Cabell
County 16-F-381
MEMORANDUM DECISION
Petitioner
Rodney C., by counsel Gina M. Stanley, appeals the Circuit
Court of Cabell County's December 7, 2016, order
sentencing him to an effective term of incarceration of not
less than 40 nor more than 135 years for first-degree sexual
assault; incest; and sexual abuse by a parent, guardian,
custodian, or person in position of trust.[1] The State, by
counsel Robert L. Hogan, filed a response and a supplemental
appendix. On appeal, petitioner argues that the circuit court
erred in finding that he was acting as the child's
custodian and that the State failed to prove beyond a
reasonable doubt that he sexually assaulted and abused the
child and committed incest.
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,
this 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, while babysitting his then three-year-old
niece, S.B., petitioner, then twenty-two years old,
penetrated the child's sex organ with his finger and his
tongue. Following the incident and the child's disclosure
to a parent, she was transported to the Cabell Huntington
Hospital emergency room where a physical exam and a sexual
assault kit were performed. The child was later interviewed
by West Virginia State Police Trooper Moore wherein she
disclosed that petitioner penetrated her sex organ with his
finger and tongue. Petitioner submitted to a recorded police
interview with West Virginia State Police Trooper Hash on
November 5, 2015. Petitioner admitted in that interview that
he took the child to the restroom and penetrated the sex
organ one and a half to three inches in an attempt to remove
a "mark" near the sex organ. Petitioner also
admitted that he licked the child's sex organ one time.
Petitioner was indicted on two counts of first-degree sexual
assault; two counts of incest; and two counts of sexual abuse
by a parent, guardian, custodian, or person in position of
trust.
In
October of 2016, following a two-day bench trial, petitioner
was found guilty on all six counts as charged in the
indictment. The circuit court entered an order on December 7,
2016, sentencing petitioner as noted above. Additionally, the
circuit court ordered that petitioner serve a period of fifty
years of supervised release following his release from
incarceration. It is from the sentencing order that
petitioner now appeals.
We have
previously established the following standard of review:
"In reviewing the findings of fact and conclusions of
law of a circuit court . . ., we apply a three-pronged
standard of review. We review the decision . . . under an
abuse of discretion standard; the underlying facts are
reviewed under a clearly erroneous standard; and questions of
law and interpretations of statutes and rules are subject to
a de novo review." Syllabus Point 1, State
v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).
Syl. Pt. 1, in part, State v. Georgius, 225 W.Va.
716, 696 S.E.2d 18 (2010). Upon our review, we find no error
in the proceedings below.
Petitioner
first argues that the circuit court erred in finding that he
was the child's custodian or a person in a position of
trust at the time of the incident. In support of his
argument, petitioner claims that another person, Sherry A.,
was the only authorized caregiver for the child on the day of
the incident and he was not authorized to provide care, food,
or correct the child. We do not agree. For the purpose of the
statute "custodian" is defined as "a person
over the age of fourteen years who has or shares actual
physical possession or care and custody of a child on a
full-time or temporary basis, regardless of whether such
person has been granted custody of the child by any contract,
agreement or legal proceeding." W.Va. Code §
61-8D-1(4) (2014).
In the
instant case, while petitioner is correct that the child was
placed in Sherry A.'s primary care, it is clear from the
record that petitioner resided in the same home as Sherry A.
and admitted to taking the child to the restroom on the day
of the incident. Moreover, it is undisputed that petitioner
was a person over the age of fourteen and had actual physical
custody of the child on the day of the incident, at least to
the degree that he was able to accompany the child to the
restroom. As previously indicated, West Virginia Code §
61-8D-1(4) requires only that a person over the age of
fourteen have actual physical possession of the child on a
temporary basis. Further, West Virginia Code §
61-8D-1(4) expressly states that the necessary physical
possession or care and custody of the child may exist
regardless of whether such person has been granted custody of
the child, in the context of a legal proceeding. The circuit
court was presented with sufficient evidence that the
circumstances established that petitioner had control and
supervision over the child. As such, we find no error in the
circuit court's finding that petitioner was the
child's custodian at the time of the incident.
Petitioner
next argues that the circuit court erred in finding that
petitioner sexually assaulted and abused the child, and
committed incest. West Virginia Code § 61-8D-3 provides
that a person is guilty of first-degree sexual assault when
that person is fourteen years old or older and "engages
in sexual intercourse or sexual intrusion with another
person" who "is younger than twelve years old and
is not married to that person." West Virginia Code
§ 61-8B-1(7), defines "sexual intercourse" as
"any act between persons involving penetration, however
slight, of the female sex organ by the male sex organ or
involving contact between the sex organs of one person and
the mouth or anus of another person." For the purposes
of the preceding statutes and West Virginia Code §
61-8D-5(a), concerning sexual abuse by a parent, guardian,
custodian, or a person in a position of trust, "sexual
intrusion" means "any act between persons involving
penetration, however slight, of the female sex organ or of
the anus of any person by an object for the purpose of
degrading or humiliating the person so penetrated or for
gratifying the sexual desire of either party." W.Va.
Code § 61-8B-1(8). Under West Virginia Code §
61-8-12 (b), a person is guilty of incest when "such
person engages in sexual intercourse or sexual intrusion with
his . . . niece."
It is
undisputed that petitioner was more than fourteen years old,
that the child was younger than twelve years old, that
petitioner and the child were not married, and that the child
is petitioner's niece. Further, despite petitioner's
arguments to the contrary, his admissions supply the primary
evidence used to support the circuit court's findings
below. The evidence presented at the bench trial regarding
"sexual assault" and "sexual abuse"
included petitioner's admission that he penetrated the
child's sex organ with his finger by at least one and
half up to three inches and that he licked the child's
sex organ. The evidence at petitioner's bench trial
indicated that the child disclosed to her mother, her
great-aunt, a doctor, and a nurse that petitioner touched and
licked her sex organ and touched her buttocks. The child also
disclosed that her sex organ "hurt" as a result of
the incident. Further, in addition to petitioner's
admissions that he penetrated and licked the child's sex
organ, evidence was presented that he explained to Trooper
Hash that he "recognized what he had done, stopped, went
to his bedroom, locked himself in, cried, and tried to read
the Bible." Viewing this evidence in the light most
favorable to the State, it is apparent that the circuit
court, as a rational trier of fact, could have determined
that the State met its burden of proof that petitioner
committed sexual assault and abuse against the child while
she was in his care, custody, or control, and committed
incest.
For the
foregoing reasons, the circuit court's December 7, 2016,
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