                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                         FILED
                                                                               September 21, 2015
vs) No. 14-1197 (Cabell County 13-F-106)                                       RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Joshua M.,

Defendant Below, Petitioner



                                  MEMORANDUM DECISION
        Petitioner Joshua M.,1 by counsel Lori M. Waller, appeals the Circuit Court of Cabell
County’s October 20, 2014, order sentencing him to two consecutive terms of incarceration of ten
to twenty years in prison for his conviction of two counts of sexual abuse by a parent, guardian, or
custodian.2 The State, by counsel Derek A. Knopp, filed a response in support of the circuit
court’s order. On appeal, petitioner alleges that the circuit court made erroneous evidentiary
rulings.

        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 order of the circuit court is appropriate under Rule
21 of the Rules of Appellate Procedure.

        In March of 2013, a Cabell County grand jury indicted petitioner on two counts of sexual
abuse by a parent, guardian, or custodian and two counts of first-degree sexual assault for
digitally penetrating his six-year-old daughter (“the victim”). Following a two-day trial, a jury
convicted petitioner of two counts of sexual abuse by a parent, guardian, or custodian. The jury
acquitted petitioner of both counts of first-degree sexual assault.

       In August of 2014, petitioner filed a motion for new trial arguing that the jury was
improperly allowed to view a video recording wherein he admitted to having sexual desires
toward the victim, and that the State was allowed to cross-examine him on matters not directly

          1
        Consistent with our practice in cases involving sensitive matters, we use initials to protect
the identity of the child victims in this case. See W.Va. RA.P. 40(e)(1); State v. Edward Charles
L., 183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
          2
              Petitioner’s counsel filed this appeal pursuant to Anders v. California, 386 U.S. 738
(1967).
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related to direct examination. In October of 2014, the circuit court sentenced petitioner to
consecutive terms of incarceration of ten to twenty years for each count of sexual abuse by a
parent, guardian, or custodian, pursuant to West Virginia Code § 61-8D-5. The circuit court also
sentenced petitioner to serve a period of thirty years of supervised release upon being released
from incarceration. The circuit court denied also petitioner’s motion for judgment of acquittal or a
new trial. Petitioner now appeals.

        On appeal, petitioner argues that the circuit court erred in admitting a videotaped
interview during which he discussed impure thoughts about the victim because the video was not
relevant and was more prejudicial than probative. “The action of a trial court in admitting or
excluding evidence in the exercise of its discretion will not be disturbed by the appellate court
unless it appears that such action amounts to an abuse of discretion.” Syl. Pt. 1, State v. Harris,
216 W.Va. 237, 605 S.E.2d 809 (2004) (citations omitted).

         Rule 401 of the West Virginia Rules of Evidence states that “evidence is relevant if it has
any tendency to make a fact more or less probable than it would be without the evidence and the
fact is of consequence in determining the action.” Further, Rule 403 of the West Virginia Rules of
Evidence provides that “[t]he court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” In this case, the
State was required to prove beyond a reasonable doubt that petitioner engaged in or attempted to
engage in sexual intrusion. “‘Sexual intrusion’ means any act between persons involving
penetration, however slight, of the female sex organ or of the anus of any person by an object for
the purpose . . . gratifying the sexual desire of either party.” W.Va. Code § 61-8B-1(8) Upon
review of the record, the circuit court did not abuse its discretion in allowing the video recording
into evidence. The video recording was relevant and the prejudice to petitioner was not
outweighed by the probative value of the evidence because the video tended to prove that
petitioner had impure thoughts to satisfy his sexual desires, which is directly related to an
essential element of the crime.

        Petitioner also argues that the videotape interview should have been excluded as evidence
of a crime, wrong, or other act pursuant to Rule 404(b) of the West Virginia Rules of Evidence
and that the circuit court should have provided a limiting instruction. The video recording
demonstrating petitioner’s impure thoughts toward the victim is not the type of evidence that Rule
404(b) excludes because the interview does not contain manifest evidence of a crime, wrong, or
other act. For these reasons, the circuit court did not err in admitting the videotape interview into
evidence.

        Next, petitioner argues that the victim’s testimony regarding the sexual assault was
uncorroborated. The victim testified that petitioner touched her private area and her “butt” or
“anus.” 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). Upon review of the record, there is nothing to support an argument that the victim’s
testimony was inherently incredible.

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        Finally, petitioner argues that the circuit court erred in allowing the State to cross-examine
him on issues beyond the scope of direct examination. Rule 611(b)(1) of the West Virginia Rules
of Evidence plainly states that “[a] party may be cross-examined on any matter relevant to any
issue in the case, including credibility.” (Emphasis added.) This Court has held:

              The extent of the cross-examination of a witness is a matter within the
       sound discretion of the trial court; and in the exercise of such discretion, in
       excluding or permitting questions on cross-examination, its action is not
       reviewable except in case of manifest abuse or injustice. Syllabus Point 4, State v.
       Carduff, 142 W.Va. 18, 93 S.E.2d 502 (1956).

Syl. Pt. 6, Jackson v. State Farm Mut. Auto. Ins. Co., 215 W.Va. 634, 600 S.E.2d 346 (2004). On
direct examination, which consisted of four questions, petitioner simply denied the allegations
against him. On cross-examination, the State questioned petitioner about his sexual desires
towards the victim. Given that petitioner’s desire to satisfy his sexual gratification was an
essential issue in the case, it was permissible for the circuit court to allow the State to cross-
examine petitioner on this issue. For these reasons, the circuit court did not abuse its discretion in
permitting the State to cross-examine petitioner regarding his sexual desires toward the victim.

       For the foregoing reasons, we affirm.

                                                                                           Affirmed.

ISSUED: September 21, 2015

CONCURRED IN BY:

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




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