                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



State of West Virginia,                                                              FILED
                                                                                    June 24, 2013
Plaintiff Below, Respondent                                                    RORY L. PERRY II, CLERK

                                                                             SUPREME COURT OF APPEALS

vs) No. 12-0300 (Randolph County 10-F-49)                                        OF WEST VIRGINIA




Brian Joseph Ward,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
       Petitioner Brian Joseph Ward, by counsel James E. Hawkins Jr. and Thomas J. Prall,
appeals the Circuit Court of Randolph County’s sentencing order entered on January 24, 2012.
Respondent State of West Virginia, by counsel Marland L. Turner, has 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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Petitioner was originally charged with sexual abuse by a guardian or custodian on
September 10, 2010, for an incident that occurred sometime between January of 2007 and June
of 2009. The alleged victim was a then nine-year-old girl who was the daughter of petitioner’s
girlfriend, with whom petitioner resided at times. On October 25, 2010, petitioner was charged
with sexual abuse by a guardian or custodian and sexual assault in the first degree and was
indicted on the same.

        Prior to trial, the child victim was interviewed in camera to determine if she was
competent to testify at trial. Although the psychological testing ordered by the circuit court was
never completed, the child was found competent to testify by the circuit court. She testified
regarding petitioner’s crimes against her. The victim’s mother also testified regarding
petitioner’s opportunity to commit the crimes. The State played a video of the forensic interview
between the victim and a Child Protective Services worker for the jury, wherein the child
disclosed petitioner’s sexual abuse and sexual assault. Petitioner was convicted by jury of both
charges. On November 30, 2011, the circuit court sentenced petitioner to ten to twenty years of
incarceration and fifteen to thirty-five years of incarceration, to run consecutively. Petitioner now
appeals this sentencing order.

       Petitioner’s first assignment of error is that the State’s evidence was insufficient to


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support a conviction for either sexual abuse by a guardian or custodian or for first degree sexual
assault. We have held as follows:

        “‘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 beyond a reasonable doubt.’ Syl. Pt. 1, State v.
        Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).” Syl. Pt. 1, State v. Juntilla, 227
        W.Va. 492, 711 S.E.2d 562 (2011).

Syl. Pt. 8, State v. Stone, 229 W.Va. 271, 728 S.E.2d 155 (2012).

        “‘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.’ Syl. Pt. 3, in part, State v. Guthrie,
        194 W.Va. 657, 461 S.E.2d 163 (1995).” Syl. Pt. 2, State v. Juntilla, 227 W.Va.
        492, 711 S.E.2d 562 (2011).

Syl. Pt. 9, Stone.

        In the present case, this Court finds that petitioner has not met his heavy burden in
proving that the evidence was insufficient to sustain his conviction. This Court has 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). In this case, the victim was nine
years old when she testified. After examining the child’s competency, the circuit court found that
although she was competent to testify, she had some trouble articulating all of the details
surrounding the traumatic event due to her age. Therefore, her credibility was a jury
determination. The victim testified that petitioner touched her “private parts” more than once and
forced her to touch his as well. She also testified that he had forced her to shower with him, and
her mother testified that petitioner had admitted the same to her. The child’s testimony also was
sufficient to support a finding of sexual assault, as she testified that petitioner used his “private
parts” to touch hers, and that this left her private parts sore. She also used dolls to demonstrate
what petitioner had done to her, including penetration as well as touching. This evidence is
sufficient to support petitioner’s conviction.


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       Petitioner next argues that his trial counsel was ineffective. However, as we have
previously stated:

       “It is the extremely rare case when this Court will find ineffective assistance of
       counsel when such a charge is raised as an assignment of error on a direct appeal.
       The prudent defense counsel first develops the record regarding ineffective
       assistance of counsel in a habeas corpus proceeding before the lower court, and
       may then appeal if such relief is denied. This Court may then have a fully
       developed record on this issue upon which to more thoroughly review an
       ineffective assistance of counsel claim.” Syllabus Point 10 of State v. Triplett, 187
       W.Va. 760, 421 S.E.2d 511 (1992).

Syl. Pt. 10, State v. Hutchinson, 215 W.Va. 313, 599 S.E.2d 736 (2004). We do not find this to
be an “extremely rare” case, and without a properly developed record regarding ineffective
assistance of counsel, this Court cannot rule upon the same. This Court is not deciding
ineffective assistance of counsel in the course of this appeal because the matter would more
appropriately be addressed pursuant to a petition for writ of habeas corpus. If he desires,
petitioner may pursue a petition for writ of post-conviction habeas corpus. We express no
opinion on the merits of this issue or of any habeas petition.

       Next, petitioner argues that the indictment was defective in that it charged more than one
offense and it failed to allege lack of consent. Count 2 of the indictment reads as follows:

       Sexual Assault in the First Degree, a Felony, in violation of W.Va. Code § 61-8B­
       3(a)(2), charging that BRIAN JOSEPH WARD did between January 2007, and
       June 2009, in the said County of Randolph, State of West Virginia, unlawfully
       and feloniously, and being fourteen years of age or more at the time of the
       offense, engage in sexual intercourse or sexual intrusion with another person who
       was eleven years old or less and is not married to that person, to wit: S.B., D.O.B.
       05/09/01, and was at the time, not married to that person, against the peace and
       dignity of the State of West Virginia.

It is well established that “an indictment for a statutory offense is sufficient if, in charging the
offense, it substantially follows the language of the statute, fully informs the accused of the
particular offense with which he is charged and enables the court to determine the statute on
which the charge is based.” Syl. Pt. 3, State v. Hall, 172 W.Va. 138, 304 S.E.2d 43 (1983). The
indictment follows the phrasing of West Virginia Code § 61-8B-3(a)(2). Moreover, because the
sexual assault conviction in the present case was based upon the age of the victim, the “lack of
consent” element is not applicable. See generally, State v. Sayre, 183 W.Va. 376, 380, 395
S.E.2d 799, 803 (1990). Accordingly, Count 2 gave fair notice of the charge against petitioner by
providing him with a time frame, the offense committed, and who the offense was committed
against. Moreover, petitioner failed to make a timely objection to the sufficiency of the
indictment, and now argues that this error should be reviewed under the plain error standard.
However, we find that the indictment was not defective and therefore we find no plain error.




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        Petitioner next argues that the State failed to provide specific discovery or evidence as to
when the incidents in question occurred, depriving petitioner of due process. On January 10,
2011, petitioner filed a motion for a bill of particulars noting that he would be denied due process
without more specific information. Petitioner argues that a two and one half year period is
improperly vague, particularly since the circuit court told the State to attempt to ascertain the
date of occurrence if possible. This Court has noted that “[t]ime 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 State provided the most specific date possible in light of the child’s age and
communication difficulties. During the time period listed in the indictment, petitioner was living
with the victim and her mother and babysitting the victim while the mother worked. There was
fair notice as to where the events occurred and a proper time frame. Therefore, we find no error.

        Finally, petitioner argues cumulative error. Regarding cumulative error, this Court has
stated as follows:

       “Where the record of a criminal trial shows that the cumulative effect of
       numerous errors committed during the trial prevented the defendant from
       receiving a fair trial, his conviction should be set aside, even though any one of
       such errors standing alone would be harmless error.” Syl. pt. 5, State v. Smith, 156
       W.Va. 385, 193 S.E.2d 550 (1972).

Syl. Pt. 5, State v. Walker, 188 W.Va. 661, 425 S.E.2d 616 (1992). In the present case, we find
no merit in petitioner’s alleged assignments of error and thus we find no cumulative error.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.

ISSUED: June 24, 2013

CONCURRED IN BY:

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




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