                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

Edwin W. II,
Petitioner Below, Petitioner
                                                                        FILED
                                                                   November 21, 2016
vs) No. 15-1063 (Marion County 11-C-19)                                RORY L. PERRY II, CLERK
                                                                     SUPREME COURT OF APPEALS
                                                                         OF WEST VIRGINIA
David Ballard, Warden,
Mt. Olive Correctional Center,
Respondent Below, Respondent


                               MEMORANDUM DECISION
         Petitioner Edwin W. II, by counsel Belinda A. Haynie, appeals the Circuit Court of
Marion County’s October 1, 2015, order denying his petition for writ of habeas corpus.1
Respondent David Ballard, Warden, by counsel Gordon L. Mowen II, filed a response. Petitioner
filed a reply. On appeal, petitioner argues that the circuit court erred in denying his habeas
petition because (1) the admission of certain medical evidence violated his constitutional right to
confrontation; (2) the circuit court failed to conduct a harmless-error analysis of the
confrontation issue, which would have shown that the constitutional error was not harmless; and
(3) his trial counsel was constitutionally ineffective.

        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 2006, petitioner was indicted on eleven counts of felony sex crimes including multiple
counts of first-degree sexual assault; one count of sexual abuse by a parent, guardian, or
custodian; one count of incest; and two counts of use of obscene matter to seduce a minor.
Petitioner’s victim was his sister-in-law’s daughter, A.C., a female born in 1995.

       Petitioner’s trial by jury commenced in December of 2006. At trial, A.C. testified that she

       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). Further, petitioner filed a motion to seal certain portions of
the record due to the confidential nature of the information contained therein. This Court granted
that motion by order entered in April of 2016.
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spent the night at the home of petitioner and her aunt in Marion County, West Virginia.
Sometime during the night, she awoke to find petitioner at the end of the bed on his knees with a
pornographic magazine beside her and a pornographic movie on the television. A.C. testified that
petitioner asked her if she had any questions about the pornography; showed her an egg-shaped
sexual device and a “fake man’s privates”; told her to remove her pajamas and hold the sexual
device; and placed the sexual device on her private parts. A.C. further testified that petitioner
obtained a lubricant, placed it on her vagina, and tried to put the “fake man’s privates” inside her
vagina. According to A.C.’s testimony, petitioner then undid his pants, asked her to touch his
penis, and put his penis in her mouth. A.C. stated that “yellow liquid” came from his privates,
that he kissed her on the mouth, and that he tried to insert his penis into her vagina. A.C. also
testified that there was a handgun behind petitioner on the table in the bedroom, but petitioner
did not pick it up or refer to it. A.C. claimed that she attempted to tell her aunt by writing her a
note (which provided: “Ed had shown me porn magazines and videos”), but, apparently, her aunt
did not see the note. A.C. told the jury that when she finally informed her aunt after church, her
grandfather overheard the disclosure and became upset.

        Evidence established that A.C. initially reported that petitioner only showed her
pornographic material and that in A.C.’s initial interview with police, she denied that petitioner
touched her or that she was afraid of him. During her police interview, A.C. also asserted that
she learned about sexual devices, pornography, and sex from sources other than petitioner.
According to the evidence at trial, A.C. underwent a pelvic examination at Ruby Memorial
Hospital in June of 2005. Two doctors, Dr. Martin Weisse (supervising pediatric doctor) and Dr.
Eric Ex (resident), oversaw the examination. Dr. Ex’s examination revealed no evidence of
trauma and an intact hymen, which were findings Dr. Weisse reviewed and endorsed as the
supervising doctor. Dr. Weisse testified at trial as to those findings. In his testimony, Dr. Weisse
explained that, while their findings did not reveal evidence of sexual abuse, they likewise did not
definitively exclude the possibility that such abuse occurred.

        When A.C. disclosed her allegations against petitioner to her parents, she was again
interviewed by police, and she underwent a second pelvic examination in the State of California.2
During her second interview with police in January of 2006, A.C. revealed the presence of the
handgun. The second pelvic examination showed notching or scar tissue on one side of A.C.’s
hymen. Without objection, Dr. Weisse testified at trial as to the findings of the second pelvic
examination performed in California, and, also without objection, the medical report from the
second examination was admitted into evidence. Dr. Weisse claimed in his testimony that the
California examination was more thoroughly performed than the West Virginia examination.

        Evidence further established that petitioner admitted in a police interview that he showed
A.C. pornographic magazines, but he maintained that he did so because she was curious and had
asked questions about the subject. Tape recordings of petitioner acknowledging that he showed
A.C. pornographic material were also recovered and admitted at trial. Petitioner denied any
assault, abuse, or other touching.

       At the conclusion of its deliberation, the jury found petitioner guilty of seven counts of

       2
           A.C. had moved to California by the time of her second pelvic examination.
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first-degree sexual assault (of a victim less than eleven years old); one count of sexual abuse by a
parent, guardian, or custodian; and two counts of use of obscene matter to seduce a minor. He
was sentenced consecutively for a total of 125 to 265 years in prison. In January of 2010, this
Court refused petitioner’s petition for direct appeal.

        In January of 2011, petitioner filed the instant petition for writ of habeas corpus.
Thereafter, petitioner was appointed counsel. In August of 2014 and September of 2015, the
circuit court held two omnibus evidentiary hearings.3 At the first hearing, petitioner’s trial
counsel testified that he did not recall the circumstances of his decision not to call Dr. Ex as a
witness at trial or his decision not to object to the admission of evidence of the second
examination on confrontation clause grounds. However, petitioner’s trial counsel stated that

               There was some reason why – there was some value to that [evidence of
       the second examination performed in California] coming in. I can’t remember
       what it is, too. So I was in the – I can’t remember exactly why. I remember having
       discussions with [petitioner] about that California stuff, too. I think he wanted me
       to do one thing[,] and I was thinking maybe to do the opposite would be better,
       but I can’t remember what it is, what we were talking about, but we were having
       discussions about it.

At the second evidentiary hearing, petitioner presented the testimony of Raymond H. Yackel, an
expert witness testifying in area of criminal law proceedings. Mr. Yackel testified that
petitioner’s constitutional rights were violated when the report of the second examination was
admitted without cross-examination of the doctors who drafted that report. Mr. Yackel also
claimed that petitioner’s trial counsel was constitutionally ineffective for failing to object to the
admission of that medical report and to the testimony of Dr. Weisse, who according to Mr.
Yackel had not prepared that report but testified as to its contents. Mr. Yackel concluded that the
admission of the report of the second examination was prejudicial constitutional error because it
was “critical” evidence for the prosecution.

        In September of 2015, the circuit court entered an order denying petitioner’s habeas
petition. In that order, the circuit court found that the evidence of the second examination was
both favorable and “arguably unfavorable” to petitioner. Based on the testimony of petitioner’s
trial counsel, the circuit court found that “it is reasonable to conclude that the discussions that
occurred between the petitioner and his trial counsel about the California evidence and choosing
not to object was a part of trial counsel’s strategy.” Therefore, the circuit court concluded that
petitioner’s trial counsel was not constitutionally ineffective. This appeal followed.

       This Court reviews appeals of circuit court orders denying habeas corpus relief under the
following standard:

               “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

       3
       The second omnibus evidentiary hearing appears to have been delayed by petitioner’s
procurement of an expert witness.
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       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.” Syllabus point 1, Mathena v.
       Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).

        On appeal, petitioner’s first and second assignments of error relate to the admission of
medical evidence at trial in violation of his right to confront witnesses, which petitioner claims
was not harmless error. Petitioner argues that the circuit court in the instant habeas action failed
to find that a confrontation clause violation occurred and failed to undergo a harmless-error
analysis on his confrontation clause issue. A habeas petitioner bears the burden of establishing
that he is entitled to the relief sought. See Markley v. Coleman, 215 W.Va. 729, 734, 601 S.E.2d
49, 54 (2004) (noting that allegations must have adequate factual support for appointment of
counsel, hearing, and/or issuance of writ); Syl. Pts. 1 and 2, State ex rel. Scott v. Boles, 150
W.Va. 453, 147 S.E.2d 486, 487 (1966) (burden in habeas proceedings rests on habeas
petitioner); Stanley v. Dale, 171 W.Va. 192, 194, 298 S.E.2d 225, 227-28 (1982) (noting that
habeas petitioner generally has burden of proving allegations by preponderance of evidence).

        While petitioner’s first two assignments of error rely on his assertion that a confrontation
clause violation occurred, it is clear from the record on appeal that petitioner did not raise a
stand-alone confrontation clause claim in his underlying habeas petition. Instead, in his habeas
petition, petitioner argued solely that his trial counsel was constitutionally ineffective for failing
to object to the medical evidence that he claims was admitted in violation of the confrontation
clause. As such, the circuit court correctly limited its review of petitioner’s habeas petition to his
stated ground: whether his trial counsel was constitutionally ineffective. For that reason, we find
no merit to petitioner’s first two assignments of error because he failed to satisfy his burden to
allege and establish those grounds in this habeas proceeding. Petitioner did not raise a stand-
alone confrontation clause issue and, similarly, did not raise the related harmless-error analysis
of a confrontation clause violation.

        Petitioner’s third and final assignment of error is that the circuit court erred in
determining that petitioner was not denied the effective assistance of trial counsel. We have set
forth the standard for assessing claims of ineffective assistance of counsel as follows:

               5.      In the West Virginia courts, claims of ineffective assistance of
       counsel are to be governed by the two-pronged test established in Strickland v.
       Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel’s
       performance was deficient under an objective standard of reasonableness; and (2)
       there is a reasonable probability that, but for counsel’s unprofessional errors, the
       result of the proceedings would have been different.

               6.     In reviewing counsel’s performance, courts must apply an
       objective standard and determine whether, in light of all the circumstances, the
       identified acts or omissions were outside the broad range of professionally
       competent assistance while at the same time refraining from engaging in hindsight

                                                  4
       or second-guessing of trial counsel’s strategic decisions. Thus, a reviewing court
       asks whether a reasonable lawyer would have acted, under the circumstances, as
       defense counsel acted in the case at issue.

Syl. Pt. 5-6, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). Consequently, “[w]here a
counsel’s performance, attacked as ineffective, arises from occurrences involving strategy,
tactics and arguable courses of action, his conduct will be deemed effectively assistive of his
client’s interests, unless no reasonably qualified defense attorney would have so acted in the
defense of an accused.” Syl. Pt. 21, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).
Moreover, we have held that “‘[o]ne who charges on appeal that his . . . counsel was ineffective .
. . must prove the allegation by a preponderance of the evidence.’ Syllabus Point 22, State v.
Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).” Syl. Pt. 4, State ex rel. Kitchen v. Painter, 226
W.Va. 278, 700 S.E.2d 489 (2010).

        In this case, the circuit court denied petitioner’s habeas petition on this ground because it
found that his trial counsel could have decided not to object to the medical evidence for strategic
purposes. Petitioner’s trial counsel testified at an omnibus evidentiary hearing that he had a
“reason” and there was “some value to that [evidence of the second examination performed in
California] coming in” after discussing the matter with petitioner. While trial counsel could not
recall his trial strategy at the time of the habeas hearing, it is notable that more than seven years
passed between the time of the trial and the time of the habeas hearing. Further, as noted by the
State, petitioner’s defense at trial relied upon the six-month time-gap and disparate findings of
the two medical examinations of the victim to call the allegations into question. The circuit court
also noted that trial counsel could have made a strategic decision not to object to Dr. Weisse’s
testimony because it included the clearly favorable first medical examination, which showed
normal results. Therefore, we cannot find that the circuit court erred in finding that petitioner’s
trial counsel made a strategic decision to not object to the admission of the medical evidence.

        Nonetheless, assuming arguendo that petitioner is correct that the circuit court wrongly
decided that trial counsel’s decision was strategic, petitioner has not established the second prong
of the Strickland/Miller test: that there was a reasonable probability that, but for counsel’s failure
to object to that evidence, the result of the proceedings would have been different. The record on
appeal establishes that petitioner made admissions as to his exposing the victim to pornographic
material and that she witnessed him masturbating, and the victim testified to the sexual abuse,
sexual assault, and exposure to obscene material. If we assume trial counsel’s objection would
have resulted in the exclusion of the medical evidence at issue, petitioner must still satisfy his
burden to prove that the outcome of the proceeding would have been different. Although
petitioner’s expert at the habeas hearing, Mr. Yackel, testified that the medical evidence was
“critical” to the prosecution, he provided equivocal testimony on the issue of whether the
outcome would have been different if the same were excluded from evidence. Mr. Yackel agreed
with respondent that the victim’s uncorroborated testimony was sufficient to convict petitioner of
these crimes, but he later claimed that the conviction would not have occurred without the
medical evidence. We have previously 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). Given the victim’s testimony herein, petitioner has failed to satisfy his

                                                  5
burden to establish the second prong of the Strickland/Miller test that the outcome of the case
would have been different if the medical evidence were excluded.

        Finally, to the extent petitioner argues that trial counsel was ineffective by failing to
present Dr. Ex as a witness to testify as to the first medical examination, we find no deficient
performance in that decision. Dr. Ex’s testimony would have been cumulative of the testimony
of Dr. Weisse as to the results of the first examination. See W.Va. R. Evid. 403 (stating that
“[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed
. . . by considerations of . . . needless presentation of cumulative evidence”). The medical
examination to which Dr. Ex would have testified, which was favorable to petitioner, was
presented to the jury by Dr. Ex’s supervisor, Dr. Weisse.

       For the foregoing reasons, we affirm.

                                                                                       Affirmed.

ISSUED: November 21, 2016

CONCURRED IN BY:

Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II

CONCURRING SEPARATELY IN WRITING:

Chief Justice Menis E. Ketchum

        I agree with the result because the defendant did not raise as an error in his habeas
petition that the confrontation clause of the constitution was violated. The defendant had the
absolute right to confront the doctors from California.




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