                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS


State of West Virginia,                                                                FILED
Plaintiff Below, Respondent                                                          November 22, 2013
                                                                                  RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
vs) No. 13-0209 (Fayette County 11-F-54)                                            OF WEST VIRGINIA



Laurence R. Smith III,
Defendant Below, Petitioner


                                MEMORANDUM DECISION
       Petitioner Laurence R. Smith III, by counsel Christopher S. Moorehead, appeals the order
of the Circuit Court of Fayette County, entered January 16, 2013, denying his motion for a
reduction of sentence. Following a jury trial, petitioner was convicted of three counts of first
degree sexual abuse and three counts of sexual abuse by a custodian. The State, by counsel Scott
E. Johnson and Laura J. Young, filed a response in support of the circuit court’s decision.

       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.

        In the fall of 1988, petitioner sexually abused his three nieces when he was babysitting
the girls at his brother’s house.1 Petitioner was the only adult present with the girls that evening.
The victims did not report petitioner’s conduct until several years later. They gave statements to
the sheriff’s office and the resulting investigation led to petitioner’s arrest. At trial, the State
presented the testimony of the three victims, their mother, and an expert witness on delayed
disclosure of sexual abuse, Dr. Joan Phillips.

       Petitioner was convicted of three counts of sexual abuse by a parent, guardian or
custodian and three counts of sexual abuse in the first degree. On June 1, 2012, the trial court
sentenced petitioner to no less than thirteen years nor more than thirty-five years in the
penitentiary.2 On June 8, 2012, the trial court denied petitioner’s motion for judgment

       1
           In 1988, the girls would have been seven, nine, and ten years old.
       2
        Specifically, the trial court sentenced petitioner to one to five years on Count I, five to
ten years on Count II, one to five years on Count III, five to ten years on Count IV, one to five
years on Count V, and five to ten years on Count VI of the indictment.


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notwithstanding the verdict and/or for a new trial.

       Thereafter, on September 28, 2012, petitioner filed a motion for sentence reduction
pursuant to Rule 35 of the West Virginia Rules of Criminal Procedure.3 The trial court denied the
motion on January 16, 2013, and this appeal followed.4

       This Court articulated the following standard of review in Syllabus Point 1 of Barritt v.
Painter, 215 W.Va. 120, 595 S.E.2d 62 (2004):

       In reviewing the findings of fact and conclusions of law of a circuit court
       concerning an order on a motion made under Rule 35 of the West Virginia Rules
       of Criminal Procedure, we apply a three-pronged standard of review. We review
       the decision on the Rule 35 motion under an abuse of discretion standard; the
       underlying facts are reviewed under a clearly erroneous standard; and questions of
       law and interpretations of statutes and rules are subject to a de novo review. Syl.
       Pt. 1, State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).

With these standards in mind, we will address petitioner’s arguments.

         Petitioner presents one assignment of error related to his sentencing. He argues that the
trial court erred in sentencing him to serve all but one of the six sentences consecutively.
Petitioner argues that it is a violation of Article III, section 5 of the West Virginia Constitution in
that it is cruel and unusual punishment to sentence a person with virtually no criminal record to
consecutive sentences, when petitioner is fifty years old and the crimes were not reported for at
least twenty-three years after they occurred.

        It is undisputed that the trial court sentenced petitioner within the statutory limits for the
crimes. As this Court has firmly established, “[s]entences imposed by the trial court, if within
statutory limits and if not based on some [im]permissible factor, are not subject to appellate
review.” Syl. Pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982). Moreover,

       3
           Rule 35(b) of the West Virginia Rules of Criminal Procedure provides:

       Reduction of Sentence. A motion to reduce a sentence may be made, or the court
       may reduce a sentence without motion within 120 days after the sentence is
       imposed or probation is revoked, or within 120 days after the entry of a mandate
       by the supreme court of appeals upon affirmance of a judgment of a conviction or
       probation revocation or the entry of an order by the supreme court of appeals
       dismissing or rejecting a petition for appeal of a judgment of a conviction or
       probation revocation. The court shall determine the motion within a reasonable
       time. Changing a sentence from a sentence of incarceration to a grant of probation
       shall constitute a permissible reduction of sentence under this subdivision.
       4
        The appendix record does not reflect whether the trial court resentenced petitioner for
the purpose of filing a direct appeal timely. Neither party addresses this procedural issue.


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Syllabus Point 1 of State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997) holds that “[t]he
Supreme Court of Appeals reviews sentencing orders, including orders of restitution made in
connection with a defendant’s sentencing, under a deferential abuse of discretion standard, unless
the order violates statutory or constitutional commands.” Furthermore, in State v. Sugg, 193
W.Va. 388, 406, 456 S.E.2d 469, 487 (1995), we held that “[a]s a general proposition, we will
not disturb a sentence following a criminal conviction if it falls within the range of what is
permitted under the statute.” Therefore, we find that the trial court did not abuse its discretion in
sentencing petitioner to serve consecutive sentences.

        Petitioner also challenges the jury verdict against him. Petitioner argues that the evidence
presented at trial was insufficient to convict him beyond a reasonable doubt. He primarily argues
that inconsistencies among the witnesses’ testimony do not support his conviction. Under these
circumstances, we bear in mind the following: “It is the peculiar and exclusive province of the
jury to weigh the evidence and to resolve questions of fact when the testimony is conflicting.”
Syl. Pt. 3, Long v. Weirton, 158 W.Va. 741, 214 S.E.2d 832 (1975). “The weight of evidence,
and credibility of witnesses are within the province of the jury, and we cannot substitute our
judgment for theirs on matters of fact.” State v. Summerville, 112 W.Va. 398, 400, 164 S.E. 508,
509 (1932). With regard to our review of evidence, we have held as follows:

       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). It is apparent that the
jury believed the victims’ testimony and concluded that the offenses happened when petitioner
babysat the girls. While an actual date was never established, such evidence is not required. See
State v. David D.W., 214 W.Va. 167, 588 S.E.2d 156 (2003). Our review of the trial transcript
reflects that the evidence was sufficient to support petitioner’s conviction.5

        Petitioner next contests the trial court’s rulings during the jury selection process.
Petitioner argues that several prospective jurors divulged during voir dire that either they were
victims of sexual abuse/molestation, or they had a close family member who was sexually
abused.6 Petitioner argues that these jurors were likely to have some subconscious bias,

       5
        We therefore find that petitioner’s argument that the trial court erred in denying his
motion for judgment of acquittal is without merit.
       6
       For instance, the juror who ultimately served as the foreperson stated that she was
molested as a child. More than twenty years ago, this juror’s father was prosecuted for child
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regardless of what they said during voir dire. Petitioner argues that the trial court erred in not
removing all of these potential jurors, and that decision affected his right to a fair trial.

        The test to be applied with regard to the qualifications of a juror is whether a juror can,
without bias or prejudice, return a verdict based on the evidence. “That a venire member has
experience as a crime victim does not automatically make him partial and, hence, disqualified[]”
Commonwealth v. Jaime J., 776 N.E.2d 1023, 1028 (Mass. Appt. Ct., 2002), “even when the
crime alleged is similar to that suffered by the potential juror.” Warren v. Commonwealth, No.
2007-CA-002338-MR, 2009 WL 1562862, at *4 (Ky. Ct. App. June 5, 2009). There is no
statutory or common law per se disqualification based on victimhood. Petitioner is required to
show bias or prejudice to justify a strike for cause. State v. Parsons, 214 W.Va. 342, 352, 589
S.E.2d 226, 236 (2003). Based on this standard, we find that the trial court did not abuse its
discretion. A review of the transcript reveals that the trial court conducted voir dire in a manner
which safeguarded petitioner’s right to be tried by a jury free of bias and prejudice.

        Finally, petitioner argues that the trial court erred in striking all of his witnesses for
violation of the sequestration order. On the second day of trial, after the State had rested, the
assistant prosecuting attorney brought to the trial court’s attention that an individual was taking
notes during the trial and talking to petitioner’s brother and sister, Allard Smith and Delores
Kuhl, who were listed as defense witnesses. Defense counsel explained that the individual was
petitioner’s brother-in-law, Robert Kuhl, and he was not going to be a witness. The trial court
conducted an in-camera hearing, and Mr. Kuhl admitted he was taking notes and talking about
the case with defense witnesses even though he was present in the courtroom when the trial court
gave the sequestration order. The trial court described Mr. Kuhl’s conduct as “outrageous,” and
stated that it did not need to speak with Ms. Kuhl or Mr. Smith because Mr. Kuhl had admitted
that he discussed the trial with them. The trial court stated that he was not going to examine the
potential witnesses because “their credibility is, for my purposes, zero, because they have already
done what they have been told not to do.” Thereafter, the trial court denied petitioner’s motion
for a mistrial, and granted the State’s motion to strike the witnesses.

        West Virginia “cases commit to the discretion of a trial court the appropriate sanction for
a witness’s violation of an exclusionary order.” State v. Omechinski, 196 W.Va. 41, 48 n.12, 468
S.E.2d 173, 180 n.12 (1996). While “the weight of authority is that [t]he [witness] cannot be
excluded on that ground merely,” this Court has observed that “the right to exclude under
particular circumstances may be supported as within the sound discretion of the trial court.” Id.
(quoting Holder v. U.S., 150 U.S. 91, 92 (1893)). The purpose of the sequestration order “is to
gain assurance of credibility, and its violation is a legitimate subject of comment in this respect.
Thus, it seems proper that unless the violation has so discredited the witness as to render his or


molestation against her in North Carolina, and he was sentenced to prison. This juror stated that
she did not have a bias for or against either the State or petitioner. She stated that her experience
would not make her more sympathetic to the alleged victims in the instant case. The trial court
denied petitioner’s motion to strike this juror for cause, and found that “based upon the totality of
the circumstances and under oath response of this woman and watching her demeanor . . . she is
a qualified member of the panel.”


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her testimony incredible as a matter of law, the witness should not be disqualified from
testifying.” Omechinski, 196 W.Va. at 48 n.12, 468 S.E.2d at 180 n.12. In this case, the trial
court found that the violation was “very deliberate and planned.” We do not find that the trial
court committed reversible error by excluding these witnesses. The record supports the trial
court’s finding that the violation was so egregious it rendered any potential testimony from these
witnesses not credible.7

       For the foregoing reasons, we affirm the January 16, 2013, order of the Circuit Court of
Fayette County.

                                                                                        Affirmed.

ISSUED: November 22, 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




       7
        We note that petitioner made no proffer as to what the testimony of the witnesses would
have been had they testified.


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