                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS



State of West Virginia,
Plaintiff Below, Respondent
                                                                                     FILED
                                                                                  September 3, 2013

                                                                               RORY L. PERRY II, CLERK

vs) No. 12-1064 (Mercer County 11-F-209)                                     SUPREME COURT OF APPEALS

                                                                                 OF WEST VIRGINIA


Robbie Pertee, Defendant Below,
Petitioner


                                  MEMORANDUM DECISION

        Petitioner’s appeal, by counsel Thomas L. Fuda, arises from an order entered September
24, 2012, in the Circuit Court of Mercer County, wherein he was sentenced to one to five years of
incarceration. This sentence followed petitioner’s conviction, after a trial by jury, for one count of
third degree sexual assault. The State, by counsel Thomas W. Rodd, has filed its response. On
appeal, petitioner disputes the sufficiency of the evidence to support his conviction.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

         In June of 2011, petitioner was indicted on three counts of third degree sexual assault.
Petitioner went to trial on the three charges in February of 2012; he was found not guilty for two
of the counts and there was a mistrial on the third count. The circuit court directed the State to
elect whether to retry petitioner on the third count. On May 1, 2012, the circuit court conducted a
jury trial on that third count. Petitioner was found guilty of third degree sexual assault on the basis
of the uncorroborated testimony of the victim. The circuit court sentenced petitioner to one to five
years of incarceration, with credit for time served, but stayed the execution of the sentence to
allow petitioner to complete physical therapy needed for an occupational injury. The sentence was
reimposed by order entered September 24, 2012, from which petitioner appeals. Petitioner argues
that the testimony was insufficient to support his conviction for third degree sexual assault.

       A person is guilty of sexual assault in the third degree when . . . [t]he person,
       being sixteen years old or more, engages in sexual intercourse . . . with another
       person who is less than sixteen years old and who is at least four years younger
       than the defendant and is not married to the defendant.



                                                      1

W.Va. Code § 61-8B-5(a). “‘Sexual intercourse’ means any act between persons involving
penetration, however slight, of the female sex organ by the male sex organ . . . .” Id. § 61-8B-1(7).

       We have held that,

       “[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. 5, State v. Broughton, 196 W.Va. 281, 470 S.E.2d 413 (1996).

        Upon our review, this Court finds that the evidence was sufficient to support the
petitioner’s conviction of third degree sexual assault. At trial, the victim testified that petitioner
“started kissing on me and rubbing up against [me,]” and described penetration of her sex organ
by petitioner’s sex organ. Additionally, it is undisputed that the victim was under the age of
sixteen at the time of the act and more than four years younger than petitioner, who was over the
age of sixteen. Therefore, the State presented sufficient evidence to support the jury verdict of
guilty of third degree sexual assault as described in West Virginia Code § 61-8B-1, et al.
Although petitioner asserts that the victim’s testimony was uncorroborated, “[a] conviction for
any sexual offense may be obtained on the uncorroborated testimony of the victim, unless such
testimony is inherently incredible, the credibility is a question for the jury.” Syl. Pt. 5, State v.
Beck, 167 W. Va. 830, 286 S.E.2d 234 (1981). Additionally, witness credibility determinations
are within the province of the jury. Syl. Pt. 8, State v. McGilton, 229 W.Va. 554, 729 S.E.2d 876
(2012). Therefore, the circuit court’s sentencing order is hereby affirmed.

                                                                                           Affirmed.

ISSUED: September 3, 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

                                                      2

