                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                           FILED
                                                                                    April 6, 2020
vs.) No. 19-0037 (Marion County CC-24-2004-F-62)                                 EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
Carter Perry King,
Defendant Below, Petitioner



                               MEMORANDUM DECISION


          Petitioner Carter Perry King, by counsel Scott A. Shough, appeals the Circuit Court of
Marion County’s December 21, 2018, order finding that the evidence of his guilt was sufficient to
support convictions for the crimes charged and reimposing his commitment under the court’s
supervision for the remainder of his sentence following his hearing to present a defense other than
not guilty by reason of mental illness pursuant to West Virginia Code § 27-6A-6. Respondent State
of West Virginia, by counsel Scott E. Johnson, filed a response in support of the circuit court’s
order. On appeal, petitioner argues that the presiding circuit judge should have been permitted to
recuse himself and that the circuit court erred in finding that petitioner would have been convicted
at trial.

       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 affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.

        Petitioner was indicted on two counts of sexual abuse by a parent, guardian, or custodian
and two counts of second-degree sexual assault in February of 2004. These charges arose from
petitioner’s alleged conduct in which he either engaged, or attempted to engage, in sexual
intercourse or intrusion with a child in his care, custody, or control. See State v. King, 240 W. Va.
373, 374-75, 813 S.E.2d 26, 27-28 (2018). Later that year, the circuit court committed petitioner
to the William R. Sharpe Jr. Memorial Hospital (“Sharpe Hospital”) for a short period because it
found that he was not capable of participating substantially in his defense or understanding the
nature and consequences of a criminal trial and may have posed a danger to himself or others. Id.
at 375, 813 S.E.2d at 28. After various motions and hearings over the next several years, the circuit
court ultimately found in October of 2008

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        that the petitioner was not competent to stand trial “because he does not exhibit
        sufficient present ability to consult with his lawyer with a reasonable degree of
        rational understanding and a rational as well as factual understanding of the
        proceedings against him.” The circuit court further found that the petitioner was
        “not substantially likely to attain competency and that the indictment against the
        [petitioner] involves acts of violence against a person.”

Id. at 376, 813 S.E.2d at 29. Based on these findings,

        [t]he circuit court ordered that the petitioner be committed to [Sharpe Hospital] and
        that the court “maintains jurisdiction over the [petitioner] for forty (40) years to
        (90) years, the maximum possible sentence [petitioner] would have received if he
        had been convicted of the crime(s) charge[d], or until the [petitioner] regains
        competency and the criminal charges reach resolution which[ever] is sooner.”

Id. Following a subsequent evaluation, and because it constituted the least restrictive suitable
placement, the circuit court later transferred petitioner to the Browns Mill Group Home.

        In April of 2013, petitioner moved for “an ‘opportunity to offer a defense to the charges
pending against [him] before the court’ pursuant to West Virginia Code § 27-6A-6” because he
“believe[d] that he [could] establish a defense of not guilty.” 1 King, 240 W. Va. at 376, 813 S.E.2d
at 29. The circuit court held a hearing on the issue and directed the parties to file additional briefing.
Id. Ultimately,

        [b]y order entered December 9, 2016, the circuit court denied the petitioner’s
        request for a hearing on the merits of his potential defense. The circuit court found


        1
            West Virginia Code § 27-6A-6 provides as follows:

                 If a defendant who has been found to be not competent to stand trial believes
        that he or she can establish a defense of not guilty to the charges pending against
        him or her, other than the defense of not guilty by reason of mental illness, the
        defendant may request an opportunity to offer a defense thereto on the merits before
        the court which has criminal jurisdiction. If the defendant is unable to obtain legal
        counsel, the court of record shall appoint counsel for the defendant to assist him or
        her in supporting the request by affidavit or other evidence. If the court of record
        in its discretion grants such a request, the evidence of the defendant and of the State
        shall be heard by the court of record sitting without a jury. If after hearing such
        petition the court of record finds insufficient evidence to support a conviction, it
        shall dismiss the indictment and order the release of the defendant from criminal
        custody. The release order, however, may be stayed for ten days to allow civil
        commitment proceedings to be instituted by the prosecutor pursuant to article five
        [§§ 27-5-1 et seq.] of this chapter: Provided, [t]hat a defendant committed to a
        mental health facility pursuant to subsection (f) or (h), section three [§ 27-6A-3] of
        this article shall be immediately released from the facility unless civilly committed.
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       that on December 18, 2008, the petitioner was not competent to stand trial and that
       he “would have been convicted of the offenses for which he was indicted but for
       his lack of competency.” The circuit court stated that “there was no request by the
       [d]efense for a hearing for the [petitioner] to offer a defense pursuant to W. Va.
       Code § 27-6A-6 at that time or within a reasonable time thereafter.” The circuit
       court then concluded that it would not disturb the findings made by Judge Fox in
       his December 18, 2008, order. Further, the circuit court determined that while the
       petitioner may request the opportunity to offer a defense on the merits after a
       finding of incompetency pursuant to West Virginia Code § 27-6A-6, whether to
       grant such request was within the sole discretion of the court. The circuit court
       denied the petitioner’s request.

King, 240 W. Va. at 378, 813 S.E.2d at 31. Petitioner appealed the denial of this hearing, and this
Court ultimately remanded the matter for a hearing pursuant to West Virginia Code § 27-6A-6.
King, 240 W. Va. at 382, 813 S.E.2d at 35.

        Upon remand, petitioner moved to disqualify the presiding judge on the grounds that he
previously found that the evidence against petitioner was sufficient to warrant a conviction and
expressed deference to the prior judge’s decisions made in the case in 2008. In response, the
presiding judge indicated that he would request a new judge to preside over the matter to avoid the
appearance of impropriety, even though he believed he could fairly preside over the matter. This
Court, however, denied the request for a new judge by order entered in May of 2018.

        Thereafter, the circuit court held evidentiary hearings in August and October of 2018. The
victim testified to petitioner’s conduct and specifically indicated that he took off her clothes against
her will, “held her down with his arms,” and “put his penis inside [her] vagina.” The victim, who
was twelve years old at the time, testified that she repeatedly told petitioner to stop but that he
continued and threatened her if she did not comply. The victim further testified that petitioner
sodomized her. The State also presented testimony from the investigating officer, who confirmed
that the victim’s medical records corroborated her statement about petitioner’s crimes. Based upon
the evidence presented, the circuit court found sufficient support for petitioner’s conviction of the
crimes charged and ruled that the prior order regarding petitioner’s commitment be enforced. It is
from the resulting order that petitioner appeals.

        “With regard to the petitioner’s assertion of unconstitutional error arising from West
Virginia Code § 27-6A-6, our review is plenary.” King, 240 W. Va. at 378, 813 S.E.2d at 31
(citations omitted). Further, as this Court has long held,

              “[i]n reviewing challenges to the findings and conclusions of the circuit
       court, we apply a two-prong deferential standard of review. We review the final
       order and the ultimate disposition under an abuse of discretion standard, and we
       review the circuit court’s underlying factual findings under a clearly erroneous
       standard. Questions of law are subject to a de novo review.” Syl. Pt. 2, Walker v.
       West Virginia Ethics Com’n, 201 W.Va. 108, 492 S.E.2d 167 (1997).

Syl., State v. Maisey, 215 W. Va. 582, 600 S.E.2d 294 (2004).

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        On appeal, petitioner first alleges that the presiding circuit court judge should have been
disqualified, given that he previously denied petitioner a hearing on his possible defense and found
that the evidence would have been sufficient to support his conviction while expressing deference
to the findings and decision of the prior judge who presided over the matter. As set forth above,
the judge agreed to his disqualification, although he nonetheless maintained that he was able to
remain impartial. Based on the same allegations currently before this Court, we previously denied
the disqualification, finding that these allegations were “insufficient to warrant disqualification.”
“The matter of judicial recusal and disqualification is a matter of discretion reposed solely in the
presiding judge and the Chief Justice of this Court.” Patton v. Cty. of Berkeley, -- W. Va. --, 835
S.E.2d 559, 563 (2019) (citation omitted). As this Court found in Patton, “reiterating the same
argument” from a motion for disqualification that this Court has previously denied and “fail[ing]
to offer any new evidence or argument in support of [the] assertion that the proceedings below
were not fair” is insufficient to entitle a party to relief on appeal. Id. Given that petitioner is simply
alleging the same grounds for disqualification that this Court previously found to be insufficient,
we find he is entitled to no relief on appeal.

           Finally, we find no error in regard to petitioner’s argument that the circuit court erred in
evaluating the evidence against him. 2 According to petitioner, the victim’s testimony was
inherently incredible and, therefore, insufficient to find that he would have been convicted at trial.
However, the record shows that the circuit court specifically found that “the testimony of the victim
. . . is credible, clear, and convincing.” This Court has long held that “[a]n appellate court may not
decide the credibility of witnesses or weigh evidence as that is the exclusive function and task of
the trier of fact.” State v. Guthrie, 194 W. Va. 657, 669 n.9, 461 S.E.2d 163, 175 n.9 (1995)
(citation omitted). Citing what he believes to be inconsistencies in the victim’s testimony,
petitioner argues that “without corroborating evidence” the testimony “should not have been
sufficient to support a conviction.” However, this Court has established that “‘[a] conviction for
any sexual offense may be obtained on the uncorroborated testimony of the victim, unless such
testimony is inherently incredible[.] . . . [C]redibility is a question for the jury.’ Syl. pt. 5, State v.
Beck, 167 W.Va. 830, 286 S.E.2d 234 (1981).” Syl. Pt. 1, State v. Haid, 228 W. Va. 510, 721
S.E.2d 529 (2011). Accordingly, we find that the victim’s vivid testimony regarding petitioner’s
crimes is not inherently incredible and, thus, the circuit court’s determination regarding the
victim’s credibility is entitled to substantial deference.

        Additionally, petitioner’s argument on appeal is flawed in that it ignores other important
and substantial evidence admitted during the evidentiary hearings below. In addition to his
erroneous assertion that the victim’s allegations were uncorroborated, petitioner asserts that “[t]he
sole evidence against [him] . . . was the testimony of the alleged sexual assault victim.” (Emphasis
added). This argument, however, ignores testimony from the investigating officer regarding the
victim’s medical records. Based on the admission of those medical records and the officer’s
testimony, the circuit court specifically found that the investigating officer “corroborated [the


        2
         Petitioner does not assert that the State failed to prove any essential element of either of
the crimes with which he was charged or otherwise challenge the sufficiency of the evidence in
regard to those elements. Petitioner’s entire argument on appeal is predicated only upon his
assertion that the victim’s testimony is incredible.
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victim’s] disclosure with [her] medical records.” Other than asserting—without any citation to
expert medical testimony that would support his conclusion—that the victim’s “anal injury was
the result of [a] . . . pinworm infection,” petitioner provides no argument on appeal to dispute the
officer’s testimony regarding the fact that the medical records corroborate the victim’s disclosure.
As such, we conclude that the circuit court’s finding as to the corroborating nature of the medical
records was not in error.

        Finally, it is important to note that the evidentiary standard in this proceeding was lower
than it would have been at a criminal trial. This Court has established that

       the hearing provided in [West Virginia Code § 27-6A-6] is “civil in nature[,]” that
       “the quantitative level of proof required under West Virginia Code § 27-6A-6 is
       sufficient evidence and not the criminal standard requiring evidence beyond a
       reasonable doubt[,]” and that the purpose of the statute was “directed at the joint
       purposes of protecting the public and ensuring appropriate treatment for individuals
       who are both incompetent and criminally violent.”

King, 240 W. Va. at 381, 813 S.E.2d at 34 (citation omitted). Accordingly, given that the victim’s
testimony alone would have been sufficient to support a criminal conviction under a much higher
burden of proof even if it were uncorroborated, which it was not, we do not find error in the circuit
court’s determination that the evidence was sufficient to support petitioner’s continued
commitment.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.

ISSUED: April 6, 2020

CONCURRED IN BY:

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




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