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State v. Michael C.

Supreme Court of West Virginia

May 14, 2018

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

          Ohio County 16-F-15

          MEMORANDUM DECISION

         Petitioner Michael C., by counsel Zachary T. Zilai, appeals the Circuit Court of Ohio County's December 29, 2016, order sentencing him following his first-degree sexual abuse convictions.[1] Respondent State of West Virginia, by counsel Scott E. Johnson, filed a response and supplemental appendix. On appeal, petitioner contends that the jury's verdict should be reversed because there was insufficient evidence to support his convictions.

         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.

         On January 11, 2016, petitioner was indicted for four counts of first-degree sexual abuse of two separate victims, and on November 2, 2016, his trial commenced. At trial, the mother of one of his victims testified that, as she was walking up a flight of stairs, she heard petitioner ask her daughter, "Do you like it? Do you want to suck it?" As the mother came to the top of the stairs and the victim came in to her mother's view, the mother saw petitioner's "private part in my daughter's face[.]" This incident prompted law enforcement and Child Protective Services involvement. The investigating detective, who also testified at trial, recounted that this victim disclosed that this was not the first time petitioner sexually abused her.

         As part of the investigation, the victims were also interviewed by Lisa Musili, an interview specialist and therapist employed by Harmony House Children's Advocacy Center. Ms. Musili testified at trial, and the victims' interviews with her were admitted without objection. Both victims disclosed sexual abuse by petitioner during their interviews.

         At the time of trial, petitioner's victims were six and nine years old. After answering some preliminary questions, the six-year-old victim was unable to testify regarding the sexual abuse:

Q: Okay. And what about [petitioner]? Can you tell the jury, and tell me and the judge and the lawyers what happened with [petitioner]? Can you talk about it?
A: (Shakes head in the negative.)
Q: Are you afraid to talk about it?
A: (Shakes head in the affirmative.)

         Ultimately, this victim was only able to nod affirmatively when asked whether she told the truth during her interviews with Ms. Musili and Janet Kowalski, a child advocate at the Sexual Assault Help Center.

         The nine-year-old victim was able to testify to petitioner's sexual abuse of her. This victim also testified that she practiced questions with her stepmother the night before trial, but that her stepmother did not instruct her how to answer. Her stepmother instructed her to tell the truth and that it was okay if this victim could not answer a question.

         At the conclusion of his trial, the jury convicted petitioner of all four counts charged in the indictment. The circuit court held a sentencing hearing on December 2, 2016, at which petitioner was effectively sentenced to ten years to fifty years of incarceration. The circuit court memorialized petitioner's sentence in an order entered on December 29, 2016, and it is from this order that petitioner appeals.

         On appeal, petitioner argues that there was insufficient evidence to support his convictions. In support of this contention, petitioner highlights five alleged deficiencies in the evidence. First, petitioner notes that there was no physical evidence to substantiate the sexual abuse; second, the State's witnesses lacked credibility because their testimony was inconsistent; third, the six-year-old victim was "incapable of answering questions and confirming" her abuse; fourth, the nine-year-old victim's testimony should have been disregarded "[d]ue to her age, impressionability, and the fact that her testimony was ...


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