                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Michael M.,
Petitioner Below, Petitioner                                                       FILED
                                                                               January 5, 2018
vs) No. 17-0112 (Preston County 15-C-188)                                      EDYTHE NASH GAISER, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
Ralph Terry, Acting Warden,
Mount Olive Correctional Complex,1
Respondent Below, Respondent


                               MEMORANDUM DECISION
       Petitioner Michael M.,2 by counsel Jeremy B. Cooper, appeals the Circuit Court of
Preston County’s “Opinion Order Denying Petition for Writ of Habeas Corpus” entered on
November 29, 2016. Respondent David Ballard, Warden, Mount Olive Correctional Complex,
by counsel Sarah B. Massey, filed a response.

        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.

         Following a trial in 2001, a jury convicted petitioner of one count of sexual assault in the
first degree and five counts of sexual abuse by a parent, guardian, or custodian. The victim was
petitioner’s daughter, who was between ten and twelve years old at the time of the crimes. The
victim, age fourteen at the time of the trial, testified that petitioner forced her to lie naked with
him in his bed and touch his penis; digitally penetrated her vagina; put his mouth on her breasts;
and put his mouth on her vagina. The circuit court sentenced petitioner to an effective term of
incarceration of twenty-five to fifty-five years.

       1
          Under Rule 41(c) of the West Virginia Rules of Appellate Procedure, we have
substituted the name of the current warden of Mount Olive Correctional Complex.
       2
          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).



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        The record reveals that the victim initially disclosed the sexual abuse to a friend, who told
the victim’s guidance counselor at her school. When confronted by the guidance counselor, the
victim denied that the abuse occurred for fear that her parents would fight. However, the victim
ultimately disclosed petitioner’s conduct to her mother, who immediately reported the allegations
to the Preston County Sheriff’s Department. Corporal Kenneth Wotring reported to petitioner’s
residence the following evening and interviewed the victim. Also, petitioner’s father was present,
allegedly armed with a loaded handgun, threatening to kill petitioner.

        When petitioner arrived home, the officers explained that they were there because of the
sexual abuse allegations and petitioner agreed to talk to Corporal Wotring. Petitioner waived his
Miranda rights and gave a statement, in which he stated, in part, that he woke up with his
daughter, who was naked from the waist down, sitting on his chest in a compromising sexual
position; that he was tickling her, and it overcame her, which resulted in her sitting on his chest;
that “[a]s far as holding her down, she has been naked a couple of times, I have been naked all of
the time. I never intended it to be sexual at all. I held her down. I tickled her;” that he did not
digitally penetrate her vagina, but that the victim told him he had done so while he was asleep;
that the victim had also told him that he had placed his mouth on her vagina and breasts while he
was asleep; that “there were two or three, four times that maybe it happened[;]” and that he
ejaculated after one of the encounters with the victim. Corporal Wotring arrested petitioner
shortly after petitioner gave his statement.

         Relevant to the instant appeal, petitioner moved to suppress his statement on the basis
that it was involuntarily given. That is, petitioner claimed that his father was threatening to harm
him, and Corporal Wotring promised to place petitioner in protective custody if he gave a
statement. The circuit court denied petitioner’s motion and allowed petitioner’s statement to be
played for the jury at trial. At trial, petitioner testified and claimed that his statement was “as
close he could come [to the truth],” despite previously claiming that it was improperly coerced
by Corporal Wotring. Petitioner also moved to suppress all evidence that was obtained during the
warrantless search of petitioner’s residence. The circuit court denied this motion, as well.

       Based solely on the testimony of Corporal Wotring, the grand jury returned a twenty-
count indictment against petitioner. The first ten counts charged petitioner with first degree
sexual assault and included the following language for each count:

       That between the __ day of ______, 1997, and the 26th day of May 1999, in
       Preston County, West Virginia, [petitioner] committed the offense of “First
       Degree Sexual Assault” by unlawfully and feloniously subjected [the victim] to
       sexual intrusion or sexual intercourse, the said [victim] being eleven (11) years
       old or less, and the said [petitioner] being fourteen (14) years old or more, in
       violation of West Virginia Code § 61-8B-3, against the peace and dignity of the
       State.

Counts 11 through 20 charged petitioner with sexual abuse by a custodian and included the
following language for each count:



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       That between the __ day of ______, 1997, and the 26th day of May 2000, in
       Preston County, West Virginia, [petitioner] committed the offense of “Sexual
       Abuse by a Custodian” by unlawfully and feloniously engaging in or attempting
       to engage in sexual intercourse or sexual contact with [the victim], a child who
       was under his care, custody and control, in violation of West Virginia Code § 61­
       8D-5, against the peace and dignity of the State.

        Petitioner moved to dismiss the indictment on the grounds that it was vague and did not
adequately advise him as to the charges. The circuit court ruled that time was not of the essence
with respect to the offenses charged, and, thus, refused to dismiss the indictment. However,
following a hearing in March of 2001, the circuit court granted petitioner’s motion for a bill of
particulars with the caveat that the State was to “specify as best the [S]tate can the specific date,
time, place, and manner in which the [S]tate contends the acts charged against [petitioner] were
committed.” The victim’s mother initially refused to allow the State to interview the victim in
order for the State to obtain the details necessary for the bill of particulars. When the State
ultimately filed its bill of particulars in August of 2001, it contended that the twenty counts in the
indictment stemmed from ten separate events or acts. Additionally, the State detailed five
specific incidents that the victim was able to recall.

         At the conclusion of the State’s case-in-chief, the circuit court partially granted
petitioner’s motion for judgment of acquittal, finding that the victim testified with specificity to
only five incidents that occurred in Preston County. From those five incidents, the circuit court
allowed only one count of first degree sexual assault to go to the jury because the victim was
over the age of twelve for at least three of them, and one of the incidents did not involve sexual
intercourse or sexual intrusion. The circuit court found that all five incidents warranted sending
five counts of sexual abuse by a parent, guardian, or custodian to the jury. Therefore, the circuit
court sent Counts 1, 11, 12, 13, 14, and 15 to the jury, and the jury returned a guilty verdict on
each of those six counts. The court sentenced petitioner to an effective sentence of twenty-five to
fifty-five years in prison. Petitioner filed a petition for appeal with this Court, which this Court
refused by order on October 30, 2002.

        At petitioner’s request, the circuit court appointed habeas counsel for petitioner in April
of 2004. Habeas counsel filed the instant petition for a writ of habeas corpus in December of
2015. Petitioner raised the following grounds for habeas relief in his memorandum of law in
support of his petition: (1) ineffective assistance of trial counsel; (2) defective indictment; (3)
fraudulent grand jury testimony by Corporal Wotring; (4) prosecutor’s improper reference to the
transcript of petitioner’s statement; (5) improper denial of petitioner’s request for a continuance;
(6) erroneous admission of petitioner’s statement and evidence seized without consent; (7) biased
presentence report; and (8) cumulative error. The circuit court held an omnibus hearing in June
of 2016, and entered its order on November 29, 2016, addressing and denying all alleged
grounds for habeas relief. This appeal followed.


       This Court reviews the circuit court’s denial of a habeas petition under the following
standard:



                                                  3

       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). On appeal, petitioner
raises the following seven assignments of error:

       (1) the circuit court erred by denying habeas relief on the basis of ineffective
       assistance of counsel; (2) the circuit court erred by denying habeas relief on the
       basis of an indictment that failed to include the essential elements of the crime, or
       to put petitioner on notice of the charge which he was required to defend; (3) the
       circuit court erred by denying habeas relief on the basis of fraudulent testimony
       before the grand jury; (4) the circuit court erred by denying habeas relief upon a
       wrongfully denied continuance; (5) the circuit court erred by denying habeas
       relief on the basis of the improper admission of evidence that was
       unconstitutionally obtained; (6) the circuit court erred by denying habeas relief
       based upon the use of biased pre-sentence investigation at petitioner’s sentencing;
       and (7) the circuit court erred cumulatively to the prejudice of petitioner.

        With the exception of one of the bases upon which petitioner argues his trial counsel was
ineffective,3 petitioner raises the same arguments on appeal that he raised in the habeas
proceeding before the circuit court. As to petitioner’s remaining assignments of error, we find no
error or abuse of discretion by the circuit court. Our review of the record supports the circuit
court’s decision to deny petitioner post-conviction habeas corpus relief based on these alleged
errors, which were also argued below. Indeed, the circuit court’s order includes well-reasoned
findings and conclusions as to the assignments of error raised on appeal. Given our conclusion
that the circuit court’s order and the record before us reflect no clear error or abuse of discretion,
we hereby adopt and incorporate the circuit court’s findings and conclusions as they relate to
petitioner’s assignments of error raised herein and direct the Clerk to attach a copy of the circuit
court’s November 29, 2016, “Opinion Order Denying Petition for Writ of Habeas Corpus” to this
memorandum decision.

       For the foregoing reasons, we affirm.



       3
          For the first time on appeal, petitioner contends that his trial counsel was ineffective by
failing to object to allegedly “impermissible” argument by the State in its closing argument. It
appears that petitioner challenges the manner in which the prosecuting attorney explained to the
jury why certain charges had been dismissed. This claim was not raised below and petitioner
fails to claim “plain error” on appeal. Accordingly, this Court declines to review petitioner’s
argument in this regard. See Syl. Pt. 2, State v. Salmons, 203 W. Va. 561, 509 S.E.2d 842 (1998)
(“As a general matter, a defendant may not assign as error, for the first time on direct appeal, an
issue that could have been presented initially for review by the trial court on a post-trial
motion.”).
                                                  4

                                         Affirmed.

ISSUED: January 5, 2018

CONCURRED IN BY:

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




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