State of West Virginia v. Charles C. ( 2021 )

FILED
October 13, 2021
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. 19-1157 (Marshall County 19-F-32)
Charles C.,
Defendant Below, Respondent
MEMORANDUM DECISION
Petitioner Charles C., 1 by counsel Matthew Brummond, appeals the November 22, 2019,
order of the Circuit Court of Marshall County imposing concurrent sentences of five to twenty-
five years of incarceration for first-degree sexual abuse and ten to twenty years of incarceration
for sexual abuse by a person in a position of trust. Respondent State of West Virginia, by counsel
Andrea Nease Proper, filed a response in support of the circuit court’s order. Petitioner filed a
reply.
The 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 July of 2019, petitioner was indicted in the Circuit Court Marshall County on one count
of first-degree sexual abuse and one count of sexual abuse by a person in a position of trust.
According to the indictment, on March 12, 2019, petitioner engaged in sexual contact with the
victim, P.W., “by rubbing her vagina with his hand on top of her clothing” when petitioner was
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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thirty-seven years old and P.W. was nine years old. With regard to count II, the indictment further
alleged that petitioner was a person in a position of trust in relation to P.W. due to “having the
general supervision of P.W.’s welfare.”
Prior to March 12, 2019, petitioner and his wife and stepchildren had been staying at the
same house as P.W. and her mother and siblings for several months. Petitioner concedes that
P.W.’s mother “had, in the past, asked [p]etitioner and his wife to watch the child[.]” On March
12, 2019, P.W.’s mother believed that petitioner and his wife would be gone from the house;
therefore, P.W.’s mother asked two other individuals to come to the house to babysit P.W. while
she attended a funeral. However, petitioner and his wife never left the house that day. Petitioner’s
wife and the two babysitters prepared lunch in the kitchen, while petitioner watched television
with the children in the living room. According to petitioner, “[w]hen the meal was ready, one of
the babysitters went into the living room and believed she saw [p]etitioner’s hand between [P.W.]’s
legs.” Thereafter, the babysitters contacted law enforcement.
As to petitioner’s status as a person in a position of trust, P.W. testified at trial (1) that
petitioner and his wife watched her while they were staying at her house; (2) that she was expected
to listen to petitioner when he watched her; (3) and that, at the time of the incident, petitioner was
the only adult in a room with four children, including a two-year-old. Petitioner testified at trial
that there would be as many as ten kids at the house during weekends and that only two of the
adults would take care of the children. On cross-examination, petitioner testified that the two adults
who would take care of the children were “myself and my wife,” but asserted that, while his wife
would take care of other people’s children, including P.W., he had responsibility only for his
stepchildren’s welfare. Petitioner stated that the children residing at the house referred to him as
“Uncle C[.]” because he “pretty much looked at their mom and their dad as a brother and sister.”
Petitioner further testified that he was responsible for disciplining “some” of the children—“[j]ust
not [P.W. and her siblings].”
At the beginning of its charge to the jury, the circuit court stated that “[a]ll of the
instructions should be considered together as a connected series and you are to regard each
instruction in light of all others” and that “[t]he instructions, as a whole, are to be regarded as the
law applicable to the case.” The circuit court further stated that “[t]he presumption of innocence
alone is sufficient to acquit a [d]efendant, unless the jurors are satisfied beyond a reasonable doubt,
of the [d]efendant’s guilt, after careful and impartial consideration of all the evidence of the case.”
Next, the circuit court instructed the jury that “the burden is always upon the prosecution to prove
guilt beyond a reasonable doubt” and “[t]he burden never shifts to the [d]efendant.” The circuit
court further instructed that,
if the [j]ury, after careful and impartial consideration of all the evidence in the case,
has a reasonable doubt that the [d]efendant is guilty of the charge, it must acquit. If
the [j]ury views the evidence as reasonably permitting either of two (2)
conclusions—one (1) of innocence and the other of guilt—the [j]ury must adopt the
conclusion of innocence.
The circuit court gave two instructions regarding sexual abuse by a person in a position of
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trust. The circuit court’s first instruction substantially tracked the language of West Virginia Code
§ 61-8D-5(a) and provided that
[s]exual [a]buse by a [p]arent, [g]uardian, [c]ustodian or [p]erson in a [p]osition of
[t]rust is committed when any parent, guardian, custodian or person in a position of
trust of a child under his or her care, custody or control engages in or attempts to
engage in sexual intercourse or sexual contact with a child under his or her care,
custody or control, notwithstanding the fact that the child may have willingly
participated in such conduct, or the fact that the child may have consented to such
conduct or the fact that the child may have suffered no apparent physical injury or
mental or emotional injury as a result of such conduct.[ 2]
(emphasis and footnote added). The circuit court’s second instruction further provided that
[b]efore [petitioner] can be convicted of [s]exual [a]buse by a [p]arent, [g]uardian,
[c]ustodian or [p]erson in a [p]osition of [t]rust [o]f a [c]hild the State of West
Virginia must overcome the presumption that he is innocent and prove to the
satisfaction of the jury beyond a reasonable doubt that:
1) [Petitioner],
2) in Marshall County, West Virginia,
3) on or about the 12th day of March 2019,
4) did engage in sexual contact with P.W., a child as charged in [c]ount II,
5) while being a [p]erson in a [p]osition of [t]rust of said child.
2
West Virginia Code § 61-8D-5(a) provides, as follows:
In addition to any other offenses set forth in this code, the Legislature hereby
declares a separate and distinct offense under this subsection, as follows: 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, notwithstanding the
fact that the child may have willingly participated in such conduct, or the fact that
the child may have consented to such conduct or the fact that the child may have
suffered no apparent physical injury or mental or emotional injury as a result of
such conduct, 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, or fined not less
than $500 nor more than $5,000 and imprisoned in a correctional facility not less
than ten years nor more than twenty years.
(emphasis added).
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Finally, the circuit court gave the jury the definition of a “person in a position of trust in relation
to a child” set forth in West Virginia Code § 61-8D-1(13), which provides, in pertinent part, that
a person in a position of trust includes “someone responsible for the general supervision of a child’s
welfare.” There was no objection raised by petitioner to the circuit court’s jury instructions.
After being instructed, the jury deliberated and found petitioner guilty of first-degree sexual
abuse and sexual abuse by a person in a position of trust. By order entered on November 22, 2019,
the circuit court imposed concurrent sentences of five to twenty-five years of incarceration for
first-degree sexual abuse and ten to twenty years of incarceration for sexual abuse by a person in
a position of trust. It is this November 22, 2019, sentencing order that petitioner now appeals,
arguing that his conviction for sexual abuse by a person in a position of trust must be reversed due
to plain error in the jury instructions.
“In reviewing the adequacy of a trial court’s choice and selection of jury instructions, we
accord the trial court much discretion and will not reverse provided that the instructions, taken as
a whole, adequately state the controlling law.” State v. Derr, 192 W. Va. 165, 179, 451 S.E.2d
731, 745 (1994). In Syllabus Point 6 of State v. Milam, 159 W. Va. 691, 226 S.E.2d 433 (1976),
we held that, “[w]hen instructions are read as a whole and adequately advise the jury of all
necessary elements for their consideration, the fact that a single instruction is incomplete or lacks
a particular element will not constitute grounds for disturbing a jury verdict.” As noted above,
petitioner did not object to the jury instructions. “[I]n West Virginia criminal cases[,] the sole bases
for attacking an unobjected to jury charge are plain error and/or ineffective assistance of counsel.”
State v. Miller, 194 W. Va. 3, 17 n.23, 459 S.E.2d 114, 128 n.23 (1995). In Syllabus Point 7 of
Miller, we held that plain error consists of: “(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.” Id. at 7, 459 S.E.2d at 118.
On appeal, the parties agree that West Virginia Code § 61-8D-5(a) requires that the jury be
instructed that the child must be in the defendant’s “care, custody, and control” and that the only
way petitioner can show that the jury was erroneously instructed is by showing plain error. 3
Petitioner argues that it was plain error for the circuit court to omit “care, custody, and control”
from its jury charge. The State counters that petitioner cannot show plain error because—as
petitioner acknowledges—the circuit court gave an instruction that tracked the language of West
Virginia Code § 61-8D-5(a). Specifically, the State notes that the circuit court’s instruction
provided that the offense of sexual abuse by a person in a position of trust is committed when a
person in a position of trust of a child in that person’s “care, custody, and control” sexually abuses
that child.
In his reply, petitioner argues that the circuit court erroneously instructed the jury that it
could convict him of sexual abuse by a person in a position of trust without finding that P.W. was
in his care, custody, and control. We note that—prior to giving the instruction that an offense is
committed when a person in a position of trust of a child in his “care, custody, and control” sexually
abuses that child—the circuit court instructed the jury as to the presumption of innocence, the
3
Petitioner does not argue that there was ineffective assistance of counsel.
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State’s burden to prove guilt beyond a reasonable doubt, and the duty to acquit petitioner if the
jury had a reasonable doubt that petitioner was guilty of the offense. Furthermore, we find that, in
P.W.’s testimony, there was evidence on which the jury could find that the child was in petitioner’s
care, custody, and control in that P.W. testified (1) that petitioner and his wife watched her while
they were staying at her house; (2) that she was expected to listen to petitioner when he watched
her; (3) and that, at the time of the incident, petitioner was the only adult in a room with four
children, including a two-year-old. Accordingly, we find that there was no plain error in the jury
instructions affecting either petitioner’s substantial rights or the fairness, integrity, or public
reputation of the judicial proceedings. See Miller, 194 W. Va. at 18, 459 S.E.2d at 129 (stating that
“the plain error ‘doctrine is to be used sparingly and only in those circumstances where substantial
rights are affected, or the truth-finding process is substantially impaired, or a miscarriage of justice
would otherwise result’”) (quoting Syl. Pt. 4, in part, State v. England, 180 W. Va. 342, 376 S.E.2d
548 (1988) (some internal quotations omitted)). Therefore, we conclude that there is no reason to
disturb the jury’s verdict finding petitioner guilty of sexual abuse by a person in a position of trust.
For the foregoing reasons, we affirm the circuit court’s November 22, 2019, sentencing
order imposing concurrent sentences of five to twenty-five years of incarceration for first-degree
sexual abuse and ten to twenty years of incarceration for sexual abuse by a person in a position of
trust.
Affirmed.
ISSUED: October 13, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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