, but fails to challenge a
prospective juror for cause or fails to timely assert such a challenge prior to the jury being sworn,
the defendant may not raise the issue of a trial court’s failure to strike the juror for cause on
direct appeal.” Syl. Pt. 5, State v. Tommy Y., Jr., 219 W.Va. 530, 637 S.E.2d 628 (2006).
Importantly, on voir dire, Juror No. 17 stated strongly and unequivocally that her prior sexual
abuse would not affect her impartiality.

       For the foregoing reasons, we affirm.

                                                                                           Affirmed.




                                                  3

ISSUED: April 12, 2013

CONCURRED IN BY:

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




                                  4
