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State v. A.C.

Supreme Court of West Virginia

May 19, 2017

State of West Virginia, Plaintiff Below, Respondent
v.
A.C., Defendant Below, Petitioner

         Marshall County 15-F-65, 15-F-66

          MEMORANDUM DECISION

         Petitioner A.C.[1], by counsel Jeremiah L. Gardner, appeals his convictions for the offenses of sexual abuse by a parent, guardian, custodian, or person in a position of trust, and first degree sexual abuse. The State of West Virginia, by counsel Benjamin F. Yancey, III, filed a response.

         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 November of 2015, a Marshall County grand jury indicted petitioner on four counts of sexual abuse by a parent, guardian, custodian, or a person in a position of trust to a child (Counts one through four), and five counts of first degree sexual abuse (Counts five through nine) against M.R., a minor. In a separate indictment, petitioner was charged with one count of sexual abuse by a parent, guardian, custodian or a person in a position of trust to a child, and one count of first degree sexual abuse against M.C., also a minor. Petitioner chose to have both indictments tried together, and was found guilty on all counts in both indictments.

         The evidence at trial revealed that in 1995, an Ohio court granted petitioner's wife, C.C., legal custody of M.R., and her brother, J.M.R. C.C. married petitioner in 1998 in West Virginia. The family moved to several states, including Pennsylvania, Georgia, and Ohio. However, M.R.'s school records indicate that from 1997 until 2011, M.R. predominantly resided in Marshall County, West Virginia.

         M.R. testified that petitioner first sexually abused her when she was eight or nine years old, while living in Pennsylvania. M.R. testified that petitioner and C.C. held her down and that petitioner rubbed her vagina and masturbated. M.R. testified that the first time this occurred she cooperated because she did not know what was going on. M.R. stated that later, she would attempt to fight back, but that C.C. or petitioner would strike her with a fiberglass CB antenna when she did. M.R. testified that this type of abuse continued almost nightly.

         In 2003, the family resided in West Virginia, in the Nixon Ridge area of Marshall County. M.R. testified that the abuse continued there, and that from the time she was eleven until she turned twelve, petitioner would rub her vagina, perform oral sex on her, and masturbate. M.R. testified that this occurred every week, or every other week, and on the weeks it occurred, it happened as many as four times per week. M.R. testified that petitioner would tell her, "You're going to be mine;" and that C.C. would often tell her that she was going to be petitioner's wife when she got older.

         The family moved to the Taylor's Ridge area of Marshall County, where the abuse continued. M.R. testified that there were a lot of people staying in and out of that home, and as a result the abuse occurred less frequently. M.R. testified that when the abuse occurred it would happen two or three times during one week. M.R. testified that she did not tell anyone because she was scared. M.R. stated that the abuse stopped when she was fifteen, in 2007, and did not start again until she was twenty-three.

         In 2007, M.C., petitioner's other victim, moved into petitioner's home with her mother A.B. A.B. was involved in a romantic relationship with petitioner and C.C. A.B. eventually moved out of the home, leaving M.C. in petitioner and C.C.'s care. M.R. testified that she took over most of the duties regarding M.C.'s care, including bathing and grooming, and taking her to school. M.C. testified that petitioner sexually abused her once, in 2015, when she was eight years old, touching her vagina.

         In 2015, M.R. testified that she woke and found petitioner touching her vagina. M.R. yelled, and C.C. woke up and yelled for petitioner to stop. After this incident, in March of 2015, M.R. snuck out of the home, and went to a police station and reported the sexual abuse to the Marshall County Sheriff's Department. M.R. also reported that petitioner grabbed her and asked her for a sexual favor, and that when she refused, he slammed her against a wall. Based upon this complaint, petitioner was charged with domestic battery. Days later, M.R. sought and was granted an emergency domestic violence protective order against petitioner.

         Detective Zachary Allman of the Marshall County Sheriff's Department investigated the sexual abuse claims. Detective Allman interviewed M.R. at the end of March of 2015, at which time, M.R. disclosed the verbal, physical, and sexual abuse she experienced from petitioner and C.C. Detective Allman also arranged for M.R. to be interviewed at Harmony House, a Child Advocacy Center. M.R. recounted the abuse to a counselor there, in an interview observed by Detective Allman. In April of 2015, Detective Allman interviewed C.C. and petitioner. C.C. denied any abuse. Petitioner initially denied the abuse, but ultimately admitted that approximately one year before he "did rub [M.R.'s] [vagina] through a blanket." In July of 2015, Detective Allman arrested petitioner for the offense of sexual abuse by a parent guardian or custodian.

         After M.R. reported the abuse to the Sheriff's Department, M.C. was removed from the home for her protection, and placed in foster care. In April/May of 2015, M.C. was receiving services from a Court Appointed Special Advocate, Susan Harrison, and disclosed that petitioner sexually abused her when she was living with him. M.C. stated that petitioner touched her vagina. Susan Harrison reported this disclosure to Detective Allman, who interviewed M.C. M.C. disclosed the same to Detective Allman.

         Afterward, a Marshall County Grand Jury returned the aforementioned indictments against petitioner. Petitioner's trial took place on May 16-17, 2016. The State and defendant presented witnesses; petitioner did not testify on his own behalf. Petitioner was convicted on all counts.

         In May of 2016, in Case No. 15-F-66, where M.C. was listed as the victim, petitioner was sentenced to ten to twenty years in the penitentiary for his conviction of sexual abuse by a guardian, and five to twenty-five years for his conviction of first degree sexual abuse. In Case No. 15-F-65, where M.R. was listed as the victim, petitioner was sentenced to four concurrent terms of ten to twenty years in the penitentiary for his conviction of sexual abuse by a guardian, and four concurrent terms of five to twenty-five years in the penitentiary for his convictions of first degree sexual abuse. Petitioner was sentenced to not less than one year, nor more than five for his conviction of first degree sexual abuse. The sentences for the two convictions were ...


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