                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,                                                             FILED
Plaintiff Below, Respondent
                                                                                 June 9, 2017
                                                                                RORY L. PERRY II, CLERK
vs) No. 16-0172 (Fayette County 15-F-60)                                      SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA

Thomas G. Carter, Jr.,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner Thomas G. Carter, Jr., by counsel E. Scott Stanton, appeals his December 2,
2015, conviction on charges of sexual abuse in the first degree, sexual assault in the first degree,
robbery in the first degree, and kidnapping. Respondent State of West Virginia, by counsel
Zachary Aaron Viglianco, filed a summary response in support of the circuit court’s order.
Petitioner argues that the circuit court erred in allowing the admission of certain photographs at
trial and in denying his motions for a judgment of acquittal as to the robbery and kidnapping
charges against him.

       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(d) of the Rules of Appellate Procedure.

         At approximately 4:30 p.m. on June 14, 2014, a young adult female (“victim”) left her
residence and went for a run on the “Rails to Trails” walking path in Oak Hill, Fayette County.
While running on the trail, she traveled through a heavily wooded area adjacent to a mobile
home park. As she passed the mobile home park, she noticed a man on a riding lawnmower
wearing a flannel shirt. She continued to the end of the trail, turned around, and started back in
the direction of her home. As she neared the mobile home park, she was attacked by an
individual wearing a facemask, gloves, and a flannel shirt. A struggle ensued and the victim was
pulled off the trail, over a hill, and into the woods. The victim attempted to use her cell phone to
call for help, but her attacker jerked the phone from her hands.1

        During the assault, the victim continued to fight and, at some point, removed her
attacker’s mask. Thereafter, her attacker advised, “I can’t let you go. I’m not doing [fifteen] to
[eighteen] years because of you, and you’ve seen my face. I’m not doing it.” The victim

       1
        The victim testified that she did not see the phone again after it was jerked from her
hand. The phone was never located.
                                                 1

responded “[w]ell, then you are going to [have to] kill me,” to which the attacker responded, “I
will kill you. I will kill you right now. If you don’t do what I say, I’m going to kill you.”

        Ultimately, the victim was directed to lay down and restraints, both tape and rope, were
used to tie each of her legs to different trees. The victim’s hands were tied behind her head and
secured to a tree behind her, and she was gagged.2 As she was being restrained, the attacker
removed the victim’s shorts and underwear and used a knife to cut off her shirt and bra. The
attacker began “kissing and licking” the victim’s breasts, her abdomen, and her legs. The
attacker performed oral sex upon the victim, with his tongue making contact with her sex organ.
Sometime thereafter, the attacker left to clean up the disarray created by the initial struggle.
However, before leaving, he tied the victim’s shirt and bra around her head and left her bound
and gagged. The attacker told the victim that, when he returned, he would take her to a different
location.

        When her attacker left, the victim managed to loosen the ropes around one of her legs
and, was ultimately able to free herself from all restraints. Once free, the victim, now completely
naked, went “several hundred yards” through a thicket of briars to a nearby home for help. The
homeowner called police and emergency medical personnel. The victim provided a detailed
description of her attacker to police and, subsequently, identified petitioner as her attacker. In
addition to describing his physical appearance, the victim described petitioner’s flannel shirt and
described a red pack of cigarettes she observed during the attack, which were later discovered on
petitioner’s person. The victim’s shirt, shorts, and underwear were discovered near the
maintenance building of the mobile home park where petitioner worked.

        The same evening as the attack, petitioner was found hiding under the deck of one of the
mobile home park’s residences and he was arrested. The shirt petitioner was wearing at the time
of his arrest was stained with the victim’s blood. Fluid samples collected from the victim’s body
following the attack contained male DNA, consistent with petitioner’s DNA profile. On
September 9, 2014, the petitioner was indicted by the Fayette County Grand Jury on four
charges: robbery, kidnapping, first degree sexual assault, and first degree sexual abuse. A
superseding indictment was returned on May 12, 2015.

        A bifurcated three-day jury trial commenced on August 6, 2015, and, after deliberating
for one hour, the jury found petitioner guilty on all four charges. The mercy phase of the trial
then began and, after hearing testimony, the jury returned a recommendation of no mercy with
respect to the kidnapping charge. On December 2, 2015, petitioner was sentenced to one to five
years for sexual abuse in the first degree; fifteen to thirty-five years for sexual assault in the first
degree; a determinate sentence of fifty years for robbery in the first degree; and the remainder of
his life for kidnapping. Petitioner filed a motion to reduce sentence, which was denied by the
circuit court on January 20, 2016. It is from his December 2, 2015, conviction that petitioner now
appeals.




       2
           At trial, the victim testified that she felt as if her body “was going to snap in two.”
                                                    2
        On appeal, petitioner asserts three assignments of error. In his first and second
assignments of error, petitioner alleges that the circuit court erred in failing to grant his motion
for a judgment of acquittal concerning the offenses of robbery and kidnapping, based upon the
State’s failure to present evidence sufficient to sustain petitioner’s convictions as to these
offenses. In his third assignment of error, petitioner argues that the circuit court erred in allowing
post-attack photographs of the victim’s injuries to be admitted at trial.

       This 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. Juntilla, 227 W. Va. 492, 497,
711 S.E.2d 562, 567 (2011). When discussing a motion for acquittal, we have previously noted
that

         [t]he 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).

       With regard to examinations as to the sufficiency of evidence, we have long 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).

       We have further 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.



                                                  3

Syl Pt. 3, id.

        As to a trial court’s rulings on the admission of improper evidence, we have found that
“[a] trial court’s evidentiary rulings, as well as its application of the Rules of Evidence, are
subject to review under an abuse of discretion standard.” Syl. Pt. 4, State v. Rodoussakis, 204 W.
Va. 58, 511 S.E.2d 469 (1998). Accord Syl. Pt. 5, State v. Gibbs, 239 W. Va. 646, 797 S.E.2d
623 (2017). With these principles in mind, we now address petitioner’s assignments of error.

        With respect to petitioner’s first and second assignments of error, we find that they are
without merit. Here, the record is replete with evidence to sustain petitioner convictions. At trial,
in an effort to establish that petitioner was guilty of robbery in the first degree, the State argued
that petitioner took the victim’s property, her phone, by brute force in an attempt to permanently
deprive her of it. In his appellate brief, petitioner argues that he took the victim’s phone simply
to keep her from calling the police and did not intend to permanently deprive her of her property.
As such, petitioner contends that he cannot be guilty of the offense of robbery. However,
petitioner’s assertion on appeal is contrary to statements he made to the victim during the attack.

       At trial, the victim testified that petitioner told her that because she had seen his face and
could identify him, he had no choice but to kill her, as he did not want to go to jail. If petitioner
had returned the victim’s phone, as he implies was his intent, she would have contacted police,
as she was trying to do when her phone was taken, and petitioner would have been discovered.
Thus, it is clear that petitioner intended to permanently deprive the victim of her property.
Accordingly, as the evidence offered at trial was sufficient for the jury to convict petitioner of
robbery in the first degree, the circuit court did not err in denying petitioner’s motion for
judgment of acquittal as to his robbery charge.

        In his second assignment of error, petitioner argues that there was insufficient evidence
offered at trial to establish that petitioner’s kidnapping of the victim was not just incidental to his
sexual assault and abuse of her, and, thus, did not constitute a separate crime. We disagree. Like
petitioner’s robbery conviction, the record herein is replete with evidence to sustain petitioner’s
kidnapping conviction. It is undisputed that petitioner attacked the victim, restrained her, and
forcibly moved her to an isolated area, where, after sexually assaulting her, petitioner left her
with the promise to return later. Thus, like the victim in State v. Miller, 175 W. Va. 616, 336
S.E.2d 910 (1985), and State v. Kitchen, 207 W. Va. 724, 536 S.E.2d 488 (2000), the kidnapping
of the victim herein was not incidental to the sexual assault perpetrated upon her, but was a
separate and distinct crime. Accordingly, the circuit court did not err in denying petitioner’s
motion for judgment of acquittal as to the kidnapping charge.

        In his final assignment of error, petitioner contends that the circuit court erred in
permitting the admission of photographs of the victim’s injuries at trial. Petitioner argues that the
admission of these photographs was unnecessarily cumulative, as several trial witnesses testified
regarding petitioner’s injuries, and the photographs were simply an attempt to elicit sympathy for
the victim. However, it is undisputed that petitioner’s trial counsel made no objection to the
admission of the photographs at trial. Thus, on appeal, we must review the propriety of the




                                                  4

circuit court’s ruling in allowing the photographs to be introduced for plain error.3 “To trigger
application of the ‘plain error’ doctrine, there must be (1) an error; (2) that is plain; (3) that
affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of
the judicial proceedings.” Syl. Pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).
        Based upon our review of the record herein, we find no merit to petitioner’s claims that
the trial court committed plain error in permitting the admission of the post-attack photographs
showing the victim’s injuries. The subject photographs do not show the victim’s face and clearly
display some of the physical injuries she sustained as a result of the attack. As such, the
photographs were relevant and probative to the jury’s determination of petitioner’s guilt as to the
robbery and kidnapping charges, as they are indicative of the force by which the victim was
attacked, and the manner in which she was restrained. Accordingly, the circuit court did not
commit plain error in permitting the introduction of the photographs as trial exhibits.

       For the foregoing reasons, we affirm petitioner’s December 2, 2015, convictions.

                                                                                           Affirmed.

ISSUED: June 9, 2017

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




       3
           See Syl. Pt. 1, State v. Marple, 197 W. Va. 47, 475 S.E.2d 47 (1996).
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