                             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. 17-1116 (Berkeley County 16-F-30)                                    SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA

Edward H.,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner Edward H.,1 by counsel S. Andrew Arnold, appeals the Circuit Court of
Berkeley County’s August 25, 2017, order sentencing him to a cumulative sentence of 168 to
465 years of incarceration for his conviction of various crimes. Respondent State of West
Virginia, by counsel Robert L. Hogan, filed a response. On appeal, petitioner contends that the
circuit court erred in denying his motion for judgment of acquittal and sentencing him to an
indeterminate sentence of 168 to 465 years, which was disproportionate to the crimes.

        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.

        In February of 2016, petitioner was indicted on one count of first-degree sexual abuse,
one count of first-degree sexual assault, five counts of incest, five counts of sexual abuse by a
parent, six counts of second-degree sexual assault, two counts of third-degree sexual assault, two
counts of domestic battery, and one count of child abuse causing bodily injury. Petitioner pled
not guilty to all the charges against him.

        On May 31, 2017, petitioner’s jury trial commenced. The victim, petitioner’s
stepdaughter, testified that petitioner sexually abused her from the time she was ten years old
until she was sixteen years old. She testified that the first instance of sexual contact occurred in

       1
         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).



                                                     1
        
2010 after she was disciplined by petitioner for jumping on a friend’s trampoline. According to
the victim, the sexual and physical abuse by petitioner occurred over 100 times until she reported
the abuse in 2015. The victim clarified that the sexual abuse involved vaginal, anal, and oral sex.
The incident that led to the victim’s disclosure of the sexual abuse occurred on September 24,
2015, when the victim told petitioner that she was involved in a sexual relationship with the son
of petitioner’s friend. The victim testified that, later that night, petitioner physically assaulted her
by slapping her in the head, knocking her to the ground, repeatedly punching her in the face,
choking her, and punching her in the stomach. Petitioner’s biological daughter, the victim’s
stepsister, testified that she heard petitioner physically assaulting the victim that same night.
Petitioner’s daughter testified that she observed part of the altercation and when she saw the
victim, “her whole face was bruised.” The victim explained that petitioner was upset because by
engaging in a sexual relationship with someone else “in his eyes, I had cheated on him. And I
know that’s the way he saw it.” Following the physical altercation, petitioner threatened to
commit suicide, put a gun to his head, then put the gun in the victim’s hand and asked her to pull
the trigger. The victim then set the gun on the table, out of petitioner’s reach. Petitioner sexually
abused the victim at some point that night.

        According to the victim, the next day, she accompanied petitioner to a construction site
where he sexually abused her again. The victim further testified that after the abuse, she went to
the restroom to clean herself up. However, two of petitioner’s coworkers testified that the
construction site did not have plumbing or running water. Conversely, the State presented
evidence that the water company terminated service in February of 2016, months after the
incident. According to the victim, her mother saw the bruising on her face the next day and
ordered petitioner to leave the home and not to return. The victim’s mother called the police and
reported the physical abuse. Subsequently, petitioner was criminally charged with domestic
battery, domestic assault, and child abuse related to the September 24, 2015, incident. In October
of 2015, the victim disclosed to a friend, her boyfriend, and ultimately her mother, the
allegations that petitioner had been sexually abusing her for the previous six years. The victim’s
mother reported the allegations to law enforcement. Thereafter, the victim underwent a forensic
interview.

        Also during the trial, petitioner’s cousin testified that petitioner’s relationship with the
victim was “peculiar” because he seemed more involved with her than with his other two
daughters. In regard to her behavior, the victim was described by witnesses as “closed off” and
“timid” during the time period of the sexual abuse and the mother testified that the victim spent
more time with petitioner than she did with her friends. The victim’s mother testified that when
the victim went through puberty, petitioner made inappropriate comments about her body. The
victim’s boyfriend also testified that petitioner made “sexually suggestive” comments about the
victim. The boyfriend further testified that the victim suffered from night terrors and often feared
that petitioner would come back to her home and harm her. During the trial, the victim’s
recorded forensic interview was viewed by the jury. Next, the forensic interviewer testified that
she did not see any evidence of coaching or fabrication by the victim during the forensic
interview. The forensic interviewer further explained that it was not uncommon for victims of
sexual abuse to disclose the abuse after the offender is out of the home and the victim feels safe,
as the victim in this matter did. Lastly, the forensic interviewer testified that the majority of
sexual abuse cases do not have physical evidence. Ultimately, the jury returned a verdict of

                                                       2
        
guilty on all counts contained in the indictment. In its August 25, 2017, order, the circuit court
sentenced petitioner to an “aggregate sentence of not less than 168 years nor more than to 465
years in the penitentiary.” It is from this order that petitioner appeals.

      This Court applies a de novo standard of review to appeals from rulings on a motion for
judgment of acquittal:

       The trial court’s disposition of a motion for judgment of acquittal is subject to our
       de novo review; therefore, this Court, like the trial court, must scrutinize the
       evidence in the light most compatible with the verdict, resolve all credibility
       disputes in the verdict’s favor, and then reach a judgment about whether a rational
       jury could find guilt beyond a reasonable doubt.

State v. LaRock, 196 W.Va. 294, 304, 470 S.E.2d 613, 623 (1996).

        On appeal, petitioner argues that his convictions for the sexual offenses, counts one
through twenty, were erroneously based solely upon the victim’s uncorroborated testimony.
Petitioner states that there was no physical evidence and claims that the victim’s testimony
lacked specific details, such as specific dates of the offenses. Further, petitioner contends that the
victim’s testimony regarding the sexual assault at the construction site was incredible because
she claimed to have gone to the restroom in the building, but according to witnesses, there was
no running water at the site. Petitioner argues that these deficiencies in the victim’s testimony
rendered her testimony incredible, therefore leaving no rational jury able to find him guilty
beyond a reasonable doubt.

        Regarding our review of a claim alleging insufficiency of the evidence, this Court has
held that

                [t]he 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). Further,

       [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

                                                      3
        
       contains no evidence, regardless of how it is weighed, from which the jury could
       find guilt beyond a reasonable doubt.

Syl. Pt. 3, id. We have also held that “[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). To establish inherent incredibility, one must show “more than contradiction and lack of
corroboration.” State v. McPherson, 179 W.Va. 612, 617, 371 S.E.2d 333, 338 (1988). Rather,
establishing inherent incredibility “require[s] a showing of ‘complete untrustworthiness[.]’” Id.
(citation omitted). Further, “when a trial court is asked to grant a motion for acquittal based on
insufficient evidence due to inherently incredible testimony, it should do so only when the
testimony defies physical laws.” Id. (citations omitted).

        Petitioner’s argument is without merit. As set forth above, sexual offense convictions
may be obtained on the victim’s uncorroborated testimony. Petitioner argues that the victim’s
testimony lacked details regarding specific dates of the offenses, however, we have noted that,
“[b]ecause time is not an element of the crime of sexual assault, the alleged variances concerning
when the assaults occurred did 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). The victim was consistent in her
testimony regarding when, generally, and where the offenses occurred. The fact that her accounts
lacked certain details and specific dates does not render her testimony inherently incredible.
Rather, it was for the jury to assess and properly weigh the victim’s testimony. The jury heard
the victim’s direct testimony regarding the sexual offenses, and she was cross-examined on the
issue. The jury proceeded to weigh her testimony and judge its credibility. Ultimately, the jury
believed her. “On review, we will not weigh evidence or determine credibility. Credibility
determinations are for a jury and not an appellate court.” Guthrie, 194 W.Va. at 669, 461 S.E.2d
at 175.

        Petitioner also argues that the victim’s disclosure was a fabrication to get rid of petitioner
in order to be able to freely date her boyfriend. However, again, the victim’s credibility was
determined by the jury and they found her testimony regarding years of sexual abuse by
petitioner to be credible. Additionally, petitioner argues that the victim’s testimony was
incredible because she testified that after a particular incident of sexual abuse at petitioner’s
construction site, she claimed to have used the bathroom to clean herself up, but petitioner’s
witnesses testified at trial that the construction site did not have running water. However, the
State presented evidence that the water company provided service to the site during the time of
the abuse. Moreover, we find that the alleged contradiction between whether there was running
water on petitioner’s construction site is insufficient to establish that the victim’s testimony was
inherently incredible. While petitioner also argues that there was no evidence that the victim’s
behavior during her early teenage years indicated that she was victimized by petitioner, the
record shows that multiple witnesses testified that petitioner threatened the victim and that the
victim was “timid” and “closed off” during the years that the sexual offenses occurred.
Accordingly, we find that the court did not err in denying petitioner’s motion for judgment of
acquittal for a lack of sufficient evidence.




                                                      4
        
        Petitioner next argues that his sentence of 168 to 465 years was disproportionate to the
offenses.2 However, he “concedes that his sentences were within statutory limits and not based
upon an impermissible factor.” As such, we decline to undertake a proportionality analysis in this
matter. See Syl. Pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982) (“Sentences
imposed by the trial court, if within statutory limits and if not based on some [im]permissible
factor, are not subject to appellate review.”). Further, petitioner fails to provide any argument in
support of his assertion that his sentence is disproportionate given the nature of the offenses,
legislative purpose behind the punishment, and provides no evidence regarding a comparison of
punishment from other jurisdictions. Accordingly, we find no error.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
August 25, 2017, sentencing order is hereby affirmed.

                                                                                         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
 




       2
         In support, petitioner relies on State v. David D.W., 214 W.Va. 167, 588 S.E.2d 156
(2003), wherein this Court remanded the matter to circuit court for resentencing after it found the
sentence of 1,140 years to 2,660 years of incarceration for sexual crimes to be offensive and
shocking to the conscience. However, petitioner’s reliance on David D.W. is misplaced because
the sentence in David D.W. was substantially greater than in the instant matter and because this
Court later noted in State v. Slater that David D.W. was a “per curiam opinion in which
established law was disregarded in order to find a sentence within statutory limits was
unconstitutional.” 222 W.Va. 499, 508 n.11, 665 S.E.2d 674, 683 n.11 (2008).



                                                     5
        
