                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent
                                                                                 FILED
vs) No. 15-0109 (Jefferson County 14-F-20)                                  February 12, 2016
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
Cornelius B.,                                                                    OF WEST VIRGINIA
Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner Cornelius B.,1 by counsel James T. Kratovil, appeals his conviction in the
Circuit Court of Jefferson County of one count of sexual abuse by parent, guardian, or custodian;
one count of sexual abuse in the first degree; and one count of sexual abuse in the third degree.
Petitioner also appeals the circuit court’s denial of his post-trial motions. The State of West
Virginia, by counsel, Brandon C.H. Sims, responds in support of the circuit court’s order.
Petitioner replied to the State’s 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 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.

        On the evening of June 9, 2013, then fourteen-year-old A.H. spent the night with her
thirteen-year-old acquaintance and next-door neighbor, J.H. J.H. resided with her mother, young
brother, and petitioner who was J.H.’s mother’s long-time boyfriend.

        The next day, June 10, 2013, A.H. told her step-mother (with whom she lived) that
petitioner had touched her inappropriately that morning while A.H. was at J.H.’s house. The
step-mother called the police who immediately responded to A.H.’s residence. Both A.H. and
J.H. were at the residence when the police arrived. The police asked A.H. and J.H. to write a
statement regarding the events that had taken place that morning. Although these statements are
not in the parties’ joint appendix record, the parties’ briefs indicate that both girls claimed
petitioner had touched them in a sexual manner that morning and that both girls claimed the
same at a Child Advocacy Center a week or so later.


       1
        Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993); State v.
Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990).


                                                1

         On January 27, 2014, petitioner was indicted on five counts of sexual abuse by a parent,
guardian, or custodian (Counts 1, 2, and 3, regard A.H.; Counts 4 and 5 regard J.H.); five counts
of first degree sexual assault (Counts 6, 7, and 8 regard A.H.; Counts 9 and 10 regard J.H.); and
five counts of third degree sexual assault (Counts 11, 12, and 13 regard A.H.; Counts 14 and 15
regard J.H.).

         Petitioner’s jury trial commenced on August 26, 2014. The State called A.H. who
testified that on the morning of June 10, 2013, petitioner (1) put something on her face and
mouth as she was sleeping and, soon thereafter, repeatedly fondled her breasts under her shirt;
(2) attempted to place his fingers inside of her when she bent over to clean up spilled food, and
(3) pushed her up against the refrigerator and attempted to “make out” with her and then licked
the side of her face. A.H. also testified (1) that petitioner grabbed J.H.’s breast that morning and
commented on its size, and (2) that petitioner entered the bathroom while both girls were inside
and while J.H. was using the toilet. A.H. stated that petitioner yanked on J.H.’s shorts and
underwear as if to pull J.H. off of the toilet, and then left the room.

        During petitioner’s case-in-chief, J.H. testified that A.H.’s step-mother told her what to
write in her statement to the police. J.H. also testified that, on the morning in question, petitioner
“slapped” her on the side of the breast and said “itty bitty titty committee.” J.H. testified that it
shocked her at first, but she later considered it not to be scary because she had known petitioner
for seven years and “he wouldn’t like do anything sexually, I guess.” J.H. also testified that
petitioner entered the bathroom while she was on the toilet with her shorts below her knees and
that he pulled on the shorts as if he was going to pull her off the toilet. J.H. stated that petitioner
left the bathroom when she told him she was going to tell her mother about the incident. J.H.
further testified that the incident did not frighten her.

        Petitioner also called Chester Sprankle, a child protective service worker for the West
Virginia Department of Health and Human Services (“DHHR”). Mr. Sprankle investigated the
allegation of abuse and neglect regarding J.H. Mr. Sprankle testified that he never spoke with
A.H. because he determined that petitioner was not her “parent or guardian.” With regard to J.H.,
Mr. Sprankle testified that, although petitioner had fondled J.H.’s breast, the fondling did not rise
to the level of sexual gratification pursuant to Title 49 of the West Virginia Code. Mr. Sprankle
also testified that petitioner admitted to entering the bathroom while J.H. was using the toilet, but
again found that his acts were not for sexual gratification. Mr. Sprankle concluded that the
petitioner’s alleged abuse and neglect of J.H. was not substantiated.

       Petitioner also testified and denied sexually touching either girl.

       During deliberations, the jury asked the circuit court four questions. In their first
question, the jury asked whether the counts in the indictment could be matched to the acts
alleged at trial. The circuit court proposed the following written response:

              A number of episodes were alleged at trial and there are two alleged
       victims. The jurors are encouraged to search their own memories as to the
       testimony/exhibit[s]/evidence and to closely read the instructions on the various



                                                  2

       counts and to come to their own conclusion as to what the evidence is and how it
       may apply to any of the counts.

The court inquired of both the State and petitioner’s counsel regarding the proposed response;
both responded, “Sounds fine.” The court then sent the jury its written response. Neither party
objected to the written response or to the procedure by which the court answered the question.

       The circuit court deemed the jury’s second question as “lengthy” and “fairly inscrutable.”
However, the circuit court summarized it as asking for “a clear definition of sexual desire.” With
the assistance of the State and the defense, the circuit court drafted the following written
response:

              Sexual desire would appear to be a state of mind and the existence of a
       motivation based on gratifying sexual desire[;] it would be for the jury to
       determine from all of the evidence in the case using common usage and meaning
       of terms in the English language.

               Also, the statute requires that parties not be married to each other and that
       the act be done for the purpose of gratifying sexual desire of either party.

The parties “agreed” to this response and neither the State nor the defense lodged any objection.

       The jury’s third question regarded (1) how late in the day they should deliberate, and (2)
whether they should eat dinner and resume deliberations or suspend deliberations and leave for
the day. The judge proposed that he stand in the doorway of the jury room to answer the
questions, with the court reporter present. In response, the defense said the following:

       PETITIONER’S COUNSEL: I don’t know if I am too cautious about these things,
       I think that makes sense. [Petitioner] says that is fine with him.

       PETITIONER: Fine with me.

The circuit court then instructed the jury as follows:

       THE CIRCUIT COURT: I have asked [the court reporter] to come back here
       because, first of all, I heard two blasts and I knew that there was some kind of
       question. Willie came and sort of told me what the general area of the question
       was. I am going to just address what I thought your basic questions are. I think it
       was about how you do tonight versus eating and the possibility of tomorrow and
       different things like that. I talked with the lawyers outside and they were all
       agreeable to me coming back and saying these things to you. First of all, you’re
       the jury so you guys are, the best way to put it is, you’re large and in charge, are
       the bosses. You can deliberate. Nobody tells you what to do or how to do it. There
       are some general options that are sort of available to you. We have had in the past
       we have had the jury stay late at night. In fact, Marcy was in a trial once in
       Morgan County with a jury who stayed until three o’clock in the morning, wasn’t

                                                  3

       it? I think in that case the judge leaned heavily on them to do that. I just let the
       jury do whatever they feel like they need to do. But in the past we have had say,
       for example, they all ordered out pizza, the clerk ordered pizza, brought it in and
       put it out for everybody, or sometimes the jury taking a break has gone out just
       the way we do for lunch, go out to dinner and come back and deliberate.
       Sometimes people go out and get fast food and eat while they deliberate or
       sometimes they run out of energy and would be a whole lot better off fresher if
       they came back the next day and did some more. You certainly can do that too.
       Everybody out in the courtroom wants to let you know that we are all good to be
       here as long as you all want to be here. Everybody is just happy to stay as long as
       you want to take. But, again, the bottom line is you guys are the jury so I can just
       leave and you all can talk about what you might want to do. We are all good to
       stay here as long as anybody wants to no problem that way. I got Laura Storm our
       circuit clerk down there is ready to make a call if anybody wants to get some kind
       of pizza or bring up pizzas and do that too. You all got to pay for them, I think.
       She didn’t do it on her budget. I don’t know if she did. I better check into that part
       actually. That might have a lot to do with what you decide.

Thereafter, the jurors indicated that they wanted to suspend deliberations for the day. The jury
then returned to the courtroom, was instructed by the court, and then left for the day. During this
process, neither party objected to the court’s procedure regarding the manner in which it
answered the jury’s third question.

        The jury’s fourth and final question was what they should do if they could not come to a
verdict on all counts of the indictment. In discussing the matter, petitioner’s counsel argued that
the jury was required to reach a unanimous verdict on all counts. The court then took a brief
recess so it and the parties could research the matter. Twenty-five minutes later, proceedings
resumed and the court read Rule 31(b)2 of the West Virginia Rules of Criminal Procedure to the
parties. Petitioner’s counsel argued that Rule 31(b) “violated both the spirit and the intent of the
West Virginia [and] United States Constitution[s] requiring unanimous verdicts in a case.” The
court noted petitioner’s objection and then (apparently) sent a copy of Rule 31(b) to the jury.

        On August 28, 2014, the jury found petitioner guilty of Count 3 (sexual abuse by a
parent, guardian, or custodian against A.H.); Count 13 (first degree sexual assault against A.H.);
and Count 8 (third degree sexual assault against A.H.) The jury acquitted petitioner of eight other
counts (Counts 1, 5, 6, 10, 11, 12, 14, and 15), and were unable to reach a verdict on four counts
(Counts 2, 4, 7, and 9).

       2
           Rule 31(b) provides as follows:

       If there is more than one . . . offense being tried, the jury at any time during its
       deliberations may return a verdict or verdicts with respect to . . . an offense as to
       which it has agreed; if the jury cannot agree with respect to all, the . . . offense as
       to which it does not agree may be tried again. In all cases involving multiple . . .
       offenses, the court shall require the jury to make a separate finding as to each . . .
       offense.
                                                 4

       Petitioner filed post-trial motions which, following a hearing, the circuit court denied by
order dated January 13, 2015. In that same order, the circuit court sentenced petitioner to not less
than ten nor more than twenty years in prison for sexual abuse by a parent, guardian, or
custodian; not less than one nor more than five years in prison for first degree sexual assault; and
ninety days in jail for third degree sexual assault. The circuit court then ordered that all three
sentences be served consecutively. Petitioner now appeals.

        Petitioner raises three assignments of error on appeal.3 Petitioner’s first assignment of
error is two-fold: first, petitioner argues that the circuit court erred in “instructing the jury,” and
second, petitioner argues that the circuit court instructed the jury on charges not supported by the
evidence at trial. Petitioner claims that, due to these alleged errors, the circuit court wrongfully
denied petitioner’s motion for a judgment of acquittal.

       With regard to petitioner’s claim that the circuit court erred in instructing the jury, we
have held that,

       A trial court’s instructions to the jury must be a correct statement of the law and
       supported by the evidence. Jury instructions are reviewed by determining whether
       the charge, reviewed as a whole, sufficiently instructed the jury so they
       understood the issues involved and were not mislead by the law. A jury
       instruction cannot be dissected on appeal; instead, the entire instruction is looked
       at when determining its accuracy. A trial court, therefore, has broad discretion in
       formulating its charge to the jury, so long as the charge accurately reflects the
       law. Deference is given to a trial court’s discretion concerning the specific
       wording of the instruction, and the precise extent and character of any specific
       instruction will be reviewed only for an abuse of discretion.

State v. Guthrie, 194 W.Va. 657, 663-64, 461 S.E.2d 163, 169-70 (1995). That said, nowhere in
petitioner’s briefs to this Court does he cite to a single jury instruction or argue why any of the
jury instructions were improper.

       “An appellant must carry the burden of showing error in the judgment of which he
       complains. This Court will not reverse the judgment of a trial court unless error
       affirmatively appears from the record. Error will not be presumed, all
       presumptions being in favor of the correctness of the judgment.” Syllabus point 5,
       Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966).

Skidmore v. Skidmore, 225 W.Va. 235, 237, 691 S.E.2d 830, 832 (2010). Our review of the
record on appeal reveals that the circuit court’s jury instructions included the elements of each of
the crimes charged and accurately reflected the law. Having found no error and in light of the
deferential standard of review, we do not address this claim further.

       3
         Petitioner actually lists four assignments of error in this opening brief to this Court.
However, both petitioner’s first and fourth assignments of error address the sufficiency of
evidence at trial. Therefore, we address petitioner’s first and fourth assignment of error together
herein.
                                                  5

       As for petitioner’s claim of insufficient evidence, we have oft said,

       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, Guthrie, 194 W.Va. at 663, 461 S.E.2d at 169. Further,

       [t]he trial court’s disposition of a motion for judgment of acquittal is subject to
       our de novo review; therefore, this Court, like the trial court, must scrutinize the
       evidence in the light most compatible with the verdict, resolve all credibility
       disputes in the verdict’s favor, and then reach a judgment about whether a rational
       jury could find guilt beyond a reasonable doubt.

State v. LaRock, 196 W.Va. 294, 304, 470 S.E.2d 613, 623 (1996)

        In the instant case, the circuit court properly denied petitioner’s motion for a judgment of
acquittal given that the State presented substantial evidence of petitioner’s guilt of each of the
crimes of which petitioner was convicted: Count 3 (sexual abuse by a parent, guardian, or
custodian), Count 8 (sexual abuse in the third degree), and Count 13 (sexual abuse in the first
degree). For example, Count 3 of petitioner’s indictment charged as follows: “[Petitioner], on the
10th day of June in 2013; in Jefferson County, West Virginia; did engage in or attempt to engage
in, sexual contact with; [A.H.], a child under his care, custody and control.” The evidence at
petitioner’s trial showed that petitioner engaged or attempted to engage in sexual contact with
A.H. The evidence presented at trial regarding “sexual contact” included A. H.’s testimony that
(1) she awoke in bed to find petitioner placing an unknown object inside her mouth; and (2)
petitioner repeatedly put his hand up her shirt and rubbed her breast. The evidence regarding
petitioner’s “care, custody, and control” over A.H. included A.H.’s testimony that (1) on June
10, 2013, she spent the night with J.H.; (2) petitioner was in J.H.’s home that night and the
following morning when A.H. and J.H. awoke; (3) petitioner was the only adult in the home on
the morning of the crimes. Viewing this evidence in the light most favorable to the State, it is
apparent that a rational trier of fact could have determined that the State met its burden of proof
that petitioner engaged in or attempted to engage in sexual contact with A.H., while she was in
his care, custody, or control.

        Count 8 of the indictment charged as follows: “[Petitioner], on the 10th day of June in
2013; in Jefferson County, West Virginia; subjected [A.H.]; to sexual contact; when [A.H.] was
less than 16 years of age; when the Defendant was neither less than four years older than [A.H.];

                                                 6

nor less than 16 years of age.” The evidence regarding petitioner’s sexual contact with A.H.
includes that noted above. The evidence regarding A.H’s age included her testimony that she was
fourteen-years-old when she spent the night at the petitioner’s home. With regard to petitioner’s
age, the State did not specifically enter evidence regarding it; however, DHHR case worker
Chester Sprankle testified in rebuttal as follows:

       THE STATE: Mr. Sprankle, how old is [petitioner]?

       MR. SPRANKLE: I don’t remember exactly.

       THE STATE: If I said 50 years old, 51 years old, would you agree?

       MR. SPRANKLE: I would say that would be a fair assessment, but exactly I don’t know.

        With regard to proof of petitioner’s age, the circuit court found as follows at the hearing
on petitioner’s post-trial motions:

       Without his exact birth date and birth certificate being before the jury, there is
       still[,] we have the testimony of two young girls as to their ages, we have the
       appearance of the [d]efendant and the testimony that he is approximately [fifty]
       years of age, but all the jury has to do is to satisfy themselves from a combination
       of circumstantial evidence and other things that are plainly before them that can
       plainly be viewed by their lay observation, we have a fully mature adult male as
       the [d]efendant and they can make a determination of whether they think there is
       four years difference in their age.

Based on the evidence on this count, a rational trier of fact could have determined that the State
met its burden in proving that petitioner subjected fourteen-year-old A.H. to sexual contact when
he was more than four years older than A.H.

        Finally, Count 13 charged as follows: “[Petitioner], on the 10th day of June in 2013; in
Jefferson County, West Virginia; subjected [A.H.]; to sexual contact; without consent of [A.H.];
and the lack of consent was a result of forcible compulsion.” At trial, the circuit court instructed
the jury that the term “forcible compulsion” includes

       physical force that overcomes such earnest resistance as might reasonably be
       expected under the circumstances, or . . . fear by a person under 16 years of age
       caused by intimidation, express or implied, by another person who is at least four
       years older than the victim. For purposes of this definition resistance includes
       physical resistance or any clear communication of the victim’s lack of consent.

         The jury heard testimony from A.H. that petitioner repeatedly placed his hands under her
shirt and rubbed her breasts and that, at the time, A.H. “kept trying to move away, but every time
I [would] scoot over he would scoot over and kept putting his hand up my shirt.” A.H. also
testified that when she was alone with petitioner in his kitchen and bending to sweep up spilled
food, petitioner “kept trying to put his finger inside me. So I jerked away. I jerked away and I

                                                 7

swept [the food] up.” A.H. then testified that, thereafter, petitioner “pushed me up against the
fridge and tried to make out with me. I wouldn’t let him so he licked the side of my face. Then I
kept telling him to get off and he wouldn’t get off. Then he eventually got off.” Viewed in the
light most favorable to the state, a rational trier of fact could have determined that the State met
its burden of proving that petitioner subjected fourteen-year-old A.H. to sexual contact without
her consent and that the lack of consent was the result of forcible compulsion. Hence, we find
that the circuit court did not err in denying petitioner’s motion for a judgment of acquittal.

        Petitioner’s second assignment of error is that the circuit court erred in the manner in
which it answered the jury’s four questions during deliberations. Specifically, petitioner argues
that the circuit court denied his right to be present at all critical stages of the proceeding and that
he was negatively affected thereby. As noted above, the circuit court answered the jury’s
questions two ways: first, the circuit court devised a written answer for the jury’s first, second,
and fourth questions. Those writings were then sent to the jury in the jury room.4 As petitioner
highlights, a “defendant has a right under Article III, Section 14 of the West Virginia
Constitution to be present at all critical stages in the criminal proceeding; and when he is not, the
State is required to prove beyond a reasonable doubt that what transpired in his absence was
harmless. State v. Boyd, 160 W.Va. 234, 235, 233 S.E.2d 710, 713 (1977). “[A] critical stage in
the criminal proceeding is one where the defendant’s right to a fair trial will be affected.” Id. at
246, 233 S.E.2d at 719.

         We agree with petitioner’s assertion that he had a right to be present during the process
by which the circuit court developed written answers to the jury’s first, second, and fourth
questions given that it was a critical stage of his proceeding where his right to a fair trial could
have been affected. That said, as proved by the record on appeal, petitioner was present during
this critical stage, as were his counsel and the State by its counsel. Moreover, both counsel—in
petitioner’s presence—assisted the circuit court in drafting the written answers. Therefore, we
find no error, particularly in light of the fact that petitioner’s counsel lodged no objection to the
manner in which the circuit court chose to answer the jury’s first, second, and fourth questions.

        As for the jury’s third question, regarding how long the jury should continue to
deliberate, petitioner did not object to the manner in which the circuit court answered that
question. Thus, petitioner’s claim of error with regard to the third question has not been
preserved for appeal. Nor do we find that petitioner was prejudiced by the manner in which the
circuit court answered the third question. We had said, “[a]s a general rule, all communications
between the trial judge and the jury, after the submission of the case, must take place in open
court and in the presence of, or after notice to, the parties or their counsel.” Syl. Pt. 1, Klesser v.
Stone, 157 W.Va. 332, 332, 201 S.E.2d 269, 270 (1973) (emphasis added). Here, after notice to
the State, petitioner’s counsel, and petitioner, and with their express approval, the circuit court
judge stood in the door of the jury room and answered the question in the presence of the court

       4
         Petitioner’s counsel did not object to the answers to the first or second questions;
however, petitioner’s counsel did lodge an objection to the fourth answer. Petitioner did not
renew his objection to the contents of the fourth answer on appeal; instead, he appeals only the
manner in which the questions were answered.


                                                  8

reporter, while the parties remained in the courtroom. Petitioner’s constitutional rights were in no
way infringed by this procedure given the topic under discussion regarded whether the jury
should eat a meal and continue deliberations or suspend deliberations for the day. Nor is there
any likelihood that this interaction between the court and the jury contributed to the jury’s
ultimate verdict. Hence, we find no error.

        Petitioner’s third and final assignment of error is that the circuit court erred in allowing
the jury to consider that petitioner was A.H.’s parent, guardian, or custodian given petitioner’s
assertion that he had only a “bystander” relationship with A.H. who was nothing more than a
“visitor” in his home.

       Count 3 of petitioner’s indictment charges that he “committed the offense of SEXUAL
ABUSE BY A PARENT, GUARDIAN, OR CUSTODIAN OR PERSON IN A POSITION OF
TRUST” in violation of West Virginia Code § 61-8D-5. West Virginia Code § 61-8D-1 defines
“parent,” “guardian,” “custodian,” and a “person in a position of trust” as follows: “‘Parent’
means the biological father or mother of a child, or the adoptive mother or father of a child.” Id.
“‘Guardian’ means a person who has care and custody of a child as the result of any contract,
agreement or legal proceeding.” Id. “‘Custodian’ means a person over the age of fourteen years
who has or shares actual physical possession or care and custody of a child on a full-time or
temporary basis, regardless of whether such person has been granted custody of the child by any
contract, agreement or legal proceeding . . . .” Id. Finally,

       A “person in a position of trust in relation to a child” refers to any person who is
       acting in the place of a parent and charged with any of a parent’s rights, duties or
       responsibilities concerning a child or someone responsible for the general
       supervision of a child’s welfare, or any person who by virtue of their occupation
       or position is charged with any duty or responsibility for the health, education,
       welfare, or supervision of the child.

Id.

        The question of whether a person charged with a crime under West Virginia Code § 61–
8D–5 is a custodian or person in a position of trust in relation to a child is a question of fact for
the jury to determine. State ex rel. Harris v. Hatcher, __W.Va.__, 760 S.E.2d 847, 848 (2014).
Here, the jury determined that A.H. was in petitioner’s care, custody, or control. As we found
above, the evidence adduced at trial regarding petitioner’s “care, custody, and control” over
A.H., viewed in the light most favorable to the State, was sufficient for a rational trier of fact to
determine that petitioner engaged in or attempted to engage in sexual contact with A.H., while
she was in his care, custody or control. Therefore, we will not disturb the jury’s determination on
appeal.

       Accordingly, for the foregoing reasons, we affirm.
                                                                                          Affirmed.




                                                 9

ISSUED: February 12, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




                                 10
