                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

State of West Virginia,                                                           FILED
Plaintiff Below, Respondent
                                                                             February 15, 2019
                                                                              EDYTHE NASH GAISER, CLERK
vs.) No. 18-0095 (Berkeley County CC-02-2017-F-81)                            SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA 

Sherman B. Williams,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner Sherman B. Williams, by counsel Matthew T. Yanni, appeals the Circuit Court
of Berkeley County’s January 18, 2018, order sentencing him to ten to twenty years of
incarceration for second offense failure to register as a sex offender. 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 a new trial due to insufficient evidence.

        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 December of 1997, petitioner was convicted of second-degree kidnapping in the
Superior Court of Sussex County, Delaware. The sentencing order provided that sex offender
registration and community notification applied to the matter. Petitioner lived in Maryland and
subsequently moved to Berkeley County, West Virginia. In September of 2012, a Berkeley
County jury convicted petitioner of failure to register as a sex offender. “The indictment was
based upon allegations that petitioner failed to register with the West Virginia State Police within
ten business days of moving to the State of West Virginia.” State v. Williams, No. 13-0131, 2013
WL 5708440, at *1 (W.Va. Oct. 21, 2013)(memorandum decision). Following a jury trial,
petitioner was convicted of one count of failure to register as a sex offender and sentenced to a
term of incarceration of one to five years. Petitioner appealed and this Court affirmed the
conviction. Id.at *2.

        In February of 2017, petitioner was indicted by the Berkeley County grand jury on one
count of felony failure to update sex offender registry, second offense. On October 31, 2017, the
circuit court held a jury trial. The State presented evidence showing that petitioner was convicted
of second-degree kidnapping in the state of Delaware after pleading guilty in December of 1997.
Next, the State presented evidence to show that petitioner was convicted of failure to register as a
sex offender in 2012. Then, Corporal Ryan Eshbaugh of the West Virginia State Police, who

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runs the Berkeley County sex offender registry, testified. According to Corporal Eshbaugh, he
was notified in March of 2016 that petitioner was to be released from incarceration and was
subject to sex offender registration. Corporal Eshbaugh confirmed that petitioner was registered
in Delaware as a sex offender as a result of a kidnapping conviction. However, according to
Corporal Eshbaugh, petitioner did not register with the West Virginia State Police following his
release from incarceration in 2016. Through Corporal Eshbaugh’s testimony, the State
established petitioner’s West Virginia residency.

        Next, petitioner testified regarding the events that led to the Delaware kidnapping
conviction. According to petitioner, the 1997 kidnapping conviction was a mistake because he
was coerced into signing the plea agreement. Petitioner also did not believe that he was required
to register as a sex offender as result of the kidnapping conviction. However, he admitted that
while at the Eastern Regional Jail, he was told that he was required to register as a sex offender
and also admitted that he was the subject of a trial in Berkeley County for failure to register as a
sex offender in 2012. Nevertheless, he maintained that he was not required to register as a sex
offender because he was “innocent ‘til proven guilty and [he] wasn’t proven guilty yet so [he]
shouldn’t have to register.” Petitioner admitted that he was residing in Martinsburg, West
Virginia, when he was indicted for second-offense failure to register as a sex offender.

        Following the presentation of evidence, petitioner moved for judgment of acquittal
arguing that the State had presented “insufficient evidence that [petitioner] is required to register
and that he failed to register a first time and that he subsequently failed to register.” The circuit
court ultimately denied the motion and, after deliberation, the jury found petitioner guilty of
felony failure to update sex offender registry, second offense. On November 1, 2017, petitioner
filed a motion for a new trial in the matter due to insufficient evidence. On January 18, 2018, the
circuit court held a sentencing hearing and denied petitioner’s request for a new trial. Petitioner
was sentenced to ten to twenty years of incarceration. It is from the sentencing order that
petitioner appeals.

       We apply the following standard of review to a circuit court’s denial of a motion for a
new trial:

       In reviewing challenges to findings and rulings made by a circuit court, we apply
       a two-pronged deferential standard of review. We review the rulings of the circuit
       court concerning a new trial and its conclusion as to the existence of reversible
       error under an abuse of discretion standard, and we review the circuit court’s
       underlying factual findings under a clearly erroneous standard. Questions of law
       are subject to a de novo review.

State v. Jenner, 236 W.Va. 406, 413, 780 S.E.2d 762, 769 (2015) (citation omitted).

        On appeal, petitioner argues that the State presented insufficient evidence to show that he
was required to register as a sex offender. He contends that the State’s only evidence was the
sentencing order from the Superior Court of Sussex County, Delaware, which required petitioner
to register as a sex offender. However, petitioner “denied that he was required to register because
he was tricked into signing a plea agreement and he was never proven guilty of the offense of

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kidnapping in the second degree.” Petitioner’s argument is meritless, as the record clearly shows
that petitioner is subject to registration as a sex offender.

        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
        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.

       Here, the record shows that the Delaware sentencing order required petitioner to register
as a sex offender. Petitioner failed to register as a sex offender in West Virginia as required by
West Virginia Code § 15-12-8(c), which provides as follows:

        Any person required to register for life pursuant to this article who knowingly
        provides materially false information or who refuses to provide accurate
        information when so required by the terms of this article, or who knowingly fails
        to register or knowingly fails to provide a change in any required information as
        required by this article, is guilty of a felony and, upon conviction thereof, shall be
        imprisoned in a state correctional facility for not less than one year nor more than
        five years. Any person convicted of a second or subsequent offense under this
        subsection is guilty of a felony and, upon conviction thereof, shall be imprisoned
        in a state correctional facility for not less than ten nor more than twenty-five
        years.

During his trial, petitioner did not contest his West Virginia residency or that he was previously
convicted of failure to register as a sex offender in 2012. According to Corporal Eshbaugh, he

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was notified that petitioner was required to register as a sex offender upon his release from
incarceration in 2016 and petitioner failed to register. Therefore, the evidence clearly supports
petitioner’s conviction of failure to register as a sex offender, second offense. As such, we find
no error in the circuit court’s denial of a new trial on the basis of insufficient evidence.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 18, 2018, sentencing order is hereby affirmed.

                                                                                        Affirmed.

ISSUED: February 15, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison

 


 




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