STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED State of West Virginia, 

Plaintiff Below, Respondent November 21, 2016 

RORY L. PERRY II, CLERK 

vs) No. 16-0053 (Mineral County 15-F-108) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Alex James McDonald, 

Defendant Below, Petitioner 

MEMORANDUM DECISION 

Petitioner Alex James McDonald, by counsel Nicholas T. James, appeals the Circuit 

Court of Mineral County’s December 22, 2015, and January 7, 2016, orders finding that the 

crime of battery, to which he pled no contest, was sexually motivated. The State, by counsel 

Zachary Aaron Viglianco, filed a response. Petitioner filed a reply. On appeal, petitioner alleges 

that the circuit court erred in finding that the crime of contributing to the delinquency of a minor 

was sexually motivated, that the crime of battery was sexually motivated, and in allowing a 

witness to testify to inadmissible hearsay. 

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. 

Petitioner was the director of a local community theater group that was scheduled to 

perform a play in November of 2013. At the time, K.B.,1 a minor, was cast to play a role that 

required her to wear a dress. During a dress rehearsal, K.B. complained that the neckline of her 

costume was too revealing. She voiced her complaint to petitioner, who, in the process of 

“fixing” the costume, used both hands to grab K.B.’s chest and “basically pressed her breasts 

together.” Subsequently, petitioner touched K.B.’s buttock and made a flirtatious comment to her 

on another occasion. K.B. did not initially report these incidents to anyone out of fear of not 

being believed, social ostracization, and exclusion from future productions. 

1

Consistent with our long-standing practice in cases with sensitive facts, we use initials 

where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va. 

254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013); 

State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 

W.Va. 641, 398 S.E.2d 123 (1990). 

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In the weeks following these incidents, petitioner sent numerous sexually suggestive text 

messages to K.B. These text messages intimated petitioner’s desire to have a physical, romantic 

relationship with K.B. In the messages, petitioner complimented K.B. on her physical 

appearance, told her that he loved her, described several sexually-suggestive acts he wished to 

engage in with her, and attempted to arrange for the two of them to be alone together. 

Eventually, K.B. reported petitioner’s behavior to her mother. This information was then passed 

along to a local high school resource officer and the West Virginia State Police, who conducted 

an investigation. 

Thereafter, petitioner was charged, by information, with the following crimes: battery; 

contributing to the delinquency of a minor; first-degree sexual abuse; and sexual abuse by a 

person in a position of trust. The State offered a plea deal whereby petitioner would plead guilty 

to one count of battery and one count of contributing to the delinquency of a minor, and the 

remaining charges would be dismissed. The offer also provided that the State would not request 

incarceration, but that it did intend “to show . . . [that] the Battery was sexually motivated.” As a 

result, the State indicated to petitioner that he may have to register as a sex offender after his 

conviction. However, the State also cautioned that this was a nonbinding plea agreement and that 

the circuit court could choose to dispose of the case in some other manner. On August 25, 2015, 

petitioner accepted the offer and pled no contest to the two crimes. 

In December of 2015, the circuit court held a sentencing hearing to determine if 

petitioner’s battery was sexually motivated. Petitioner provided a witness who testified that she 

observed the incident and no inappropriate touching occurred. The State rebutted that evidence 

with testimony from an investigating officer, the text messages between petitioner and K.B., 

testimony from a social worker that interviewed K.B., and a prepared statement from K.B.’s 

mother. During the investigating officer’s testimony, petitioner objected to any testimony 

concerning the victim’s statements to the officer, both on hearsay grounds and because petitioner 

alleged that the statements were testimonial in nature. Upon consideration of this evidence, the 

circuit court concluded that petitioner’s actions were sexually motivated and sentenced him to 

six months of incarceration for battery and six months of incarceration for contributing to the 

delinquency of a minor, said sentences to run consecutively to one another. On December 22, 

2015, the circuit court entered a brief order in which it found that petitioner’s battery was 

sexually motivated. Then, on January 7, 2016, the circuit court entered a second detailed order in 

which it again found that petitioner’s battery was sexually motivated and that, upon his release 

from incarceration, he would “have three days to contact the West Virginia State Police to 

register as a sex offender.” It is from this order that petitioner appeals. 

We have previously held as follows: 

“In reviewing challenges to the findings and conclusions of the circuit 

court, we apply a two-prong deferential standard of review. We review the final 

order and the ultimate disposition under an abuse of discretion standard, and we 

review the circuit court’s underlying factual findings under a clearly erroneous 

standard. Questions of law are subject to a de novo review.” Syl. Pt. 2, State v. 

Hinchman, 214 W.Va. 624, 591 S.E.2d 182 (2003). 

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Syl. Pt. 1, State v. Seen, 235 W.Va. 174, 772 S.E.2d 359 (2015). Upon our review of the record 

on appeal, the Court finds no error in the proceedings below. 

To begin, it is important to note that petitioner’s assignment of error alleging that the 

circuit court erred in finding that the crime of contributing to the delinquency of a minor was 

sexually motivated is without merit. The sole basis for petitioner’s argument in support of this 

assignment of error is a portion of the transcript from the December 22, 2015, hearing on sexual 

motivation wherein the court stated “that [petitioner’s] assault and . . . contributing to the 

delinquency of a minor [were] sexually motivated.” However, petitioner’s argument on this issue 

wholly ignores the record on appeal and our prior case law. Importantly, the circuit court issued 

an order on sexual motivation the same day as the hearing, and the December 22, 2015, order 

clearly provides that petitioner “was sexually motivated in committing the offense of Battery.” 

Moreover, the circuit court’s January 7, 2015, order similarly provides that “the battery was 

sexually motivated.” Neither of these orders makes any finding whatsoever in regard to the crime 

of contributing to the delinquency of a minor being sexually motivated, which is in keeping with 

the fact that the State sought to show that only the battery was sexually motivated. Simply put, 

“[i]t is a paramount principle of jurisprudence that a court speaks only through its orders.” Legg 

v. Felinton, 219 W.Va. 478, 483, 637 S.E.2d 576, 581 (2006)(citing State v. White, 188 W.Va. 

534, 536 n.2, 425 S.E.2d 210, 212 n.2 (1992)). Moreover, we have held that “it is clear that 

where a circuit court’s written order conflicts with its oral statement, the written order controls.” 

Id. (quoting State v. White, 188 W.Va. 534, 536 n.2, 425 S.E.2d 210, 212 n.2 (1992)). 

Accordingly, we find that the circuit court clearly found that only petitioner’s battery constituted 

a sexually motivated crime. The circuit court made no such finding with regard to the crime of 

contributing to the delinquency of a minor, and, thus, this assignment of error has no merit. 

Next, the Court finds no error in the circuit court’s finding that petitioner’s crime of 

battery was sexually motivated. Pursuant to West Virginia Code § 15-12-2(c), “[a]ny person who 

has been convicted of a criminal offense and the sentencing judge made a written finding that the 

offense was sexually motivated shall also register as set forth in this article.” Moreover, West 

Virginia Code § 15-12-2(j) provides that “the term ‘sexually motivated’ means that one of the 

purposes for which a person committed the crime was for any person’s sexual gratification.” On 

appeal, petitioner alleges that the State failed to prove, beyond a reasonable doubt, that the 

battery was sexually motivated because he provided a witness who testified that no inappropriate 

touching occurred. Specifically, this witness testified that she did not see petitioner touch 

anything other than K.B.’s shoulder while he pulled up a strap on her dress. As such, petitioner 

argues that the circuit court erred. The Court, however, does not agree. 

In addressing the standard for findings of sexual motivation, we have held as follows: 

“The evidentiary standard for a finding of ‘sexual motivation’ pursuant to 

W. Va.Code § 15-12-2(c) (2001) is proof beyond a reasonable doubt, and a 

defendant must be given the opportunity to oppose and contest such a proposed 

finding with evidence and argument.” Syl. Pt. 2, State v. Whalen, 214 W.Va. 299, 

588 S.E.2d 677 (2003). 

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Seen at - -, 772 S.E.2d at 361, Syl. Pt. 4. As noted above, the only evidence upon which 

petitioner relies to argue that his crime was not sexually motivated was a witness who testified 

that no inappropriate touching ever occurred. To the contrary, the State presented ample 

evidence that the battery in question was sexually motivated. This included testimony from both 

an investigating officer and a social worker who indicated that petitioner grabbed both of the 

victim’s breasts and squeezed them together. Moreover, the circuit court considered 

overwhelming evidence that petitioner was sexually attracted to the victim, including the text 

messages from petitioner to the victim. These text messages included statements from petitioner 

such as “[y]our cleavage looks good” and “I can’t wait to kiss you and feel you in my arms!” 

Additionally, the victim’s mother testified that petitioner attempted to arrange meetings with the 

victim so the two could be alone and was upset when the victim did not appear. 

This evidence overwhelmingly supports the circuit court’s finding that the battery in 

question was sexually motivated. While it is true that petitioner provided a witness who testified 

to the contrary, such conflicting evidence is insufficient to create a reasonable doubt as to 

petitioner’s sexual motivation, and, thus, we cannot hold that the circuit court’s finding is clearly 

erroneous. To the contrary, the circuit court simply made a credibility determination regarding 

the conflicting evidence as the finder of fact. We have held that “finders of fact[] have the 

responsibility of weighing the evidence and the credibility of the witnesses and resolving these 

inconsistencies . . . .” State v. Houston, 197 W.Va. 215, 230, 475 S.E.2d 307, 322 (1996) (citing 

State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995)). Further, we have explained that “[a] 

reviewing court cannot assess witness credibility through a record. The trier of fact is uniquely 

situated to make such determinations and this Court is not in a position to, and will not, second 

guess such determinations.” Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531, 

538 (1997). Because it is clear that the circuit court found the State’s evidence on the issue of 

sexual motivation more credible than petitioner’s, we find no error in its determination that 

petitioner’s battery was sexually motivated. 

Finally, the Court finds no error in regard to the circuit court’s ruling allowing a State 

Trooper to testify to statements made by the victim during the course of his investigation at 

sentencing in this matter. According to petitioner, the circuit court’s consideration of this hearsay 

evidence violated both the West Virginia Rules of Evidence and his constitutional right to 

confront his accuser. The Court, however, does not agree. Specifically, petitioner argues that the 

State Trooper’s testimony concerning the victim’s statements was inadmissible hearsay because 

it was testimonial in nature. However, petitioner’s argument ignores the fact that this Court has 

generally held that “the Rules of Evidence do not apply to sentencing hearings.” State v. Trail, 

236 W.Va. 167, 180 n.17, 778 S.E.2d 616, 629 n.17 (2015) (citing W.Va. R. Evid. 1101(b)); see 

also State v. LaRock, 196 W.Va. 294, 306 n.15, 470 S.E.2d 613, 625 n.15 (1996) (noting that 

“the West Virginia Rules of Evidence do not apply to sentencing matters and proceedings[.]”). 

Further, petitioner argues that his right to confrontation was violated because the victim 

was in the courtroom and available to testify, yet the circuit court instead allowed the State 

Trooper to testify to inadmissible hearsay. Again, petitioner’s argument ignores the fact that the 

law upon which he relies clearly limits his right to confrontation to the underlying trial, not 

sentencing. Indeed, the Supreme Court of the United States has held that “[t]he right to confront 

and to cross-examine witnesses is primarily a functional right that promotes reliability in 

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criminal trials.” Lee v. Illinois, 476 U.S. 530, 540, 106 S.Ct. 2056, 2062 (1986) (emphasis 

added). Moreover, this Court has held as follows: 

The type of evidence that is admissible in the mercy phase of a bifurcated 

first degree murder proceeding is much broader than the evidence admissible for 

purposes of determining a defendant’s guilt or innocence. Admissible evidence 

necessarily encompasses evidence of the defendant’s character, including 

evidence concerning the defendant’s past, present and future, as well as evidence 

surrounding the nature of the crime committed by the defendant that warranted a 

jury finding the defendant guilty of first degree murder, so long as that evidence is 

found by the trial court to be relevant under Rule 401 of the West Virginia Rules 

of Evidence and not unduly prejudicial pursuant to Rule 403 of the West Virginia 

Rules of Evidence. 

Syl. Pt. 7, State v. McLaughlin, 226 W.Va. 229, 700 S.E.2d 289 (2010). 

Petitioner additionally argues that the circuit court’s December 22, 2015, hearing was one 

of mixed purpose; namely, that the circuit court sought to sentence petitioner, but also to make a 

determination as to whether his crime was sexually motivated. As such, petitioner argues that he 

should have been entitled to protections against the introduction of hearsay evidence because it 

was not a sentencing hearing. The Court, however, does not find petitioner’s argument 

compelling. It is undisputed that the hearing was convened in order to sentence petitioner for the 

crimes to which he pled. Moreover, West Virginia Code § 15-12-2(c) clearly requires that “the 

sentencing judge” make a finding as to the defendant’s sexual motivation for the crime. 

Additionally, we have specifically instructed that “a sentencing judge” is “to make a finding 

pursuant to W.Va.Code, 15–12–2(c) [2001] that a defendant” had a sexual motivation for the 

crime in question. Syl. Pt. 1, in part, State v. Whalen, 214 W.Va. 299, 588 S.E.2d 677 (2003) 

(emphasis added). As such, it is clear that petitioner’s guilt was previously established, and the 

circuit court proceeded to the sentencing phase of the criminal matter. While petitioner argues 

that he was entitled to an opportunity to oppose and contest the proposed finding of sexual 

motivation, the Court finds that he was awarded such an opportunity and that the contested 

nature of the hearing does not alter our finding that the hearing was held for purposes of 

sentencing. 

For the foregoing reasons, the circuit court’s December 22, 2015, and January 7, 2016, 

orders finding that his battery was sexually motivated are hereby affirmed. 

Affirmed. 

ISSUED: November 21, 2016 

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CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

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