State of West Virginia v. Heney W.J. ( 2017 )

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. 16-0088 (Kanawha County 15-F-635; 15-F-119) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Henry W. J.,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Henry W. J., by counsel C. Joan Parker, appeals his convictions for the
offenses of sexual assault and sexual abuse. Respondent State of West Virginia, by counsel
Gordon L. Mowen, II, filed a response. Petitioner submitted a reply brief.
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.
In October of 2015, petitioner was indicted by a Kanawha County Grand Jury in a
fourteen count indictment alleging three counts of first degree sexual assault in violation of West
Virginia Code § 61-8B-3(c); five counts of sexual abuse by a parent, guardian, custodian, or
person in a position of trust in violation of West Virginia Code § 61-8D-5; two counts of sexual
abuse in the first degree in violation of West Virginia Code § 61-8B-7(c); and four counts of
unlawful possession or distribution of material portraying a minor engaged in sexually explicit
conduct in violation of West Virginia Code § 61-8C-3. The sexual assault and abuse counts stem
from several incidents that occurred between petitioner and an eight-year old child, K.D. (“the
victim.”)1 The unlawful possession counts stem from sexually explicit photographs of other
children found on petitioner’s computer. The offenses were discovered when the victim’s cousin
found the victim looking at explicit pictures on petitioner’s computer. She inquired of the victim,
and the victim disclosed that petitioner was sexually abusing her.
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).
1
Ms. Maureen Runyon, a forensic interviewer with the Child Advocacy Center at Women
and Children’s Hospital conducted a forensic interview of the victim. During the interview, the
victim disclosed that petitioner touched her with his finger, a vibrator, and his penis; that he
performed oral sex upon her, and forced her to perform oral sex upon him. Law enforcement
recovered and seized petitioner’s computer, and found several pictures depicting juveniles in
graphic sexual positions.
At trial, the victim testified that she was eight years old and in the third grade when
petitioner began abusing her. The victim testified that petitioner forced her to perform oral sex
upon him, rubbed his penis on her vagina, touched her vagina with his fingers, and touched her
with a vibrator. The victim testified that petitioner told her that he would kill her if she told
anyone. The State also introduced evidence from Dr. Istafon, a pediatrician who specializes in
child abuse and neglect. Dr. Istafon testified that he examined the victim and that she had a very
deep tear in her hymen that was so severe that it is referred to as a “transection.” Dr. Istafon
testified further that this injury could not have been done by K.D. to herself. The State also
introduced evidence regarding the graphic photographs found on petitioner’s computer. At the
close of the State’s evidence, upon the motion of petitioner’s counsel, the photographs were
excluded and counts eleven through fourteen of the indictment were dismissed.2
Petitioner testified on his own behalf. Petitioner denied any wrongdoing, and claimed that
the victim’s family forced the victim to fabricate the claims. Petitioner’s counsel argued in
closing argument that the victim was embarrassed to be found looking at pornography, and so
made up the story to get out of trouble.
Before the jury deliberated, petitioner’s counsel requested that the trial court give a
curative instruction regarding the admissibility of the excluded photographs. The trial court
agreed, and the parties conferred and agreed upon the following instruction:
For reasons not important to your deliberations, I have dismissed counts 11
through 14 dealing with the child pornography. In considering your verdict on the
remaining counts, you should not consider the dismissal of counts 11 through 14
or the evidence, including the pictures, submitted in connection with those counts
for any purpose.
Following jury deliberations, petitioner was convicted of two counts of first degree
sexual assault; four counts of sexual abuse by a parent, guardian, custodian, or person in position
2
Counts eleven through fourteen of the indictment were dismissed because the State
failed to preserve potentially exculpatory evidence, in the form of an “extraction report” from
petitioner’s computer. The State’s expert, Roger Mosely, testified that he collected the materials
from petitioner’s computer, but did not save or document any information regarding when the
items were downloaded, or the browser history. After hearing the arguments of counsel, the trial
court found that the unsaved information could have been exculpatory and dismissed those
counts, and excluded the photographs from evidence.
2
of trust; and two counts of first degree sexual abuse. Petitioner’s trial counsel filed a post-trial
motion seeking acquittal, based upon false and misleading testimony presented to the grand jury;
the State’s failure to provide an extraction report, which led to the presentation of highly
prejudicial evidence to the jury; and insufficient evidence to convict. The trial court denied
petitioner’s motion on December 30, 2015, and sentenced petitioner to two terms of twenty-five
to one hundred years in the penitentiary for his convictions of first degree sexual assault; four
terms of ten to twenty years in the penitentiary, for his convictions of sexual abuse by a
custodian; and two terms of five to twenty-five years in the penitentiary for his convictions of
first degree sexual abuse. Petitioner’s sentences are to be served consecutively. Petitioner now
appeals his convictions from the Circuit Court of Kanawha County.
Petitioner raises several grounds on appeal. Since the alleged errors concern different
principles of law, the applicable standards of review will be incorporated into the discussion of
each issue. We note, however, that “‘[a] reviewing court should not reverse a criminal case on
the facts which have been passed upon the jury, unless the court can say that there is no
reasonable doubt of guilt and that the verdict must have been the result of misapprehension, or
passion and prejudice.’” Syl. Pt. 1, State v. Easton, 203 W. Va. 631, 510 S.E.2d 465 (1998)
(internal citations omitted).
Petitioner first asserts that Deputy Boner3 presented false and misleading testimony to the
grand jury, and that the State failed to correct the false and misleading testimony. Petitioner
asserts that Deputy Boner misled the grand jury when he testified that petitioner was alone in the
house with K.D. when the abuse occurred. Petitioner asserts that there is evidence that there were
other children present in the home when the incidents took place, and asserts that this fact is
exculpatory as no other children complained that petitioner abused them. Petitioner also asserts
that Deputy Boner testified that the victim was penetrated by petitioner’s penis. Petitioner asserts
that the victim never stated that this occurred. Petitioner argues that this false testimony tainted
the grand jury, and claims that as a consequence, the indictment in this matter should be
dismissed.
Criminal defendants have frequently sought to challenge the validity of grand jury
indictments on the ground that they are not supported by adequate or competent
evidence. This contention, however, often runs counter to the function of the
grand jury, which is not to determine the truth of the charges against the
defendant, but to determine whether there is sufficient probable cause to require
the defendant to stand trial.
State ex rel. Pinson v. Maynard, 181 W. Va. 662, 665, 383 S.E.2d 844, 847 (1989) (internal
citations omitted). Further, “[e]xcept for willful, intentional fraud the law of this State does not
permit the court to go behind an indictment to inquire into the evidence considered by the grand
jury, either to determine its legality or its sufficiency.” Syllabus, Barker v. Fox, 160 W. Va. 749,
238 S.E.2d 235 (1977). In addition, “[t]he law of this state does not permit the court to go behind
an indictment to inquire into the evidence considered by the grand jury, either to determine its
3
Deputy C.A. Boner of the Kanawha County Sheriff’s Department was the investigating
officer and testified before the grand jury.
3
legality or its sufficiency. Id. at 749, 750, 238 S.E.2d at 236.
Petitioner first complains that Deputy Boner improperly testified that the victim was
home alone with petitioner at the time of the abuse. The relevant testimony is as follows:
Grand Juror: Was he the only one in the house at the time? No grandmother?
The witness: No sir. It was at the mother’s residence. She lived with – he lived in
their basement and that’s how he become their – that’s how he babysitted (sic) her
while she went to school, because he stayed, because he stayed with them as a
grandparent, babysitter type deal.
It is clear from the officer’s answer that he was indicating that petitioner was not the only adult
living in the home at the time, and that this answer does not affirmatively respond that petitioner
was the only adult home at the time of the alleged assaults. Accordingly, petitioner does not
establish that the statement given by the officer was either untrue, or the subject of willful and
intentional fraud.
Petitioner also complains that Deputy Boner testified to the grand jury that the victim
stated that petitioner penetrated her female sex organ with his penis. The record reflects that
before the October Grand jury, Deputy Boner testified to that effect. We note that while there is
ample evidence that petitioner penetrated the victim’s female sex organ with his fingers and a
vibrator, the victim denied that petitioner penetrated her with his penis. However, petitioner was
not indicted on any charges that require proof of penetration with petitioner’s penis. In addition,
petitioner fails to show that Deputy Boner’s testimony was the result of willful and intentional
fraud. As a result, we find that petitioner’s argument has no merit and we decline to reverse the
jury’s convictions on that ground.
Petitioner next asserts that the trial court “fail[ed] to protect petitioner’s right to a fair
trial before an unbiased jury.” Petitioner complains that an exhibit that contained graphic
photographs, shown to the jury in the course of the State’s case in chief, improperly biased the
jury against him. Petitioner asserts that while the photographs were ultimately deemed
inadmissible and stricken from the record, and a curative instruction given, a “stronger” jury
instruction should have been given to the jurors. Petitioner also complains that the jurors should
have been given a copy of this instruction for reference during their deliberations.
The State argues, and we agree, that petitioner waived any error regarding this instruction
to the jury. The record reflects that after conferring with the parties, the trial court read the
proposed jury instruction aloud. The trial court then inquired, “Okay, is that good for
everybody.” To which petitioner’s counsel replied, “Yes. It would be even better if you could
read that three times.” We have held,
“[t]o preserve an issue for appellate review, a party must articulate it with such
sufficient distinctiveness to alert a circuit court to the nature of the claimed defect.
The rule in West Virginia is that parties must speak clearly in the circuit court, on
pain that, if they forget their lines, they will likely be bound forever to hold their
peace.”
4
State ex rel. Cooper v. Caperton, 196 W. Va. 208, 216, 470 S.E.2d 162, 170 (1996). It is clear
from the record herein that petitioner’s counsel did not object to the instruction, and, in fact,
pronounced that the revised instruction was “good.” Accordingly, we find no merit to this
assignment of error.
Petitioner also asserts that the evidence at trial was insufficient to sustain the convictions
returned against him4. Petitioner argues that the medical evidence presented by Dr. Istafon did
not support the victim’s testimony, and that there is insufficient evidence to prove that petitioner
penetrated the victim’s female sex organ, or caused her injury. After reviewing the record, we
find that the evidence presented at trial was sufficient to support petitioner’s convictions.
We have held that,
“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.” Syl. Pt. 3, State v. Guthrie, 194 W.Va.
657, 461 S.E.2d 163 (1995).
Syl. Pt. 5, State v. Broughton, 196 W. Va. 281, 470 S.E.2d 413 (1996). Further,
“‘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.’ Syl.
Pt. 2, State v. Bailey, 151 W.Va. 796, 155 S.E.2d 850 (1967).” Syllabus Point 2,
State v. Martin, 224 W.Va. 577, 687 S.E.2d 360 (2009).
Syl. Pt. 8, State v. McGilton, 229 W. Va. 554, 729 S.E.2d 876 (2012).
We note that petitioner does not specify which conviction he is challenging. Petitioner
was charged with multiple sexual offenses, each requiring proof of different facts. A review of
the relevant elements of the offenses to which petitioner was convicted reveals that there was
more than sufficient evidence to sustain all of the convictions against petitioner. Despite
petitioner’s complaints that there is insufficient evidence of penetration, the State was not
4
Petitioner does not specify which conviction he is challenging.
5
required to prove penetration of the victim’s female sex organ in order to obtain a conviction
against petitioner on any of the allegations.5
Furthermore, the testimony of the victim, that petitioner rubbed his penis on her female
sex organ, and touched her female sex organ with a vibrator, and forced her to [perform oral sex]
on him, is credible, relevant testimony. This testimony is bolstered by the physical evidence of
injury introduced by Dr. Istafon, who testified that the victim’s hymen was transected, and that
the victim could not have inflicted this injury upon herself.
“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).
Syl. Pt. 1, State v. McFarland, 228 W. Va. 492, 721 S.E.2d 62 (2011). Viewed in the light most
favorable to the prosecution there is more than sufficient evidence to sustain the convictions
against petitioner. Accordingly, we decline to reverse petitioner’s convictions on this ground.
Finally, petitioner asserts that the trial court should have granted his post-trial motion to
dismiss due to the above-referenced errors. Petitioner provides no argument regarding this
assignment of error, but claims that petitioner was denied fair treatment. As we find no error, we
find this argument to be without merit. Further, petitioner does not specifically cite the post-trial
motion to dismiss, or any authority to support his assertion. “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, Dep’t of Health & Human Res., Child Advocate Office on Behalf
of Robert Michael B. v. Robert Morris N., 195 W. Va. 759, 765, 466 S.E.2d 827, 833 (1995).
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: January 27, 2017
5
Counts one through ten of the indictment allege that petitioner unlawfully and
feloniously engaged in an act of sexual intercourse to wit: (1) contact between the male sex
organ of [petitioner] and the mouth of the victim (counts 1-2); (2) contact between petitioner’s
finger and the victim’s female sex organ (counts 3-4); (3) contact between a “vibrator” and
petitioner’s hand and the victim’s female sex organ (counts 5-6); and (4) contact between the
male sex organ of petitioner and the female sex organ of the victim, (counts 7-8).
6
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
7