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William R. v. Ames

Supreme Court of West Virginia

June 17, 2019

William R., Petitioner Below, Petitioner
v.
Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent

          Ohio County 18-C-33

          MEMORANDUM DECISION

         Petitioner William R., [1] pro se, appeals the March 28, 2018, order of the Circuit Court of Ohio County denying his petition for a writ of habeas corpus. Respondent Donnie Ames, Superintendent, Mt. Olive Correctional Complex, [2] by counsel Shannon Frederick Kiser, filed a summary response in support of the circuit court's order. Petitioner filed a reply.

         The 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.

         In the summer of 2005, petitioner lived with his girlfriend and her children, one of whom was ten-year-old M.E. ("child"). Due to an allegation that petitioner offered the child money to watch him masturbate, the child was interviewed at a child advocacy center. During the interview, the child disclosed that she declined petitioner's offer and that nothing else happened between her and petitioner in her current home. However, the child went on to reveal that, when she lived in Proctor in Wetzel County, West Virginia, petitioner touched her "private part" with his hands inside her underwear "[a] good many" times. No charges were brought against petitioner following the 2005 interview.

         In 2011, the child (then approximately sixteen years of age) was appointed a guardian ad litem ("GAL") in an unrelated proceeding. The child told her GAL about her 2005 allegations against petitioner. The GAL contacted law enforcement and a new investigation ensued. In February of 2011, Sgt. Matthew Adams of the West Virginia State Police met with the child and her GAL and conducted an interview of the child. During the interview, the child stated that she and her family moved to Ohio County in approximately 2004 and that petitioner moved into her family home shortly thereafter. The child further stated that, when petitioner moved into her home, he began sexually abusing her. The child claimed that petitioner (1) hid in her closet apparently waiting for her; (2) smelled her underwear; (3) stood over her bed while she was asleep with his pants down; (4) touched her genitalia more than once per week for years; (5) touched her breasts once when she was ten years old; (6) forced her to touch his penis; (7) pulled her into a forced hug and began kissing her neck; (8) would often masturbate in front of her; and (9) asked her to watch him masturbate. The child denied ever having sexual intercourse of any kind with petitioner. When asked whether petitioner "[went] inside of [her] vagina with his hand," the child responded, "[n]ot that I can recall." However, the child confirmed that petitioner placed his hands under her clothes and on her skin.

         In January of 2013, the Grand Jury of Ohio County returned an indictment against petitioner charging him with six felonies between August 1, 2005, and July 20, 2006: two counts of first-degree sexual assault (Counts 1 and 3); three counts of sexual abuse by a custodian (Counts 2, 4, and 6); and one count of first-degree sexual abuse (Count 5). Four of the six counts (Counts 1, 2, 3, and 4) included allegations of penetration. Sgt. Adams was the sole witness who testified before the grand jury. Regarding the allegations of penetration, the assistant prosecuting attorney had the following exchange with Sgt. Adams:

Q: Through the course of your investigation, did you determine that sometime between August 1, 2005[, ] and July 20th, 2006, . . . [in] Ohio County, West Virginia, . . . that [petitioner] had assaulted [the child] by penetrating her sexual organ with his finger?
A: Yes, ma'am.
Q: And did this - is this the basis for Count 1 of sexual assault in the [f]irst [d]egree contained in the [i]ndictment?
A: Yes, ma'am.

         Petitioner subsequently filed various motions seeking to either quash the indictment or dismiss one or more of its counts given the variance between the child's pretrial statements and Sgt. Adams's grand jury testimony regarding penetration. The circuit court denied petitioner's motions by orders entered December 22, 2014, and July 27, 2015. The circuit court found that petitioner failed to prove intentional and willful fraud on the part of the State during the grand jury proceeding and that, absent such fraud, the court was prohibited from assessing and reviewing the grand jury's consideration of evidence in returning an indictment. The circuit court further found that Sgt. Adams' testimony was not misleading because he testified only to what his determination was regarding whether penetration occurred based on his investigation.

         The circuit court held petitioner's trial on July 29, 2015. The child testified that, when petitioner lived in her home, they would often be home alone together. The child stated that petitioner began showing a "weird" interest in her puberty and body. The child said that she would find petitioner smelling her underwear and that he offered her $5 to watch him masturbate. The child stated that she once awoke to find petitioner standing over her "with his pants and underwear down" and that petitioner once pulled her into a hug and began rubbing her and that she tried to back away, but "he kept rubbing [her]." During this incident, which the child said occurred after her 2005 interview, petitioner kissed her neck, told her to imagine that he was a boy she had a "crush" on, and pushed his hands under her underwear where he rubbed her genitalia. According to the child's testimony, petitioner went "into" her vaginal area, which she described as "the inside area of the lips." Finally, the child testified that petitioner touched her breasts once while making dinner and commented about how she was "growing up." During cross-examination, the child was questioned regarding her pretrial statements that petitioner never penetrated her genitalia. The child responded that, at the time of her 2011 interview with Sgt. Adams, she "was under a different impression about what the word penetration meant." The child further clarified that petitioner touched her genitalia on only one occasion.

         At the conclusion of the State's case-in-chief, petitioner moved for a judgment of acquittal. Petitioner argued that the indictment was based on two incidents of penetration, but that the child testified that petitioner touched her genitalia only once. For that reason, petitioner moved for a judgment of acquittal of one count of first-degree sexual assault and one count of sexual abuse by a custodian. The State agreed that Count 3 (first-degree sexual assault) and Count 4 (sexual abuse by a custodian) should be dismissed and the circuit court granted petitioner's motion accordingly. Petitioner further argued that the evidence was insufficient to prove any penetration beyond a reasonable doubt, which he claimed undermined Counts 1 and 2. The State countered that the child's testimony sufficiently described one act of penetration. The circuit court found that the child's use of the word "into" to describe petitioner's touch was sufficient to allow the jury to decide the merits of the remaining counts requiring penetration and, therefore, denied the remainder of petitioner's motion.

         Although petitioner called no witnesses, he introduced medical records showing that he was hospitalized for a period of time during December of 2005 and January of 2006 to establish an alibi defense. Following deliberations, the jury convicted petitioner of all four remaining counts: one count of first-degree sexual assault (Count 1); two counts of sexual abuse by a custodian (Counts 2 and 6); and one count of first-degree sexual abuse (Count 5). By order entered ...


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