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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