                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


Charles L.,
Plaintiff Below, Petitioner                                                            FILED
vs) No. 17-0824 (Preston County 16-C-166)                                           March 6, 2019
                                                                                      released at 3:00 p.m.
                                                                                  EDYTHE NASH GAISER, CLERK
Donnie Ames, Superintendent,                                                      SUPREME COURT OF APPEALS
                                                                                       OF WEST VIRGINIA
Mt. Olive Correctional Complex,
Defendant Below, Respondent



                              MEMORANDUM DECISION
        Petitioner Charles L.1 was convicted of one count of first-degree sexual abuse and one
count of sexual abuse by a guardian, custodian, or person in a position of trust. Petitioner was in
his early twenties when he committed the crimes. The victim was the nine-year-old half-sister of
Petitioner’s wife. Petitioner filed a petition for a writ of habeas corpus in the Circuit Court of
Preston County, West Virginia, and by order entered September 8, 2017, it denied relief. On
appeal to this Court, Petitioner raised several assignments of error.2

        This Court has considered the parties’ briefs, their oral arguments, and the record on
appeal. Upon review, the Court discerns no substantial question of law and no prejudicial error.
Consequently, a memorandum decision affirming the order of the circuit court is the appropriate
disposition pursuant to Rule 21 of the West Virginia Rules of Appellate Procedure.

                                     I. Procedural History

        The grand jury returned an indictment against Petitioner in 2010, charging him with four
felonies: two counts of first-degree sexual assault in violation of West Virginia Code § 61-8B-3
(2014), and two counts of sexual abuse by a parent, guardian, or custodian in violation of West
Virginia Code § 61-8D-5 (2014). The case against Petitioner proceeded to trial in January 2011.
At trial, the victim testified that while Petitioner was babysitting her, she was sitting on his lap
watching television and that Petitioner touched her vagina for “[a] couple of minutes maybe;”


       1
           Consistent with our long-standing practice, we endeavor to protect the identity of the
juvenile victim in this sensitive matter by refraining from referring to Petitioner by his surname.
See, e.g., Matter of Jonathan P., 182 W.Va. 302, 303 n.1, 387 S.E.2d 537, 538 n.1 (1989).
       2
         Petitioner is represented by counsel, Jeremy B. Cooper. Respondent Donnie Ames,
Superintendent, Mt. Olive Correctional Complex, is represented by counsel, Zachary Viglianco
and Scott E. Johnson, Assistant Attorney Generals.
                                                 1
that it happened more than once but she was unable to say exactly how many times; and that “[i]t
hurt a little bit.” The victim’s mother testified that the victim told her about Petitioner’s actions.

         One of the victim’s therapists, psychologist Abigail Leslie, testified that the victim told
her that Petitioner touched her in her private parts. She stated that the victim had some physical
reactions to the stress caused by the abuse. According to Ms. Leslie, during their counseling
sessions, the victim told her that “she was sitting on the couch with – on [Petitioner’s] lap and he
put his hands down her pants and stuck his hands in her vagina.” Another therapist, Rebecca
Fiest, testified similarly to Ms. Leslie regarding the victim’s disclosure.

       Petitioner testified in his own defense. While he denied that he intentionally touched the
victim’s vagina, he stated that

       [i]f I had any contact with her vagina, it would have been fully clothed. It would
       have been totally accidentally. While we could have been wrestling around or
       tickling or horseplaying, there could have been—there was no intentional
       touching of the vagina, and I explained that to Detective Bryan on every occasion.

The jury convicted Petitioner of one count of first-degree sexual abuse3 (the lesser-included
offense of first-degree sexual assault) and one count of sexual abuse by a custodian. Petitioner
was found not guilty of the remaining charges in the indictment. Petitioner’s subsequent motion
for judgment of acquittal or a new trial was denied.

        Prior to sentencing, the State requested the appointment of a special prosecutor due to a
conflict. Police were investigating reports from an inmate that Petitioner was attempting to
arrange the murder of the prosecuting attorney. The circuit court granted this request, appointed a
new prosecuting attorney, and placed documents related to this investigation under seal.4
Petitioner’s trial counsel withdrew due to a conflict, and new counsel was appointed. In light of
these events, the circuit court rescheduled the sentencing hearing.

        In October 2011, the circuit court sentenced Petitioner to five to twenty-five years of
incarceration on the first-degree sexual abuse charge and ten to twenty years on the sexual abuse
by a custodian charge. The sentences were ordered to run consecutively. This Court affirmed
Petitioner’s convictions on direct appeal. See State v. Charles [L.], No. 11-1416, 2013 WL
1501073 (W.Va. Apr. 12, 2013) (memorandum decision).

        In 2016, Petitioner, pro se, filed a petition for a writ of habeas corpus. In 2017, the
petition was amended upon appointment of counsel.5 The circuit court conducted an omnibus
habeas corpus hearing and denied relief. This appeal followed.


       3
           See W.Va. Code § 61-8B-7.
       4
           The State did not file charges against Petitioner following this investigation.
       5
         Petitioner asserted the following grounds in the amended petition: (1) denial of the right
to a speedy trial; (2) consecutive sentences for the same transaction; (3) suppression of “helpful
                                                   2
                                     II. Standard of Review

        Petitioner raises six assignments of error on appeal. This Court reviews appeals of circuit
court orders denying habeas relief under the following standard:

               “In reviewing challenges to the findings and conclusions of the circuit
       court in a habeas corpus action, we apply a three-prong[ed] standard of review.
       We review the final order and the ultimate disposition under an abuse of
       discretion standard; the underlying factual findings under a clearly erroneous
       standard; and questions of law are subject to a de novo review.” Syllabus point 1,
       Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009). Further, a
habeas petitioner bears the burden of establishing that he is entitled to the relief sought. See
Markley v. Coleman, 215 W.Va. 729, 734, 601 S.E.2d 49, 54 (2004).

                                         III. Discussion

        Petitioner first contends that the jury instruction on first-degree sexual abuse resulted in
him being convicted for conduct not charged in the indictment.6 He argues that the facts
underlying his indictment on first-degree sexual assault relate to the victim’s report of digital
sexual penetration. Petitioner essentially speculates that the jury must have discredited her report
of sexual penetration because it did not return a guilty verdict on that charge. Petitioner then
claims the only evidence that the jury could have used to support his conviction for the lesser-
included offense of first-degree sexual abuse was his testimony wherein he denied any
inappropriate sexual contact and explained that his hand may have accidentally grazed the
victim’s vagina over her clothes during horseplay (not when she was sitting on his lap). The
circuit court rejected this argument because the jury instruction and the conviction on the lesser-
included offense of first-degree sexual abuse (which only required sexual contact, either through
clothing or directly) was consistent with the indictment and supported by the evidence adduced
at trial—the victim’s testimony. See W.Va. Code § 61-8B-7(a)(3).

        We concur with the circuit court’s reasoning. To prove sexual abuse in the first degree,
the State must show that a defendant, at least fourteen years old, subjected a child under the age
of twelve to sexual contact. Id. The victim (who was nine years old when the crimes occurred
and eleven years old at the time of trial) testified that she was sitting in her father’s chair in


evidence” by the prosecutor; (4) the State’s knowing use of perjured testimony; (5) information
in presentence report is erroneous; (6) ineffective assistance of counsel; (7) non-disclosure of
grand jury minutes; (8) claims concerning the use of informers to convict; (9) constitutional
errors in evidentiary rulings; (10) jury instructions; (11) claims of prejudicial statements by the
trial judge; (12) claims of prejudicial statements by the prosecutor; (13) sufficiency of the
evidence; (14) severer sentence than expected; and (15) excessive sentence.
       6
         Petitioner raised this argument below in the context of his ineffective assistance of
counsel claim. See infra note 9.
                                                 3
Petitioner’s lap when Petitioner (who was older than fourteen) touched her vagina. She stated the
touch lasted “a couple of minutes maybe” and that this touching made her feel
“uncomfortable[,]” and “[a]wkward.” This evidence was consistent with the indictment and
sufficient to support the conviction.

        Petitioner’s first argument also lacks merit for a more obvious reason. Had the jury found
Petitioner’s horseplay explanation credible, it would have found the commission of no offense
because the mens rea element of the crime would be lacking. See id. § 61-8B-1(6) (defining
sexual contact as intentional touching “done for the purpose of gratifying the sexual desire of
either party.”).

        Consequently, we reject Petitioner’s second assignment of error wherein he makes the
related argument that the prosecutor made impermissible comments when referencing
Petitioner’s horseplay testimony because it “invited the jury to convict based upon conduct
separate from that which was charged in the indictment.” As already discussed, and contrary to
Petitioner’s suggestion otherwise, the victim’s testimony by itself was consistent with the
indictment and sufficient to establish the required elements of first-degree sexual abuse. See
W.Va. R. Crim. Pro. 31(c) (stating that defendant may be found guilty of an offense necessarily
included in the offense charged).7

       In his third assignment of error, Petitioner complains that the State failed to disclose
exculpatory evidence when it did not provide a copy of the results of a medical examination of
the victim that Ms. Leslie mentioned while testifying. The circuit court denied relief on this
ground because Petitioner did not show that this report (if one actually existed) was favorable to
him or how the nondisclosure prejudiced his defense. Thus, Petitioner failed to prove or even
plead any of the factors necessary to sustain a finding of a constitutional due process violation.8
Likewise, we find Petitioner failed to meet his burden on this issue.

      As his fourth assignment of error, Petitioner argued ineffective assistance of trial counsel.
We have previously held that


       7
          Petitioner’s reliance on State v. Corra, 223 W.Va. 573, 678 S.E.2d 306 (2009), is
misplaced. In Corra, the proof at trial (that the defendant furnished “non-intoxicating beer” to
underage persons) was different than what was charged in the indictment (that the defendant
provided “alcoholic liquor” to underage persons). In Corra, the act of furnishing non-
intoxicating beer to minors was not a lesser-included offense of furnishing alcoholic liquors to
minors. In the instant case, however, first-degree sexual abuse constitutes a lesser-included
offense of first-degree sexual assault. And Petitioner did not argue otherwise.
       8
         See Syl. Pt. 2, State v. Youngblood, 221 W.Va. 20, 650 S.E.2d 119 (2007) (“There are
three components of a constitutional due process violation under Brady v. Maryland, 373 U.S.
83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402
(1982): (1) the evidence at issue must be favorable to the defendant as exculpatory or
impeachment evidence; (2) the evidence must have been suppressed by the State, either willfully
or inadvertently; and (3) the evidence must have been material, i.e., it must have prejudiced the
defense at trial.”).
                                                4
               “[i]n the West Virginia courts, claims of ineffective assistance of counsel
       are to be governed by the two-pronged test established in Strickland v.
       Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (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.” Syl. Pt. 5, State v. Miller,
       194 W.Va. 3, 459 S.E.2d 114 (1995).

Syl. Pt. 1, State v. Frye, 221 W.Va. 154, 650 S.E.2d 574 (2006). Moreover,

               [i]n reviewing counsel’s performance, courts must apply an objective
       standard and determine whether, in light of all the circumstances, the identified
       acts or omissions were outside the broad range of professionally competent
       assistance while at the same time refraining from engaging in hindsight or second-
       guessing of trial counsel’s strategic decisions. Thus, a reviewing court asks
       whether a reasonable lawyer would have acted, under the circumstances, as
       defense counsel acted in the case at issue.

Syl. Pt. 6, Miller, 194 W.Va. at 6-7, 459 S.E.2d at 117-18.

         Our review of the record uncovers no error by the circuit court in denying habeas corpus
relief to Petitioner based on his numerous claims of ineffective assistance of counsel. Succinctly
stated, Petitioner failed to overcome the “strong presumption” that his trial counsel’s
representation fell “within the wide range of reasonable professional assistance[.]” Syl. Pt. 3, in
part, State ex rel. Daniel v. Legursky, 195 W. Va. 314, 465 S.E.2d 416 (1995). We adopt the
findings of the circuit court.9



       9
          The circuit court found that even assuming for the sake of argument that trial counsel’s
failure to obtain the grand jury transcript was deficient, Petitioner demonstrated no prejudice
related to this failure.
        The circuit court rejected Petitioner’s claim that trial counsel was deficient by failing to
use a video of a Domestic Violence Protective Order hearing to impeach the victim’s mother.
Because the victim’s mother testified consistently with the video, this evidence would not have
constituted a prior inconsistent statement under either Rule 613 or Rule 801 of the West Virginia
Rules of Evidence.
        The circuit court found trial counsel’s failure to obtain any experts or investigators to
assist in Petitioner’s defense did not rise to the level of deficient performance. It would be
entirely speculative as to whether the victim would have qualified for a taint expert or that a taint
expert could have been found who would have testified in a way favorable to Petitioner such that
it would have had any effect on the outcome of the trial.
        The circuit court held Petitioner failed to prove that counsel’s performance—by waiving
his speedy trial rights while he was out on bond to obtain discovery and prepare for trial—fell
below an objective standard of reasonableness.
        Finally, the circuit court rejected Petitioner’s argument that trial counsel was deficient by
failing to seek a limiting instruction on his horseplay testimony or to object to the alleged
                                                 5
        As his fifth assignment of error, Petitioner claimed the circuit court improperly denied
habeas counsel access to files held by the special prosecutor related to the investigation of an
inmate’s report that Petitioner was attempting to arrange the murder of the prosecuting attorney.
Petitioner argued that access to these files was necessary to fully litigate his “claims involving
the use of informers.” Essentially, Petitioner maintained this information may have influenced
the sentencing court. The circuit court denied Petitioner’s request because the documents were
not relevant to any cognizable claim in habeas corpus. It noted that the sentencing court
sentenced Petitioner within the statutory limits and stated its reasons for doing so on the record
(the victim’s age and harm done; Petitioner’s failure to accept responsibility, to recognize the
problem, or to express a desire to change; and the seriousness of the crimes).10 We concur with
the circuit court’s conclusion.

       Finally, Petitioner contends that the errors committed in this case were prejudicial when
considered cumulatively. We disagree. Because we have found no error, the cumulative error
doctrine does not apply. See State v. Knuckles, 196 W.Va. 416, 425, 473 S.E.2d 131, 140 (1996)
(“Cumulative error analysis should evaluate only the effect of matters determined to be error, not
the cumulative effect of non-errors.”).

                                         IV. Conclusion

       For the reasons set forth above, we affirm the September 8, 2017, order of the Circuit
Court of Preston County that denied the petition for a writ of habeas corpus.

                                                                                         Affirmed.


ISSUED: March 6, 2019

CONCURRED IN BY:

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


variance between the evidence and indictment. It concluded Corra was factually distinguishable
because first-degree sexual abuse was a lesser-included offense of first-degree sexual assault.
       10
           West Virginia Code § 61-8B-7 provides for a sentence of imprisonment for “not less
than five nor more than twenty-five years.” West Virginia Code § 61-8D-5 provides for a
sentence of imprisonment for “not less than ten nor more than twenty years.” Additionally,
“[w]hen a defendant has been convicted of two separate crimes, before sentence is pronounced
for either, the trial court may, in its discretion, provide that the sentences run concurrently, and
unless it does not provide, the sentences will run consecutively.” Syl. Pt. 3, Keith v. Leverette,
163 W.Va. 98, 254 S.E.2d 700 (1979).
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