                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS



State of West Virginia,
                                                                                  FILED
                                                                                  May 17, 2013
Plaintiff Below, Respondent                                                  RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA
vs) No. 12-0233 (Gilmer County 10-F-18)

Kenneth M.,

Defendant Below, Petitioner



                              MEMORANDUM DECISION
        Petitioner Kenneth M.,1 by counsel, David Karickhoff, appeals his convictions for ten
felony offenses of sexual abuse by a custodian in violation of West Virginia Code § 61-8D-5(a).
The State of West Virginia, by counsel, The Office of the Attorney General, filed its response.
Petitioner seeks the reversal of the convictions and requests that the matter be remanded for a
new trial.

       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 convicted of engaging in sexual contact with W.S., petitioner’s step­
daughter, on ten separate occasions when she was thirteen years of age. The sexual contact is
alleged to have occurred between November of 2007 and January of 2008 when petitioner was
married to and resided with W.S.’s mother. When the allegations were reported to police,
Trooper First Class Rob Smith gave petitioner his Miranda warning before obtaining a
statement. Trooper Smith estimates that the interview lasted approximately one hour. During the
jury trial, Trooper Smith read from the transcript of petitioner’s statement during which
petitioner admitted he touched W.S. in the vaginal area on two occasions while swimming but
denied that the touching was sexual. However, when petitioner was asked whether he ever went
into W.S.’s room and touched W.S. inappropriately, petitioner told Trooper Smith that he did not
remember. During the statement, petitioner denied ever touching W.S.’s vagina when he went
into her room to cover her up at night. He then contradicted himself and said that when he would
go into W.S.’s room to cover her up, he had touched her vagina twice.


       1
         Consistent with this Court’s practice of protecting the identity of juveniles in sensitive
matters, we identify the names of the parties and family members in this case by their initials or
partial names only.
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       Following a jury trial, petitioner was convicted of all ten felony counts of sexual abuse by
a custodian. The jury sentenced petitioner to a term of fifty to one hundred years by order entered
January 9, 2012.2 Petitioner appeals those convictions.

        On appeal, petitioner asserts a single assignment of error: The evidence presented at trial
was insufficient to support the convictions. In support of that contention, petitioner argues that he
did not commit the crimes for which he was convicted. Petitioner argues that eight of the counts
of the indictment could not have occurred as alleged because those incidents occurred when
petitioner claims he was living with his mother in order to perform work on her water line.
Petitioner states that he cannot read or write, and he lacks both education and sophistication. He
claims that when he was interviewed by Trooper Smith, he did not fully understand that he could
assert his right to remain silent or request that he have an attorney present. He argues that it was
only after repeated questioning by Trooper Smith that he followed the officer’s direction and told
Trooper Smith what the officer wanted to hear. Petitioner contends that the State failed to prove
beyond a reasonable doubt that petitioner unlawfully, knowingly, intentionally, and feloniously
engaged in or attempted to engage in sexual contact with W.S. while petitioner was the custodian
or in a position of trust to W.S., who was in his care, custody, or control. Petitioner also argued
that W.S.’s testimony that some of the sexual contact occurred while W.S.’s younger sister was
in bed with her is “inherently incredible.”

       The State argues that despite petitioner’s assertion to the contrary, petitioner had the
opportunity to sexually abuse his step-daughter, as they lived in the same house. He admitted to
Trooper Smith that he touched W.S.’s vagina, including explaining that he did so at night, in her
bedroom, just as she described. Petitioner’s wife testified that petitioner lived with her at all
times relevant to the charges, so there was no impossibility. The State asserts that the jury
weighed the credibility of the witnesses and chose to believe W.S. and her mother. The State
disputes petitioner’s contention that there is anything “inherently incredible” about W.S.’s
testimony.

       “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).

       2
          Petitioner’s original petition was filed on May 9, 2012. However, because the brief
lacked any citation to the record, the State filed a motion requesting that petitioner submit an
appropriate amended brief. This Court then entered a scheduling order which required petitioner
to submit an amended brief no later than July 30, 2012. Petitioner’s amended brief was not
received until August 1, 2012, but petitioner also filed a “Statement of Good Cause as to Why
Brief was Untimely” stating that the brief was placed in the mail on July 27, 2012 with the belief
that it would arrive no later than July 30, 2012. The amended petition was considered in its
entirety.
                                                 2

Syl. Pt. 1, State v. McFarland, 228 W.Va. 492, 721 S.E.2d 62 (2011).

       AA 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. To the extent that our prior cases are
       inconsistent, they are expressly overruled.@ Syl. pt. 3, State v. Guthrie, 194 W. Va.
       657, 461 S.E.2d 163 (1995).

Syl. Pt. 2, McFarland; Syl. Pt. 7, State v. White, 228 W.Va. 530, 722 S.E.2d 566 (2011). Further,
testimony should be found inherently incredible “only when the testimony defies physical laws.”
State v. McPherson, 179 W.Va. 612, 617, 371 S.E.2d 333, 338 (W.Va. 1988). Based on the
record before this Court, we find that petitioner failed to meet the heavy burden needed to
establish that the evidence presented to the jury was insufficient to support his convictions. The
jury made its credibility determination and found that petitioner was guilty of all charges.
Therefore, viewing the evidence in the light most favorable to the prosecution, this Court finds
that a rational trier of fact could have found the essential elements of the crime proved beyond a
reasonable doubt.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.

ISSUED: May 17, 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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