                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS




State of West Virginia,

Plaintiff Below, Respondent                                                   FILED

                                                                          October 13, 2016
vs) No. 14-1055 (Webster County 13-F-54)                                       released at 3:00 p.m.
                                                                             RORY L. PERRY, II CLERK

                                                                           SUPREME COURT OF APPEALS

                                                                                OF WEST VIRGINIA

William L.E.

Defendant Below, Petitioner




                              MEMORANDUM DECISION

        Petitioner William L.E.,1 by counsel Lori M. Waller, appeals the September 17, 2014,
order entered by the Circuit Court of Webster County, West Virginia, denying Petitioner’s
post-trial motions and sentencing Petitioner upon his conviction for first degree sexual abuse
and sexual abuse by a parent.2 Petitioner was sentenced to a term of not less than five nor
more than twenty-five years in the penitentiary for the first degree sexual abuse conviction
and a concurrent term of not less than ten nor more than twenty years in the penitentiary for
the sexual abuse by a parent conviction. Respondent State of West Virginia, by counsel
Zachary Aaron Viglianco, filed a response and Petitioner filed a reply. Petitioner’s only
assigned error on appeal is whether Respondent failed to establish the corpus delicti of the




       1
         Pursuant to West Virginia Rule of Appellate Procedure 40(e), we identify both the
Petitioner and the child victim in this case by their initials. See also State v. Edward Charles
L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990) (stating that “[c]onsistent with
our practice in cases involving sensitive matters, we use the victim’s initials. Since, in this
case, the victims are related to the appellant, we have referred to the appellant by his last
name initial. See Benjamin R. v. Orkin Exterminating Co., 182 W. Va. 615, 390 S.E.2d 814
n. 1 (1990) (citing In re Jonathan P., 182 W. Va. 302, 303, 387 S.E.2d 537, 538 n. 1 (1989));
State v. Murray, 180 W. Va. 41, 44, 375 S.E.2d 405, 408 n. 1 (1988).”).
       2
        Three motions to extend the time to file the appeal were filed with the Court due to
the delay in getting trial transcripts.

                                               1

crime beyond a reasonable doubt resulting in the Petitioner being unjustly convicted.3

       Having thoroughly reviewed the appendix record, the parties’ briefs and oral
arguments, the applicable law and all other matters before the Court, 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 West Virginia
Rules of Appellate Procedure.

         In 2010, Petitioner and his wife divorced. They had a child, a son named W. L. E.,
who was four years old at the time of the crime (hereinafter “the victim” or “the child”).
Petitioner had visitation rights with the victim as a result of the divorce. The events giving
rise to the criminal charges occurred while the victim was visiting with the Petitioner on May
30, 2013. After that visit, the victim told his mother that the Petitioner had touched him
inappropriately.

       The victim’s mother reported the child’s accusation to the West Virginia State Police.
On June 4, 2013, Corporal Wayne S. Louden of the West Virginia State Police (“State
Police”) undertook an investigation of the allegations made against Petitioner. Corporal
Louden’s investigation included interviewing the victim. The victim told the officer that “his
dad had touched his pee bug and . . . described his father actually using his hand in a
sideways motion to touch his pee bug.”

        Based upon the information received during the interview with the victim, Corporal
Louden and Trooper Bostic, also with the State Police, went to Petitioner’s home, where they
were invited to enter. The officers obtained a written statement from Petitioner in which he
told the officers that the victim had been with him over the weekend and that the victim “had
slept in the same bed with him where he [Petitioner] had masturbated with . . . [the victim,
who was] in the bed with him.” Petitioner told the officers that if he had touched the victim’s
penis, Petitioner did so in his sleep. Petitioner also said that the only time he touched the
victim’s penis was when he had washed it for him because it was sore the last time the victim
had been with Petitioner.




       3
        Petitioner raised a second assignment of error, which concerned whether the trial
court erred when it sua sponte struck exculpatory evidence. Petitioner, however, voluntarily
chose to withdraw this assigned error and the Court granted the unopposed motion by order
entered September 29, 2016.

                                              2

        On June 5, 2013, Petitioner was arrested, waived his Miranda4 rights and gave a
second verbal statement to the State Police, which was recorded. During this recorded
statement, Petitioner stated that he was in bed masturbating and that the victim asked him
what he was doing. Petitioner proceeded to place his hand over the victim’s hand and
together they grasped the victim’s penis. Petitioner stated that he was teaching the victim
how to masturbate. Petitioner said that at some point the victim’s hand slipped off and as a
result Petitioner’s hand came into direct contact with the victim’s penis. The entire process
lasted about five minutes.

       Both of the above-mentioned statements were admitted during trial.5 The jury also
heard the victim’s statement to the State Police officer describing what his father had done
to him. That statement, however, was admitted by the trial court to explain why the officers
did what they did; the statement was not offered for the truth of the matter asserted. See W.
Va. R. Evid. 801(c)(2). Respondent also presented the testimony of Crystal Knight, a clinical
psychologist, who was trained to recognize sexual abuse. Ms. Knight testified that she did
an evaluation of the victim and also did subsequent counseling “[t]o treat symptoms of sexual
abuse.” She testified that the victim exhibited signs of sexual abuse as follows: “He had
difficulty leaving his mother. He got very anxious and refused to talk about his father. He
had changes in mood quickly. He got upset very easily and had some behavioral problems.”

       As part of Petitioner’s defense, both he and two other witnesses testified.6 The

       4
           See Miranda v. Arizona, 384 U.S. 436 (1966).
       5
        Petitioner filed a motion to suppress both statements he made to the State Police
officers, claiming that he had been physically coerced into making the statement by a State
Police officer striking him in the eye. After conducting a hearing, the trial court determined
that the statements “were freely and voluntarily given” by Petitioner and that the recorded
statement was given after Petitioner had been properly advised of his Miranda rights and
waived those rights. Petitioner does not challenge on appeal the circuit court’s denial of the
motion to suppress the confessions.
       6
        Vickie E., Petitioner’s sister, testified that she had never seen Petitioner do anything
inappropriate sexually with the victim; however, she also testified that she had only seen
Petitioner one time in the four years prior to the events giving rise to the criminal charges in
this case. She also testified that she never observed Petitioner “act inappropriately in any
sexual manner.” Additionally, Joe Bellemy, Petitioner’s friend, testified that he observed
Petitioner and the victim together on weekends. Mr. Bellemy stated that Petitioner never said
sexually inappropriate things to him and he never saw Petitioner do anything sexually
                                                                                   (continued...)

                                               3

Petitioner testified and denied doing anything sexually inappropriate with the victim,
including teaching the victim how to masturbate. Petitioner stated that the victim’s mother
had a history of making false accusations against him and referenced an admonishment by
the circuit court in the final divorce order wherein the circuit court “noted its displeasure in
learning from CPS and law enforcement that respondent [referring to the victim’s mother]
recently attempted to make false allegations of child abuse against petitioner.” Petitioner
further testified that the mother made other “false” allegations against him, such as there
being no running water in his house. Petitioner, however, admitted on cross-examination that
this allegation was true. Petitioner also testified that one of the mother’s cousins was a
registered sex offender and that Petitioner had obtained a protective order for himself against
the cousin. During cross-examination of Petitioner, he testified that even though he had
obtained a protective order for himself against the cousin, he never included any allegations
that the cousin had committed any sexual crimes against the victim. Petitioner further
testified that, upon arrest, the State Police officers “tried to get . . . [him] to confess that . .
. [he] had done this, and when . . . [he] wouldn’t, . . . [the State Police officer] hit . . . him[]”
in the eye. The evidence, however, failed to support Petitioner’s testimony. Petitioner
testified he did not know how long it took his eye to swell up after being struck by the State
Police officer. Petitioner then recalled that he previously testified during a pre-trial hearing
that it swelled up immediately and that it could be seen in his booking photo. Petitioner’s
booking photo, however, failed to support this. Petitioner then changed his story to his eye
swelling shut two weeks later.

       At the close of all the evidence and after deliberating, the jury found Petitioner guilty
of both first degree sexual abuse and sexual abuse by a parent. On appeal, Petitioner argues
that Respondent failed to establish the corpus delicti of the crime beyond a reasonable doubt.7
According to Petitioner, the testimony of the victim’s treating clinical psychologist did not
provide a definitive cause for the victim’s psychological problems. Further, Respondent




       6
       (...continued)
inappropriate with the victim.
       7
        Petitioner raised this argument below in the form of a motion for a directed verdict
and judgment of acquittal at the close of Respondent’s case-in-chief, based upon
Respondent’s failure to prove the offenses alleged in the indictment. Petitioner again raised
the issue in a post-trial motion when Petitioner moved the trial court to set aside the verdict
and grant him a judgment of acquittal based upon Respondent’s failure to offer sufficient
proof.

                                                 4

failed to have the child testify and there was no physical or medical evidence of the crime.8
According to Petitioner, “taking the State’s evidence as [a] whole, there was no factual proof
that . . . [the victim] was sexually abused by . . . [Petitioner], and thus, the State failed to
establish the corpus delicti of the crime.” Petitioner maintains that the only evidence that
showed sexual abuse “may have occurred was . . . [his] extrajudicial confessions, which, by
law, are insufficient to establish corpus delicti.”

       Respondent contends that there is no requirement that a sexual assault be established
by physical evidence or the testimony of the victim. Respondent argues that it introduced
two different incriminating statements made by Petitioner and the corroborating evidence of
Ms. Knight’s opinion testimony in which she stated that, based upon her training and
experience, the victim exhibited certain specific signs of sexual abuse.

       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


       8
         Petitioner’s reliance on this Court’s decision in State v. Walter, 188 W. Va. 129, 423
S.E.2d 222 (1992), for the proposition that “this Court held since there was no evidence of
sexual intrusion or sexual intercourse, i.e. no corpus delicti, the conviction must be
reversed[,]” and the suggestion that the Walter case “is similar to the instant case as there
also is no evidence in the instant case the sexual abuse actually occurred[,]” is disingenuous.
In Walter, the State confessed error on the first-degree sexual assault and incest convictions,
based on “absolutely no evidence of sexual intercourse or intrusion, and such evidence is a
necessary element of both first-degree sexual assault and incest.” Id. at 132, 423 S.E.2d at
225. The Court also reversed the first-degree sexual abuse conviction because “[i]t is
impossible to discern the degree to which” the first two convictions “infected the only
remaining charge. . . .” Id. Thus, the defendant in Walter did not confess to any of the
crimes charged and the case simply did not involve whether there was sufficient independent
corroborating evidence to support the confession.

                                               5

              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.

      Petitioner’s argument is predicated upon this Court’s holding in State v. Blackwell,
102 W. Va. 421, 135 S.E. 393 (1926), wherein the Court held:

                     A conviction in a criminal case is not warranted by the
              extrajudicial confession of the accused alone. The confession
              must be corroborated in a material and substantial manner by
              evidence aliunde of the corpus delicti. The corroborating
              evidence, however, need not of itself be conclusive; it is
              sufficient if, when taken in connection with the confession, the
              crime is established beyond reasonable doubt.

Id. at syllabus. The rule of law established in Blackwell is commonly called “the
corroboration rule” and its purpose is “to reduce the possibility of punishing a person for a
crime which was never, in fact, committed.” State v. Mason, 162 W. Va. 297, 305, 249
S.E.2d 793, 798 (1978). The Blackwell case involved forgery and uttering counts. The State
introduced the person whose name was forged, who testified that he did not endorse the
check and did not receive any money from the check. The State also introduced a voluntary
written confession from the defendant wherein he confessed to forgery and uttering a check.
The defendant did not testify, but evidence was introduced showing that insanity ran in his
family and that “he had been abnormal and peculiar.” Blackwell, 102 W. Va. at 423, 135
S.E. at 393. Likewise, several opinions from physicians were introduced, wherein they

                                               6

opined that the defendant was deranged at the time of the forgery. Id. In rebuttal, the State
introduced two non-experts who testified that they observed the defendant’s conduct and it
was normal. Id.

       The Court, in Blackwell, found that the State proved the corpus delicti beyond a
reasonable doubt, noting that “[a]ll that should be required of the State in such cases, is that
there be such substantial corroborative circumstances as will, when taken in connection with
the confession, establish the corpus delicti beyond a reasonable doubt.” Id. at 424, 135 S.E.
at 394. The Court further noted that “proof of the corpus delicti need not be as full and
conclusive, in a case where the accused has confessed the crime, as otherwise would be
required.” Id.

      The Court revisited the corroboration rule again in State v. Garrett, 195 W. Va. 630,
466 S.E.2d 481 (1995).9 In Garrett, the Court held in syllabus point five 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 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 Garrett, the Court found that the confession was
corroborated by the following evidence: the victim had disappeared; a neighbor had heard
gunfire from the direction of the victim’s home; the defendant was dropped off near the
victim’s home carrying a rifle and a handgun and was seen driving the victim’s truck with
bloodstains on his clothes; and, the medical examiner determined that a defect in the victim’s
bones that were found was consistent with a bullet. Id. at 641, 466 S.E.2d at 492.

       In this case, we find the expert testimony of the clinical psychologist, who treated the


       9
         In State v. Murray, 180 W. Va. 41, 375 S.E.2d 405 (1988), we found that evidence
that showed the condition of the minor child victim after the sexual assault was relevant and
not unduly prejudicial or cumulative under Rule 403 of the West Virginia Rules of Evidence
as, “[t]he State was required to prove the corpus delicti, and the existence of a venereal
disease in a minor child was probative of criminal wrongdoing.” Id. at 49, 375 S.E.2d at 413.



                                               7

child victim for symptoms of sexual abuse and who stated that the victim exhibited certain
specific signs of sexual abuse, was “material and substantial” corroboration of Petitioner’s
confessions. See id. at 633, 466 S.E.2d at 484, Syl. Pt. 5, in part. As we held in Garrett, the
corroborating evidence, i.e., the clinical psychologist’s testimony, “need not of itself be
conclusive.” Id. Instead, the corroborating evidence “is sufficient if, when taken in
connection with the confession . . . the crime is established beyond a reasonable doubt.” Id.
Hence, Petitioner’s two confessions to the sexual abuse he inflicted on the child, in
connection with the independent evidence of the clinical psychologist’s testimony that she
had treated the victim for sexual abuse and that the victim had exhibited specific signs of
sexual abuse, support the trial court’s determination that Respondent proved the corpus
delicti in this case. See id. Likewise, this evidence sufficiently supports the jury’s
convictions in this case.

       For the foregoing reasons, the circuit court’s September 17, 2014, order is hereby
affirmed.


                                                                                    Affirmed.

ISSUED: October 13, 2016

CONCURRED IN BY:

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




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