                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


William R.,                                                                          FILED
Petitioner Below, Petitioner                                                      June 17, 2019
                                                                                EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
vs) No. 18-0385 (Ohio County 18-C-33)                                               OF WEST VIRGINIA


Donnie Ames, Superintendent,
Mt. Olive Correctional Complex,
Respondent Below, Respondent


                               MEMORANDUM DECISION
       Petitioner William R.,1 pro se, appeals the March 28, 2018, order of the Circuit Court of
Ohio County denying his petition for a writ of habeas corpus. Respondent Donnie Ames,
Superintendent, Mt. Olive Correctional Complex,2 by counsel Shannon Frederick Kiser, filed a
summary response in support of the circuit court’s order. Petitioner filed a reply.

       The 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.

        In the summer of 2005, petitioner lived with his girlfriend and her children, one of whom
was ten-year-old M.E. (“child”). Due to an allegation that petitioner offered the child money to
       1
       Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993); State v.
Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990).
       2
        Since the filing of the appeal in this case, the superintendent at Mount Olive Correctional
Complex has changed and the superintendent is now Donnie Ames. The Court has made the
necessary substitution of parties pursuant to Rule 41(c) of the West Virginia Rules of Appellate
Procedure. Additionally, effective July 1, 2018, the positions formerly designated as “wardens”
are now designated “superintendents.” See W.Va. Code § 15A-5-3.
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watch him masturbate, the child was interviewed at a child advocacy center. During the interview,
the child disclosed that she declined petitioner’s offer and that nothing else happened between her
and petitioner in her current home. However, the child went on to reveal that, when she lived in
Proctor in Wetzel County, West Virginia, petitioner touched her “private part” with his hands
inside her underwear “[a] good many” times. No charges were brought against petitioner following
the 2005 interview.

         In 2011, the child (then approximately sixteen years of age) was appointed a guardian ad
litem (“GAL”) in an unrelated proceeding. The child told her GAL about her 2005 allegations
against petitioner. The GAL contacted law enforcement and a new investigation ensued. In
February of 2011, Sgt. Matthew Adams of the West Virginia State Police met with the child and
her GAL and conducted an interview of the child. During the interview, the child stated that she
and her family moved to Ohio County in approximately 2004 and that petitioner moved into her
family home shortly thereafter. The child further stated that, when petitioner moved into her home,
he began sexually abusing her. The child claimed that petitioner (1) hid in her closet apparently
waiting for her; (2) smelled her underwear; (3) stood over her bed while she was asleep with his
pants down; (4) touched her genitalia more than once per week for years; (5) touched her breasts
once when she was ten years old; (6) forced her to touch his penis; (7) pulled her into a forced hug
and began kissing her neck; (8) would often masturbate in front of her; and (9) asked her to watch
him masturbate. The child denied ever having sexual intercourse of any kind with petitioner. When
asked whether petitioner “[went] inside of [her] vagina with his hand,” the child responded, “[n]ot
that I can recall.” However, the child confirmed that petitioner placed his hands under her clothes
and on her skin.

         In January of 2013, the Grand Jury of Ohio County returned an indictment against
petitioner charging him with six felonies between August 1, 2005, and July 20, 2006: two counts
of first-degree sexual assault (Counts 1 and 3); three counts of sexual abuse by a custodian (Counts
2, 4, and 6); and one count of first-degree sexual abuse (Count 5). Four of the six counts (Counts
1, 2, 3, and 4) included allegations of penetration. Sgt. Adams was the sole witness who testified
before the grand jury. Regarding the allegations of penetration, the assistant prosecuting attorney
had the following exchange with Sgt. Adams:

       Q: Through the course of your investigation, did you determine that sometime
       between August 1, 2005[,] and July 20th, 2006, . . . [in] Ohio County, West
       Virginia, . . . that [petitioner] had assaulted [the child] by penetrating her sexual
       organ with his finger?

       A: Yes, ma’am.

       Q: And did this – is this the basis for Count 1 of sexual assault in the [f]irst [d]egree
       contained in the [i]ndictment?

       A: Yes, ma’am.


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Petitioner subsequently filed various motions seeking to either quash the indictment or dismiss one
or more of its counts given the variance between the child’s pretrial statements and Sgt. Adams’s
grand jury testimony regarding penetration. The circuit court denied petitioner’s motions by orders
entered December 22, 2014, and July 27, 2015. The circuit court found that petitioner failed to
prove intentional and willful fraud on the part of the State during the grand jury proceeding and
that, absent such fraud, the court was prohibited from assessing and reviewing the grand jury’s
consideration of evidence in returning an indictment. The circuit court further found that Sgt.
Adams’ testimony was not misleading because he testified only to what his determination was
regarding whether penetration occurred based on his investigation.

        The circuit court held petitioner’s trial on July 29, 2015. The child testified that, when
petitioner lived in her home, they would often be home alone together. The child stated that
petitioner began showing a “weird” interest in her puberty and body. The child said that she would
find petitioner smelling her underwear and that he offered her $5 to watch him masturbate. The
child stated that she once awoke to find petitioner standing over her “with his pants and underwear
down” and that petitioner once pulled her into a hug and began rubbing her and that she tried to
back away, but “he kept rubbing [her].” During this incident, which the child said occurred after
her 2005 interview, petitioner kissed her neck, told her to imagine that he was a boy she had a
“crush” on, and pushed his hands under her underwear where he rubbed her genitalia. According
to the child’s testimony, petitioner went “into” her vaginal area, which she described as “the inside
area of the lips.” Finally, the child testified that petitioner touched her breasts once while making
dinner and commented about how she was “growing up.” During cross-examination, the child was
questioned regarding her pretrial statements that petitioner never penetrated her genitalia. The
child responded that, at the time of her 2011 interview with Sgt. Adams, she “was under a different
impression about what the word penetration meant.” The child further clarified that petitioner
touched her genitalia on only one occasion.

         At the conclusion of the State’s case-in-chief, petitioner moved for a judgment of acquittal.
Petitioner argued that the indictment was based on two incidents of penetration, but that the child
testified that petitioner touched her genitalia only once. For that reason, petitioner moved for a
judgment of acquittal of one count of first-degree sexual assault and one count of sexual abuse by
a custodian. The State agreed that Count 3 (first-degree sexual assault) and Count 4 (sexual abuse
by a custodian) should be dismissed and the circuit court granted petitioner’s motion accordingly.
Petitioner further argued that the evidence was insufficient to prove any penetration beyond a
reasonable doubt, which he claimed undermined Counts 1 and 2. The State countered that the
child’s testimony sufficiently described one act of penetration. The circuit court found that the
child’s use of the word “into” to describe petitioner’s touch was sufficient to allow the jury to
decide the merits of the remaining counts requiring penetration and, therefore, denied the
remainder of petitioner’s motion.

        Although petitioner called no witnesses, he introduced medical records showing that he
was hospitalized for a period of time during December of 2005 and January of 2006 to establish
an alibi defense. Following deliberations, the jury convicted petitioner of all four remaining counts:
one count of first-degree sexual assault (Count 1); two counts of sexual abuse by a custodian
(Counts 2 and 6); and one count of first-degree sexual abuse (Count 5). By order entered September
                                                  3
22, 2015, the circuit court sentenced petitioner to an aggregate term of thirty-six to eighty years of
incarceration.

        Petitioner appealed his convictions in State v. [William R.], No. 15-1039, 2017 WL 678854
(W.Va. Feb. 21, 2017) (memorandum decision), arguing, inter alia, that the circuit court erred in
failing to dismiss all the charges requiring penetration given the variance between the child’s
pretrial statements and Sgt. Adams’s grand jury testimony regarding penetration. Id. at *5. This
Court rejected petitioner’s argument, finding:

       With regard to petitioner’s contention that [Sgt.] Adams’ testimony was
       misleading, we disagree. Before the grand jury, [Sgt.] Adams was asked by the
       assistant prosecutor whether he had determined, based on his investigation, that
       penetration had occurred. [Sgt.] Adams testified that he had made that
       determination. Notably, [Sgt.] Adams did not indicate in any way that the child
       stated that penetration occurred. Based on petitioner’s argument and the record
       before us, we do not find that [Sgt.] Adams provided misleading testimony about
       his determination to the grand jury, and we decline to inquire into the evidence
       before the grand jury further given the lack of willful, intentional fraud.

Id. at *6. Accordingly, petitioner’s convictions were affirmed. Id. at *9.

         On January 25, 2018, petitioner filed a petition for a writ of habeas corpus, alleging that
his trial attorney provided ineffective assistance by failing to argue (1) that Sgt. Adams’s grand
jury testimony constituted willful and intentional fraud; (2) that it is impermissible for the State to
present only one witness to the grand jury; (3) that petitioner had a brain aneurysm that rendered
him unable to control his behavior toward the child; and (4) that the child testified as to prior bad
acts, evidence of which was inadmissible pursuant to Rule 404(b) of the West Virginia Rules of
Evidence.3 By order entered March 28, 2018, the circuit court denied the petition without a hearing
or appointment of counsel. The circuit court found that, as none of the issues that petitioner argues
his trial attorney should have asserted have merit, it did not constitute ineffective assistance for
petitioner’s trial counsel not to raise those issues.

        It is from the circuit court’s March 28, 2018, order denying his habeas petition that
petitioner now appeals. In syllabus points one and three of Anstey v. Ballard, 237 W.Va. 411, 787
S.E.2d 864 (2016), we held:

       1.      “In reviewing challenges to the findings and conclusions of the circuit court
       in a habeas corpus action, we apply a three-prong standard of review. We review
       the final order and the ultimate disposition under an abuse of discretion standard;

       3
         Petitioner further argued that the cumulative effect of the alleged errors denied him a fair
proceeding in the underlying criminal case. However, as explained infra, we concur with the circuit
court’s finding that there was no error, and, therefore, the cumulative error doctrine does not apply
to this case. See State v. Trail, 236 W.Va. 167, 188 n.31, 778 S.E.2d 616, 637 n.31 (2015) (finding
that cumulative error doctrine has no application when there is no error).
                                                  4
       the underlying factual findings under a clearly erroneous standard; and questions
       of law are subject to a de novo review.” Syl. Pt. 1, Mathena v. Haines, 219 W.Va.
       417, 633 S.E.2d 771 (2006).

       ....

       3.      “‘A court having jurisdiction over habeas corpus proceedings may deny a
       petition for a writ of habeas corpus without a hearing and without appointing
       counsel for the petitioner if the petition, exhibits, affidavits or other documentary
       evidence filed therewith show to such court’s satisfaction that the petitioner is
       entitled to no relief.’ Syllabus Point 1, Perdue v. Coiner, 156 W.Va. 467, 194
       S.E.2d 657 (1973).” Syl. Pt. 2, White v. Haines, 215 W.Va. 698, 601 S.E.2d 18
       (2004).

In West Virginia, claims of ineffective assistance of counsel are governed by the two-pronged test
established in Strickland v. Washington, 466 U.S. 668 (1984), which requires that (1) counsel’s
performance was deficient under an objective standard of reasonableness; and (2) there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings
would have been different. See Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995)
(adopting Strickland).

        On appeal, petitioner argues that the issues he claims his trial attorney should have asserted
have merit and, therefore, trial counsel was ineffective in failing to raise those issues during his
criminal case. Respondent counters that, as petitioner’s ineffective assistance claim lacks merit,
the circuit court properly denied his habeas petition. We agree with respondent and address each
issue in turn.

        First, petitioner argues that his counsel should have alleged willful and intentional fraud on
the part of Sgt. Adams because, “[e]xcept for willful, intentional fraud[,] the law of this State does
not permit the court to go behind an indictment to inquire into the evidence considered by the
grand jury, either to determine its legality or its sufficiency.” Syl., Barker v. Fox, 160 W.Va. 749,
238 S.E.2d 235 (1977). “[D]ismissal of [an] indictment is appropriate only if it is established that
the violation substantially influenced the grand jury’s decision to indict or if there is grave doubt
that the decision to indict was free from substantial influence of such violations.” Syl. Pt. 6, State
ex rel. Pinson v. Maynard, 181 W.Va. 662, 383 S.E.2d 844 (1989) (Internal quotations and
citations omitted.).

        In [William R.], we found not only that Sgt. Adams’s grand jury testimony failed to
constitute willful and intentional fraud, but also that it was not misleading because “Sgt. Adams
did not indicate in any way that the child stated that penetration occurred.” 2017 WL 678854, at
*6. Our ruling in [William R.] constituted a final decision on the merits pursuant to Rule 21(a) of
the West Virginia Rules of Appellate Procedure. See In re T.O., 238 W.Va. 455, 464, 796 S.E.2d
564, 573 (2017) (finding that a memorandum decision is an adjudication on the merits); State v.
McKinley, 234 W.Va. 143, 151, 764 S.E.2d 303, 311 (2014) (same). Therefore, this issue was
previously and finally adjudicated. Accordingly, we conclude that petitioner may not relitigate the
                                                  5
issue in a habeas proceeding. See Losh v. McKenzie, 166 W.Va. 762, 764, 277 S.E.2d 606, 609
(1981) (finding that the purpose of a habeas proceeding under West Virginia Code §§ 53-4A-1 to
-11 is to enable a defendant to raise any issues “which have not previously been fully and fairly
litigated”).

       Second, petitioner argues that the State’s presentation of only one witness improperly
prevents the grand jury from considering evidence that is favorable to the defendant. However, the
grand jury’s function is not to decide guilt, but only to accuse. We explained in Barker:

       [The grand jury] is the body entrusted with the power to say when a crime has been
       committed, and when a prosecution should be begun against the person whom the
       evidence before them leads them to believe is probably the guilty party. According
       to our judicial system[,] they are the tribunal representing the people, for the
       purpose of charging crime and designating the criminal. The evidence that satisfies
       them that probable cause exists for the prosecution of a certain person for a
       designated crime, might not be enough to satisfy the court or a petit jury; and, to
       permit the court to inquire into the legality, or sufficiency, of the evidence on which
       the grand jury acted, would be to substitute, in a measure, the opinion of the court
       for that of the grand jury, and would ultimately lead to the destruction of the grand
       jury system.

160 W.Va. at 751-52, 238 S.E.2d at 236 (quoting State v. Dailey, 72 W.Va. 520, 521-22, 79 S.E.
668, 669 (1913)). In State v. David D. W., 214 W.Va. 167, 588 S.E.2d 156 (2003), we rejected an
assignment of error alleging that it was improper for the grand jury to indict the defendant based
solely on the investigating officer’s interpretation of witness statements. Id. at 172, 588 S.E.2d at
161. Here, given our finding in [William R.] that Sgt. Adams’s grand jury testimony was not
misleading, we conclude that the circuit court did not err in finding that this issue lacked merit.

        Next, petitioner argues that his trial attorney failed to investigate “a known defense”
regarding the brain aneurysm that required his hospitalization for a period of time in December of
2005 and January of 2006. In rejecting this issue, the circuit court found that petitioner’s counsel
introduced medical billing records to establish an alibi defense for petitioner during the months in
question. The circuit court further found that petitioner’s petition failed to provide sufficient
factual details to allow it to determine whether he could have possibly established a defense based
on a mental disease or defect regarding the offenses charged in the indictment. Based on our review
of the record, we concur with the circuit court’s finding and note that “[a] mere recitation of any
of [the] grounds [for habeas relief] without detailed factual support does not justify the issuance
of a writ, the appointment of counsel, and the holding of a hearing.” Losh, 166 W.Va. at 771, 277
S.E.2d at 612.

        Finally, petitioner argues that the child’s trial testimony regarding his prior bad acts was
inadmissible at trial pursuant to Rule 404(b) of the West Virginia Rules of Evidence, which
governs admission of such evidence when it is not intrinsic to the case. In State v. Harris, 230
W.Va. 717, 722, 742 S.E.2d 133, 138 (2013), we noted: “Intrinsic evidence is directly connected
to the factual circumstances of the crime and provides contextual or background information to
                                                 6
the jury. Extrinsic evidence, on the other hand, is extraneous and is not intimately connected or
blended with the factual circumstances of the charged offense.” (Internal quotations and citations
omitted.).

        Here, the circuit court found that the child’s testimony about other incidents not charged in
the indictment constituted intrinsic evidence because “the other acts were ‘necessary preliminaries’
to the crime charged.” State v. LaRock, 196 W.Va. 294, 312 n.29, 470 S.E.2d 613, 631 n.29 (1996)
(quoting United States v. Williams, 900 F.2d 823, 825 (5th Cir. 1990)). As explained by the circuit
court:

       The factual story begins (according to [the child’s trial] testimony) with [p]etitioner
       making comments about [the child’s] growing body. Petitioner’s conduct escalated
       when he offered to pay [the child] five (5) dollars to watch him masturbate. When
       she refused, his conduct escalated . . . when it seems he masturbated or attempted
       to masturbate over her while she was sleeping. Finally, [p]etitioner inappropriately
       touch [the child]’s breasts [(Counts 5 and 6 of the indictment)], and in a separate
       incident, digitally penetrated (however slight) [the child]’s vagina [(Counts 1 and
       2)]. Petitioner’s pattern of behavior, including those incidents which are not a
       subject of the indictment, serve to paint a clear picture of the nature of [p]etitioner’s
       conduct toward [the child], which began with verbal comments, progressed to
       requests of a sexual nature, and culminated in [p]etitioner’s illegal physical contact
       with [the child].

We concur with the circuit court’s finding and note that evidence of other crimes is admissible
without reference to Rule 404(b) when it “is so much a part of the setting of the case and its
environment that its proof is appropriate in order to complete the story of the crime on trial by
proving its immediate context[.]” Harris, 230 W.Va. at 721-22, 742 S.E.2d at 137-38 (Internal
quotations and citations omitted.). Thus, we find no merit to petitioner’s claim in this regard.

        In summary, we concur with the circuit court’s finding that that none of the issues petitioner
argues that his trial attorney could and should have asserted have merit, and, therefore, it did not
constitute ineffective assistance for petitioner’s trial counsel not to raise those issues. Accordingly,
we conclude that the circuit court properly denied petitioner’s habeas petition without a hearing or
appointment of counsel.

        For the foregoing reasons, we affirm the circuit court’s March 28, 2018, order denying
petitioner’s petition for a writ of habeas corpus.


                                                                                            Affirmed.


ISSUED: June 17, 2019


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CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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