State of West Virginia v. Billy W.

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia, FILED
Plaintiff Below, Respondent January 27, 2017
RORY L. PERRY II, CLERK
vs) No. 16-0345 (Mercer County 15-F-210) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Billy W.,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner and defendant below Billy W., by counsel Earl H. Hager, appeals the March
17, 2016, order entered in the Circuit Court of Mercer County that denied his motion for a new
trial following his conviction by a jury of one count of child abuse resulting in serious bodily
injury and ordered that he serve an indeterminate term of incarceration of two to ten years.
Petitioner also appeals the circuit court’s order entered on March 22, 2016, that ordered, inter
alia, that petitioner serve a term of supervised release for a period of ten years. The State of West
Virginia, by counsel Gordon L. Mowen, II, filed a response in support of the circuit court’s
orders.
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.
On May 30, 2014, petitioner’s sixth-month old son, C.W., was taken by ambulance to a
hospital in Charleston, Kanawha County, West Virginia, where it was determined that he had
stopped breathing; bleeding in his brain; several broken ribs; retinal hemorrhages in the back of
his eye, extensive bilateral retinal hemorrhages in the middle of his eye, and retinoschisis (i.e., a
split retina); and was having severe seizures. According to pediatrician Dr. Joan Phillips, who
treated C.W. at the hospital and who is an expert in child abuse physiology, C.W.’s injuries were
caused by two separate events. The first, which caused brain damage and internal bleeding,
occurred approximately three weeks earlier. Dr. Philips opined that the second, more recent
event, which caused the brain hemorrhaging, detached retinas, and broken ribs, occurred within
one week of C.W.’s May 30th hospital visit. With regard to the retinal injuries, Dr. Phillips
opined that “we know from accident trauma that the kind of force that it takes to give you severe
retinal hemorrhage is comparable to a motor vehicle roll over. . . . So, it’s that [acc]eleration
deceleration. . . . The retinoschisis is almost uniquely part of abusive head trauma.” According to
Dr. Phillips, C.W.’s broken ribs and seizures were also consistent with child abuse.
1
An investigation into C.W.’s injuries by police revealed that C.W. was placed in foster
care with his siblings because his mother’s parental rights had previously been terminated; that
the mother had obtained custody of C.W. in January of 2015; that, at that time, petitioner was
only permitted to have supervised visitation with C.W.;1 and that, despite this limitation,
petitioner began living with the mother and C.W. in April of 2014, and lied to Child Protective
Services (“C.P.S.”) about his living arrangements. The police investigator determined that
petitioner was alone with C.W. when the injuries herein occurred.
In a recorded voluntary statement to police, petitioner admitted that he violated the terms
of his limited visitation rights and that he was C.W.’s primary caretaker from April of 2014
through May of 2014. Petitioner told police that, on May 19, 2014 (the first incident), C.W. hit
his head on a piece of wood on the couch while petitioner was tossing him into the air; that C.W.
began vomiting shortly thereafter; and that a bruise appeared on C.W.’s head the next day. The
mother took C.W. to the hospital and, upon his return home, C.W. continued vomiting off and on
until May 29, 2014.
Petitioner further admitted that, on May 29 and 30, 2014 (the second incident), he was
home alone with C.W. At approximately 5:30 a.m., C.W. began crying, screaming, and
vomiting. According to petitioner, he shook C.W. “a little bit” and then C.W. stopped breathing.
Petitioner called 9-1-1 at 6:01 a.m.2 The 9-1-1 operator talked petitioner through administering
C.P.R. in an effort to resuscitate C.W. Petitioner told police that he “panicked” but did not
believe he shook C.W. hard enough to cause retinal hemorrhaging or internal brain bleeding. An
ambulance arrived soon thereafter and transported C.W. to the hospital where he was diagnosed
as previously described herein.
On June 5, 2015, petitioner was indicted in the Circuit Court of Mercer County on
charges of child abuse resulting in serious bodily injury, in violation of West Virginia Code § 61­
8D-3(b). Count I stemmed from the incident that occurred earlier in May of 2014, while Count
III stemmed from the incident that occurred on May 29 or 30, 2014. Petitioner’s co-defendant
was C.W.’s mother. Counts II and IV of the indictment charged her with child neglect resulting
in injury. The proceedings against the mother were severed from petitioner’s and are not at issue
in this appeal.3
Petitioner was tried before a jury on June 12 and 13, 2016. At trial, petitioner’s recorded
statement to police was played for the jury. Petitioner also testified in his own defense. He
testified consistently with his statement to police, and also testified he could have broken C.W.’s
ribs while performing C.P.R. before the ambulance arrived. Dr. Phillips countered petitioner’s
1
The record does not indicate why petitioner was granted only supervised visitation with
C.W.
2
Petitioner identified himself to 9-1-1 as “Thomas Stacey” because he knew that he was
only permitted to have supervised visitation with C.W. and was not permitted to be alone with
him.
3
The status of C.W.’s mother’s criminal case is not a part of the record herein.
2
testimony by opining that it was highly unlikely that performing C.P.R. on an infant could have
fractured C.W.’s ribs because infants’ bones are springy, resilient, and not prone to fractures.
Petitioner was convicted of one count of child abuse resulting in serious bodily injury
(Count III). He was acquitted of the remaining count (Count I). On January 21, 2016, petitioner
filed a motion for a new trial, which was denied by order entered March 17, 2016. Petitioner
was sentenced to two to ten years of incarceration. In a March 22, 2016, order, the circuit court
ordered petitioner to serve a term of supervised release for a period of ten years after his period
of incarceration, pursuant to West Virginia Code § 62-12-26. This appeal followed.
In his first assignment of error, petitioner argues that the circuit court erred in sentencing
him to supervised release for a period of ten years because the clear intent of the statute under
which he was sentenced, West Virginia Code § 62-12-26, is that such a penalty applies only to
offenses of a sexual nature. Petitioner relies, in particular, upon the statute’s title, “Extended
supervision for certain sex offenders; sentencing; conditions; supervision provisions; supervision
fee,” which petitioner contends makes no reference to offenses strictly involving child abuse.
Given that he was convicted of one count of child abuse resulting in serious bodily injury, in
violation of West Virginia Code § 61-8D-3, petitioner argues that the provisions of West
Virginia Code § 62-12-26, requiring the imposition of a period of extended supervised release,
were not intended to apply to him.
This appeal presents a question of law involving an interpretation of a statute. As this
Court held in syllabus point one of Chrystal R.M. v. Charlie A.L., “[w]here the issue on an
appeal from the circuit court is clearly a question of law or involving an interpretation of a
statute, we apply a de novo standard of review.” 194 W. Va. 138, 459 S.E.2d 415 (1995).
West Virginia Code § 62-12-26(a) provides, as follows:
Notwithstanding any other provision of this code to the contrary, any defendant
convicted after the effective date of this section of a violation of section twelve
[§ 61-8-12], article eight, chapter sixty-one of this code or a felony violation of
the provisions of article eight-b [§§ 61-8B-1 et seq.], eight-c [§§ 61-8C-1 et seq.],
or eight-d [§§ 61-8D-1 et seq.]4 of said chapter shall, as part of the sentence
imposed at final disposition, be required to serve, in addition to any other
penalty or condition imposed by the court, a period of supervised release of
up to fifty years: Provided, That the period of supervised release imposed by the
court pursuant to this section for a defendant convicted after the effective date of
this section as amended and reenacted during the first extraordinary session of the
Legislature, 2006, of a violation of section three [§ 61-8B-3] or seven [§ 61-8B­
7], article eight-b, chapter sixty-one of this code and sentenced pursuant to section
nine-a [§ 61-8B-9a] of said article, shall be no less than ten years: Provided,
however, That a defendant designated after the effective date of this section as
amended and reenacted during the first extraordinary session of the Legislature,
2006, as a sexually violent predator pursuant to the provisions of section two-a [§
4
As previously noted, petitioner was convicted of child abuse resulting in serious bodily
injury, in violation of West Virginia Code § 61-8D-3.
3
15-12-2a], article twelve, chapter fifteen of this code shall be subject, in addition
to any other penalty or condition imposed by the court, to supervised release for
life: Provided further, That pursuant to the provisions of subsection (g) of this
section, a court may modify, terminate or revoke any term of supervised release
imposed pursuant to subsection (a) of this section.
(Emphasis and footnote added).
Despite this clear statutory language, petitioner, nonetheless, contrasts his crime
involving strictly physical abuse5 with crimes of a sexual nature that are set forth in West
Virginia Code §§ 61-8-12 (incest), 61-8B-1 through 18 (various sexual assault and sexual abuse
crimes), and §§ 61-8C-1 through 11 (filming and distributing sexually explicit conduct of minors
and other similar prohibitions). Petitioner argues that although two provisions included in West
Virginia Code §§ 61-8D-1 through 9 are sexual offenses, the remaining provisions involve
physical, non-sexual crimes that, he claims, are not intended to subject defendants to the
supervised release penalty set forth in West Virginia Code § 62-12-26(a). Finally, as additional
support for his position, petitioner points to the language of West Virginia Code § 62-12-26(e),
which provides that “any defendant sentenced to a period of supervised release pursuant to this
section shall be required to participate in appropriate offender treatment programs or counseling
during the period of supervised release . . . .” Id. in relevant part. Petitioner argues that reference
to “offender treatment programs or counseling” means the “Sex Offender Treatment Program,”
as petitioner knows of no comparable treatment program for child abusers.6
Based upon our review herein, we find no error. The plain and unambiguous language of
West Virginia Code § 62-12-26(a) provides that “any defendant convicted . . . [of] a felony
violation of the provisions of . . . [61-8D-1 et seq.] shall . . . as part of the sentence imposed at
final disposition, be required to serve, in addition to any other penalty or condition imposed by
the court, a period of supervised release of up to fifty years[.]” Petitioner concedes that his
5
West Virginia Code § 61-8D-3(b) provides as follows:
(b) If any parent, guardian or custodian shall abuse a child and by such abuse
cause said child serious bodily injury as such term is defined in section one,
article eight-b of this chapter, then such parent, guardian or custodian shall be
guilty of a felony and, upon conviction thereof, shall be fined not less than $1,000
nor more than $5,000 and committed to the custody of the Division of Corrections
not less than two nor more than ten years.
6
Petitioner also argues that this Court has previously recognized West Virginia Code §
62-12-26 as a statute that applies exclusively to sex offenders and not to child abusers whose
crimes were not sexual in nature. Citing to State v. Hargus, 232 W.Va. 735, 753 S.E.2d 893
(2013) and State v. James, 227 W.Va. 407, 710 S.E.2d 98 (2011), petitioner refers to passages in
those cases in which this Court characterized the statute as one providing for a period of
extended supervision for sex offenders. We find this argument to be unpersuasive because the
defendants in those cases were convicted of sex crimes and the issue of whether West Virginia
Code § 62-12-26 applies to non-sex offenders was not at issue.
4
crime—a violation of West Virginia Code § 61-8D-3, child abuse resulting in serious bodily
injury—clearly falls within “61-8D-1 et seq.” As this Court has previously acknowledged,
You can look to the title of the statute to ascertain intent, City of Huntington v.
State Water Comm., 135 W.Va. 568, 64 S.E.2d 225 (1951), but the title can not
[sic] limit the plain meaning of the text, Mazzella v. Yoke, 70 F. Supp. 462
(S.D.W.Va. 1947). Don’t confuse the title with chapter, article and section
headings which cannot be used to ascertain intent, W. Va. Code, 2-2-12 (1965).
Virginia Elec. & Power Co. v. Pub. Serv. Comm’n of W.Va., 162 W. Va. 202, 206, n.2, 248
S.E.2d 322, 325 n.2 (1978). See W.Va. Code § 2-2-12 (stating that “[c]hapter, article or section
headings . . . of any act of the Legislature . . . are hereby declared to be mere catchwords and
shall not be deemed or construed . . . as indicating or expressing legislative intent or purpose.”)
Indeed,
“‘[a] statutory provision which is clear and unambiguous and plainly expresses
the legislative intent will not be interpreted by the courts but will be given full
force and effect.’ Syl. Pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488
(1951).” Syllabus Point 1, State v. Jarvis, 199 W.Va. 635, 487 S.E.2d 293 (1997).
Syl. Pt. 5, State v. McGilton, 229 W. Va. 554, 729 S.E.2d 876 (2012). Accordingly, we find that
the circuit court did not err in applying the plain language of West Virginia Code § 62-12-26(a)
and imposing a period of supervised release of ten years upon petitioner upon his release from
incarceration.
In his next assignment of error, petitioner argues that he was entitled to a new trial
because the jury verdict was contrary to the weight of the evidence. Specifically, petitioner
argues that he was the only eyewitness to the events causing C.W.’s injuries and that his
testimonial account of the same did not support a conviction of child abuse resulting in serious
bodily injury. Petitioner points to his testimony that the original injury occurred due to a flaw in
the couch where he was playing with C.W.; that, with regard to the second injury, petitioner was
in a panicked state and may have accidentally fractured C.W.’s ribs by improperly administering
C.P.R. on him; that he may have shaken C.W. too hard in an effort to revive him; and that C.W.
fell less than three feet off of a couch. Petitioner further contends that the State’s expert, Dr.
Phillips, testified—albeit reluctantly—that it would not be impossible for C.W. to have
concussive vomiting and a brain bleed as a result. Petitioner argues that the jury was properly
instructed that if it viewed the evidence as reasonably permitting either innocence or guilt, then
the jury should adopt the conclusion of innocence. Given the jury charge and petitioner’s version
of events, petitioner contends that “the jury was required to adopt the conclusion of innocence,
and that the Court erred in not granting a new trial[.]”
Our standard of reviewing appeals that challenge the sufficiency of the evidence is
“highly deferential.” State v. Guthrie, 194 W. Va. 657, 667, 461 S.E.2d 163, 173 (1995). As we
explained in syllabus points one and three of Guthrie,
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
5
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.
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.
Id. at 663, 461 S.E.2d at 169.
We find no error. “The jury is the trier of the facts and in performing that duty it is the
sole judge as to the weight of the evidence and the credibility of the witnesses.” (internal
quotations and citation omitted)) Syl. Pt. 2, State v. Martin, 224 W. Va. 577, 687 S.E.2d 360
(2009). Indeed, “[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. Once the jury has spoken, this Court may not
review the credibility of the witnesses.” Guthrie, 194 W.Va. at 669 n. 9, 461 S.E.2d at 175 n. 9.
In this case, the jury clearly found petitioner not to be a credible witness as he violated the terms
of his supervised visitation with C.W. by living with C.W. and his mother and being the child’s
primary caretaker. Petitioner admitted that he lied to C.P.S. about his living arrangements.
Petitioner also gave the 9-1-1 operator a false name when he called for help. Thus, the jury was
entitled to discount petitioner’s self-serving and improbable account of C.W.’s injuries. Rather,
the jury found the testimony of Dr. Phillips to be more credible. Dr. Phillips not only treated
C.W. at the hospital but she is also an expert in child abuse physiology. Dr. Phillips testified, to a
reasonable degree of medical certainty, that C.W.’s severe injuries were consistent with child
abuse. For example, she testified that split retinas (retinoschisis), as suffered by C.W., are not
caused by accidental trauma such as shaking a baby in an effort to wake him up. Rather,
according to Dr. Phillips, retinoschisis is caused by a rapid acceleration and deceleration of the
head. Dr. Phillips also testified that a short fall off of a couch or playfully tossing C.W. into the
air “would not be logical or a medical explanation” for the injuries to C.W.’s brain, including
bleeding, seizures and loss of consciousness. Dr. Phillips further testified that rib fractures
caused by the administering of C.P.R. “is exceedingly rare.”
This Court has clearly established that it is a jury’s role to weigh the evidence presented
and to decide the credibility of the witnesses’ testimony. Viewing the evidence in the light most
favorable to the State, we find no error in the jury’s conclusion that the evidence was sufficient
6
to convict petitioner of one count of child abuse causing serious bodily injury.
In his final assignment of error, petitioner argues that the circuit court erred in denying
his motion for a new trial on the ground that the State incorrectly stated during closing argument
that the jury could infer intent from the consequences of petitioner’s actions or from the
seriousness of the victim’s injuries. Specifically, the State argued in rebuttal that “[i]ntent can be
shown by the level of force inflicted on that baby and intent is to be determined by the fact that
this baby’s brain is torn in two places at two separate times, that his retinas are torn from the
backs of his eyes.”
Petitioner concedes that trial counsel failed to object to the State’s remarks. This Court
has cautioned that
“‘“‘[f]ailure to make timely and proper objection to remarks of counsel made in
the presence of the jury, during the trial of a case, constitutes a . . . [forfeiture] of
the right to raise the question thereafter in the trial court or in the appellate court.”
Point 6, Syllabus, Yuncke v. Welker, 128 W.Va. 299 [36 S.E.2d 410 (1945)].’
Syllabus point 7, State v. Cirullo, 142 W.Va. 56, 93 S.E.2d 526 (1956).” Syl. Pt.
5, State v. Davis, 180 W.Va. 357, 376 S.E.2d 563 (1988).’ Syllabus Point 1,
Daniel B. by Richard B. v. Ackerman, 190 W.Va. 1, 435 S.E.2d 1 (1993).”
Syl. Pt. 5, Tennant v. Marion Health Care Found., Inc., 194 W. Va. 97, 459 S.E.2d 374 (1995).
Thus, on appeal, petitioner maintains that the propriety of the State’s closing remarks should be
reviewed for plain error. This Court has held that “[t]o trigger application of the ‘plain error’
doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4)
seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Syl. Pt.
7, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).
In this case, petitioner fails to make any argument in support of his contention that the
State’s closing remarks were plainly error, affected his substantial rights, and seriously affected
the fairness, integrity, or public reputation of his criminal trial. See Id. This Court has cautioned
that “[a]lthough we liberally construe briefs in determining issues presented for review, issues
which are . . . mentioned only in passing but are not supported with pertinent authority, are not
considered on appeal.” State v. LaRock, 196 W.Va. 294, 302, 470 S.E.2d 613, 621 (1996). We
have further explained that “[a] skeletal ‘argument,’ really nothing more than an assertion, does
not preserve a claim[.] Judges are not like pigs, hunting for truffles buried in briefs.” State, Dept.
of Health and Human Resources v. Robert Morris N., 195 W.Va. 759, 765, 466 S.E.2d 827, 833
(1995). Because petitioner has failed to adequately argue that the State’s closing remarks
constitute plain error, we decline to address this assignment of error.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: January 27, 2017
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CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
8