                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


State of West Virginia,                                                               FILED
Plaintiff Below, Respondent                                                    November 21, 2018
                                                                               EDYTHE NASH GAISER, CLERK
                                                                               SUPREME COURT OF APPEALS
vs.) No. 17-0030 (Nicholas County 16-F-31)                                         OF WEST VIRGINIA


Delbert D.,
Defendant Below, Petitioner


                              MEMORANDUM DECISION

        Petitioner Delbert D., by counsel Jason D. Parmer, appeals the December 14, 2016,
sentencing order of the Circuit Court of Nicholas County following his conviction of multiple sex
crimes.1 The State of West Virginia (“the State”), by counsel Benjamin F. Yancey III, filed a
response in support of the circuit court’s order. On appeal, petitioner argues that the circuit court
erred in denying his motion for judgment of acquittal because “the State failed to establish the
corpus delicti of the charges with independent, corroborating evidence of sexual intrusion.”

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

         In September of 2016, petitioner was indicted for twenty-one counts of first-degree sexual
assault, one count of first-degree sexual abuse, two counts of sexual abuse by a parent, guardian, or
custodian, and one count of distribution and exhibiting of material depicting minors engaged in
sexually explicit conduct. 2 Petitioner’s jury trial commenced on October 6, 2016. At trial,

       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); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).
       2
           One count of first-degree sexual abuse and one count of sexual abuse by a parent,

                                                                                     (continued . . .)
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petitioner’s confession was played for the jury. During the recording, petitioner admitted that he
had sexual encounters with the victim in both his trailer and a detached building on his property.
According to petitioner, the victim would sit on his lap and neither party would be wearing pants.
Petitioner indicated he would rub his penis against the victim’s vagina and place his fingers inside
her vagina and anus. Petitioner explained that this occurred “five or six times” in the building and
“once or twiced [sic]” in the trailer. Petitioner denied that his penis was ever inside the victim, but
did admit that he would have an erection as a result of the activity.

        The twelve-year-old victim testified that when she was four or five years old petitioner
made her undress and lay on top of him or on a mattress. According to the victim, petitioner
touched “the outside” of her buttocks with his penis and touched her chest with his hands. The
victim denied that petitioner touched the lower part of her body with his fingers. The victim
indicated that these events occurred in petitioner’s detached building. Finally, a West Virginia
State Police officer testified that he reviewed the victim’s interviews and statements and the victim
did not remember if petitioner penetrated her vagina or anus with his fingers or penis during any of
the incidents.

       At the close of the State’s case, petitioner moved for a judgment of acquittal. The circuit
court granted petitioner’s motion in regard to thirteen counts of first-degree sexual abuse, but
denied the motion in regard to eight counts of first-degree sexual abuse, one count of first-degree
sexual abuse, and two counts of sexual abuse by a parent, guardian, or custodian. The jury
ultimately convicted petitioner of all remaining counts in the indictment.

         In November of 2016, the circuit court sentenced petitioner to eight terms of 25 to 100
years of incarceration for his first-degree sexual assault convictions; one term of 5 to 25 years for
his first-degree sexual abuse conviction; and two terms of 10 to 20 years for his sexual abuse by a
parent, guardian, or custodian convictions. The circuit court ordered that five sentences imposed
for the first-degree sexual assault convictions would run consecutively to each other and that the
remaining sentences would run concurrently to those five terms. The circuit court’s December 14,
2016, sentencing order effectively sentenced petitioner to 125 to 500 years of incarceration.
Petitioner now appeals that order.

       On appeal, petitioner argues that the circuit court erred in denying his motion for judgment
of acquittal on the basis that the State failed to establish the corpus delicti of the charges with
independent, corroborating evidence of sexual intrusion. 3 According to petitioner, the only

guardian, or custodian related to a second victim and are not at issue in this appeal. Additionally,
the count of distribution and exhibiting of material depicting minors engaged in sexually explicit
conduct was severed from this indictment on the State’s motion and is not at issue in this appeal.
        3
          West Virginia Code § 61-8B-3 provides, in relevant part: “[a] person is guilty of sexual
assault in the first degree when . . . [t]he person, being fourteen years old or more, engages in
sexual intercourse or sexual intrusion with another person who is younger than twelve years old
and is nor married to that person.” Further, West Virginia Code § 61-8B-1(8) defines sexual

                                                                                      (continued . . .)
                                                  2
evidence of sexual intrusion was petitioner’s own recorded statement; the victim never testified
that petitioner penetrated her with his fingers or penis. Petitioner argues that his statement alone is
insufficient to establish corpus delicti. Respondent argues that the testimony provided by the
victim “materially and substantially” corroborated petitioner’s confession and, therefore, the
corpus delicti of the crime was proven.

        The Court applies a de novo standard of review to the denial of a motion for judgment of
acquittal based upon the sufficiency of the evidence. State v. LaRock, 196 W.Va. 294, 304, 470
S.E.2d 613, 623 (1996). As this Court has further explained:

                 The function of an appellate court when reviewing the sufficiency of the
        evidence to support a criminal conviction is to examine the evidence admitted at
        trial to determine whether such evidence, if believed, is sufficient to convince a
        reasonable person of the defendant’s guilt beyond a reasonable doubt. Thus, the
        relevant inquiry is whether, after viewing the evidence in the light most favorable
        to the prosecution, any rational trier of fact could have found the essential elements
        of the crime proved beyond a reasonable doubt.

Syl. Pt. 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). Moreover,

        [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.

Id. at 663, 461 S.E.2d at 169, Syl. Pt 3, in part.

       In regard to the corpus delicti rule, this Court held in State v. Garrett, 195 W.Va. 630, 466
S.E.2d 481 (1995) that

               [t]he corpus delicti may not be established solely with an accused’s
        extrajudicial confession or admission. The confession or admission must be
        corroborated in a material and substantial manner by independent evidence. The

intrusion as “any act between persons involving penetration, however slight, of the female sex
organ or of the anus of any person by an object for the purpose of degrading or humiliating the
person so penetrated or for gratifying the sexual desire of either party.”


                                                     3
       corroborating evidence need not of itself be conclusive, but, rather, is sufficient if,
       when taken in connection with the confession or admission, the crime is established
       beyond a reasonable doubt.

Id. at 633, 466 S.E.2d at 484, Syl. Pt. 5. In this case, we find that the victim’s testimony was a
“material and substantial” corroboration of petitioner’s confession. During her testimony, the
victim stated that petitioner made her undress and lay on top of him while in the building on his
property. Further, petitioner admitted in his confession that the sexual acts occurred in both the
trailer and that building and that neither party wore pants during the events. Additionally,
petitioner admitted to penetrating the victim’s vagina and anus with his fingers. As we held in
Garrett, the corroborating evidence “need not be conclusive.” Rather, the evidence “is sufficient
if, when taken in connection with the confession or admission, the crime is established beyond a
reasonable doubt.” Petitioner’s confession that he digitally penetrated the victim and the victim’s
testimony correctly identifying the place and manner in which petitioner committed these acts
supports the circuit court’s determination that the State proved corpus delicti in this case.
Therefore, we find no error in the proceedings below.

        Accordingly, for the foregoing reasons, we affirm the circuit court’s December 14, 2016,
final sentencing order.


                                                                                           Affirmed.

ISSUED: November 21, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Timothy P. Armstead
Justice Evan H. Jenkins
Justice Paul T. Farrell sitting by temporary assignment




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