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. 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.
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.
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.
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.
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
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.)
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.
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.
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.
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 ...