                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


State of West Virginia,

                                                                                         FILED
Plaintiff Below, Respondent                                                         January 11, 2016

                                                                                   RORY L. PERRY II, CLERK
                                                                                 SUPREME COURT OF APPEALS
vs) No. 15-0152 (Mercer County 14-F-140-WS)                                          OF WEST VIRGINIA


Daniel C.,

Defendant Below, Petitioner



                               MEMORANDUM DECISION
        Petitioner Daniel C.,1 by counsel R. Thomas Czarnik, appeals the Circuit Court of Mercer
County’s March 31, 2015, order resentencing him upon his conviction of seven counts of first-
degree sexual abuse and five counts of sexual abuse by a parent. The State, by counsel Laura
Young, filed a response in support of the circuit court’s order. Petitioner filed a supplemental
appendix. On appeal, petitioner argues that the circuit court: 1) erred in making evidentiary
rulings; 2) failed to dismiss count nine of the indictment; and 3) erred in permitting the State to
ask the victims leading questions. Petitioner also argues that his sentence was excessive.

       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 order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.

        In 2012, the West Virginia State Police initiated an investigation upon receiving
allegations that petitioner inappropriately touched four children. As part of the initial
investigation, petitioner gave a statement to Trooper Lamont Lee. Thereafter, on January 3,
2013, petitioner voluntarily met with Sergeant Melissa Clemons of the West Virginia State
Police for the purpose of taking a polygraph examination. During the “pre-interview” procedure,

       1
          “We follow our past practice in . . . cases which involve sensitive facts and do not utilize
the last names of the parties.” State ex rel. W.Va. Dep’t of Human Servs. v. Cheryl M., 177
W.Va. 688, 689 n. 1, 356 S.E.2d 181, 182 n. 1 (1987) (citations omitted). See also 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 [petitioner], we have referred to the [petitioner] by his last name
initial.”(citations omitted)).




                                                   1

petitioner decided to give a statement to Sergeant Clemons. Thereafter, in the course of giving
his statement, petitioner admitted to inappropriately touching the children.

       In June of 2014, the Mercer County grand jury indicted petitioner on six counts of first-
degree sexual abuse, one count of first-degree sexual assault, and five counts of sexual abuse by
a parent, guardian, custodian or person in position of trust to a child. The indictment charged that
the sexual crimes occurred at various times beginning in 2006 through 2012, all with victims less
than twelve years old.

        Prior to trial, petitioner filed a motion to suppress his January 3, 2013, oral statement to
Sergeant Clemons on the ground that Sergeant Clemons failed to produce a videotaped copy of
the interview. On October 21, 2014, the circuit court held a hearing on petitioner’s motion during
which it heard testimony from Sergeant Clemons, Sergeant Robert Richards, and petitioner.
After considering all of the testimony, the circuit court denied petitioner’s motion to suppress his
oral statement given to Sergeant Clemons finding that the video recording “[was] not crucial or
exculpatory evidence for either the State of the [petitioner.]” Furthermore, the circuit court found
that petitioner gave his statement freely and voluntarily. Petitioner’s jury trial commenced in
November of 2014. Following a three-day trial, a jury convicted petitioner on all counts,
including the lesser included offense of first-degree sexual abuse for count nine of the
indictment.2

        Thereafter, petitioner filed a motion for new trial arguing that the circuit court erred in:
1) refusing to admit exhibits and the transcript of an interview conducted by Trooper Lee on the
ground of hearsay; 2) refusing to admit an interview of an alleged victim R.F. on the grounds
that it was cumulative; 3) denying his motion to dismiss Count nine; 4) admitting his statement
made to Sergeant Clemons; and 5) allowing the State to ask the victims leading questions. By
order entered on November 30, 2014, the circuit court sentenced petitioner to a cumulative
sentence of 31 to 100 years of incarceration. The circuit court also denied petitioner’s motion for
new trial. This appeal follows.

        On appeal, petitioner raises seven assignments of error. In his first and second
assignments of error, petitioner argues that the circuit court made certain erroneous evidentiary
rulings. This Court has explained that it affords great deference to evidentiary rulings made by a
circuit court.

              “The action of a trial court in admitting or excluding evidence in the
       exercise of its discretion will not be disturbed by the appellate court unless it
       appears that such action amounts to an abuse of discretion.” Syllabus point 10,
       State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955), overruled on other
       grounds, State ex rel. R.L. v. Bedell, 192 W.Va. 435, 452 S.E.2d 893 (1994).



       2
           Count nine of the indictment charged petitioner with first-degree sexual assault.




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Syl. Pt. 1, State v. Calloway, 207 W.Va. 43, 528 S.E.2d 490 (1999). Stated another way:

               “The West Virginia Rules of Evidence . . . allocate significant discretion
       to the trial court in making evidentiary . . . rulings. Thus, rulings on the
       admissibility of evidence . . . are committed to the discretion of the trial court.
       Absent a few exceptions, this Court will review evidentiary . . . rulings of the
       circuit court under an abuse of discretion standard.” Syllabus Point 1, in part,
       McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995).

Syl. Pt. 9, Smith v. First Community Bancshares, Inc., 212 W.Va. 809, 575 S.E.2d 419 (2002).

        Petitioner’s argument with respect to his first assignment of error is that the circuit court
erred in excluding a copy of the transcript of the statement that he gave to Trooper Lee.
Petitioner disputes the circuit court’s finding that a copy of the transcript was hearsay. During the
direct examination of Tpr. Lee, the State played for the jury the entire audio recording of
petitioner’s statement taken by Tpr. Lee during the underlying investigation which primarily
focused upon petitioner’s drinking habits. After the audio recording was admitted, petitioner’s
counsel sought to introduce as evidence a copy of the transcript, to which the State objected.
With respect to the admission of the transcript of petitioner’s statement, we agree with the circuit
court’s finding that the written transcript should be excluded because it was not the best evidence
of petitioner’s statement. “To be admissible as substantive evidence, a transcript of a tape
recording must satisfy both the best evidence rule and the hearsay rule.” State v. Hardesty, 194
W.Va. 732, 739, 461 S.E.2d 478, 485 (1995). Further, Rule 1002 of the West Virginia Rules of
Evidence provides that “[a]n original . . . recording . . . is required in order to prove its
content[.]” Here, the transcript of petitioner’s statement to Tpr. Lee does not satisfy the best
evidence rule as the original audio recording of petitioner’s statement was the best evidence to
prove its content.

        In his second assignment of error, petitioner argues that the statement of R.F. (an alleged
victim), wherein R.F. denied that petitioner abused her should have been admitted into evidence
because it was exculpatory and necessary for impeachment purposes. Again, we agree with the
finding made by the circuit court in excluding R.F’s statement as cumulative. Rule 403 of the
West Virginia Rules of Evidence provides that the court may exclude relevant evidence if it is
cumulative. Upon review of the record, we find that petitioner’s counsel conceded that the
evidence he sought to introduce through R.F.’s statement had already been introduced through
direct and cross-examination of other witnesses. Accordingly, we do not believe that the circuit
court erred in excluding the transcript of petitioner’s statement to Trooper Lee or R.F.’s
statement.

       We turn to petitioner’s third assignment of error, in which he argues that the evidence
presented by the State was insufficient to prove his guilt of first-degree sexual assault (count nine
of the indictment) beyond a reasonable doubt. With regard to claims of sufficiency of the
evidence in a criminal proceeding, we have explained 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

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       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.” Syllabus Point 3, State v. Guthrie, 194
       W.Va. 657, 461 S.E.2d 163 (1995).

Syl. Pt. 1, State v. Malfregeot, 224 W.Va. 264, 685 S.E.2d 237 (2009). To convict petitioner of
first-degree sexual assault, the State had to prove that petitioner engaged in “sexual intercourse”
or “sexual intrusion” with another person. W. Va. Code § 61-8B-3(a)(1). “‘Sexual intrusion’
means any act between persons involving penetration, however slight, of the female sex organ . .
. by an object for the purpose of . . . gratifying the sexual desire of either party.” W. Va. Code §
61-8B-1(8).

        Following a thorough review of the record on appeal and the parties’ arguments, we find
no merit to petitioner’s argument. The alleged victim testified that petitioner touched her “inside
her private area” and that “[i]t hurt a little.” Given this testimony, the jury heard sufficient
evidence to find that petitioner’s conduct amounted to sexual intrusion. Therefore, we reject
petitioner’s third assignment of error.

       Next, petitioner argues that his statement to Sergeant Clemons should not have been
admitted at trial because it was obtained in violation of his right to counsel. Petitioner asserts that
he made his statement to Sergeant Clemons while he was represented by counsel in an abuse and
neglect proceeding involving the same facts. Petitioner also notes that he did not waive his right
to counsel. “The Sixth Amendment right to counsel attaches at the time judicial proceedings
have been initiated against a defendant whether by way of formal charges, preliminary hearing,
indictment, information, or arraignment.” Syl. Pt. 1, State v. Bowyer, 181 W. Va. 26, 380 S.E.2d
193 (1989). This Court has also held that

       the police may subsequently initiate a custodial interrogation of the accused
       regarding a wholly unrelated offense for which he or she has not been charged,
       provided that, prior to the interrogation, the accused is apprised of his . . . rights
       pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
       (1966)[.]”

Syl. Pt. 2, in part, State v. Blackburn, 233 W.Va. 362, 758 S.E.2d 566 (2014). In this case,
petitioner’s Sixth Amendment right to counsel was not violated. At the time petitioner gave his
statement to Sergeant Clemons, he was informed that he was not under arrest, he had signed a
“Miranda Rights Form” acknowledging his rights, and the State had yet to initiate any criminal




                                                  4

proceedings against him.3 Accordingly, we find no error in the circuit court’s order denying
petitioner’s motion to suppress the inculpatory statement to Sergeant Clemons.

         In his sixth assignment of error, petitioner argues that the circuit court erred in allowing
the State to ask the alleged victims leading questions. Specifically, petitioner asserts that the
victims were older than seven years old and “not of tender years.” See Syl. Pt. 2, Hendricks v.
Monongahela West Penn Pub. Serv. Co., 111 W.Va. 576, 163 S.E. 411 (1932) (“[i]n the absence
of special circumstances justifying it, the party introducing a witness should not be permitted to
elicit the information he desires by leading questions.”)

        Rule 611(c) of the West Virginia Rules of Evidence provides that, although leading
questions “should not be used on direct examination of a witness, an exception may be necessary
to develop the witness’ testimony.” Further, “[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).
Here, the record reveals that nine-year-old A.C. was hesitant to testify and often would give one-
word answers. Further, petitioner’s counsel admitted that A.C. was a child of tender years. Given
these problems, we find that the circuit court did not abuse its discretion in allowing the State to
ask this child-witness leading questions on direct examination as a means of developing her
testimony.

        Finally, petitioner argues that his sentence is constitutionally excessive. While petitioner
argues that his crimes do not warrant a sentence equal to capital crimes, we find that his sentence
is not appropriate for appellate review. “The Supreme Court of Appeals reviews sentencing
orders, . . . under a deferential abuse of discretion standard, unless the order violates statutory or
constitutional commands.” Syl. Pt. 1, in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221
(1997). Accord, Syl. Pt. 1, State v. James, 227 W.Va. 407, 710 S.E.2d 98 (2011). ““Sentences
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).

       3
         Related to this assignment of error, petitioner makes a fleeting reference to this Court’s
holding in State v. Osakalumi, 194 W.Va. 758, 461 S.E.2d 504 (1995). In his brief to this Court,
petitioner contends that “‘bad faith’ is not a requirement for prejudicial disposal of evidence,”
suggesting that the State withheld a copy of a videotaped recording of his statement The record
on appeal is devoid of any evidence that a video recording existed. Inasmuch as the circuit court
presumed that the video recording existed in denying petitioner’s motion to suppress this
evidence, we will not look behind the circuit court’s decision. In this memorandum decision, we
address only those grounds sufficiently briefed by petitioner. Petitioner’s conclusory reference to
“prejudicial disposal,” is deficient as it is unsupported by citations to the appendix record on
appeal or by meaningful argument. As this Court has explained, “[a] skeletal ‘argument,’ really
nothing more than an assertion, does not preserve a claim . . . .” State v. Kaufman, 227 W.Va.
537, 555 n. 39, 711 S.E.2d 607, 625 n. 39 (2011) (quoting United States v. Dunkel, 927 F.2d 955,
956 (7th Cir.1991)). See also Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure
(“[t]he brief must contain an argument . . . .”)



                                                  5

        We first note that the sentences imposed by the circuit court for first-degree sexual abuse
were consistent with the statute. West Virginia Code § 61-8B-7, provides for a sentence of
imprisonment for “not less than five nor more than twenty-five years.” Similarly, the sentences
imposed for sexual abuse by a parent were consistent with the statute. West Virginia Code § 61­
8D-5, provides for a sentence of imprisonment for “not less than ten nor more than twenty
years.” Additionally, “[w]hen a defendant has been convicted of two separate crimes, before
sentenced is pronounced for either, the trial court may, in its discretion, provide that the
sentences run concurrently, and unless it does not provide, the sentences will run consecutively.”
Syl. Pt. 3, Keith v. Leverette, 163 W.Va. 98, 254 S.E.2d 700 (1979). Petitioner’s sentences do not
exceed the applicable statutory limits and are not based on any impermissible factor.

       For the foregoing reasons, the circuit court’s March 31, 2015, order, is hereby affirmed.

                                                                                        Affirmed.

ISSUED: January 11, 2016

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




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