                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS



State of West Virginia,                                                                 FILED
Plaintiff Below, Respondent                                                             May 24, 2013
                                                                                   RORY L. PERRY II, CLERK
                                                                                 SUPREME COURT OF APPEALS
vs) No. 12-0684 (Ohio County 09-F-108)                                               OF WEST VIRGINIA


Gerry G. Barnes,
Defendant Below, Petitioner


                                 MEMORANDUM DECISION

        Petitioner’s appeal, by counsel Kevin L. Neiswonger, arises from the Circuit Court of
Ohio County, wherein the circuit court sentenced petitioner to a total effective term of
incarceration of twenty-two to sixty years following his jury conviction of two counts of sexual
assault in the second degree and two counts of sexual assault in the third degree. By order entered
May 10, 2012, petitioner was resentenced for purposes of this appeal. The State, by counsel
Shawn R. Turak, has filed its response and a supplemental appendix.

       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.

         Petitioner was employed as a supervisor by a nonprofit agency that serves the needs of
disabled individuals with cognitive impairment and/or developmental disabilities, providing
supervised employment for its disabled workers. The victim, J.M.1, was a mentally-handicapped
employee of the agency. Expert testimony introduced at trial established J.M.’s IQ as fifty-four,
and her overall academic skills at a sixth-grade level. One evening in 2008, petitioner was
supervising the victim and two other employees. The victim was alone working on the first floor
of a building when petitioner physically moved her to the bathroom. In the bathroom, petitioner
performed oral sex on the victim, then pushed her against the door, made her bend over, and had
vaginal intercourse with her. The sexual assault was interrupted when one of the co-workers
attempted to enter the bathroom and saw what was happening. At trial, an expert testified that
J.M. functions like a ten-to-twelve-year-old child and lacked the ability to verbally or physically
resist petitioner’s sexual assaults.

       1
          In keeping with this Court’s policy of protecting the identity of the victims of sexual
crimes, the victim in this matter will be referred to by her initials throughout the memorandum
decision.
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         Thereafter, petitioner was indicted on the following counts: one count of kidnapping
(count I); one count of sexual assault in the second degree related to oral sex (count II); one count
of sexual assault in the second degree related to vaginal intercourse (count III); one count of
sexual assault in the third degree related to oral sex (count IV); and one count of sexual assault in
the third degree related to vaginal intercourse (count V). Prior to trial, petitioner filed a motion to
elect asking the circuit court to order the State to make an election between counts II and IV,
arguing that he was being prosecuted for two separate and distinct crimes for one particular act of
oral sex. Petitioner made the same argument and requested an election in regard to counts III and
V as they related to one act of vaginal intercourse. That motion was denied. During trial and
following the return of the jury’s verdicts, petitioner made motions for judgment of acquittal/new
trial as to counts II and III, arguing that there was insufficient evidence to convict him of both
counts of sexual assault in the second degree since there was no evidence regarding forcible
compulsion by way of physical force and/or earnest resistance. These motions were denied. In
July of 2010, petitioner was convicted of two counts of sexual assault in the second degree and
two counts of sexual assault in the third degree. Petitioner was thereafter sentenced to a term of
incarceration of ten to twenty-five years for his each of his convictions of sexual assault in the
second degree, and a term of incarceration of one to five years for each of his convictions of
sexual assault in the third degree, all sentences to run consecutively.

        On appeal, petitioner alleges three assignments of error, arguing that the circuit court erred
in denying his motions for judgment of acquittal/new trial as to counts II and III of the indictment,
in denying his motion requesting that the State elect between counts II and IV and III and V of the
indictment, and that there was insufficient evidence to convict him of both counts of sexual
assault in the second degree. In support, petitioner alleges that the circuit court erred in denying
his motions for judgment of acquittal/new trial in regard to the two counts of sexual assault in the
second degree because there was no evidence of forcible compulsion by way of physical force
and/or earnest resistance presented at trial. Petitioner argues that the victim’s own testimony
established that she neither resisted nor said no to his sexual advances. Further, petitioner argues
that his protections against double jeopardy were violated by his prosecution and conviction for
two counts of sexual assault in the second degree and sexual assault in the third degree.
According to petitioner, he committed only two acts, oral sex and vaginal intercourse, yet he has
been sentenced for four crimes. Lastly, petitioner again argues that no earnest resistance or
physical force occurred so the evidence is therefore insufficient to support his convictions for
sexual assault in the second degree.

        “‘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).” Syl. Pt. 1, State v. James, 227
W.Va. 407, 710 S.E.2d 98 (2011). Upon our review, the Court finds no error in regard to
petitioner’s assignments of error. To begin, we have previously held that “[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


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       “[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. 5, State v. Broughton, 196 W.Va. 281, 470 S.E.2d 413 (1996). Upon our review, the Court
finds that the circuit court did not err in denying petitioner’s motions because the evidence was
sufficient to support his conviction on two counts of sexual assault in the second degree.
Petitioner’s entire argument on this point is based on his misinterpretation of the elements
necessary to support a conviction for sexual assault in the second degree. Specifically, West
Virginia Code § 61-8B-4(a)(1) states that a person is guilty of second degree sexual assault when
they “engage[] in sexual intercourse or sexual intrusion with another person without the person’s
consent, and the lack of consent results from forcible compulsion.” Additionally, forcible
compulsion can arise from three separate scenarios, one of which West Virginia Code § 61-8B­
1(1)(b) defines as “[t]hreat or intimidation, expressed or implied, placing a person in fear of
immediate death or bodily injury to himself or herself or another person or in fear that he or she or
another person will be kidnapped.” Petitioner erroneously argues that “in order to sustain a
conviction for ‘second degree sexual assault,’ the State . . . was required to prove . . . that the
victim earnestly resisted and that [he] over[came] that resistance by using forcible compulsion.”
This is not an accurate statement of the law, as petitioner is relying solely upon the definition of
forcible compulsion as set forth in West Virginia Code § 61-8B-1(1)(a).

        At trial, the victim consistently testified that she did not verbally or physically resist
petitioner because she was “afraid he was going to hurt [her].” According to the victim, her fear
was based on the great disparity in their respective sizes. Petitioner notes that when asked if he
threatened the victim, J.M. responded that he did not. According to petitioner, he could not be
guilty of sexual assault in the second degree because he did not threaten or intimidate her, but this
is again a misstatement of the law. Petitioner is actually arguing that he did not expressly threaten
or intimidate the victim and ignores the implied intimidation to which the victim testified. For
these reasons, the Court finds that the circuit court did not err in denying petitioner’s motions
because the evidence was sufficient to support his convictions for two counts of second degree
sexual assault. Further, insomuch as petitioner’s third assignment of error regarding insufficient
evidence to support his convictions for two counts of sexual assault in the second degree is also
based entirely on an alleged lack of evidence establishing forcible compulsion, the Court finds no
error in this regard. As addressed above, the evidence presented at trial was sufficient to support
petitioner’s convictions for second degree sexual assault based upon the definition of forcible
compulsion as found in West Virginia Code § 61-8B-1(1)(b).

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        Lastly, the Court finds that no violation of petitioner’s protections against double jeopardy
occurred in regard to his indictment or conviction. “‘[A] double jeopardy claim [is] reviewed de
novo.’ Syllabus Point 1, in part, State v. Sears, 196 W.Va. 71, 468 S.E.2d 324 (1996).” Syl. Pt. 1,
State v. McGilton, 229 W.Va. 554, 729 S.E.2d 876 (2012). We have previously held that,

       “[w]here the same act or transaction constitutes a violation of two distinct statutory
       provisions, the test to be applied to determine whether there are two offenses or
       only one is whether each provision requires proof of an additional fact which the
       other does not. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed.
       306 (1932)” Syllabus Point 4, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).

Syl. Pt. 11, State v. Ray, 221 W.Va. 364, 655 S.E.2d 110 (2007). By analyzing the statutory
elements of each crime, it is clear that each crime, as specifically pled in this matter, requires
proof of an additional fact that the other does not. Pursuant to West Virginia Code § 61-8B­
4(a)(1), second degree sexual assault requires proof of forcible compulsion, which is not required
to establish third degree sexual assault. Pursuant to West Virginia Code § 61-8B-5(a)(1), third
degree sexual assault requires proof that the victim was mentally defective, which is not required
to establish second degree sexual assault. Further, this Court has already addressed the issue of
whether one sexual act may constitute the crimes of second and third degree sexual assault. While
the case in question concerned an earlier version of the applicable statutes, the Court found that
the two crimes are separate and distinct offenses for purposes of double jeopardy analysis. See
State v. Sayre, 183 W.Va. 376, 395 S.E.2d 799 (1990) (holding that a defendant’s convictions for
second and third degree sexual assault arising from a single sexual act did not violate the
defendant’s protections against double jeopardy).

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



                                                                                          Affirmed.

ISSUED: May 24, 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




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