                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,                                                           FILED
Plaintiff Below, Respondent                                                    May 30, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 13-0341 (Berkeley County 12-F-168)                                     OF WEST VIRGINIA


Ruben C.,

Defendant Below, Petitioner



                              MEMORANDUM DECISION
       Petitioner Ruben C.,1 by counsel Christopher J. Prezioso, appeals the April 5, 2013,
Amended Sentencing Order entered following his conviction by a jury in the Circuit Court of
Berkeley County of first degree sexual assault,2 domestic battery,3 and violation of a domestic
violence protective order.4 The State of West Virginia, by counsel Cheryl K. Saville, filed a
response, to which petitioner filed a reply.

        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.

        Petitioner and the victim, M.C., had been married for seventeen years. They had two
children, C.C., age 16, and M.C., age 12. On or about December 14, 2011, the victim obtained an
emergency domestic violence protective order against petitioner following an incident that
occurred on December 7, 2011.The victim testified that, on that day, she was riding with
petitioner in a car when she told him she wanted a divorce. She testified that petitioner became
very upset, drove her to an unknown location, hit her in the chest three times, and destroyed her


       1
        In keeping with the Court’s policy of protecting minors and the identities of victims of
sexual crimes, the victim and her children will be referred to by their initials throughout this
memorandum decision, and petitioner, by his first name and last initial.
       2
           See W.Va. Code § 61-8B-3 (2006)
       3
           See W.Va. Code § 61-2-28(a) (2011).
       4
           See W.Va. Code 48-27-903 (2011).


                                                 1

glasses.5 Petitioner moved out of the home after this incident but returned several times. Each
time, either the victim or the children told him to leave. On one of the occasions when petitioner
came to the home, C.C. told him he was not permitted to be there and showed him a copy of the
protective order, at which time petitioner read through the document.

        On the afternoon of January 30, 2012, petitioner was waiting for the victim when she
returned home. When she entered the home, petitioner took the bags of food she was carrying
and threw them on the floor. Petitioner proceeded to hit her in the face and pushed her onto a
sofa while telling her that he was tired of her and that she was humiliating him. He then forced
her into the bedroom and onto the bed where he drew a knife and cord and told her numerous
times that if she did not reconcile with him, he would kill her. Ultimately, the victim promised
petitioner that they would reconcile. Petitioner then forcibly removed the victim’s clothes and
had vaginal intercourse with her while the knife and cord were on the bedside table. When he
was finished, he told her to get cleaned up because the children would soon be home from
school. The victim testified that she let her hair down so that the children could not see that she
had been beaten up and that she had been crying. Petitioner followed her into the kitchen and
asked her to have the restraining order removed. The victim did not respond to his request.

        The children returned from school at approximately 3:00 pm. When C.C. arrived, he was
surprised to see petitioner at the home because he had previously moved out. C.C. also noticed
that the victim had been crying and asked petitioner what he did to her; petitioner replied that
they had only been talking. Both the victim and C.C. testified that while petitioner was watching
television with M.C. in the living room, the victim slipped into C.C.’s bedroom and asked him to
quietly call the police. The police arrived at the home approximately ten minutes later and
arrested petitioner. The victim gave a statement to police, which was both translated into English
and written on her behalf by C.C. The victim found the knife and cord previously hidden by
petitioner and gave them to police. The family’s landlord testified that he had given the knife to
petitioner and that petitioner had used it to butcher animals outside the family’s home.

         Following a jury trial, petitioner was convicted of one count each of sexual assault in the
first degree, domestic battery, and violation of a domestic violence protective order. His post­
trial renewed motion for judgment of acquittal and motion for a new trial were denied. By order
entered February 20, 2013, petitioner was sentenced to not less than fifteen nor more than thirty-
five years of incarceration for the first degree sexual assault conviction; twelve months and a
$250.00 fine for the domestic battery conviction; and time served from the end of the sentence
for his domestic battery conviction to February 20, 2013, plus a $500.00 fine, for the violation of
a domestic violence protective order conviction. An Amended Sentencing Order was entered
April 5, 2013. This appeal followed.

       In his first assignment of error, petitioner argues that the trial court committed error in
denying his motions for judgment of acquittal based upon insufficiency of the evidence. In
syllabus points one and three of State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995), this
Court established the following standards for reviewing claims of insufficiency of the evidence:



       5
           The victim’s first language is Spanish. She testified through a translator.
                                                   2
       1. 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.

       ....

       3. 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. To the extent that our prior cases are
       inconsistent, they are expressly overruled.

         Furthermore, we observed that “[a]n appellate court may not decide the credibility of
witnesses or weigh evidence as that is the exclusive function and task of the trier of fact. . . . It is
for the jury to decide which witnesses to believe or disbelieve.” Id. at 669 n.9, 461 S.E.2d at 175
n.9. See State v. LaRock, 196 W.Va. 294, 304, 470 S.E.2d 613, 623 (1996) (stating that when
reviewing sufficiency of evidence, “the viewer must accept all reasonable inferences from it that
are consistent with the verdict. . . .[and] as among competing inferences of which two or more
are plausible, the judge must choose the inference that best fits the prosecution’s theory of
guilt.”).

        With regard to his convictions of first degree sexual assault and domestic battery,
petitioner argues that there was no scientific or physical evidence6 corroborating the victim’s
account; that the only evidence that these alleged crimes occurred was the false testimony of the
victim; and that law enforcement failed to adequately investigate the matter. Petitioner further
argues that the sequence of events about which the victim testified could not have feasibly
transpired during the thirty-minute time frame she described; that the recording of C.C.’s 9-1-1

       6
         Petitioner contends that the photographic evidence of the victim’s injuries to her upper
torso failed to show any injury and did not establish domestic violence. He argues that, at best,
the photographs show that the injuries were self-inflicted. We note that both C.C. and one of the
investigating officers testified that they observed bruising and red marks on the victim’s face and
neck after the incident and that the officer also testified that he observed that the inside of the
victim’s lip was bloodied. The officer’s photographs of these injuries were shown to the jury.
Petitioner does not address the fact that evidence of injuries to the victim’s face and neck was
considered by the jury.
                                                   3

call to police clearly demonstrated that neither the victim nor her children were in any immediate
danger; that petitioner was cooperative with police when they arrived; and that the victim wrote
letters to petitioner while he was in jail in which she wished him well, discussed making
arrangements for the children to see him, and discussed issues relating to their property. It is
petitioner’s contention that, given the foregoing, the evidence was not sufficient to convict him
of first degree sexual assault and domestic battery. We disagree.

         Upon viewing all of the evidence in the light most favorable to the prosecution, and also
crediting all inferences and credibility assessments that the jury might have drawn in favor of the
prosecution, as we are required to do, we conclude that a rational trier of fact could have found
that petitioner committed first degree sexual assault and domestic battery beyond a reasonable
doubt. See Guthrie, 194 W.Va. at 663, 461 S.E.2d at 169, syl. pt. 3. The jury clearly found the
testimony of the State’s witnesses to be credible. The victim’s testimony established that
petitioner was waiting for her when she arrived home from shopping, that he shoved and struck
her several times, forced her into the bedroom and down onto the bed, brandished a knife and
cord, threatened to kill her, and told her that if they did not reconcile, she would die. Petitioner
then forcibly removed the victim’s clothing and sexually assaulted her. The couple’s son testified
that when he returned home from school, he observed that his mother had been crying and
further observed bruising and red marks on her face and neck. The investigating officer similarly
testified that the inside of the victim’s lip was bloodied. Photographs of the victim’s injuries
were displayed to the jury. Given the foregoing, we conclude that the evidence was sufficient to
convict petitioner of first degree sexual assault and domestic battery.

        With regard to his conviction of violation of a domestic violence protective order,
petitioner similarly argues that the evidence was insufficient to convict him of this offense. West
Virginia Code § 48-27-903(a)(1) provides that a person is guilty of the misdemeanor offense of
violation of a protective order if he or she “knowingly and willfully violates[,]” inter alia, certain
enumerated provisions of “an emergency or final protective order. . . .”7 An emergency domestic
violence protective order had been filed against petitioner on December 14, 2011. A final hearing

       7
           West Virginia Code § 48-27-903(a) provides as follows:

       (a) A person is guilty of a misdemeanor if the person knowingly and willfully
       violates:
        (1) A provision of an emergency or final protective order entered pursuant to:
               (A) Subsection (a) or (b) of section five hundred two [§ 48-27-502] of this article;
               (B) If the court has ordered such relief; subsection (2), (7), (9), or (14) of section
               five hundred three [§ 48-27-503] of this article;
               (C) Subsection (b) or (c) of section five hundred nine [§ 48-5-509], article five of
               this chapter; or (D) subsection (b) or (c) of section six hundred eight [§ 48-5-608],
               article five of this chapter;
        (2) A condition of bail, probation or parole which has the express intent or effect of
        protecting the personal safety of a particular person or persons; or
        (3) A restraining order entered pursuant to section nine-a [§ 61-2-9a], article two,
        chapter sixty-one of this code.


                                                  4

on the matter was scheduled for December 20, 2011. Because the petitioner was not personally
served prior to December 20th, the hearing was continued to January 9, 2012. Personal service of
the protective order was attempted but never achieved prior to the January 9th hearing. As a
result, petitioner was served by means of a Class I legal advertisement published on January 2,
2012, in the Martinsburg Journal newspaper, which is circulated throughout Berkeley County,
pursuant to West Virginia Code § 48-27-311 (2001).8 Petitioner failed to appear at the January 9,
2012 final hearing, at which time a final protective order was issued. Petitioner maintains that he
visited the family home at least three times after the protective order was entered and that the
victim never contacted the police to report a violation until the January 30, 2012, incident at
issue. Petitioner argues that the evidence does not show that he “knowingly and willfully”
violated the domestic violence protective order entered at the January 9, 2012 hearing given that
he was not personally served with either the petition or the emergency order and, therefore, did
not attend the final hearing.

        Based upon our review of the record before us, we conclude that the evidence was more
than sufficient to convict petitioner of knowingly and willfully violating the domestic violence
protective order. It is undisputed that service was properly obtained by publication of a Class I
legal advertisement in the local newspaper. Furthermore, the couple’s son, C.C., testified that,
after the protective order was in place but prior to the incident at issue, petitioner came to the
home, C.C. told him to leave because a protective order was in place. C.C. further testified that
he showed petitioner the protective order and that petitioner read through it. Moreover, the
victim testified that after petitioner assaulted her, he begged her to have the protective order
removed so that he could return home. Having viewed this evidence in the light most favorable
to the prosecution, and having credited all inferences and credibility assessments that the jury
might have drawn in favor of the prosecution, we conclude that a rational trier of fact could have
found that petitioner knowingly and willfully violated the domestic violence protective order.
See Guthrie, 194 W.Va. at 663, 461 S.E.2d at 169, syl. pt. 3.9

       Petitioner’s next assignment of error is that the circuit court committed error by failing to
grant petitioner’s motion for new trial. Our standard of reviewing the circuit court’s order is as
follows:

               “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

       8
           According to the parties, personal service was achieved on April 20, 2012.
       9
        In a separate assignment of error, petitioner very briefly argues that his convictions
should be reversed because the victim’s false and uncorroborated testimony had a material effect
on the jury verdict given that there was no physical, scientific or other testimonial evidence of
the crimes. As discussed above, the jury clearly weighed the evidence and determined that the
victim’s testimony was credible. Furthermore, notwithstanding his allegations that the victim
committed welfare fraud, petitioner has failed to show that the victim’s testimony relating to the
crimes herein was false.
                                                  5

       court's underlying factual findings under a clearly erroneous standard. Questions
       of law are subject to a de novo review.” Syllabus point 3, State v. Vance, 207
       W.Va. 640, 535 S.E.2d 484 (2000).

Syl. Pt. 2, State v. White, 228 W.Va. 530, 722 S.E.2d 566 (2011).

        Petitioner argues that the circuit court should have permitted extrinsic evidence that the
victim fraudulently used the identity of “Patricia Ortega” to defraud her employer and the State.
More specifically, petitioner sought to introduce employment records to show that the victim
used a false identity to obtain work with her employer while also receiving the maximum amount
of welfare benefits for being unemployed. Petitioner argues that the purpose of introducing this
evidence was not only to attack the victim’s credibility, but also to show her motive in making
false allegations against him—that by sending petitioner to prison, the victim would be able to
further hide her acts of fraud.

       The circuit court disallowed the documentary evidence, but permitted cross examination
of the victim on the issue, pursuant to Rule 608(b) of the West Virginia Rules of Evidence,
which provides:

               (b) Specific Instances of Conduct. Specific instances of the conduct of a
               witness, for the purpose of attacking or supporting the witness’ credibility,
               other than conviction of crime as provided in Rule 609, may not be proved
               by extrinsic evidence. They may, however, in the discretion of the court, if
               probative of truthfulness or untruthfulness, be inquired into on cross-
               examination of a witness other than the accused (1) concerning the
               witness’ character for truthfulness or untruthfulness, or (2) concerning the
               character for truthfulness or untruthfulness of another witness as to which
               character the witness being cross-examined has testified.
                The giving of testimony under this rule by a witness does not operate as a
               waiver of the witness’ privilege against self-incrimination when examined
               with respect to matters which relate only to credibility.

       When asked about the allegations of fraud, the victim repeatedly invoked her right to
remain silent under the Fifth Amendment to the United States Constitution. Petitioner argues that
he was unfairly precluded from showing the jury that the victim had used a false identity to
obtain employment and was defrauding the State of welfare benefits. He further argues that,
given that his entire case rested on the victim’s truthfulness and untruthfulness, the fact that the
victim testified through an interpreter made it difficult for the jury to determine her propensity
for untruthfulness. He thus contends that he should have been permitted to present extrinsic
evidence of the victim’s fraudulent conduct. We disagree.

        It is undisputed that the victim has not been charged with or convicted of welfare fraud.
Pursuant to Rule 608(b), specific instances of any such alleged fraud on the part of the victim,
for the purpose of attacking her credibility, may not be proved by extrinsic evidence. The rule
permits, however, cross examination of the victim concerning her character for truthfulness or
untruthfulness. Accordingly, the circuit court properly permitted defense counsel to cross

                                                 6

examine her on the fraud allegations. Petitioner’s contention that he should have been allowed to
introduce extrinsic evidence of such fraud given the victim’s assertion of her Fifth Amendment
right to remain silent in response to this line of questioning is not supported by the plain
language of the rule, nor does petitioner offer support from any other legal authority. Similarly,
petitioner’s argument that he sought to introduce extrinsic evidence of alleged fraud to also show
that the victim fabricated the sexual assault charges in order to silence the petitioner from
revealing her fraudulent conduct is not supported by case law or any logical argument. The
circuit court’s reasoned decision to allow cross examination of the victim and preclude extrinsic
evidence was soundly based on Rule 608.10

         Petitioner further argues that his motion for a new trial should have been granted on the
ground that the circuit court should have given a jury instruction providing that an adverse
inference could be drawn from the victim’s assertion of her Fifth Amendment right to remain
silent. In support of his argument, petitioner contends that, in civil actions, the pleading of the
Fifth Amendment by a party would cause an adverse inference when the party “refuse[s] to
testify in response to probative evidence offered against them.” In re Aaron Thomas M., 212
W.Va. 604, 611, 575 S.E.2d 214, 221 (2002) (quoting Baxter v. Palmigiano, 425 U.S. 308, 318
(1976)). Petitioner argues that, similarly, an adverse inference should have been permitted in his
criminal trial. Given that there is no precedent for such an instruction in the criminal context, we
conclude that the circuit court did not abuse its discretion by permitting the jury to draw its own
conclusions regarding the victim’s credibility and by refusing to give an adverse inference jury
instruction as it related to her testimony.

       Petitioner’s final argument is that his conviction should be reversed because the circuit
court permitted certain Rule 404(b) evidence of prior bad acts to be admitted at trial without
conducting an in camera hearing pursuant to State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516

       10
          Petitioner also argues that, prior to trial, he should have been permitted to review
subpoenaed welfare benefit records for the victim and “Patricia Ortega” from the West Virginia
Department of Health and Human Resources (“DHHR”). The records were ordered placed under
seal and, upon reviewing them in camera, the circuit court concluded that the petitioner could not
use them under Rule 608(b) because, as previously noted, that rule “prohibits the use of extrinsic
evidence to prove a specific instance of conduct that could attack a witness’s credibility.”
Petitioner argues that, at the very least, he should have been permitted to review the subpoenaed
records, which would have given him information to more thoroughly prepare for cross-
examination of the victim and which may have provided him with information that would have
been useful to his case. Petitioner’s argument is without merit. The record reveals that petitioner
made full inquiry of the victim regarding her receipt of welfare benefits and her alleged use of
the alias “Patricia Ortega” for purposes of employment. The victim repeatedly asserted her Fifth
Amendment privilege against self-incrimination in response thereto. There is no basis in the
record to believe that access to the DHHR records adversely affected petitioner’s cross-
examination of the victim given the court’s evidentiary rulings and the victim’s predictable
response to this line of questioning. Further, and more importantly, there is certainly no evidence
that the subpoenaed records were in any way relevant to the crimes for which petitioner was tried
and convicted. The circuit court did not abuse its discretion in refusing to allow the petitioner to
review the DHHR records.
                                                 7

(1994).11 Our review of the circuit court’s ruling in this regard is governed by the following
standard:

               “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.” Syllabus Pt. 10, State
       v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds by
       State ex rel. R.L. v. Bedell, 192 W.Va. 435, 452 S.E.2d 893 (1994).

Syl. Pt. 1, State v. Payne, 225 W.Va. 602, 694 S.E.2d 935 (2010). See Id. at 604, 694 S.E.2d at
937, syl. pt. 2 (“‘A trial court’s evidentiary rulings, as well as its application of the Rules of
Evidence, are subject to review under an abuse of discretion standard.’ Syl. Pt. 4, State v.
Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).”).

        Petitioner argues that, prior to trial, the State informed petitioner that it intended to
present evidence of the December 7, 2011, domestic battery, which was the underlying act for
the domestic violence protective order. Petitioner argued, as he does on appeal, that the circuit
court should have conducted a McGinnis hearing to determine whether the evidence should have
been admitted. However, the circuit court determined that the evidence was intrinsic and
necessary to complete the story of the crimes for which petitioner was being tried. See LaRock,
196 W.Va. at 312 n.29, 470 S.E.2d at 631 n.29 (““‘Other act” evidence is “intrinsic” when the
evidence of the other act and the evidence of the crime charged are “inextricably intertwined” or

       11
            In McGinnis, we held has follows:

                Where an offer of evidence is made under Rule 404(b) of the West
       Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West
       Virginia Rules of Evidence, is to determine its admissibility. Before admitting the
       evidence, the trial court should conduct an in camera hearing as stated in State v.
       Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and
       arguments of counsel, the trial court must be satisfied by a preponderance of the
       evidence that the acts or conduct occurred and that the defendant committed the
       acts. If the trial court does not find by a preponderance of the evidence that the
       acts or conduct was committed or that the defendant was the actor, the evidence
       should be excluded under Rule 404(b). If a sufficient showing has been made, the
       trial court must then determine the relevancy of the evidence under Rules 401 and
       402 of the West Virginia Rules of Evidence and conduct the balancing required
       under Rule 403 of the West Virginia Rules of Evidence. If the trial court is then
       satisfied that the Rule 404(b) evidence is admissible, it should instruct the jury on
       the limited purpose for which such evidence has been admitted. A limiting
       instruction should be given at the time the evidence is offered, and we recommend
       that it be repeated in the trial court's general charge to the jury at the conclusion of
       the evidence.

193 W.Va. at 151, 455 S.E.2d at 520, syl. pt. 2.


                                                   8

both acts are part of a “single criminal episode” or the other acts were “necessary preliminaries”
to the crime charged.’”) (quoting United States v. Williams, 900 F.2d 823, 825 (5th Cir. 1990)
(internal citations omitted)). Thus, as this Court has held in past cases, evidence that is intrinsic
to the indicted charge is not governed by Rule 404(b). See State v. Harris, 230 W.Va. 717, 722,
742 S.E.2d 133, 138 (2013) (citing cases).

        Clearly, evidence of the domestic battery occurring on December 7, 2011, which was the
underlying act for which the victim sought and was awarded a domestic violence protective
order, was inextricably intertwined with the crime for which petitioner was charged (violation of
the protective order). Without the evidence of the underlying domestic battery, it would not have
been possible to appropriately present to the jury the complete story of the crime charged. We,
therefore, conclude that the circuit court did not abuse its discretion in admitting this evidence at
trial.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.

ISSUED: May 30, 2014

CONCURRED IN BY:

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




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