State of West Virginia v. Robert H.

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia,
Plaintiff Below, Respondent, FILED
November 10, 2016
vs) No. 14-0889 (Gilmer County 12-F-26) released at 3:00 p.m.
RORY L. PERRY, II CLERK
SUPREME COURT OF APPEALS
Robert H., OF WEST VIRGINIA
Defendant Below, Petitioner.
MEMORANDUM DECISION
Petitioner Robert H.,1 by counsel, Matthew Brummond, appeals from the August 4,
2014, order entered by the Circuit Court of Gilmer County, West Virginia, denying his
motions to dismiss forty-three counts of a sixty-three count indictment and to grant him a
new trial, and sentencing petitioner to an effective sentence of 112 to 145 years in prison.
The sentence is based upon petitioner’s jury conviction on sixty-three counts2 relating to
sexual assault, sexual abuse, sexual abuse by a parent, guardian, custodian or person in a
position of trust, and attempted sexual abuse by a parent, guardian, custodian or person in a
1
Pursuant to West Virginia Rule of Appellate Procedure 40(e), we identify both
petitioner and the child victims in this case by their initials. See also State v. Edward Charles
L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990) (stating that “[c]onsistent with
our practice in cases involving sensitive matters, we use the victim’s initials. Since, in this
case, the victims are related to the appellant, we have referred to the appellant by his last
name initial. See Benjamin R. v. Orkin Exterminating Co., 182 W. Va. 615, 390 S.E.2d 814
n. 1 (1990) (citing In re Jonathan P., 182 W. Va. 302, 303, 387 S.E.2d 537, 538 n. 1 (1989));
State v. Murray, 180 W. Va. 41, 44, 375 S.E.2d 405, 408 n. 1 (1988).”).
2
Also included in the sixty-three counts was a misdemeanor count of providing
alcohol to a minor in violation of West Virginia Code § 60-3A-24(c) and a misdemeanor
count of making harassing phone calls in violation of West Virginia Code § 61-8-16(a)(4).
1
position of trust of both petitioner’s daughter, A.H., and her friend, J.B.3 Respondent, by
counsel J. Zak Ritchie and Thomas M. Johnson, Jr., filed a response to which petitioner
replied.4 We note at the outset that petitioner does not challenge any of his convictions for
sexually assaulting J.B. and A.H., sexually abusing J.B. and A.H., or providing alcohol to
J.B.5
Petitioner raises the following assignments of error: 1) the indictment alleged a bare
solicitation in support of the attempted sexual abuse by a parent counts and, therefore, he was
deprived of the constitutionally required notice because a solicitation is an insufficient overt
act to support an attempt charge; 2) the proof at trial offered by respondent went beyond the
bare solicitation noticed in the indictment to include the allegation that petitioner tried to
physically direct A.H. to the bedroom, thereby creating a fatal variance to the indictment
which prejudiced petitioner; 3) the indictment charged petitioner with “Making Harassing
Telephone Calls During which Conversation Ensues,” West Virginia Code § 61-8-16(a)(4),
but alleged as a factual predicate that he only left text and voicemail messages, conduct that
the statute does not prohibit;6 and 4) the evidence introduced at trial was insufficient to
3
See W. Va. Code § 61-8B-4(a)(1) (pertaining to sexual assault in second degree); §
61-8D-5(a) (pertaining to sexual abuse by parent, guardian, custodian or person in position
of trust or attempt thereof and sometimes referred to herein as “attempted sexual abuse by
a parent”); § 61-8B-7(a)(1) (pertaining to sexual abuse in first degree).
4
Respondent initially filed a summary response. Given the poor quality of that
response, this Court, by order entered on April 6, 2016, directed respondent to file “a new
respondent’s brief which include[d] some modicum of legal reasoning and accurate and
complete citations to the record and relevant law[.]” Respondent complied with this directive
and petitioner filed a second reply brief in response.
5
Based upon the remaining counts in the indictment upon which petitioner stands
convicted, and none of which petitioner challenges on appeal, petitioner maintains that he
will remain sentenced to approximately 82 to 185 years in prison if the Court reverses his
convictions on all the counts he challenges.
6
Petitioner did not challenge count 10 regarding making harassing telephone calls to
J.B. in violation of West Virginia Code § 61-8-16(a)(4) below and raises this issue for the
first time on appeal. Rule 12(b)(2) of the West Virginia Rules of Criminal Procedure
provides that pretrial motions that “must be raised prior to trial[,]” include “[d]efenses and
objections based on defects in the indictment or information. . . .” (Emphasis added).
Further, we held in syllabus point one of State v. Miller, 197 W. Va. 588, 476 S.E.2d 535
(continued...)
2
convict petitioner of ten of the counts alleging attempted sexual abuse by a parent and two
counts involving first degree sexual abuse and sexual abuse by a parent for petitioner
allegedly touching his daughter’s breasts.
Upon review of the parties’ briefs and oral arguments, the appendix record including
supplements thereto, and the pertinent authorities, we affirm the circuit court, in part, and
reverse, in part, on the grounds that there was insufficient evidence to convict petitioner for
eight7 of the counts charging attempted sexual abuse by a parent, as well as two counts
involving first degree sexual abuse and sexual abuse by a parent based upon allegations that
petitioner touched his daughter’s breasts. This case is remanded so that the circuit court can
resentence petitioner consistent with this memorandum decision.
This case does not present a new or significant question of law, and, therefore, it is
properly disposed of through this memorandum decision. For the errors upon which we
reverse, the “limited circumstance” requirement of Rule 21(d) of the Rules of Appellate
Procedure is satisfied. As for the remaining assigned errors upon which we affirm, 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.
6
(...continued)
(1996):
Rule 12(b)(2) of the West Virginia Rules of Criminal
Procedure requires that a defendant must raise any objection to
an indictment prior to trial. Although a challenge to a defective
indictment is never waived, this Court literally will construe an
indictment in favor of validity where a defendant fails timely to
challenge its sufficiency. Without objection, the indictment
should be upheld unless it is so defective that it does not, by any
reasonable construction, charge an offense under West Virginia
law or for which the defendant was convicted.
Accord Syl. Pt. 6, State v. Chic-Colbert, 231 W. Va. 749, 749 S.E.2d 642 (2013). In light of
the foregoing standard of review, we find that this count in the indictment was not “so
defective that it does not, by any reasonable construction, charge an offense under West
Virginia law or for which the defendant was convicted.” Miller, 197 W. Va. at 592-93, 476
S.E.2d at 539-40. Consequently, we find no merit to petitioner’s assignment of error
concerning this count in the indictment.
7
See infra notes 8 and 9.
3
I. Indictment/Motions to Dismiss
In the instant appeal petitioner challenges counts 11 through 40 and 54 through 638
contained within the indictment returned against him on November 9, 2012.9 Each of these
counts charged petitioner with attempted sexual abuse of a child by a parent under West
Virginia Code § 61-8D-5(a). Petitioner argued below and now before this Court that there
was nothing alleged about an overt act in these counts charging attempted sexual abuse,
which is a necessary element for any attempt count, making the indictment insufficient. See
Syl. Pt. 1, State v. Burd, 187 W. Va. 415, 419 S.E.2d 676 (1991) (“In order to constitute the
crime of attempt, two requirements must be met: (1) a specific intent to commit the
underlying substantive crime; and (2) an overt act toward the commission of that crime,
which falls short of completing the underlying crime.” Syl. Pt. 2, State v. Starkey, 161 W. Va.
517, 244 S.E.2d 219 (1978).”).
Petitioner moved to dismiss the indictment as being insufficient due to the numerous
similar, but separate, counts of sexual abuse committed over a period of several months.10
Subsequent to this motion being filed below, this Court issued Ballard v. Dilworth, 230 W.
Va. 449, 739 S.E.2d 643 (2013). In Dilworth, we found that an indictment containing ten
identically worded and factually indistinguishable counts of sex abuse by a guardian to be
8
Petitioner’s challenge to count 11 and count 54 of the indictment is without support.
Both counts allege that petitioner either committed or attempted to commit sexual abuse by
a parent in violation of West Virginia Code § 61-8D-5(a). Neither of these two counts was
subject to the motion to dismiss the indictment that petitioner filed after respondent provided
its bill of particulars. Moreover, the additional language provided by respondent regarding
count 11 as part of the bill of particulars was that “[d]efendant undressed in the presence of
his fourteen (14) year old daughter, grabbed her hand and attempted to place her hand on his
penis[]” undeniably sets forth an overt act. A.H.’s trial testimony supported the allegations
in this count. Further, in the bill of particulars, respondent added the following language to
count 54: “Defendant did, on or about the 26th day of June, 2012, in the marital bedroom,
forcibly, against his daughter’s protests, penetrate his daughter’s vagina with his penis.” Our
review of the trial transcript demonstrates that A.H.’s testimony supported the allegations
contained in both count 11 and 54. As such, the jury’s conviction on these two counts will
not be disturbed on appeal.
9
Accordingly, at issue in this appeal are thirty-eight counts out of sixty-three counts
in the indictment that concern the attempt to commit sexual abuse by a parent.
10
In this motion to dismiss, petitioner raised no argument regarding the sufficiency of
the attempt counts on the basis that those counts lacked allegations of overt acts.
4
constitutionally sufficient. Id. at 458-59, 739 S.E.2d at 652-53. Consequently, the circuit
court determined, based upon Dilworth, that no counts in the indictment should be dismissed.
Thereafter, petitioner moved for a bill of particulars, requesting respondent to identify
the specific acts committed by him that supported counts in the indictment. Respondent filed
a bill of particulars, wherein a copy of each count in the indictment was provided with certain
additional language italicized. In pertinent part, for counts 12 through 40, respondent
provided a copy of each respective count from the indictment and then added the following
language: “Defendant pled with his minor daughter to have intercourse with him.”
Concerning counts 55 through 63, the respondent produced copies of each count as they
appeared in the indictment and then added the language: “Defendant relentlessly, continually
and insistently pursue[d] sexual intercourse by verbal proposition to his daughter.”
Petitioner filed a second motion to dismiss the indictment on June 21, 2013. In this
motion, petitioner argued, in relevant part, that counts 12 through 40 and 55 through 63
should be dismissed because “the description of events does not meet the elements of the
offense charged in that the allegations is [sic] that the Defendant requested the contact
verbally but took no action to attempt the contact.” The circuit court denied the motion,
finding that: 1) the indictment set forth the statutory language and was sufficient to apprise
petitioner of the crimes charged; and 2) the issues regarding the attempt counts were best
addressed at the close of respondent’s evidence. The court stated: “[T]he statute says
attempt and i[t] becomes a question of fact for the jury, if the jury believes that, in fact, he
proposition[ed] the victims . . . and whether or not that is an attempt within the statute. The
jury will be adequately instructed. The [c]ourt will consider that argument once I hear the
evidence.”11
II. Facts
The evidence offered during petitioner’s two-day jury trial was that on the evening
June 30, 2012, J.B., who was a friend of petitioner’s daughter, A.H., spent the night with
A.H. in petitioner’s home where A.H. also lived. There was no electricity in the house that
evening because of a recent storm.12 Also, J.B. testified that she had no cell service because
of the storm. According to J.B.’s testimony, petitioner provided alcohol to both girls and they
11
The trial was continued until March of 2014 when petitioner’s trial counsel moved
to withdraw and the circuit court appointed a new attorney for petitioner. Petitioner’s new
counsel also moved the circuit court to dismiss the attempt counts on the same grounds
already decided by the circuit court. Thus, the circuit court again denied the motion.
12
J.B. testified that the storm was the derecho that had moved through West Virginia.
5
became very intoxicated. Eventually A.H. went to her bedroom for the night and J.B. slept
on the couch in the living room.
J.B. testified that around 1:00 a.m. petitioner came into the living room and “rolled
. . . [J.B.] over and said seductive things” to her. J.B. said that she told petitioner no “several
times and he said he wouldn’t take no as an answer.” Petitioner eventually started touching
J.B., including in her “privates,” which J.B. said meant her vagina. J.B. testified that
petitioner began taking her shorts off and “then he inserted his finger in me.” This encounter
occurred over a ten minute period. Petitioner left the living room.
J.B. kept checking her cell phone for service so that she could call home, but her
phone continued to be without service. Around 3:00 a.m., J.B. testified that petitioner came
back into the living room. J.B. stated that she was awakened to petitioner taking off her
shorts again. “I told him to go back to bed where his wife was and to leave me alone and I
told him to stop[.]” J.B. stated that he penetrated her digitally again and placed her hand on
his penis, despite her repeatedly telling him “no.”
Petitioner again left the room only to return a third time. J.B. begged him to leave her
alone. This time petitioner forced J.B. to kiss him by forcing himself on her.
The next day, J.B. testified that she was scared and did not know “who to tell or how
to explain it because I was embarrassed, so I didn’t tell anybody.” A.H., not knowing the
events J.B. experienced the night before, “begged” J.B. to stay with her again. This second
night, the two girls went to A.H.’s room and locked the doors. J.B. testified that she felt that
something was wrong with A.H. J.B. also testified that A.H. “seemed scared.” According
to J.B., A.H. had not told her anything about her father’s actions towards A.H. at that point.
J.B. testified that petitioner did not physically abuse her again. She stated, however,
that he pursued her by sending her text messages and calling her on her cell phone and
leaving her voicemail messages. The evidence introduced at trial showed that petitioner sent
J.B. about 111 text messages and left twelve voicemail messages. J.B. testified that she
responded to one of petitioner’s text messages and told him that if he sent her another
message, she would tell her father. Petitioner continued sending text messages to J.B.
J.B. testified that on July 5, 2012, petitioner, who had been stalking her, came into the
weight room at her high school where she was lifting weights. He came into the room three
times, asking her to leave with him and she would not leave with him. At this point, J.B. told
a fellow student, who was in the weight room at the time petitioner came into the room. J.B.
and her classmate then went to the classmate’s mother, who was a teacher at the school. The
teacher then informed J.B.’s mother and petitioner’s conduct was reported to the West
6
Virginia State Police.
Corporal Robert Smith with the West Virginia State Police testified that he
investigated the allegations made by J.B., which resulted in the police obtaining an arrest
warrant for petitioner and a search warrant for petitioner’s residence on July 6, 2012. The
State Police arrested petitioner. As a result of the State Police executing the search of
petitioner’s home, Corporal Smith encountered A.H. Corporal Smith testified that A.H. came
out of her bedroom looking “like a scolded dog. You know, like when you whip a dog, her
head was down, she didn’t want to make eye contact with us.” Corporal Smith stated that
he had a “gut feeling that there was something more here.” Corporal Smith testified that he
spoke with A.H. on three occasions.13
A.H. testified at trial and stated that going back to 2011, when she and her family
lived in Cedarville, West Virginia, petitioner would proposition her to have sex. A.H.
testified: “I’d just be doing stuff around the house or I would be doing chores and he would
come up to me and ask me if I wanted to have fun or if I wanted to go do something or he
had something to show me.” A.H. testified that she came to understand that what petitioner
meant was that “[h]e wanted to have sex.”14
A.H. stated that between 2011 through February 14, 2012, while they were living in
Cedarville, petitioner propositioned her “nine or ten times.” In February 14, 2012, petitioner
and his family moved to Glenville, West Virginia. A.H. testified that her father continued
to proposition her “to have sex, have fun, show you something[]” in their new home.
According to A.H., petitioner’s propositioning of her occurred, “double” the number of times
that occurred in Cedarville. She stated “[a]t least double that again, 20 times and many more.
I don’t know, just over and over.” During cross-examination of A.H., however, petitioner’s
attorney asked A.H.: “That you had had . . . [petitioner] proposition you for sex at least 30,
40 times in Cedarville and Glenville from June of ‘11 up until July of – July 5th of 2012, is
that fair to say?” A.H. responded: “Approximately 30 times, yeah.”
There was also detailed testimony from A.H. that in June of 2012 petitioner raped her
in their Glenville home. A.H. also testified to other occasions when her father touched her
sexually while they lived in Glenville. Petitioner threatened his daughter to keep quiet about
13
Corporal Smith testified that he spoke with A.H. briefly that night and again the next
day. The third statement was obtained on July 25, 2012.
14
A.H. also testified that petitioner “would grab my arm and try to tug me towards the
bedroom.” Her testimony, however, was unclear as to whether this occurred every time he
propositioned her.
7
the sexual abuse and rape, otherwise A.H. “would wreck the family and ruin his marriage.”
At the close of the State’s case, petitioner moved for a judgment of acquittal on the
attempt counts. Petitioner did not testify and did not offer any evidence on his behalf. After
deliberating, the jury returned a verdict convicting petitioner of all sixty-three counts in the
indictment.
Petitioner filed a post-trial motion to dismiss forty counts alleged in the indictment
pertaining to the attempted sexual abuse by a parent. Further, he moved to set aside the
verdict and to grant him a new trial on the basis that the circuit court improperly allowed the
attempt counts to go to the jury, because they were not supported by an overt act. The circuit
court heard the motions at the sentencing hearing and denied both motions. The circuit court
imposed an effective sentence of 112 to 145 years for the sixty-three counts. This appeal
followed.
III. Discussion
We begin by addressing whether the allegations set forth in the indictment are
sufficient to support the attempted sexual abuse by a parent counts. See W. Va. Code § 61­
8D-5(a). Petitioner argues that “a bare solicitation15 is an insufficient overt act to support a
charge of attempted sexual abuse by a parent.” (Footnote added). According to petitioner,
the indictment “failed to notify” him concerning those counts. As petitioner argues, the
allegation charging him “with attempting to sexually abuse A.H. by ‘propositioning’” her
failed to put him on notice because “conduct which would have been a mere solicitation at
common law cannot be an overt act towards an attempt.” Respondent counters that the
counts charging petitioner with attempted sexual abuse by a parent were constitutionally
sufficient. We agree.
15
At first glance, petitioner’s argument suggests that he could have been charged with
solicitation. Petitioner expressly maintains, however, that his argument is not that respondent
charged him with the wrong crime, “but rather that it did not supply sufficient factual
allegations to sustain the crime it did charge.” Respondent could not have charged petitioner
with solicitation as set forth in West Virginia Code § 61-11-8a (setting forth elements of
solicitation to commit certain felonies). The solicitation statute is very specific as to the
crimes for which there can be solicitation and sexual abuse by a parent, West Virginia Code
§ 61-8D-5(a), is not one of those crimes subject to West Virginia Code § 61-11-8a. But see
W. Va. Code § 61-3C-14b (relating to soliciting minor via computer and soliciting minor
and traveling to engage minor in prohibited sexual activity).
8
This Court previously held in syllabus point two of Miller that “[g]enerally, the
sufficiency of an indictment is reviewed de novo. An indictment need only meet minimal
constitutional standards, and the sufficiency of an indictment is determined by practical
rather than technical considerations.” 197 W. Va. at 593, 476 S.E.2d at 540, Syl. Pt. 2. As
we held in syllabus points three and four of Dilworth:
“‘An indictment for a statutory offense is sufficient if, in
charging the offense, it substantially follows the language of the
statute, fully informs the accused of the particular offense with
which he is charged and enables the court to determine the
statute on which the charge is based.’ Syl. Pt. 3, State v. Hall,
172 W. Va. 138, 304 S.E.2d 43 (1983).” Syl. Pt. 1, State v.
Mullins, 181 W. Va. 415, 383 S.E.2d 47 (1989).
“‘An indictment is sufficient under Article III, § 14 of the
West Virginia Constitution and W. Va. R. Crim. P. 7(c)(1) if it
(1) states the elements of the offense charged; (2) puts a
defendant on fair notice of the charge against which he or she
must defend; and (3) enables a defendant to assert an acquittal
or conviction in order to prevent being placed twice in
jeopardy.’ Syl. Pt. 6, State v. Wallace, 205 W. Va. 155, 517
S.E.2d 20 (1999).” Syl. Pt. 5, State v. Haines, 221 W. Va. 235,
654 S.E.2d 359 (2007).”
Dilworth, 230 W. Va. at 449, 739 S.E.2d at 644, Syl. Pts. 3 and 4.
The statute at issue is West Virginia Code § 61-8D-5(a), which provides, in relevant
part:
If any parent, guardian or custodian of or other person in a
position of trust in relation to a child under his or her care,
custody or control, shall engage in or attempt to engage in
sexual exploitation of, or in sexual intercourse, sexual intrusion
or sexual contact with, a child under his or her care, custody or
control, . . . then such parent, guardian, custodian or person in
a position of trust shall be guilty of a felony and, upon
conviction thereof, shall be imprisoned in a correctional facility
not less than ten nor more than twenty years. . . .
(Emphasis added).
9
We have held that an attempt to commit a crime requires both criminal intent to
commit the underlying crime and an overt act toward the commission of that crime. See
Burd, 187 W. Va. at 415, 419 S.E.2d at 676, Syl. Pt. 1.16 Thus, in this case, there must be an
overt act toward the commission of sexual abuse by a parent. Id.
From our review of the appendix record, the counts at issue involving the attempted
sexual abuse by a parent of A.H. track the language of West Virginia Code § 61-8D-5(a), set
forth the elements of the offense charged, place petitioner on fair notice of the charges
against which he must defend and enable him to assert an acquittal or conviction in order to
avoid double jeopardy. See Dilworth, 230 W. Va. at 449, 739 S.E.2d at 644, Syl. Pt. 3.
Moreover, the crux of petitioner’s position is that the “propositioning” or
“solicitation” of his daughter amounts to nothing more than simple words that fail to satisfy
the overt act requirement for attempt. To trivialize petitioner’s conduct in this case to
nothing more than words would be disingenuous at best. Rather, the petitioner’s overt acts
within the context of a father and minor daughter relationship where he repeatedly tried to
lure his daughter to engage in numerous sexual encounters with him are sufficient to
establish the elements of the crimes charged.17 We therefore affirm the circuit court’s
decision to deny the motion to dismiss these counts.
Next, we address whether respondent failed to introduce sufficient evidence to convict
petitioner of ten counts of attempted sexual abuse by a parent and two counts of first degree
sexual abuse and abuse by a parent for touching A.H.’s breasts. Petitioner argues that the
16
Petitioner also relies upon State v. Baller, 26 W. Va. 90 (1885). In Baller, in
resolving the issue of whether an indictment was sufficient to charge the crime of attempt to
obstruct and impede the administration of justice at common law, we acknowledged under
common law that “mere solicitations to commit a crime” would not make “a party indictable
for an attempt to commit” a crime. Id. at 101. As Baller was decided under the common law
it is easily distinguishable from the instant matter and we therefore decline to rely upon it.
17
Because we find that petitioner’s conduct alleged in the indictment was sufficient
to support the attempted sexual abuse counts by a parent challenged by petitioner, we need
not address petitioner’s assigned error of whether the evidence offered at trial that petitioner
physically directed petitioner towards his bedroom created a fatal variance and prejudiced
petitioner. See Syl. Pt. 3, State v. Corra, 223 W. Va. 573, 575, 678 S.E.2d 306, 308 (2009)
(“‘A conviction based upon evidence that varies materially from the charge contained in the
indictment cannot stand and must be reversed.’ Syllabus Point 3, State v. Nicholson, 162 W.
Va. 750, 252 S.E.2d 894 (1979), overruled on other grounds by State v. Petry, 166 W. Va.
153, 273 S.E.2d 346 (1980).”).
10
evidence at trial supports only thirty counts of attempted sexual abuse, not the forty for which
he stands convicted. Further, he argues that there was no evidence to support his conviction
for the counts involving the touching of his daughter’s breasts.
We are guided by the following standard of review in our examination of this issue:
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). We also held in
syllabus point three of Guthrie:
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.
Id. at 663, 461 S.E.2d at 169, Syl. Pt. 3, in part.
Based upon our review of the record, A.H. testified that her father attempted to
sexually abuse her thirty times. Specifically, A.H. testified that her father attempted to
sexually abuse her “[n]ine or ten times[]” at the Cedarville home and then “[a]t least double
that again, 20 times and many more[]” in the Glenville home. On cross-examination,
however, A.H. was asked whether petitioner had propositioned her for sex “at least 30, 40
times in Cedarville and Glenville from June of ‘11 up until July of – July 5th of 2012, is that
11
fair to say?” A.H. responded: “Approximately 30 times, yeah.” Therefore, the evidence
offered at trial only supports thirty counts of attempt to commit sexual abuse by a parent and,
therefore, petitioner’s conviction on the remaining eight counts must be vacated.18
Furthermore, after review of all the evidence offered at trial, A.H. never testified to
petitioner touching her breasts. Respondent conceded during oral argument before this Court
that there was no specific reference to support petitioner touching A.H.’s breasts in the
evidence offered at trial. Consequently, petitioner’s conviction on count 43 concerning
sexual abuse in the first degree and count 44 concerning sexual abuse by a parent are not
supported by the evidence and those two counts are therefore vacated.
Consequently, other than the specific ten counts referenced above that are vacated,
petitioner stands firmly convicted by a jury of the remaining fifty-three counts with which
he was charged.
IV. Conclusion
For the foregoing reasons, we affirm the circuit court’s August 14, 2014, order, in
part, and reverse, in part, and remand the case to the circuit court for resentencing of
petitioner consistent with this memorandum decision.
Affirmed, in part;
Reversed, in part, and remanded.
ISSUED: November 10, 2016
CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II
18
See supra notes 8 and 9.
12