Herbert L. Shearer, by counsel Jason D. Parmer, appeals the
order of the Circuit Court of Wayne County, entered on
November 28, 2016, sentencing petitioner to incarceration for
twelve months upon his conviction of the misdemeanor offense
of battery, and ordering him to register as a sex offender
based on the circuit court's finding that the battery was
sexually motivated. Respondent State of West Virginia appears
by counsel Robert L. Hogan.
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 order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.
having been tried in 2016 on an indictment charging
first-degree sexual abuse, petitioner was found guilty by a
jury of the lesser-included offense of battery.
Petitioner's conviction was based on an incident wherein
T.B., the daughter of his then-girlfriend, accused petitioner
of isolating himself in a room with her, rubbing his hand
over her vagina on the outside of her clothing, and asking
whether she was prepared to have an orgasm. T.B., who was
fourteen years old at the time of the incident, testified to
these details. T.B.'s mother, now married to petitioner,
testified that she left petitioner and T.B. alone in a room
so that she could make coffee, but that petitioner did not
close the door to the room, and that she, the mother, did not
hear a disturbance in the brief time she was out of
petitioner's and T.B.'s presence. Petitioner
testified that, after T.B.'s mother left the room, he and
T.B. had a disagreement concerning T.B.'s relationship
with petitioner's son, and that T.B. attempted to block
petitioner's exit from the room, whereupon petitioner
physically moved T.B. from his path. Upon consideration of
this evidence, the jury convicted petitioner of
battery. The State requested a determination by
the circuit court that the battery was sexually motivated.
The court so found, and it ordered petitioner to register as
a sex offender pursuant to West Virginia Code §
15-12-2(c). The circuit court later suspended
petitioner's incarceration and placed him on probation
for three years.
asserts two assignments of error on appeal. First, he argues
that the circuit court instructed the jury using an incorrect
definition of battery. Second, he argues that the circuit
court abused its discretion in finding that petitioner was
sexually motivated to commit the battery.
begin with petitioner's contention that the jury was
incorrectly instructed. The question of whether a jury was
properly instructed is a question of law, and our review is
de novo. Syl. Pt. 1, State v. Hinkle, 200 W.Va. 280,
281, 489 S.E.2d 257, 258 (1996). Petitioner explains that the
circuit court informed the jury: "Battery is committed
when any person unlawfully, and intentionally, makes physical
contact of an insulting, or provoking, nature with the person
of another [or, sic] who unlawfully, and
intentionally, causes physical harm to another person."
At the time of the events giving rise to the indictment,
however, our statute provided that "[a]ny person who
unlawfully and intentionally makes physical contact with
force capable of causing physical pain or injury to the
person of another or unlawfully and intentionally causes
physical pain or injury to another person . . . is guilty of
a misdemeanor. . . ." W.Va. Code § 61-2-9(c)
(2014). Petitioner asserts that the instruction
"severe[ly]" prejudiced him.
instance, petitioner asks that we review his argument
pursuant to the "plain error" doctrine, because he
failed to object to the instruction when the circuit court
gave it. This Court has consistently held:
"[t]o trigger application of the 'plain error'
doctrine, there must be (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." Syl. Pt. 7, State v. Miller, 194
W.Va. 3, 459 S.E.2d 114 (1995); see also Syl. Pt. 2,
State v. White, 231 W.Va. 270, 744 S.E.2d 668
(2013). However, we went on to explain in White that
[u]nder the "plain error" doctrine,
"waiver" of error must be distinguished from
"forfeiture" of a right. A deviation from a rule of
law is error unless there is a waiver. When there has been a
knowing and intentional relinquishment or abandonment of a
known right, there is no error and the inquiry as to the
effect of a deviation from the rule of law need not be
determined. By contrast, mere forfeiture of a right-the
failure to make timely assertion of the right-does not
extinguish the error. In such a circumstance, it is necessary
to continue the inquiry and to determine whether the error is
231 W.Va. at 280, 744 S.E.2d at 678 quoting Miller,
194 W.Va. at 7, 459 S.E.2d at 117, syl. pt. 8. Upon review of
the record below, it is clear that the petitioner knowingly
and intentionally relinquished the right to have the jury
instructed in the manner in which he now argues on appeal.
Prior to charging the jury, the circuit court inquired of
The court: I have a charge to the jury that we actually used
[in a prior trial of this case that resulted in a mistrial].
Have you all seen that?
[The State]: Yes, sir.
The court: Any objection from the State?
[The State]: No, sir.
The court: Any objection from the ...