                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



State of West Virginia,                                                           FILED
Plaintiff Below, Respondent                                                   June 13, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 13-0780 (Fayette County 13-F-83)                                       OF WEST VIRGINIA


John S.,

Defendant Below, Petitioner



                                MEMORANDUM DECISION

       Petitioner John S.1, by counsel Lori M.P. Waller, appeals the Circuit Court of Fayette
County’s sentencing order entered on July 3, 2013. The State of West Virginia, by counsel
Christopher S. Dodrill, filed a response. Petitioner 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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        Petitioner married his wife, Candace, in November of 2010, and the couple lived with
petitioner’s ten-year-old son, D.S., and Candace’s nine-year-old niece, N.L., over whom she had
guardianship. Petitioner and his wife had a child together, born on February 12, 2011.

        Petitioner was accused of sexually abusing N.L., beginning within weeks of him moving
into Candace’s home. N.L. later testified that she was sexually abused and assaulted by petitioner
nearly daily after school. She testified that petitioner would lock D.S. in his room and then
sexually assault her. D.S.’s statements corroborated her testimony, indicating that the bedroom
doors in their home had the lock on the outside of the door and that, at times, his father would
lock him in his room. D.S. also testified that N.L. disclosed to him that petitioner had touched
her private area.

       On January 9, 2013, petitioner was indicted on the following twenty counts: nine counts
of sexual assault in the first degree, stemming from his alleged insertion of his penis into N.L.’s

       1
         Due to the sensitive facts involved in this case, we refer to petitioner and the other
involved parties by their initials. State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123
(1990).

                                                 1

vagina, from June of 2010 through February of 2011; nine counts of sexual abuse by a parent,
guardian, custodian or person in a position of trust to a child due to the alleged assaults against
N.L.; one count of sexual abuse in the first degree for allegedly touching the penis of D.S.; and,
one count of sexual abuse by a parent, guardian, custodian, or person in a position of trust to a
child for allegedly touching the penis of D.S. The counts regarding D.S. were severed, and the
trial in the instant case was based only on the allegations regarding N.L.

         The case went to trial on May 15 and 16, 2013. N.L. testified at trial, as did D.S. Medical
evidence was presented by experts for both the State and the defense. Dr. Sharon Istfan testified
for the State, noting her finding of thickening around N.L.’s anus due to chronic irritation, which
is consistent with sexual abuse. There was no visible vaginal damage, but Dr. Istfan testified that
this is not unusual, as less than five percent of sexual assault victims examined a year after the
alleged crime would show residual damage as that area would have healed. Dr. Stephen Guertin
testified for the defense, stating that N.L.’s physical examination was not consistent with her
allegations. Dr. Guertin indicated that a child of N.L.’s age would have had significant injury
from vaginal penetration, which was not present here. Both petitioner and his wife testified that
petitioner was not present in or living in the home during some of the period he was alleged to
have abused N.L. Both also denied the allegations, and alleged that petitioner had little access to
the child alone, as Candace worked only part time and was on bedrest and maternity leave during
some of the period the abuse allegedly occurred.

       During deliberations, the jury asked for clarification on the meaning of the word
“penetration,” or what constitutes sexual assault in the first degree. In response, the judge reread
the jury instruction to them. Approximately thirty minutes later, the jury reached its verdict,
finding petitioner guilty on all counts. The court held a hearing on post-trial motions, including a
motion for new trial, and sentencing on July 2, 2013. All of petitioner’s motions were denied,
and he was sentenced to an aggregate sentence of ninety-five to three hundred forty years of
incarceration.

        Petitioner appeals from his sentencing order. “‘The Supreme Court of Appeals reviews
sentencing orders . . . under a deferential abuse of discretion standard, unless the order violates
statutory or constitutional commands.’ Syl. Pt. 1, in part, State v. Lucas, 201 W.Va. 271, 496
S.E.2d 221 (1997).” Syl. Pt. 1, State v. James, 227 W.Va. 407, 710 S.E.2d 98 (2011).

       On appeal, petitioner first argues that the verdict was against the weight of the evidence
since N.L. claimed that the acts occurred at times when petitioner was not even present in the
home. He further argues that there was no physical evidence to support the child victim’s claims
of sexual assault. Petitioner states that the child exhibited confusion in her testimony as to time
and place, and even testified that petitioner had moved into the home earlier than he actually did.
Additionally, petitioner argues that neither the State’s expert nor the expert for the defense found
physical injury consistent with vaginal penetration. Petitioner contends that the lack of physical
findings combined with the confusion in the child’s testimony make her testimony inherently
incredible and, thus, his conviction should be overturned.



                                                 2

         Petitioner is, in essence, challenging the sufficiency of the evidence. This Court has
found:
                 “[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).

Syl. Pt. 2, State v. McFarland, 228 W.Va. 492, 721 S.E.2d 62 (2011); Syl. Pt. 7, State v. White,
228 W.Va. 530, 722 S.E.2d 566 (2011).

        This Court finds that sufficient evidence was presented to support the convictions. This
Court has stated that “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.” State v. Guthrie, 194 W.Va. 657, 669-70, 461 S.E.2d 163, 175-76 (1995). To
obtain convictions on the charges for sexual assault in the first degree, the State had to prove that
petitioner was at least fourteen years old, that he engaged in sexual intercourse or intrusion with
N.L., and that N.L. was younger than twelve years old at the time. W.Va. Code § 61-8B-3(a)(2).
To obtain convictions on the charges of sexual abuse by a parent, guardian, or custodian, the
State had to prove that petitioner sexually exploited or abused N.L. and that he did so while she
was under his care, custody, or control. W.Va. Code § 61-8D-5(a). The State introduced
evidence to support each of these elements through the testimony of N.L. N.L. testified that
petitioner sexually abused her “every day” after she came home from school, stating that he “put
his private in my private.” Thus, the evidence was sufficient to sustain petitioner’s conviction.

       As to petitioner’s contention that the child’s testimony was not credible, this Court has
found as follows:

                As we have cautioned before, appellate review is not a device for this
         Court to replace a jury’s finding with our own conclusion. On review, we will not
         weigh evidence or determine credibility. Credibility determinations are for a jury
         and not an appellate court. On appeal, we will not disturb a verdict in a criminal
         case unless we find that reasonable minds could not have reached the same
         conclusion.

Guthrie, 194 W.Va. at 669, 461 S.E.2d at 175. The jury found the child’s testimony credible, as
evidenced by the verdict. Therefore, this Court will not disturb the verdict.


                                                  3

       Next, petitioner argues that the trial court violated the Rules of Evidence by admitting
hearsay evidence, including the child victim’s letter to her guardian and her written interview
answers, because admission of such evidence caused the jury to consider unreliable evidence in
reaching its verdict. Petitioner relies on State v. Kaufman, 227 W.Va. 537, 711 S.E.2d 607
(2011), arguing that the statements were inadmissible as being unfairly prejudicial. “‘“Rulings on
the admissibility of evidence are largely within a trial court’s sound discretion and should not be
disturbed unless there has been an abuse of discretion.” State v. Louk, 171 W.Va. 639, 643, 301
S.E.2d 596, 599 (1983).’ Syllabus Point 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574
(1983).” Syl. Pt. 1, State v. Pettrey, 209 W.Va. 449, 549 S.E.2d 323 (2001).

       This Court has set forth the following standard regarding the admission of hearsay
evidence:

               The language of Rule 804(b)(5) of the West Virginia Rules of Evidence
       and its counterpart Rule 803(24) requires that five general factors must be met in
       order for hearsay evidence to be admissible under the rules. First and most
       important is the trustworthiness of the statement, which must be equivalent to the
       trustworthiness underlying the specific exceptions to the hearsay rule. Second, the
       statement must be offered to prove the material fact. Third, the statement must be
       shown to be more probative in the issue for which it is offered than any other
       evidence the proponent can reasonably procure. Fourth, admission of the
       statement must comport with the general purpose of the rules of evidence and the
       interest of justice. Fifth, adequate notice of the statement must be afforded the
       other party to provide that party a fair opportunity to meet the evidence. Syl. Pt. 5,
       State v. Smith, 178 W.Va. 104, 358 S.E.2d 188 (1987).

Syl. Pt. 6, State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990). As to the written
statements N.L. wrote during the forensic interview, these were used not to show the truth of the
matter asserted, but to show why the Child Protective Services worker acted in removing the
child from the home and why an investigation was undertaken. As to the letter N.L. wrote to her
guardian, this letter was admissible under the “catch-all” exception, and meets all five of the
factors set forth in Edward Charles L. Moreover, this Court has found that when the author of a
document alleged to be hearsay is available to testify at trial, the evidence is more likely to be
found admissible: “[n]ot only are hearsay dangers minimized by the presence of the declarant,
but such appearance removes potential confrontation clause issues as well.” Id. at 656, 398
S.E.2d at 138.

       Even if the alleged hearsay evidence was improperly admitted, the error was harmless.
This Court has stated:
               “‘Where improper evidence of a nonconstitutional nature is introduced by
       the State in a criminal trial, the test to determine if the error is harmless is: (1) the
       inadmissible evidence must be removed from the State's case and a determination
       made as to whether the remaining evidence is sufficient to convince impartial
       minds of the defendant's guilt beyond a reasonable doubt; (2) if the remaining
       evidence is found to be insufficient, the error is not harmless; (3) if the remaining

                                                 4
       evidence is sufficient to support the conviction, an analysis must then be made to
       determine whether the error had any prejudicial effect on the jury.’ Syllabus Point
       2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979), cert denied, 445 U.S.
       904, 100 S.Ct. 1081, 63 L.E.2d 320 (1980)”; Syl. Pt. 3, State v. Maynard, 183
       W.Va. 1, 393 S.E.2d 221 (1990) (quoting Syl. Pt. 6, State v. Smith, 178 W.Va.
       104, 358 S.E.2d 188 (1987)).

Syl. Pt. 3, id. Even without the evidence petitioner alleges was improper, there is sufficient
evidence to find petitioner guilty. N.L. testified regarding the abuse, and some of her allegations
were supported by statements made by D.S. As stated above, the jury determined that N.L.’s
testimony was credible. The jury also heard testimony from experts for the State and for the
defense. The alleged error did not have any prejudicial effect on the jury, as the same evidence
was elicited from the examination and cross-examination of N.L. Thus, we find no error in the
admission of this alleged hearsay evidence.

        Petitioner’s final assignment of error is that he did not receive a fair trial because the
lower court failed to disqualify a juror despite her previous relationship with petitioner.
Petitioner states that his ex-wife’s cousin was a member of the jury, and that she was prejudiced
against him because the ex-wife had accused him of abuse. Petitioner moved for a new trial, and
one basis of this motion was that this juror was prejudiced against him. He admits that he did not
inform his attorney that he knew the juror until “a couple days” after his trial ended, although he
had previously socialized with her, attended church with the juror, and the juror attended his
wedding. He stated that he did not “hardly look over at the jury” during the entirety of his trial,
and thus only noticed the juror after the verdict.

       The court denied the motion, explaining:

       The Court, based on this evidence, concludes that the defendant, by his words,
       ‘hardly looking at the jury during jury selection,’ did so at his peril. The purpose of
       having a public jury selection is to display this jury panel to the Defendant and his
       lawyer during the process of selection. And it is beyond reasonable comprehension
       to believe that a person who attended the Defendant’s wedding and with whom he
       socialized at church for a year or more he would not recognize here in Court.

This Court has stated that “[i]n order to receive a new trial, a party challenging a verdict based on
the presence of a juror disqualified under W.Va. Code § 52-1-8(b)(6) must show that a timely
objection was made to the disqualification or that ordinary diligence was exercised to ascertain the
disqualification.” Syl. Pt. 4, Proudfoot v. Dan's Marine Service, Inc. 210 W.Va. 498, 558 S.E.2d
298 (2001). The failure to exercise diligence waived his objection to the jury. Further, petitioner
cannot identify an error in this ruling, simply stating the juror should have been excused for cause.
Moreover, the issue was only raised post-trial. He did not present evidence that he was diligent in
assessing the members of the jury and, therefore, we find no error in the circuit court’s denial of a
new trial based on this assignment of error.

       For the foregoing reasons, we affirm.

                                                 5

                                      Affirmed.

ISSUED:    June 13, 2014

CONCURRED IN BY:

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




                                 6

