                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS


State of West Virginia,                                                             FILED
Plaintiff Below, Respondent                                                     January 14, 2019
                                                                                 EDYTHE NASH GAISER, CLERK
vs.) No. 17-1036 (Morgan County CC-33-2016-F-58)                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA


Justin E. Hobday,
Defendant Below, Petitioner


                               MEMORANDUM DECISION

        Petitioner Justin E. Hobday, by counsel Sherman L. Lambert, Sr., appeals the November
21, 2017, sentencing order of the Circuit Court of Morgan County following his conviction of two
sex crimes. The State of West Virginia (“the State”), by counsel Julianne Wisman, filed a response
in support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in
granting the State’s motion to amend the indictment and by denying his motion for a judgment of
acquittal or new trial.

        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 on one count of second-degree sexual
assault, one count of first-degree sexual abuse, and one count of cultivation of marijuana.1 The
original indictment indicated that the criminal conduct allegedly occurred “on or about the
[seventeenth] day of June of 2016.” On April 25, 2017, the State filed a motion to amend the
indictment and change the date of the alleged crime to “on or between the [fifteenth] and
[sixteenth] of June 2016.” The State asserted that the change occurred following the receipt of
some text messages from petitioner’s counsel that morning. According to the State, it was apparent
that the date in the indictment was erroneous and necessitated change. The circuit court held an in


       1
         Petitioner pled guilty to cultivation of marijuana in April of 2017, and the conviction is not
at issue in this appeal.


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camera hearing and granted the State’s motion before petitioner’s jury trial commenced on April
26, 2017, over petitioner’s objection.

        At trial, the victim testified that she received a message from petitioner on June 15, 2016,
wherein he requested that she drive to his home that evening. The victim initially declined and
stated that she did not have enough money for gasoline to travel. According to the victim,
petitioner offered her ten dollars for gasoline, and she then agreed to come. The victim testified
that once she arrived, they smoked marijuana and watched a movie together. The victim testified
that during this time, petitioner flirted with her, but she explained to him that she “wasn’t there for
that reason.” The victim testified that when she questioned petitioner regarding the money for
gasoline, he stated that he would not have the money until the morning. The victim explained that
she lay in petitioner’s bed to sleep, and petitioner began rubbing her chest, shoulders, and arms.
The victim again stated to petitioner that “it wasn’t going to happen.” Petitioner told her that his
hand was cold and reached between her legs, under her clothing. The victim testified that she
removed his hand and petitioner got angry and was quiet for a couple of minutes. Petitioner’s
recorded statement to law enforcement was played for the jury. In this statement, petitioner
asserted that he fell asleep after the victim removed his hand from between her legs and that they
did not have sex.

        However, the victim testified that petitioner rolled on top of her and attempted to kiss her.
The victim explained that she tried to “push [petitioner] away” and yelled that she “didn’t want it.”
The victim testified that, despite her struggling, petitioner partly removed her leggings while
holding one of her arms above her head. The victim suffered abrasions to her left wrist which were
later documented by a forensic nurse. Ultimately, the victim testified that petitioner penetrated her
vagina with his penis and ejaculated on her stomach. Afterward, petitioner laid on the victim’s
chest and told her that he was sorry. The victim testified that she remained at petitioner’s home
until she received the promised gas money the next morning. The victim explained that she drove
to her home, changed clothes, and reported the incident to the police. Later, the victim’s clothes
tested positive for seminal fluid and spermatozoa that matched petitioner’s DNA profile. Petitioner
did not testify. The jury ultimately convicted petitioner of two counts of first-degree sexual abuse.

        Petitioner filed motions for a new trial and judgement of acquittal which were heard on
November 7, 2017, and denied by the circuit court. The circuit court sentenced petitioner to
concurrent indeterminate terms of one to five years for his two sexual abuse convictions.
Additionally, the circuit court ordered that these terms would be served consecutive to petitioner’s
prior conviction for cultivation of marijuana. The circuit court memorialized its decision in its
November 21, 2017, sentencing order. Petitioner now appeals that order.

        On appeal, petitioner first argues that the circuit court erred in granting the State’s motion
to amend the indictment without resubmission to a grand jury. Petitioner asserts that the
amendment sufficiently changed the form and substance of the indictment such that resubmission
to the grand jury was necessary. According to petitioner, the date of the crime was an essential
element, and a circuit court’s amendment of essential elements subverts the purpose of the grand
jury. We disagree.

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        We have recognized that a trial court’s decision to allow an amendment to an indictment is
reviewed for an abuse of discretion. State v. Adams, 193 W.Va. 277, 283, 456 S.E.2d 4, 10 (1995).
To constitute reversible error, petitioner must show not only that the trial court abused its
discretion, but also that the amendment prejudiced his defense. Id. “An indictment may be
amended by the circuit court, provided the amendment is not substantial, is sufficiently definite
and certain, does not take the defendant by surprise, and any evidence the defendant had before the
amendment is equally available after the amendment.” Id. at 279, 456 S.E.2d at 6, Syl. Pt. 2.

        The amendment in this case was not “substantial.” The amendment simply corrected a
clerical error in the indictment as to the time of the alleged offense. West Virginia Code § 62-2-10
provides that “[n]o indictment . . . shall be . . . deemed invalid for . . . stating imperfectly[ ] the time
at which the offense was committed, when time is not of the essence of the offense.” We have
made clear that “[a] variance in the pleading and the proof with regard to the time of the
commission of a crime does not constitute prejudicial error where time is not of the essence of the
crime charged.” Syl. Pt. 4, State v. Chaffin, 156 W.Va. 264, 192 S.E.2d 728 (1972). Specifically,
we have explained that “[b]ecause time is not an element of the crime of sexual assault, the alleged
variances concerning when the assaults occurred [do] not alter the substance of the charges against
the defendant.” State v. Miller, 195 W.Va. 656, 663, 466 S.E.2d 507, 514 (1995).

        Further, petitioner’s argument that he was surprised or prejudiced by the amendment is
unpersuasive.2 Petitioner asserts that his trial strategy was significantly altered by the amendment
as his defense was “predicated upon the specific date alleged in the [i]ndictment, which was July
17, 2016.” However, petitioner did not present a notice of alibi defense to the State or otherwise
indicate that the date listed in the indictment was significant to his defense. Moreover, petitioner
provided an audio statement to the police that corroborated the victim’s testimony that the two met
on June 15, 2016, at the petitioner’s home. Clearly, petitioner placed himself in the presence of the
victim at the time the crime was committed and was not prepared to argue otherwise. Also,
petitioner argues that he was surprised by the amendment. Yet, the State noted that the motion to
amend the date in the indictment was in response to text messages provided as discovery by
petitioner. Therefore, petitioner must have been aware of the dates and times included in those text
messages and the mistake made in the indictment. As such, we find that petitioner was not
prejudiced by the amendment and that the circuit court did not abuse its discretion in granting the
State’s motion to amend the indictment.

        Petitioner also argues that the circuit court erred in denying his motion for judgment of
acquittal because no rational trier of fact could have found sufficient evidence of first-degree
sexual abuse.3 Specifically, petitioner argues that the victim’s testimony was incredible. We find

        2
        In the circuit court, petitioner did not argue that the amendment surprised or prejudiced
him. Rather, petitioner argued only that the amendment was a substantial change.
        3
        West Virginia Code § 61-8B-7 provides, in relevant part: “[a] person is guilty of sexual
abuse in the first degree when: [s]uch person subjects another person to sexual contact without

                                                                                           (continued . . .)
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no merit to petitioner’s argument. 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 this case, the victim testified that she traveled to West Virginia to spend time with
petitioner. Once there, the victim explained that she refused petitioner’s sexual advances on
multiple occasions, stating to him bluntly that “it wasn’t going to happen.” However, the victim
explained that petitioner rolled on top of her body, held one of her arms above her head, partially
removed her leggings, and subjected her to sexual contact. The victim’s wrist suffered abrasions
consistent with this testimony, and petitioner’s DNA was found on her clothing. To the extent that
petitioner argues that the victim’s testimony was incredible, we have previously explained that
“credibility determinations are for a jury and not an appellate court.” Id. Clearly, the jury found
that the victim’s testimony of the events was credible and that she did not consent to sexual
activity. Consequently, we find no error in the circuit court’s denial of petitioner’s motion for

their consent, and the lack of consent results from forcible compulsion.” Further, “forcible
compulsion” is defined in West Virginia Code § 61-8B-1 as “[p]hysical force that overcomes such
earnest resistance as might reasonably be expected under the circumstances.” This section notes
that “‘resistance’ includes physical resistance or any clear communication of the victim’s lack of
consent.” Id.


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judgment of acquittal.

        Accordingly, for the foregoing reasons, we affirm the circuit court’s November 21, 2017,
final sentencing order.


                                                                                      Affirmed.

ISSUED: January 14, 2019

CONCURRED IN BY:

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




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