Iran G., by counsel James E. Shay, Jr., appeals the Circuit
Court of Marion County's August 4, 2017, order sentencing
him following his conviction on counts of first-degree sexual
abuse, first-degree sexual assault, and sexual abuse by a
parent, guardian, custodian, or person in a position of
trust. Respondent State of West Virginia, by
counsel Scott E. Johnson, filed a response and supplemental
appendix. On appeal, petitioner contends the circuit court
erred in permitting him to represent himself at trial,
denying his motion for a new trial based upon prosecutorial
misconduct, and denying his motion for judgment of acquittal
because there was insufficient evidence to support his
convictions. Petitioner also alleges that that he was denied
effective assistance of counsel.
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.
of 2016, petitioner was indicted for 143 counts relating to
his abuse of five juveniles, K.L., C.A., E.L., D.A., and J.G.
The charges included forty-eight counts of first-degree
sexual assault; twenty-four counts of first-degree sexual
abuse; and seventy-one counts of sexual abuse by a parent,
guardian, custodian, or person in a position of trust. The
circuit court appointed trial counsel for petitioner and he
thereafter filed pretrial motions and otherwise assisted
petitioner in building his defense.
Petitioner's trial commenced in April of 2017.
Immediately prior to the trial, petitioner informed the
circuit court that he wished to represent himself at trial.
When asked why he wished to proceed pro se, petitioner
[w]ell, part of it is my first attorney gave me bad advice,
so I had a little issue with trusting the attorney. Mr.
Shough has been very helpful and very good to me.
But I feel my fate should be in my hands because I am talking
about the rest of my life.
circuit court expressed that petitioner's decision was
"contrary to [his] best interest" and further
[s]o let me ask you this, would you like a little bit more
time? I mean, do you want do discuss it a little bit more
with [counsel]? I mean, he is - he has tried - I don't
know how many criminal cases he's tried, but he has tried
a lot of criminal cases, and he's highly qualified. He
knows the system. I just - I'm concerned about it being
contrary to your best interest to represent yourself.
further discussion, the circuit court again asked "[s]o
if I give you and [counsel] a little bit more time to talk,
you don't believe you're going to change your mind,
is that what you're telling me?" Petitioner replied
"[y]es. That's what I'm telling you." The
circuit court continued to advise petitioner against
representing himself. The circuit court reviewed, paragraph
by paragraph, the signed waiver of right to counsel, advised
petitioner of the dangers of proceeding without counsel, and
informed him that he would be held to the same evidentiary
standard as an attorney. After advising him of the dangers of
self-representation, the circuit court again asked petitioner
if he desired more time to speak to his counsel. Petitioner
briefly thought the matter over but insisted that he wanted
to represent himself. The circuit court granted
petitioner's motion to represent himself, finding that
petitioner was mentally capable to waive representation, was
literate and had been fully informed of his right to counsel,
fully understood the implications of waiving his right to
counsel, voluntarily and rationally waived his right to
counsel, and was fully advised of the pitfalls, dangers, and
consequences of acting as his own attorney. The circuit court
also ordered that Mr. Shough continue as standby counsel in
the event that petitioner needed assistance or no longer
wished to proceed pro se.
trial began later that morning and the State called a number
of witnesses including each of the five victims, a forensic
interviewer, a pediatrician, and a therapist, all of whom
spoke to the sexual abuse perpetrated by petitioner.
Specifically, the pediatrician testified that she led the
physical examinations of all five children and, while not
present for the entirety of each exam, was present for the
entirety of the examinations of K.L. and E.L. The
pediatrician opined that K.L. and E.L. showed the
symptomology of children who had been sexually abused. The
therapist testified that she worked with each of the five
children and specifically opined that J.G. and D.A. gave
statements that were consistent with other children who had
been sexually abused. Each of the five victims testified that
petitioner had touched their vaginas, among other acts of
sexual abuse. During the testimony of seven-year-old D.A.,
the child stated that she was unable to remember how many
times she was abused, what day it was, or the time. However,
the child was given a drawing of a female body and circled
the vagina when asked where petitioner had touched her.
testified on his own behalf and denied sexually abusing any
of the victims. At that time, the State requested permission
to approach the bench and asserted that petitioner had
perjured himself due to stipulating to abusing the children
in a related abuse and neglect case. Standby counsel for
petitioner advised the court that the State had made no
mention of discussing the abuse and neglect case during any
pretrial hearing and, as such, should be prohibited from
referencing the matter. In response, the State offered that
it had no need to mention the abuse and neglect proceedings
prior to petitioner's perjuring himself and requested to
impeach petitioner using the order from the abuse and neglect
proceedings, stating "I just want to be able to cross
him according to the order and what his statements were in
there." However, the circuit court noted that
petitioner's exact statements were not contained in the
order and no transcript was available. It concluded
I will allow any proper cross-examine [sic] or proper
rebuttal to what he says, if it's offered by the State.
But for the purposes of this Order, I'm not going to let
that be used as cross-examination impeachment material. I
think it's too vague, for the record, and it opens up too
many confusing doors to be used in this proceeding. I am just
not going to do it. If there were a transcript, and he had
particulars, that might be a different story, but we
don't have that.
resumed testifying at that point and the State continued with
the following line of questions:
[State:] Just so we are clear, [petitioner], I had asked you
- [your standby counsel] asked you did you sexually abuse the
[Petitioner:] Yes, he asked me that.
[State:] And you answered, no?
[Petitioner:] Yes, I did.
[State:] And then I asked you if you had sexually abused each
individual child, correct?
[State:] But as of day [sic], your testimony to this jury is
that you did not sexually abuse these kids?
[Petitioner:] That's correct.
[State:] [Petitioner], let me ask you this, have you ever
previously admitted to the sexual abuse of these children?
[Petitioner:] Not any specifics.
[State:] That's not the question I asked. I said, have
you ever previously admitted to sexual abuse ...