                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                             FILED
                                                                                      February 11, 2013
vs) No. 12-0269 (Fayette County 11-F-27)                                           RORY L. PERRY II, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
Gary Keller,

Defendant Below, Petitioner


                                  MEMORANDUM DECISION

         Petitioner Gary Keller, by counsel Thomas A. Rist, appeals the January 27, 2012, order
of the Circuit Court of Fayette County sentencing him to an aggregate term of incarceration of
fifty to seventy years following his conviction of two counts of sexual abuse in the second degree
and one count of sexual abuse by a custodian. The State, by counsel Laura Young, has filed a
response.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

         Following a jury trial, petitioner was convicted of two counts of second degree sexual
assault and one count of sexual abuse by a custodian. On January 24, 2012, Petitioner received
consecutive sentences for the offenses, totaling an aggregate term of fifty to seventy years of
incarceration. Prior to trial, the State notified petitioner that it intended to offer evidence pursuant
to Rule 404(b) of the West Virginia Rules of Evidence and a hearing was held on the State’s
motion. Ultimately, the circuit court allowed this evidence to be admitted. On appeal, petitioner
alleges that this Rule 404(b) evidence was improperly admitted pursuant to this Court’s holding
in State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994), and that the evidence was so
prejudicial that it should have been excluded pursuant to Rule 403. Petitioner also alleges that the
State failed to admit evidence sufficient to support his conviction, and specifically that the State
failed to establish that petitioner was the victim’s custodian. In response, the State argues that the
evidence of which petitioner complains was properly admitted to show petitioner’s common plan
or scheme to commit a crime and that the evidence below was sufficient to support petitioner’s
conviction.

        “‘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). We have previously held that

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       [t]he 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.

State v. Newcomb, 223 W.Va. 843, 868, 679 S.E.2d 675, 700 (2009) (quoting State v. LaRock,
196 W.Va. 294, 310-11, 470 S.E.2d 613, 629-30 (1996)). This Court has also stated that

       [w]here an offer of evidence is made under Rule 404(b) of the West Virginia
       Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West Virginia
       Rules of Evidence, is to determine its admissibility. Before admitting the
       evidence, the trial court should conduct an in camera hearing as stated in State v.
       Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and
       arguments of counsel, the trial court must be satisfied by a preponderance of the
       evidence that the acts or conduct occurred and that the defendant committed the
       acts. If the trial court does not find by a preponderance of the evidence that the
       acts or conduct was committed or that the defendant was the actor, the evidence
       should be excluded under Rule 404(b). If a sufficient showing has been made, the
       trial court must then determine the relevancy of the evidence under Rules 401 and
       402 of the West Virginia Rules of Evidence and conduct the balancing required
       under Rule 403 of the West Virginia Rules of Evidence. If the trial court is then
       satisfied that the Rule 404(b) evidence is admissible, it should instruct the jury on
       the limited purpose for which such evidence has been admitted. A limiting
       instruction should be given at the time the evidence is offered, and we recommend
       that it be repeated in the trial court’s general charge to the jury at the conclusion
       of the evidence.

State v. Newcomb, 223 W.Va. 843, 868, 679 S.E.2d 675, 700 (2009) (quoting Syl. Pt. 2, State v.
McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994)).

        Upon our review, we find no error in the circuit court granting the State’s motion to
introduce evidence under Rule 404(b). To begin, it is clear that there was sufficient evidence that
the other acts occurred. The evidence in question was testimony from prior victims that
petitioner molested. The circuit court heard testimony from the victims and was also presented
evidence that petitioner had been successfully prosecuted for crimes in relation to at least one
victim. Moreover, the circuit court was correct in finding that the evidence was admissible for a
legitimate purpose. As the circuit court noted, the evidence spoke to a common scheme or plan
on petitioner’s part, including “[petitioner’s] propensity to select pre-pubescent females as
victims, [his] use of gifts or enticements to induce the victims to participate and [his] use of
threats to prevent disclosure.” Lastly, we hold that it was not an abuse of discretion for the circuit
court to conclude that this Rule 404(b) evidence was more probative than prejudicial. For these

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reasons, and because the circuit court complied with the requirements for the admission of such
evidence under our holding in McGinnis, including the giving of a limiting instruction after each
witness testified, the Court finds no error in the admission of the evidence in question.

       As to petitioner’s remaining assignments of error, we have previously held 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.” Syllabus Point 3, State v. Guthrie, 194
       W.Va. 657, 461 S.E.2d 163 (1995).

Syl. Pt. 2, State v. Ladd, 210 W.Va. 413, 557 S.E.2d 820 (2001). Upon our review, we find no
merit in petitioner’s arguments as to the sufficiency of the evidence. To begin, it is clear that the
State established that petitioner was the victim’s custodian at the time of the crime. The victim
testified that petitioner was her babysitter at the times these crime occurred, and we have
previously held that “[a] babysitter may be a custodian under the provisions of W.Va.Code [§]
61–8D–5 . . . and whether a babysitter [is] in fact a custodian under this statute is a question for
the jury.” Syl. Pt. 1, State v. Stephens, 206 W.Va. 420, 525 S.E.2d 301 (1999). Therefore, the
jury in this matter clearly considered petitioner to be a custodian by virtue of the fact that they
convicted him. Lastly, petitioner makes a blanket assertion that the State failed to admit evidence
to support his convictions, yet he fails to cite to any facts or legal precedent to support this
assertion. Upon our review, the Court finds that the evidence presented below was sufficient to
support petitioner’s convictions.

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

                                                                                          Affirmed.

ISSUED: February 11, 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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