State of West Virginia v. S.W. ( 2022 )

FILED
January 18, 2022
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
State of West Virginia,
Plaintiff Below, Respondent
vs.) No. 20-0319 (Monongalia County 19-F-174)
S.W.,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner S.W., by counsel Stephanie Nethken, appeals the order of the Circuit Court of
Monongalia County, entered on March 3, 2020, denying her motions for a new trial and for
judgment of acquittal, and sentencing her to an effective term of imprisonment for five to twenty-
five years for her felony convictions of sexual abuse of a child by a parent (in violation of West
Virginia Code § 61-8D-5) and first-degree sexual abuse (in violation of West Virginia Code § 61-
8B-7), together with a consecutive term of six months for her misdemeanor conviction of domestic
assault (in violation of West Virginia Code § 61-2-28(b)). 1 The State of West Virginia appears by
counsel Patrick Morrisey and Scott E. Johnson.
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.
Ms. W. appeals the circuit court order related to her criminal convictions on two grounds.
First, she argues that the circuit court erred in denying her motion for post-verdict judgment of
acquittal because the evidence was insufficient to support a guilty verdict. Second, she argues that
the circuit court erred in denying her motion for a new trial after she produced a “new witness”
who would have corroborated her testimony.
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.
254, 773 S.E.2d 20 (2015); In re Jeffrey R.L, 190 W. Va. 24, 435 S.E.2d 162 (1993); State v.
Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
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We begin with the first assignment of error, which challenges the sufficiency of the
evidence to support the conviction. The assignment of error is offered as a general challenge,
without a specific identification of the elements for which Ms. W. finds a lack of evidentiary
support, and Ms. W. offers scant detail in a brief that is nearly devoid of the required factual
statement. The lack of detail is problematic, first, in that it may be insufficient to satisfy the
requirements of Rule 10(c)(4) of the West Virginia Rules of Appellate Procedure, which requires
a petitioner to present a statement of the case “[s]upported by appropriate and specific references
to the appendix or designated record, . . . [and] contain[ing] a concise account of the procedural
history of the case and a statement of the facts of the case that are relevant to the assignments of
error.” Ms. W.’s statement of the case sets forth only the procedural history of the case, entirely
omitting a narrative of supported facts. 2 The lack of detail is problematic for Ms. W., second,
because
[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.
2
Ms. W.’s argument includes a very brief recitation of facts, including some citations to
the appendix record on appeal. We consider the facts presented so that we may reach the merits of
the appeal before us, but we caution litigants that we look with disfavor on the disregard of our
plainly stated requirements, which were created for litigants’ benefit as much as for the benefit of
judicial economy.
Rule 10 of the Rules of Appellate Procedure was designed to simplify the
appeal process and to help lawyers file clear, concise, and organized briefs.
“Although we liberally construe briefs in determining issues presented for review,”
State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996), we have often
said that “a lawyer has a duty to plead and prove his case in accordance with
established court rules.” State Dep’t of Health v. Robert Morris N., 195 W. Va. 759,
765, 466 S.E.2d 827, 833 (1995). Lawyers who fail to follow our appellate rules
inevitably generate a disjointed, poorly written, or difficult to understand brief, and
they should not anticipate that this Court will find or make their arguments for them.
“Judges are not like pigs, hunting for truffles buried in briefs.” United States v.
Dunkel, 927 F.2d 955, 956 (7th Cir. 1991).
Metro Tristate, Inc. v. Pub. Serv. Comm’n of W. Va., ___ W. Va. ___, ___, 859 S.E.2d 438, 445-
46 (2021). In this instance, the displaced and abbreviated factual statement falls short of depicting
the full panoply of events that led to Ms. W.’s arrest.
2
Syl. Pt. 3, in part, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995).
The trial evidence, as we glean it from Ms. W.’s short brief and the appendix record on
appeal, taken in the light most favorable to the prosecution, was sufficient to establish Ms. W.’s
guilt of the crimes charged, and, thus, the criminal conviction survives our review under the
applicable standard:
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.
Id. at 663, 461 S.E.2d 169, Syl. Pt. 1.
At trial, Ms. W.’s daughter (age fifteen at the time of these events) testified that she babysat
her brother (age six at the time of these events) one night while Ms. W. attended a concert to
celebrate her birthday. Ms. W. returned home grossly intoxicated and repeatedly stated that she
wanted to “f—k [her son] and she wanted to make him feel real good….” The daughter walked
into a bathroom in the home and found Ms. W. with her hand on the boy’s hip and her head near
his groin. The daughter testified that she pulled the boy away from petitioner, instructed him to
run, and messaged a friend to ask the friend to call the police. The daughter ran to her room, and
Ms. W. followed, expressing to her daughter, as she had to her son, “I want to f—k you. I want to
make you feel good.” The daughter testified that she was certain Ms. W.’s motives were sexual.
The daughter was in contact (via texting or messaging) with at least two people throughout this
episode. She described events as they occurred. The assistant prosecuting attorney went through
these communications when the daughter testified, and at least one of the text recipients testified
at trial.
Several officers responded to the call that the daughter’s friend made to the police. Ms. W.,
partially undressed, greeted the first officer at the door. An officer instructed her to clothe herself.
The same officer talked to Ms. W.’s son; the officer testified that the boy told him, “My mom’s
doing inappropriate stuff to me.” The transcript from another officer’s recording device shows that
the boy asked the officer caring for him, “[C]an you talk to my mom about the weird stuff?” The
officer asked what was “weird,” and the boy replied, “Like, touching, like, the private part.” He
also told the officer, “She pulled [my pants], but I tried to keep ‘em up so I had to try and escape.”
The transcript was published to the jury. The boy was interviewed at The Child Advocacy Center,
where he reported that he did not lie to the police officer. The social worker who interviewed the
boy said that “he disclosed that his mom had touched his private parts,” and he confirmed his
meaning by pointing to his groin area.
Though Ms. W. argues that her daughter’s testimony was at times inconsistent with earlier
statements, we find that seeming inconsistencies of importance were adequately explained by the
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daughter. Moreover, our jurisprudence does not contemplate our interference in credibility
determinations:
An 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. State v. Bailey,
[151 W. Va. 796, 155 S.E.2d 850 (1967)]. It is for the jury to decide which
witnesses to believe or disbelieve. Once the jury has spoken, this Court may not
review the credibility of the witnesses.
Guthrie, 194 W. Va. at 670 n.9, 461 S.E.2d at 176 n.9. The jury was presented with evidence
sufficient to support Ms. W.’s conviction, and we find no error.
We turn to Ms. W.’s second assignment of error, in which she argues that the circuit court
erred in denying her motion for a new trial after she informed the court that she had received a
letter from the paternal grandmother of one of her children, and that this grandmother informed
Ms. W. that Ms. W.’s daughter had received psychological treatment while in her care, and that
the grandmother was of the opinion that the daughter would “say anything . . . to get her way.” We
have set forth the grounds for a new trial based upon newly discovered evidence:
A new trial will not be granted on the ground of newly-discovered evidence
unless the case comes within the following rules: (1) The evidence must appear to
have been discovered since the trial, and, from the affidavit of the new witness,
what such evidence will be, or its absence satisfactorily explained. (2) It must
appear from facts stated in his affidavit that plaintiff was diligent in ascertaining
and securing his evidence, and that the new evidence is such that due diligence
would not have secured it before the verdict. (3) Such evidence must be new and
material, and not merely cumulative; and cumulative evidence is additional
evidence of the same kind to the same point. (4) The evidence must be such as
ought to produce an opposite result at a second trial on the merits. (5) And the new
trial will generally be refused when the sole object of the new evidence is to
discredit or impeach a witness on the opposite side.
Syl., State v. Frazier, 162 W. Va. 935, 253 S.E.2d 534 (1979). We explained in Frazier that,
generally, all five elements must be satisfied before a petitioner’s motion for a new trial may be
granted on the ground that evidence is newly discovered. Id. at 941, 253 S.E.2d at 537. Failure to
satisfy any single element is fatal to a petitioner’s request for relief.
It is apparent that Ms. W. has failed to satisfy each prong of the Frazier test. First, she
submitted an unsigned letter (and not the required, duly sworn affidavit) to alert the circuit court
to her claim that newly discovered evidence warranted a new trial. Second, there is no indication
that Ms. W. was “diligent” in securing this evidence inasmuch as the impressions described in the
grandmother’s letter appear to have been made prior to the events giving rise to Ms. W.’s
indictment. Furthermore, the grandmother described events involving social services agencies and
psychologists, but Ms. W. fails to explain why she did not attempt to secure documentary evidence
from those agencies prior to her trial. Third, the evidence is likely cumulative because Ms. W.’s
trial strategy centered on discrediting her daughter and demonstrating that the daughter’s testimony
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was contrived. Fourth, the evidence presented in the grandmother’s letter is unlikely to yield an
opposite result at a trial on the merits because Ms. W.’s daughter was not the sole witness
describing the events that led to Ms. W.’s indictment. The testimony of the responding officers
alone supported the firm conclusion that Ms. W.’s son expressed a valid fear of Ms. W.’s attempts
to sexually abuse him, and the Child Advocacy Center’s social worker’s testimony further
supported this conclusion. Fifth and finally, we find that the unsigned letter that Ms. W. presented
as newly discovered evidence was nothing more than an attack on her daughter’s character meant
to depict the daughter as a potentially pathological liar. The grandmother’s letter related that a
doctor told the grandmother that she should be very careful because Ms. W.’s daughter “would get
someone in very big trouble. . . .” She also wrote that social workers who worked with Ms. W.’s
daughter “knew she was lying” about things reported to them. Incredibly, the grandmother’s letter
purported to give Ms. W.’s counsel permission to obtain documents supporting these statements,
but Ms. W. instead rested her motion on an unsigned letter promoting the unsubstantiated
conclusion that Ms. W.’s daughter is dishonest and deceitful. The sole purpose of the letter was to
discredit a key witness, who was subjected to cross-examination at Ms. W.’s trial. For these
reasons, we find that the circuit court did not err in denying Ms. W.’s motion for a new trial.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: January 18, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice William R. Wooton
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