                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,                                                            FILED
Plaintiff Below, Respondent                                                       April 25, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 13-0571 (Gilmer County 12-F-14)                                        OF WEST VIRGINIA



Charles Dale Emerson,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
         Petitioner Charles Dale Emerson, by counsel Kevin Duffy, appeals his convictions and
sentences for sexual assault in the first degree and sexual abuse in the first degree. His
sentencing order was entered by the Circuit Court of Gilmer County on April 24, 2013.
Respondent State of West Virginia, by counsel Christopher S. Dodrill, responds in support of the
circuit court’s actions.

        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.

                             I. Facts and Procedural Background

       Petitioner was indicted for two counts of first degree sexual abuse in violation of West
Virginia Code § 61-8B-7(a)(3), and two counts of first degree sexual assault in violation of West
Virginia Code § 61-8B-3(a)(2). The victim was his great-nephew, J.S., who was four years old at
the time of the alleged crimes and was six years old at the time of trial.

        J.S. testified at trial that petitioner touched J.S.’s penis on one occasion and digitally
penetrated J.S.’s anus on more than two occasions. Social worker Maureen Runyon, who was
qualified by the trial court as an expert in the area of whether children exhibit characteristics of
being abused, testified about an interview she conducted of J.S. Ms. Runyon testified that J.S.
described and demonstrated the sexual acts on a doll; identified petitioner as the perpetrator who
committed those acts; and that J.S.’s statements to her were consistent with one another. The
State also presented evidence of petitioner’s pre-trial statement given to the state police. In the
statement, petitioner denied J.S.’s allegations. However, during the interview the state trooper
asked petitioner, “[d]o you have a sex problem?” Petitioner answered, “I’ve never been
diagnosed. Maybe I do. I am not active.” Petitioner did not testify at trial or present any evidence
in his defense.

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        At the close of the State’s case, the trial court granted a motion for judgment of acquittal
on one count of first degree sexual abuse because J.S. had testified that petitioner only touched
his penis on one occasion, not on more than one occasion as alleged in the indictment. The jury
found petitioner guilty of one count of first degree sexual abuse for touching J.S.’s penis and one
count of first degree sexual assault for digital penetration. The jury acquitted him of one count of
first degree sexual assault.

       Petitioner’s post-trial motion for judgment of acquittal or a new trial was denied. He was
sentenced to the statutory terms of five to twenty-five years in prison for the sexual abuse, and
twenty-five to 100 years in prison for the sexual assault, said sentences to run consecutively. He
was also ordered to register as a sex offender.

        This is petitioner’s direct appeal of the convictions and sentences. In considering this
appeal, we are mindful of our prior decisions holding that a trial court’s denial of a motion for
new trial is entitled to great respect and weight, and will not be reversed on appeal unless it is
clear that the court acted under some misapprehension of the law or the evidence. Syl. Pt. 4,
Sanders v. Georgia–Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976); Syl. Pt. 1, State v.
White, 228 W.Va. 530, 722 S.E.2d 566 (2011).


                                          II. Discussion

                                 A. Sufficiency of the Evidence

        In his first and second assignments of error, petitioner asserts that the trial court erred
when it denied his motions for judgment of acquittal at the close of the State’s case and after the
defense rested. “A motion for judgment of acquittal challenges the sufficiency of the evidence.”
State v. Houston, 197 W.Va. 215, 229, 475 S.E.2d 307, 321 (1996) (citing Franklin D. Cleckley,
2 Handbook on West Virginia Criminal Procedure 292 (2d ed.1993)). As such, we note 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). Furthermore,

              [w]hen a criminal defendant undertakes a sufficiency challenge, all the
       evidence, direct and circumstantial, must be viewed from the prosecutor's coign of

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       vantage, and the viewer must accept all reasonable inferences from it that are
       consistent with the verdict. This rule requires the trial court judge to resolve all
       evidentiary conflicts and credibility questions in the prosecution's favor;
       moreover, as among competing inferences of which two or more are plausible, the
       judge must choose the inference that best fits the prosecution's theory of guilt.

Syl. Pt. 2, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996).

        Petitioner argues that the evidence was insufficient to convict him of sexual assault in the
first degree. “A person is guilty of sexual assault in the first degree when . . . [t]he person, being
fourteen years old or more, engages in . . . sexual intrusion with another person who is younger
than twelve years old and is not married to that person.” W.Va. Code §61-8B-3(a)(2). “‘Sexual
intrusion’ means any act between persons involving penetration, however slight, . . . of the anus
of any person by an object for the purpose of degrading or humiliating the person so penetrated
or for gratifying the sexual desire of either party.” W.Va. Code § 61-8B-1(8).

        He also argues that the evidence was insufficient to convict him of sexual abuse in the
first degree. “A person is guilty of sexual abuse in the first degree when . . . [s]uch person, being
fourteen years old or more, subjects another person to sexual contact who is younger than twelve
years old.” W.Va. Code § 61-8B-7(a)(3). “‘Sexual contact’ means any intentional touching,
either directly or through clothing, of . . . any part of the sex organs of another person . . . where
the victim is not married to the actor and the touching is done for the purpose of gratifying the
sexual desire of either party” W.Va. Code § 61-8B-1(6).

        Upon our review, we conclude that the circuit court did not err in denying petitioner’s
motions because the evidence was sufficient to support his conviction. J.S.’s testimony that
petitioner digitally penetrated J.S.’s anus, was sufficient to prove first degree sexual assault.
J.S.’s testimony that petitioner touched J.S.’s penis, was sufficient to prove first degree sexual
abuse. J.S.’s testimony was corroborated by the consistent statements he gave to Ms. Runyon
during her interview.

       Petitioner asks this Court to find that J.S.’s trial testimony should have been excluded as
not “credible.” He asserts that “J.S. was, based upon his age, incapable of offering credible
testimony[.]” He also argues that J.S.’s testimony was coached and/or the product of questioning
by multiple people. We find no merits to these arguments.

        First, to the extent that petitioner is arguing that J.S. was not competent to testify based
upon his age, the record on appeal does not reflect that petitioner ever raised this objection with
the circuit court. As we have explained in numerous cases, parties must raise their objections or
risk waiver. See e.g., LaRock, 196 W.Va. at 316, 470 S.E.2d at 635; State v. Proctor, 227 W.Va.
352, 359-60, 709 S.E.2d 549, 556-57 (2011).

       Next, petitioner argues that J.S.’s testimony was not what a child of four or six years old
would testify to, unless the child had been coached. To support this argument, he points to the
following testimony when the prosecutor was questioning J.S. at trial:



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       Q.      And where would he touch you? What part of your body?
       A.      My winky and my butt.
       Q.      Okay. What did he do with his finger in your butt?
       A.      Put it in my butt.

We fail to see how this indicates coaching. J.S. used a child’s terminology to describe his body,
and he simply told what happened to him. Instead of being evidence of coaching, this could
instead be evidence that J.S. was a victim of the conduct he described. In light of their findings
of guilt on two counts of the indictment, the jury obviously found this to be evidence that J.S.
had suffered sexual assault and sexual abuse. Importantly, “[c]redibility determinations are for a
jury and not an appellate court.” Guthrie, 194 W.Va. at 663, 461 S.E.2d at 169, Syl. Pt. 3.
Petitioner was free to challenge J.S.’s credibility at trial based on the assertions that the child had
been coached and his testimony rehearsed.

       When making his motion for judgment of acquittal, petitioner argued that J.S. changed
the word he used to identify his penis, calling it a “weiner” when interviewed by Ms. Runyon
and calling it a “winkie” at trial two years later. However, Ms. Runyon indicated that such
changes in terminology are not uncommon for children. Petitioner does not explain how this
change in terminology could be indicative of coaching.

                                       B. Witness Statement

         In his third assignment of error, petitioner argues that the circuit court should have
granted his motion for a new trial because the prosecutor did not produce, before trial, a
statement given by one of its witnesses. Petitioner is referring to a written statement that J.S.’s
grandmother gave to a child protective services worker. Petitioner indicates that he was unaware
of this statement until trial. At trial, the prosecutor used the statement to refresh the
grandmother’s recollection. The statement was provided to the defense after the grandmother
testified on direct, but before she was cross-examined by defense counsel.

        Petitioner acknowledges that the statement was produced to the defense in accordance
with the procedure established in Rule 26.2 of the West Virginia Rules of Criminal Procedure.
However, even though this procedure was followed, petitioner asserts that the statement should
have been produced earlier so that his lawyer could have conducted an appropriate investigation.
In the statement, the grandmother expressed her opinion that J.S. may have also been molested
by someone in addition to petitioner.

        We find no error. The statement was produced in accordance with the Rules of Criminal
Procedure. Petitioner does not argue that the State violated any pre-trial discovery request or
order, and does not specify what investigation counsel would have performed had he known of
the statement sooner. Moreover, although a prosecutor is required to produce exculpatory or
impeachment evidence to a criminal defendant, the statement at issue herein was not exculpatory




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or impeachment evidence.1 The grandmother’s statement does not suggest that petitioner was
innocent of the charges. Rather, she was concerned that someone else had also harmed the child.
Furthermore, petitioner’s counsel was able to use this portion of the statement to cross-examine
the grandmother at trial.

                                            C. Sentence

        In his fourth and final assignment of error, petitioner argues that his sentence is
constitutionally disproportionate. The circuit court imposed the statutory sentences for each
crime, to run consecutively, for a total effective sentence of thirty to 125 years in prison.
Petitioner maintains his innocence, but argues that even if he had committed these crimes, this
sentence means that he will probably spend the rest of his life in prison. He was fifty-three years
old at the time of sentencing. He argues that this sentence is disproportionate because a younger
person facing the same sentence for the same crimes might not spend the rest of his/her life in
prison.

         “‘The Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse
of discretion standard, unless the order violates statutory or constitutional commands.’ Syllabus
point 1, in part, State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997).” Syl. Pt. 1, Sulick, 232
W.Va. 717, 753 S.E.2d 875 (2012). We have also 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. 8, State v. Sulick, 232 W.Va. 717, 753 S.E.2d 875 (2012).

        The court imposed the terms of incarceration specified by each of the statutes that
petitioner violated when committing these crimes against a victim younger than twelve years old.
See W.Va. Code §§ 61-8B-3(c), -7(c). Petitioner does not allege that his sentence was based
upon any impermissible factor, and we find no evidence that any impermissible factor was relied
upon. Petitioner’s argument that older defendants should receive lighter sentences than younger
defendants who commit the same crimes, is completely meritless.

       For the foregoing reasons, we affirm.


                                                                                          Affirmed.




       1
        The State’s obligation to disclose exculpatory and impeachment evidence is addressed in
several cases. See, e.g., Brady v. Maryland, 373 U.S. 83 (1963), and State v. Youngblood,
221 W.Va. 20, 650 S.E.2d119 (2007).

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ISSUED: April 25, 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




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