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State v. E.K.

Supreme Court of West Virginia

October 20, 2017

State of West Virginia, Plaintiff Below, Respondent
v.
E.K., Defendant Below, Petitioner

         Berkeley County 15-F-52

          MEMORANDUM DECISION

         Petitioner E.K., [1] by counsel Michael Santa Barbara, appeals his convictions for the offenses of sexual assault in the first degree, sexual abuse by a parent, guardian, or custodian, sexual abuse in the first degree, parent filming a minor in sexually explicit conduct, and possession of material portraying a minor in sexually explicit conduct. The State of West Virginia, by counsel Robert L. Hogan 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.

         Petitioner was indicted by a Berkeley County Grand Jury for one count of sexual assault in the first degree; four counts of sexual abuse by a parent guardian or custodian; one count of incest; three counts of sexual abuse in the first degree; one count of possession of material portraying a minor in sexually explicit conduct; one count of incest; one count of "parent filming a minor in sexually explicit conduct". All of these charges related to petitioner's step-daughter, V.K. Petitioner was also indicted for two additional counts of sexual abuse by a parent guardian or custodian, relating to his other step-daughter, B.K.

         As a part of the investigation, West Virginia State Troopers obtained a search warrant for all of petitioner's electronic devices. After executing the warrant, officers seized one thumb- drive, one laptop computer, and a cell phone. Twenty-three images were obtained from the seized evidence which depicted petitioner and a minor female engaged in "acts on a bed."

         Petitioner's jury trial was held on October 30, 2015. At trial, the jury heard the testimony of V.K., B.K., and their mother. The girls' mother testified that she met petitioner in Africa, where they both grew up, and re-met and later married him while they were living in the United States. The parties married in 2009, and petitioner adopted B.K. and V. K. The parties separated in 2014, at which time B.K. told her mother that petitioner tried to have sex with her while she was in high school. As a result, the girl's mother spoke with V.K., who disclosed that "every time" her mother worked at night, petitioner would come into her room, undress her, suck her breasts, and touch her vagina. V.K. testified to several of these episodes involving petitioner, and that the acts started when she was eight or nine years old. B.K. testified that during her senior year, petitioner touched her breasts, and later, tried to touch her breasts again. B.K. also testified that petitioner would frequently make comments about wanting to have sex with her.

         Petitioner testified on his own behalf, and denied the allegations. Following deliberations, the jury found petitioner not guilty on the counts related to B.K., and as to one count of sexual abuse by a parent, guardian or custodian and one count of sexual abuse in the first degree related to V.K. Petitioner was found guilty of the remaining counts in the indictment. For his convictions, petitioner received a sentence of not less than twenty-five, nor more than one hundred years in the penitentiary, and a fine of $5, 000 for his conviction of the offense of sexual assault in the first degree; not less than ten nor more than twenty years, each, for his convictions of three counts of sexual abuse by a parent, custodian, or guardian; not less than five nor more than fifteen years for his conviction of incest; not less than five nor more than twenty-five years, each, for his convictions of two counts of first degree sexual abuse; ten years for the offense of parent filming a minor in sexually explicit conduct; and two years for the offense of possession of material portraying a minor in sexually explicit conduct. Petitioner now appeals his convictions.

         On appeal, petitioner raises three assignments of error.[2] First, petitioner argues that there was insufficient evidence to sustain a verdict of guilt. Second, petitioner argues that the circuit court erred in denying his motion to sever. Finally, petitioner asserts that the circuit court erred in denying his motion to suppress.

         Regarding the sufficiency of evidence, we have held that,

"[t]he 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." Syllabus point 1, State v. Guthrie, 194 W.Va. 657, 663, 461 S.E.2d 163, 169 (1995).

Syl. Pt. 1, State v. Boyd, 238 W.Va. 420, 796 S.E.2d 207 (2017). Further,

"[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." Syllabus point 3, State v. Guthrie, 194 W.Va. 657, 663, 461 S.E.2d 163, 169 (1995).

Syl. Pt. 2, Boyd. This Court finds that viewed in the light most favorable to the prosecution, the evidence was sufficient to support petitioner's convictions. Id. The testimony of V.K., alone, supports the jury's verdict that petitioner committed the offenses of first degree sexual assault and sexual abuse, sexual abuse by a parent, guardian or custodian, and incest. Further, the State introduced, and the circuit court admitted, photographic evidence to support petitioner's convictions for the offenses of parent filming a minor in sexually explicit conduct, and possession of material portraying a minor in sexually explicit conduct. Thus, viewed in the light most favorable to the prosecution there was more than sufficient evidence to support petitioner's convictions.

         Petitioner next argues that the circuit court erred in denying his motion to suppress the search warrant. Prior to trial, petitioner moved to suppress the search warrant, arguing that the warrant was not valid because it failed to establish probable cause, and failed to establish the reliability of the information therein. The circuit court rejected petitioner's arguments and ...


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