                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



State of West Virginia,
                                                                                   FILED
                                                                                 March 29, 2013
Plaintiff Below, Respondent                                                  RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA
vs) No. 11-1776 (Monongalia County 10-F-10)

John F., Jr.

Defendant Below, Petitioner



                              MEMORANDUM DECISION
        Petitioner John F., Jr., by counsel Natalie J. Sal, appeals the Circuit Court of Monongalia
County’s “Order to Re-Sentence” entered on December 1, 2011. The State, by counsel, has filed
its 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 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 allegedly engaged in sexual intercourse with his five-year-old niece while
babysitting the girl and her sister. She later testified and reported consistently that “Uncle
Johnny” placed his “pee pee” in her “pee bug” and that it hurt and made her sad. She reported the
incident to her father the next day, who took her to the hospital. The examination showed trauma
to and swelling of her genitalia. The incident was also reported to police. Several months later,
petitioner’s then-girlfriend found photographs on petitioner’s phone depicting child
pornography.1 A search warrant was obtained after the girlfriend took the phone to the FBI, and
seven child pornography photographs were found when the FBI accessed petitioner’s email on
the phone. Petitioner was then indicted on one count of first degree sexual assault and sexual
abuse by a custodian or person in a position of trust. The State filed a Rule 404(b) notice to enter
the photographs from petitioner’s phone as evidence, and after a hearing, the motion was granted
after the circuit court found that the photographs were admissible to show petitioner’s lustful
disposition toward young girls and toward the victim in this case. After a bench trial, petitioner
was found guilty of first degree sexual assault and sexual abuse/assault of a child by a parent,
guardian, custodian, or person in a position of trust. Petitioner was sentenced to twenty-five to
one hundred years of incarceration for the first degree sexual assault charge and ten to twenty


1
  Petitioner had lost the phone, which was later found by the girlfriend’s daughter, who turned
the phone over to her mother.
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years of incarceration for the sexual abuse by a custodian charge, with the sentences to run
concurrently.

        Petitioner first argues that the circuit court erred in allowing the child to testify at trial
without first establishing her competency. Petitioner argues that there were inconsistencies in her
story such as what she ate the night of the assault and specifically when she disclosed the alleged
abuse. The State argues in response that the inconsistencies pointed out by petitioner are minor,
and inconsistencies go to credibility, not competency. Further, no objection to the child’s
competence was made at trial.

        “‘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). “‘The question of the competency of a witness to testify is left
largely to the discretion of the trial court and its judgment will not be disturbed unless shown to
have been plainly abused resulting in manifest error.’ Syllabus Point 8, State v. Wilson, 157
W.Va. 1036, 207 S.E.2d 174 (1974).” Syl. Pt. 10, State v. Pettrey, 209 W.Va. 449, 549 S.E.2d
323 (2001). This Court finds no abuse of discretion in allowing the child herein to testify.

        Petitioner next argues that the search of his email violated his constitutional protections
against unreasonable search and seizure. He notes that the emails where the child pornography
were found were not stored on the phone, but were accessed by the FBI agent using the email
application on the phone. The State argues first that no motion to suppress was filed and that the
validity of the search is raised for the first time on appeal. Further, the State argues that there is
no evidence that by accessing the email application, the FBI exceeded the scope of the warrant.

       This Court has held that

       “[a]s a general rule, proceedings of trial courts are presumed to be regular, unless
       the contrary affirmatively appears upon the record, and errors assigned for the
       first time in an appellate court will not be regarded in any matter of which the trial
       court had jurisdiction or which might have been remedied in the trial court if
       objected to there.” Syl. pt. 17, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445
       (1974). “We have invoked this principle with a near religious fervor. This variant
       of the ‘raise or waive’ rule cannot be dismissed lightly as a mere technicality. The
       rule is founded upon important considerations of fairness, judicial economy, and
       practical wisdom.” State v. Miller, 197 W.Va. 588, 597, 476 S.E.2d 535, 544
       (1996).

State v. Salmons, 203 W.Va. 561, 569, 509 S.E.2d 842, 850 (1998). Thus, this Court declines to
address this assignment of error because it was not raised below.

        Next, petitioner argues that the circuit court admitted improperly obtained evidence under
Rule 404(b) of the West Virginia Rules of Evidence, as the child pornography pictures should
not have been admitted to prove petitioner’s lustful disposition. The State argues that the circuit
court properly admitted the evidence after considering all of the relevant legal factors.

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       Regarding Rule 404(b), this Court has stated that:

       The standard of review for a trial court’s admission of evidence pursuant to Rule
       404(b) involves a three-step analysis. First, we review for clear error the trial
       court’s factual determination that there is sufficient evidence to show the other
       acts occurred. Second, we review de novo whether the trial court correctly found
       the evidence was admissible for a legitimate purpose. Third, we review for an
       abuse of discretion the trial court’s conclusion that the “other acts” evidence is
       more probative than prejudicial under Rule 403.

(citations omitted) State v. LaRock, 196 W.Va. 294, 310-311, 470 S.E.2d 613, 629 - 630 (1996).
In the present case, the circuit court made all of the relevant inquiries pursuant to Rule 404(b)
and LaRock and thus this Court finds that the evidence was properly admitted.

       Finally, petitioner argues that the evidence was insufficient to support petitioner’s
conviction because there was no DNA evidence and the child’s testimony was incompetent. The
State argues that the evidence was sufficient based on the testimony of the child, the trauma
found on the child’s body, and the child’s parents’ testimony. In reviewing criminal convictions
on appeal, we have held as follows:

       “‘The 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).

Syl. Pt. 8, State v. Stone, 229 W.Va. 271, 728 S.E.2d 155 (2012).

       “‘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.’ Syl. Pt. 3, in part, State v. Guthrie, 194
       W.Va. 657, 461 S.E.2d 163 (1995).” Syl. Pt. 2, State v. Juntilla, 227 W.Va. 492,
       711 S.E.2d 562 (2011).



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Syl. Pt. 9, Stone, 229 W.Va. 271, 728 S.E.2d 155. Upon our review of the record, this Court
finds that the evidence was sufficient to support petitioner’s convictions. The child and her
parents testified, and competent medical evidence of trauma to the child was submitted.

       For the foregoing reasons, we affirm.

                                                                                   Affirmed.

ISSUED: March 29, 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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