                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Marty B.,
Petitioner Below, Petitioner                                                        FILED
                                                                                  October 4, 2013
                                                                              RORY L. PERRY II, CLERK
vs)    No. 13-0008 (Fayette County 12-C-317)                                SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

Patrick Mirandy, Warden, St. Mary’s Correctional Center,
Respondent Below, Respondent

                               MEMORANDUM DECISION

      Petitioner Marty B.,1 appearing pro se, appeals the order of the Circuit Court of Fayette
County, entered December 18, 2012, that denied his petition for writ of habeas corpus. Respondent
Warden, by counsel Benjamin F. Yancey III, filed a summary 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.

        Petitioner was charged with three counts of sexual abuse in the first degree and three counts
of sexual abuse by a parent, guardian, or custodian. The charges alleged inappropriate sexual
conduct with petitioner’s daughter, R.S.B., in 1998, 2002 and 2004. R.S.B. was eleven years old in
1998. R.S.B. did not report her alleged abuse until 2005. R.S.B. stated that she was afraid of
petitioner and finally told what happened because her mother was very ill and could have died, and
R.S.B. did not want to be left alone with petitioner. Petitioner denied the allegations and asserted
that his daughter fabricated the allegations because she was a rebellious teenager, who did not
want to live by parental rules. The State rested its case upon R.S.B.’s testimony as it presented no
physical evidence at trial. A jury convicted petitioner on all charges, and he was sentenced to
eleven to twenty-five years in prison. Petitioner subsequently filed a direct appeal in this Court
which refused his petition.


         On October 12, 2012, petitioner filed a petition for writ of habeas corpus that alleged that
all six counts of the indictment were fatally flawed because they failed to allege that his touching

       1
         Because of sensitive facts, we protect the identities of those involved. See State ex rel.
West Virginia Dept. of Human Services v. Cheryl M., 177 W.Va. 688, 689 n.1, 356 S.E.2d 181, 182
n.1 (1987).

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of R.S.B. was intentional. In its December 18, 2012 order that denied the petition, the circuit court
noted that petitioner based his argument on West Virginia Code § 61-8B-1, the definitions section
of chapter 61, article 8B of the West Virginia Code.2 West Virginia Code § 61-8B-1(6) defines
“sexual contact” as various types of “intentional touching.” The circuit court further noted that
petitioner was not charged under West Virginia Code § 61-8B-1(6). Rather, petitioner was charged
under West Virginia Code § 61-8B-7, delineating the offense of sexual abuse in the first degree,3
and under West Virginia Code § 61-8D-5, delineating the offense of sexual abuse by a parent,
guardian, or custodian.4

       The circuit court then noted that the counts of the indictment charging petitioner with
sexual abuse in the first degree provided, in pertinent part, as follows:

                That MARTY [B.] did unlawfully and feloniously subject R.S.B. to
                sexual contact without her consent by touching her breasts [and
                vagina] with his hand for his own sexual gratification, the said
                MARTY [B.] not being married to the said R.S.B., and the lack of
                consent was the result of forcible compulsion, against the peace and
                dignity of the State.

                [Citing] W.Va. Code § 61-8B-7(a)(1).[5]

       2
           All citations reference the 1998 version of West Virginia Code § 61-8B-1.
       3
           At the time of petitioner’s offenses, West Virginia Code § 61-8B-7 provided, in pertinent
part, that “(a) A person is guilty of sexual abuse in the first degree when: (1) Such person subjects
another person to sexual contact without their consent, and the lack of consent results from forcible
compulsion [.]” W.Va. Code § 61-8B-7(a)(1) (1998).
       4
          At the time of petitioner’s offenses, West Virginia Code § 61-8D-5(a) (1998) provided,
in pertinent part, as follows:

                        If any parent, guardian or custodian of a child under his or
                her care, custody or control, shall engage in or attempt to engage in
                sexual exploitation of, or in sexual intercourse, sexual intrusion or
                sexual contact with, a child under his or her care, custody or control,
                notwithstanding the fact that the child may have willingly
                participated in such conduct, or the fact that the child may have
                consented to such conduct or the fact that the child may have
                suffered no apparent physical injury or mental or emotional injury
                as a result of such conduct, then such parent, guardian or custodian
                shall be guilty of a felony[.]
       5
          One count alleged that petitioner touched R.S.B.’s breasts, while the other two counts
alleged that petitioner touched both her breasts and vagina.

                                                  2
(Emphasis in original.)

        The counts of the indictment charging petitioner with sexual abuse by a parent, guardian,
or custodian provided, in pertinent part, as follows:

               That [MARTY B.] did unlawfully and feloniously engaged in
               sexual contact with R.S.B., a child, by touching her breasts [and
               vagina] with his hand for his own sexual gratification while the said
               R.S.B. was in the care, custody or control of MARTY [B.], the
               parent of R.S.B., the said MARTY [B.] not being married to the said
               R.S.B., against the peace and dignity of the State.

               [Citing] W.Va. Code § 61-8D-5.[6]

The circuit court determined that the counts of the indictment either “track[ed]” or “nearly
mirror[ed]” the respective statute under which petitioner was charged for that count. Accordingly,
the circuit court found the indictment sufficient and denied the petition. Petitioner now appeals the
circuit court’s December 18, 2012, order.

       We review the circuit court’s order denying a habeas petition 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
               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.

Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).7 Also, “[g]enerally, the
sufficiency of an indictment is reviewed de novo.” Syl. Pt. 2, in part, State v. Miller, 197 W.Va.
588, 476 S.E.2d 535 (1996).

        On appeal, petitioner argues that the indictment was fatally flawed because it failed to
allege that his touching of R.S.B. was intentional. Respondent counters that the indictment closely

       6
          Again, one count alleged that petitioner touched R.S.B.’s breasts, while the other two
counts alleged that petitioner touched both her breasts and vagina.
       7
          See also Syl. Pt. 1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973) (“A court
having jurisdiction over habeas corpus proceedings may deny a petition for a writ of habeas corpus
without a hearing and without appointing counsel for the petitioner if the petition, exhibits,
affidavits or other documentary evidence filed therewith show to such court’s satisfaction that the
petitioner is entitled to no relief.”).

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tracks the language of the statutes under which petitioner was charged, and, as such, petitioner’s
argument is frivolous. Respondent is correct. First, in State v. Donald S.B., 184 W.Va. 187, 190,
399 S.E.2d 898, 901 (1990), this Court determined that an information charging sexual abuse in
the first degree was sufficient because it “substantially follow[ed] the statutory language.” 8
Second, petitioner’s argument fails by its own terms. In the counts alleging sexual abuse in the first
degree, and in the counts alleging sexual abuse by a parent, guardian, or custodian, the indictment
used the term “sexual contact.” As petitioner notes, “sexual contact” is defined as various types of
“intentional touching.”9 Accordingly, this Court concludes that petitioner’s argument is without
merit and that the circuit court did not abuse its discretion in denying the petition.

       For the foregoing reasons, we affirm.

                                                                                           Affirmed.

ISSUED: October 4, 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




       8
         The standard for determining the sufficiency of an information or an indictment is the
same. See State v. Donald S.B., 184 W.Va. 187, 190, 399 S.E.2d 898, 901 (1990).
       9
          While West Virginia Code § 61-8D-5 is in chapter 61, article 8D of the Code, it uses the
same definition of “sexual contact” pursuant to West Virginia Code § 61-8D-1(8). This was also
true at the time of petitioner’s offenses.
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