                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS



State of West Virginia,                                                                FILED
Plaintiff Below, Respondent                                                           March 12, 2013
                                                                                  RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
vs) No. 12-0234 (Fayette County 11-F-131)                                           OF WEST VIRGINIA


Acie A. Bailey,

Defendant Below, Petitioner



                                  MEMORANDUM DECISION

       Petitioner’s appeal, by counsel Lori M. Peters, arises from the Circuit Court of Fayette
County, wherein he was sentenced to a term of incarceration of one to five years following his
conviction, by jury, for the felony offense of failure to register as required of a sex offender
required to register for life. That order was entered on January 24, 2012. The State, by counsel
Laura Young, has filed its response, to which petitioner has filed a reply.

       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.

        On September 13, 2011, petitioner was indicted by grand jury on one count of failure to
register as required of a sex offender required to register for life and one count of failure to
register a change of address as required of a sex offender required to register for life. Following a
jury trial, petitioner was convicted of failure to register as required of a sex offender required to
register for life and acquitted on the remaining count. On appeal, petitioner alleges several
assignments of error.

        First, petitioner alleges that West Virginia Code § 15-12-1 to § 15-12-10, otherwise
known as the Sex Offender Registration Act, is unconstitutionally vague and therefore void for
vagueness because it does not clearly define what constitutes a “residence” or what constitutes a
failure to register one’s “residence.” Petitioner next alleges that, because the statute in question is
unconstitutionally vague, the circuit court erred in giving jury instruction on “residence.”
According to petitioner, the instruction did not accurately or adequately define what constitutes a
residence. Lastly, petitioner alleges that the evidence was insufficient to support his conviction. In
support, he again argues that because the statute in question is unconstitutionally vague, no one
could have known what evidence was needed to satisfy the elements of the crime. Alternatively,
he argues that “residence” must mean a person’s primary residence or domicile.

                                                      1
­
        In response, the State argues that the statute in question is not void for vagueness because
the term “residence” is not a legal term of art and the statute is sufficiently definite to inform a
person of ordinary intelligence what he is required to do. Further, the circuit court’s instruction
was a correct statement of the law and was, therefore, not error. Lastly, the State argues that the
evidence was sufficient to show petitioner was living in Fayette County and that he had not
registered his Fayette County address with the State Police detachment in Fayette County.

        “‘Where the issue on an appeal from the circuit court is clearly a question of law . . .
involving an interpretation of a statute, we apply a de novo standard of review.’ Syl. Pt. 1, in part,
Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).” Syl. Pt. 2, Thomas v.
Morris, 224 W.Va. 661, 687 S.E.2d 760 (2009). Further, we have previously held that “‘[a]
criminal statute must be set out with sufficient definiteness to give a person of ordinary
intelligence fair notice that his contemplated conduct is prohibited by statute and to provide
adequate standards for adjudication.’ Syl. Pt. 1, State v. Flinn, 158 W.Va. 111, 208 S.E.2d 538
(1974).” Syl. Pt. 7, State v. James, 227 W.Va. 407, 710 S.E.2d 98 (2011). Upon our review of the
Sex Offender Registration Act, the Court finds that it sets out with sufficient definiteness the
conduct that is criminalized. A plain reading of the Sex Offender Registration Act should have
informed petitioner that if he resided in two separate counties, then he was required to register
both residences with the West Virginia State Police detachment in each county. For these reasons,
we find no merit in this assignment of error.

       Accordingly, we further find no merit in petitioner’s remaining assignments of error, as
they are premised on the argument that the Sex Offender Registration Act is unconstitutionally
vague. We have previously held that “‘the question of whether a jury was properly instructed is a
question of law, and the review is de novo.’ Syl. Pt. 1, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d
257 (1996).” Syl. Pt. 2, in part, Foster v. Sakhai, 210 W.Va. 716, 559 S.E.2d 53 (2001). As
addressed above, the statute in question is not unconstitutionally vague in regard to the term
“residence,” and the circuit court therefore did not improperly instruct the jury on this issue.

       Lastly, we have 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.” Syl. Pt. 3, State v. Guthrie, 194 W.Va.
       657, 461 S.E.2d 163 (1995).


                                                      2
­
Syl. Pt. 5, State v. Broughton, 196 W.Va. 281, 470 S.E.2d 413 (1996). Upon our review, the Court
finds that the evidence was sufficient to support petitioner’s conviction.

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


                                                                                         Affirmed.

ISSUED: March 12, 2013

CONCURRED IN BY:

Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Allen H. Loughry II

DISSENTING:

Chief Justice Brent D. Benjamin
Justice Menis E. Ketchum




                                                    3
­
