                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



State of West Virginia,                                                        FILED
Plaintiff Below, Respondent                                                  August 29, 2014
                                                                          RORY L. PERRY II, CLERK
                                                                        SUPREME COURT OF APPEALS
vs) No. 13-0712 (Putnam County 13-MAP-4)                                    OF WEST VIRGINIA



Paul E. Carbonneau,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner Paul E. Carbonneau, by counsel Timothy J. LaFon, appeals the June 12, 2013,
final order of the Circuit Court of Putnam County affirming his conviction for one count of
domestic battery in violation of West Virginia Code § 61-2-28(a).1 The State of West Virginia,
by 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 standards 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 West Virginia Rules of Appellate Procedure.

      On December 25, 2012, around 4:30 or 5:00 p.m., Deputy C.M. Savilla of the Putnam
County Sheriff’s Department responded to a 911 call of a domestic disturbance at petitioner’s



       1
           West Virginia Code § 61-2-28(a) provides as follows:

       Domestic battery. -- Any person who unlawfully and intentionally makes physical
       contact of an insulting or provoking nature with his or her family or household
       member or unlawfully and intentionally causes physical harm to his or her family
       or household member, is guilty of a misdemeanor and, upon conviction thereof,
       shall be confined in a county or regional jail for not more than twelve months, or
       fined not more than five hundred dollars, or both.

W.Va. Code § 61-2-28(e) further provides that the phrase “family or household member,” as
used in the above section, is defined in W.Va. Code § 48-27-204. In that provision, “family or
household member” means, in relevant part, “persons who: … (5) are or were residing together
in the same household.”


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residence in Hurricane, West Virginia. Petitioner lived at that residence with T.B.2 and her two
minor children—A.B. (fourteen years old) and C.B. (eight years old). Petitioner had resided in
the same household with T.B. and her children for approximately seven years. On that date,
petitioner told the officer that petitioner and T.B. had been in a verbal argument. The officer,
noticing that A.B. was crying and distraught, spoke with her in private. A.B. told the officer that
petitioner had struck her several times in the face during an argument between petitioner and her
mother. The officer witnessed redness on A.B.’s face and neck. Petitioner was arrested and
charged with one count of domestic battery.

        A referral of child abuse was made to Child Protective Services (“CPS”) regarding the
December 25, 2012, incident. Intake worker Nancy Booth was assigned to the case. Ms. Booth
met with various witnesses, including A.B., on December 26, 2012, one day after the incident,
and reviewed the matter consistent with her duties. After completing her investigation, Ms.
Booth compiled a report on February 19, 2013, in which reported that she could not substantiate
the allegations of abuse by petitioner against A.B. Ms. Booth determined that there were
inconsistencies in A.B.’s story, including A.B.’s claim that petitioner hit her in the face several
times where A.B. had only minimal scratching the next day. Also, an in-home care worker had
overheard A.B. state that if petitioner were removed from the home her biological father, then
incarcerated, could return to the family.

        Following a bench trial in magistrate court on March 8, 2013, petitioner was convicted of
one count of domestic battery. On March 14, 2013, he appealed the conviction to the circuit
court, which held a bench trial de novo on May 24, 2013. A.B. testified that, during the argument
between petitioner and her mother, petitioner struck her “multiple times” in the face. A.B.
explained, as she had to the officer on the day of the incident, that she stepped in between
petitioner and her mother, and that is when petitioner struck her. A.B. was cross-examined as to
the incident, her prior statements regarding the incident, and those issues raised by Ms. Booth in
her report. The officer testified that on December 25, 2012, petitioner admitted to arguing with
T.B., but he maintained that the argument was verbal, not physical. The officer testified that A.B.
appeared distraught and crying. He spoke to her privately, and A.B. told him that petitioner had
“punched her several times.” The officer witnessed redness on A.B.’s face area consistent with
that claim. Several pictures related to the incident were admitted into evidence without objection,
including pictures of A.B. at the time of the incident.

        Relevant to this appeal, the CPS worker testified as to her investigation and report
regarding the incident between petitioner and A.B. The CPS worker was permitted to testify as to
her report, including the inconsistencies she detailed in A.B.’s story, and her report was admitted
into evidence. During direct examination, petitioner’s counsel asked the CPS worker whether she
“ultimately reach[ed] a conclusion as to the veracity or whether [A.B.] was telling the truth about
       2
          Because of the sensitive nature of this case, we use the initials of the victim and those
persons related to the victim. Here, however, petitioner is not related to, nor does he share the
same name with, the victim. See State v. Edward Charles L., 183 W.Va. 641, 645 n. 1, 398
S.E.2d 123, 127 n. 1 (1990) (“Consistent with our practice in cases involving sensitive matters,
we use the victim's initials. Since, in this case, the victim [is] related to the appellant, we have
referred to the appellant by his last name initial.” (citations omitted)).


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this incident?” The State immediately objected on grounds of relevance and inadmissible
opinion testimony. Petitioner countered that the CPS worker was a “quasi-expert” and could give
opinion based upon her “expertise.” The court sustained the objection, noting that the CPS
worker had not been qualified as an expert and no foundation had yet been laid for her opinion
on the issue. The CPS worker did not answer the question, nor did petitioner’s counsel make an
offer of proof on the record as to her answer.

        At the close of testimony, the circuit court stated that the case rested on a determination
of credibility. The court then found A.B. more credible than petitioner, who had testified that
despite a verbal argument with T.B., he had not hit nor attempted to hit anyone. The circuit court
convicted petitioner of domestic battery and sentencing him to ninety days in jail, suspended, and
imposed one year of probation. This appeal followed.

         This Court reviews orders by a court after a bench trial as follows:

         In reviewing challenges to the findings and conclusions of the circuit court made
         after a bench trial, a two-pronged deferential standard of review is applied. The
         final order and the ultimate disposition are reviewed under an abuse of discretion
         standard, and the circuit court's underlying factual findings are reviewed under a
         clearly erroneous standard. Questions of law are subject to a de novo review.
         Syllabus Point 1, Public Citizen, Inc. v. First Nat. Bank in Fairmont, 198 W.Va.
         329, 480 S.E.2d 538 (1996).

Syl. Pt. 1, State v. Mechling, 219 W.Va. 366, 368, 633 S.E.2d 311, 313 (2006).

        On appeal to this Court, petitioner raises two assignments of error. First, petitioner asserts
that the circuit court abused its discretion in excluding the opinion testimony of the CPS worker
as to the veracity of A.B.’s version of the incident. According to petitioner, Ms. Booth had
investigated this matter thoroughly and had collected evidence that was critical to the facts at
issue in petitioner’s case. In support of his position, petitioner cites Rule 701 of the West
Virginia Rules of Evidence,3 as well as our holdings in State v. Jameson, 194 W.Va. 561, 568,
461 S.E.2d 67 (“The determination of whether a witness has sufficient knowledge of the material
in question so as to be qualified to give his opinion is largely within the discretion of the trial
court, and will not ordinarily be disturbed on appeal unless clearly erroneous.”) and Hatcher v.
McBride, 221 W.Va. 5, 650 S.E.2d 104 (2006) (affirming decision to allow a judge to testify at a
sentencing hearing as to the defendant’s dangerousness, due to the judge’s past experience with
the defendant as juvenile and observations of the defendant’s demeanor.).

         This Court has held as follows:

3
    West Virginia Rule of Evidence 701 provides the following:

         If the witness is not testifying as an expert, his or her testimony in the form of
         opinions or inferences is limited to those opinions or inferences which are (a)
         rationally based on the perception of the witness and (b) helpful to a clear
         understanding of the witness' testimony or the determination of a fact in issue.

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       “If a party offers evidence to which an objection is sustained, that party, in order
       to preserve the rejection of the evidence as error on appeal, must place the
       rejected evidence on the record or disclose what the evidence would have shown,
       and the failure to do so prevents an appellate court from reviewing the matter on
       appeal.” Syl. Pt. 1, Horton v. Horton, 164 W.Va. 358, 264 S.E.2d 160 (1980).

Syl. Pt. 10, State v. McIntosh, 207 W.Va. 561, 534 S.E.2d 757 (2000). Offers of proof both
permit a trial court to reevaluate its decision in light of the actual evidence and allow an appellate
court to determine whether the exclusion of evidence rose to the level of prejudicial error. State
v. Blake, 197 W.Va. 700, 708, 478 S.E.2d 550, 558 (1996).

        In the case sub judice, petitioner’s counsel asked the CPS worker whether she “ultimately
reach[ed] a conclusion as to the veracity or whether [A.B.] was telling the truth about this
incident?” Before the CPS worker could respond, the following exchange occurred between the
State, the court, and petitioner’s counsel:

       THE STATE: Your Honor, I’m going to object to the relevance. This is

       for the Court to decide. I don’t see that you need an opinion of a CPS

       worker.


       THE COURT: Yeah, I don’t know what a lay opinion—well, what’s your

       position, Mr. LaFon?


       PETITIONER’S COUNSEL: I think she has expertise in investigating

       these types of events. She’s a quasi-expert. And if it assists the Court, then

       it’s allowable. It’s the standard for expertise and her expertise, she

       investigated and reached certain conclusions based thereupon.


       THE STATE: I don’t believe a CPS worker is an expert in domestic

       violence. They might be in child abuse. But domestic battery can be

       different from child abuse.


       THE COURT: I’m not going to—I mean, based on what—I mean, first of

       all, I don’t think Ms. Booth has been qualified as an expert or recognized

       here as an expert in this matter, and I’m not sure that there has been a

       foundation laid for her to offer these opinions, and I’m going to sustain the

       objection and not allow Ms. Booth to give that type of opinion testimony.


Immediately following this exchange, petitioner’s counsel proceeded into another line of
questioning with the CPS worker. Therefore, she did not present her opinion to the circuit court,
and no offer of proof was made as to what her opinion would have been in the record before this
Court. In the absence of such an offer of proof, this Court will not review the matter on appeal.

        That said, even if the alleged error had been properly preserved for appeal, we have
consistently emphasized the significant discretion afforded to trial courts in making evidentiary
rulings. State v. Wood, 194 W.Va. 525, 534, 460 S.E.2d 771, 780 (1995) (“Whether a witness is


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qualified to state an opinion is a matter which rests within the discretion of the trial court and its
ruling on that point will not ordinarily be disturbed unless it clearly appears that its discretion has
been abused.”). We see no abuse of discretion in the circuit court’s decision to exclude opinion
testimony. A.B. testified, and the trier of fact had the opportunity to witness her testimony and
determine her veracity.

        In his second and final assignment of error, petitioner argues that his conviction was
clearly against the weight of the evidence presented at trial. According to petitioner, the only
evidence offered by the State to prove his guilt beyond a reasonable doubt was A.B.’s testimony.
Petitioner avers that A.B. was incredible as a witness because she was a teenager in the middle of
family turmoil. Further, petitioner argues that if he had struck A.B. several times she would have
had bruises or welts as a result. Petitioner also argues that his own testimony completely
contradicted A.B. and the officer, and the lower court failed to properly consider the CPS
worker’s report.

       In essence, petitioner’s challenges the sufficiency of the evidence at trial. In reviewing a
defendant’s challenge to the sufficiency of the evidence to convict, we have stated that:

       “[t]he 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). Applying this standard to
our consideration of the parties’ arguments and the record on appeal, we see no reason to reverse
the conviction on a sufficiency of the evidence challenge. A.B. testified that petitioner hit her
several times during the argument with her mother, and the officer testified that A.B. exhibited


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red marks in the area where she claimed to have been hit. Viewing this evidence alone in the
light most favorable to the prosecution and granting all credibility assessments in favor of the
prosecution, the evidence was sufficient for the circuit court, sitting as trier of fact, to have
convicted petitioner of domestic battery beyond a reasonable doubt.

       For the foregoing reasons, we affirm.
                                                                                       Affirmed.


ISSUED: August 29, 2014

CONCURRED IN BY:
Chief Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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