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State v. Carter

Supreme Court of West Virginia

June 9, 2017

State of West Virginia, Plaintiff Below, Respondent
v.
Thomas G. Carter, Jr., Defendant Below, Petitioner

         Fayette County 15-F-60

          MEMORANDUM DECISION

         Petitioner Thomas G. Carter, Jr., by counsel E. Scott Stanton, appeals his December 2, 2015, conviction on charges of sexual abuse in the first degree, sexual assault in the first degree, robbery in the first degree, and kidnapping. Respondent State of West Virginia, by counsel Zachary Aaron Viglianco, filed a summary response in support of the circuit court's order. Petitioner argues that the circuit court erred in allowing the admission of certain photographs at trial and in denying his motions for a judgment of acquittal as to the robbery and kidnapping charges against him.

         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(d) of the Rules of Appellate Procedure.

         At approximately 4:30 p.m. on June 14, 2014, a young adult female ("victim") left her residence and went for a run on the "Rails to Trails" walking path in Oak Hill, Fayette County. While running on the trail, she traveled through a heavily wooded area adjacent to a mobile home park. As she passed the mobile home park, she noticed a man on a riding lawnmower wearing a flannel shirt. She continued to the end of the trail, turned around, and started back in the direction of her home. As she neared the mobile home park, she was attacked by an individual wearing a facemask, gloves, and a flannel shirt. A struggle ensued and the victim was pulled off the trail, over a hill, and into the woods. The victim attempted to use her cell phone to call for help, but her attacker jerked the phone from her hands.[1]

         During the assault, the victim continued to fight and, at some point, removed her attacker's mask. Thereafter, her attacker advised, "I can't let you go. I'm not doing [fifteen] to [eighteen] years because of you, and you've seen my face. I'm not doing it." The victim responded "[w]ell, then you are going to [have to] kill me, " to which the attacker responded, "I will kill you. I will kill you right now. If you don't do what I say, I'm going to kill you."

         Ultimately, the victim was directed to lay down and restraints, both tape and rope, were used to tie each of her legs to different trees. The victim's hands were tied behind her head and secured to a tree behind her, and she was gagged.[2] As she was being restrained, the attacker removed the victim's shorts and underwear and used a knife to cut off her shirt and bra. The attacker began "kissing and licking" the victim's breasts, her abdomen, and her legs. The attacker performed oral sex upon the victim, with his tongue making contact with her sex organ. Sometime thereafter, the attacker left to clean up the disarray created by the initial struggle. However, before leaving, he tied the victim's shirt and bra around her head and left her bound and gagged. The attacker told the victim that, when he returned, he would take her to a different location.

         When her attacker left, the victim managed to loosen the ropes around one of her legs and, was ultimately able to free herself from all restraints. Once free, the victim, now completely naked, went "several hundred yards" through a thicket of briars to a nearby home for help. The homeowner called police and emergency medical personnel. The victim provided a detailed description of her attacker to police and, subsequently, identified petitioner as her attacker. In addition to describing his physical appearance, the victim described petitioner's flannel shirt and described a red pack of cigarettes she observed during the attack, which were later discovered on petitioner's person. The victim's shirt, shorts, and underwear were discovered near the maintenance building of the mobile home park where petitioner worked.

         The same evening as the attack, petitioner was found hiding under the deck of one of the mobile home park's residences and he was arrested. The shirt petitioner was wearing at the time of his arrest was stained with the victim's blood. Fluid samples collected from the victim's body following the attack contained male DNA, consistent with petitioner's DNA profile. On September 9, 2014, the petitioner was indicted by the Fayette County Grand Jury on four charges: robbery, kidnapping, first degree sexual assault, and first degree sexual abuse. A superseding indictment was returned on May 12, 2015.

         A bifurcated three-day jury trial commenced on August 6, 2015, and, after deliberating for one hour, the jury found petitioner guilty on all four charges. The mercy phase of the trial then began and, after hearing testimony, the jury returned a recommendation of no mercy with respect to the kidnapping charge. On December 2, 2015, petitioner was sentenced to one to five years for sexual abuse in the first degree; fifteen to thirty-five years for sexual assault in the first degree; a determinate sentence of fifty years for robbery in the first degree; and the remainder of his life for kidnapping. Petitioner filed a motion to reduce sentence, which was denied by the circuit court on January 20, 2016. It is from his December 2, 2015, conviction that petitioner now appeals.

         On appeal, petitioner asserts three assignments of error. In his first and second assignments of error, petitioner alleges that the circuit court erred in failing to grant his motion for a judgment of acquittal concerning the offenses of robbery and kidnapping, based upon the State's failure to present evidence sufficient to sustain petitioner's convictions as to these offenses. In his third assignment of error, petitioner argues that the circuit court erred in allowing post-attack photographs of the victim's injuries to be admitted at trial.

         This Court applies a "de novo standard of review to the denial of a motion for judgment of acquittal based upon the sufficiency of the evidence." State v. Juntilla, 227 W.Va. 492, 497, 711 S.E.2d 562, 567 (2011). When discussing a motion for acquittal, we have previously noted that

[t]he trial court's disposition of a motion for judgment of acquittal is subject to our de novo review; therefore, this Court, like the trial court, must scrutinize the evidence in the light most compatible with the verdict, resolve all credibility disputes in the verdict's favor, and then reach a judgment about whether a rational jury could find guilt beyond a reasonable doubt.

State v. LaRock, 196 W.Va. 294, 304, 470 S.E.2d 613, 623 (1996).

With regard to examinations as to the sufficiency of evidence, we ...

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