                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Carl N. II,                                                                         FILED
Petitioner Below, Petitioner                                                       April 25, 2014
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
vs) No. 13-0569 (Berkeley County 10-C-252)                                      OF WEST VIRGINIA



David Ballard, Warden,

Mount Olive Correctional Complex,

Respondent Below, Respondent



                               MEMORANDUM DECISION
       Petitioner Carl N. II1, by counsel Christopher J. Prezioso, appeals the “Final Order
Denying Amended Petition for Habeas Corpus” entered by the Circuit Court of Berkeley County
on May 2, 2013. David Ballard, Warden of Mount Olive Correctional Complex, by counsel
Christopher C. Quasebarth, responds in support of the circuit court’s order.

        This Court has considered the parties= briefs and the record on appeal, which includes an
appendix and supplemental appendix. 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 error. For these reasons, a memorandum decision affirming
the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

        At trial in March of 2008, the State presented evidence that between October of 2003 and
January of 2004, petitioner sexually molested his daughter, A.N., and showed her pornographic
materials. The acts were committed when A.N. was twelve to thirteen years old. The State also
presented evidence that petitioner showed pornography to his son, S.N., when S.N. was ten to
eleven years old. A.N. and S.N. testified to these events at trial. In addition, pursuant to Rule
404(b) of the West Virginia Rules of Evidence, the State presented testimony from petitioner’s
niece, A.C., and nephew, R.B., who were adults at the time of trial. A.C. and R.B. testified to
acts of sexual molestation that petitioner committed against them when they were children.

        For his acts against A.N. and S.N., the jury found petitioner guilty of sexual assault in the
first degree, West Virginia Code § 61-8B-3; sexual assault in the second degree, West Virginia
Code § 61-8B-4; two counts of sexual abuse in the first degree, West Virginia Code § 61-8B-7;
two counts of incest, West Virginia Code § 61-8-12; two counts of sexual abuse by a parent,
guardian, or custodian, West Virginia Code § 61-8D-5(a); and two counts of display of obscene

       1
         Consistent with our usual practice, we use initials to protect the identity of victims in
sensitive matters. See W.Va. R.A.P. 40(e)(1); State v. Edward Charles L., 183 W.Va. 641, 645
n.1, 398 S.E.2d 123, 127 n.1 (1990).
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matter to a minor, West Virginia Code § 61-8A-2. Petitioner was sentenced to prison by order of
June 19, 2008. This Court refused his direct petition for appeal on September 24, 2009.

        Petitioner filed the instant petition for a writ of post-conviction habeas corpus in 2010.
On June 28, 2011, A.N. (who was then 21 years old) signed an affidavit stating that her trial
testimony was false and that an uncle sexually molested her, not petitioner. However, two weeks
later, on July 14, 2011, A.N. signed a second affidavit recanting the June 28 affidavit and
asserting that her trial testimony was true and petitioner was the perpetrator. The July 14
affidavit stated that petitioner and petitioner’s mother Marian N., (A.N.’s grandmother), had
pressured A.N. into signing the untrue June 28 affidavit. The July 14 affidavit stated that the
June 28 affidavit was prepared from a sample provided by petitioner, and that petitioner had
suggested she allege that her uncle had abused her.

        The circuit court held an omnibus hearing on the habeas petition on January 10, 2013.
Petitioner, A.N., Marian N., and petitioner’s two trial counsel testified. By order entered May 2,
2013, the circuit court denied the habeas petition on all grounds.

        Petitioner now appeals the May 2, 2013, habeas order to this Court. He raises the
following assignments of error: (1) insufficient evidence to sustain the conviction; (2) ineffective
assistance of trial and appellate counsel; (3) actual innocence and conviction upon false
testimony; (4) admission of improper Rule 404(b) evidence; (5) the trial court erred in denying
his motion for continuance of trial; and (6) cumulative error. We apply the following standard of
review to this appeal:

               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).

       Applying this standard of review, and upon a careful consideration of the record on
appeal, we find no error in the circuit court’s May 2, 2013, order. None of petitioners’
assignments of error present constitutional problems warranting habeas relief. We find that the
May 2, 2013, order is well-reasoned and supported by the record, and we hereby adopt and
incorporate by reference the order’s findings of fact and conclusions of law as to the issues raised
in this appeal. The Clerk is directed to attach a copy of the May 2, 2013, order to this
memorandum decision.2

       We note that many of petitioner’s arguments rest upon his allegation that A.N.’s trial
testimony, July 14, 2011, affidavit, and habeas testimony were false. The habeas circuit court
heard the evidence, including A.N.’s explanation of how she was coerced into executing a false

       2
         The copy of the order attached to this memorandum decision is redacted to protect the
identity of the victims. See footnote 1, supra.
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affidavit. During the habeas hearing, A.N. reaffirmed her trial testimony, and the habeas circuit
court found A.N.’s testimony to be credible. For the reasons set forth in the circuit court’s order,
we find no error in the circuit court’s findings regarding the credibility of A.N.’s habeas
testimony.

       Accordingly, we affirm.

                                                                                         Affirmed.

ISSUED: April 25, 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




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