1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia, Plaintiff Below, Respondent

vs.) No. 17-0179 (Ohio County 16-F-15)

Michael C., Defendant Below, Petitioner



### MEMORANDUM DECISION

Petitioner Michael C., by counsel Zachary T. Zilai, appeals the Circuit Court of Ohio County’s December 29, 2016, order sentencing hi m following his first-degree sexual abuse

convictions. 1 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.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21

of the Rules of A ppellate Procedure.

On January 11, 2016, petitioner was indicted fo r 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 walk ing up a flight of stairs, she heard petitioner ask her daughter, “Do you like it? Do you want to su ck it?” As the mother came to the top of the

stairs and the victim came in to her mother’s vi ew, the mother saw petitioner’s “private part in my daughter’s face[.]” This incident prompted law enforcement and Child Protective Services

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).

Additionally, petitioner’s counsel filed a brief in accordance with Rule 10(c)(10)(b) of the West Virginia Rules of Appellate Procedure, which provides that “[i]n extraordinary circumstances, if counsel is ethically compelled to disassociate from the contentions presented in the brief, counsel must preface the brief with a st atement that the brief is filed pursuant to Rule 10(c)(10)(b). Counsel should not inject disclaimers or argue ag ainst the client’s interests.” 

### FILED
May 14, 2018

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 involvement. The investigating detec tive, who also testifie d at trial, recounted that this victim disclosed that this was not the first time petitioner sexually abused her.

As part of the investigation, the victims were also interviewed by Lisa Musili, an interview specialist a nd therapist employed by Harmony H ouse Children’s Advocacy Center. Ms. Musili testified at trial, and the victims’ interviews w ith her were admitted without objection. Both victims disclosed sexual abus e by petitioner duri ng their interviews.

At the time of trial, petitioner’s victims were six and nine years old. After answering some preliminary questions, the si x-year-old victim was unable to testify regard ing the sexual

abuse:

Q: Okay. And what about [petitioner]? Can you tell the jury, and tell me and the judge and the lawyers what happened with [petit ioner]? 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.)

Ultimately, 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.

The nine-year-old victim was able to testif y to petitioner’s sexual abuse of her. This victim also testified that she pr acticed questions with her stepmother the night before trial, but that her stepmother did not instru ct her how to answer. Her stepmoth er instructed her to tell the truth and that it was okay if this victim could not answer a question.

At the conclusion of his trial, the jury convi cted 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 orde r entered on December 29, 2016, and it is from this order that petit ioner appeals.

On appeal, petitioner argues that there was insufficient evidence to support his convictions. In support of this c ontention, petitioner highlights five alleged deficiencies in the evidence. First, petitioner notes that there wa s no physical evidence to substantiate the sexual abuse; second, the State’s witnesses lacked cred ibility 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 shoul d have been disregarde d “[d]ue to her age, impressionability, and the fact that her testimony was coached and rehearsed[;]” and, finally, the nine-year-old victim’s testimony “lacked integrity” and was inconsistent with a prior statement.3 In reviewing a claim that the evidence at tria l was insufficient to convict, this Court has

stated that

[t]he function of an appellate court wh en reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is suffi cient to convince a reasonable person of the defendant’s gui lt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewi ng the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.

Syl. Pt. 1, State v. Guthrie , 194 W.Va. 657, 461 S.E.2d 163 (1995). Further,

[a] criminal defendant challenging the su fficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstanti al, in the light most favorable to the prosecution and must credit all inferences an d credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save th at of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a jury and not an appellate court. Finally, a jury verdic t should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt.

Id. at 663, 461 S.E.2d at 169, Syl. Pt. 3, in part.

Viewing the evidence in the li ght most favorable to the Stat e, we find that there was sufficient evidence from which the jury could find petitioner guilty of first-degree sexual abuse. His victims’ prior statements concerning his abus e of them were admitted, and his older victim was capable of testifying before the jury to pe titioner’s abuse of her. Importantly, we note that petitioner does not claim that any particular elem ent of this crime was unmet. Rather, petitioner

first contends that there was no physical evidence of the sexual abuse; however, he cites to no law necessitating physical evidence to sustain a c onviction of sexual abuse. To the contrary, we have upheld convictions of sex crimes in the absence of physical ev idence. In State v. Frank S.

, 236 W.Va. 761, 783 S.E.2d 881 (2016), the petitioner ar gued that the evidence was insufficient to support his rape, incest, and sodomy convicti ons because there was no physical evidence of

sexual abuse and due to “several minor incons istencies in the victims’ testimonies[.]” Id. at 769, 783 S.E.2d at 889. We found that the petitioner fa iled to “satisfy the heavy burden” of establishing that there was insufficient evidence where the victims’ testimony was consistent and corroborated by other witnesses, even in the absence of physical evidence. Id. at 770, 783 S.E.2d at 890. Accordingly, this argument has no merit.

Petitioner’s remaining challenges to the sufficiency of the evidence concern the witnesses’ credibility. Petitioner argues that two of the State’s wi tnesses had differing recollections of what transpir ed during a domestic argument be tween them, ther eby rendering4 both witnesses incredible. 2 Petitioner also argues that the si x-year-old victim’s inability to “confirm[ p]etitioner’s touching of her” on the witne ss stand renders her te stimony insufficient. Next, petitioner characterizes th e trial preparation between the nine-year-old victim and her stepmother as “coaching,” and argues that her “age, impressionability and the fact that her testimony was coached” render her testimony insuffi cient to support a guilty verdict. Finally, petitioner claims that his nine -year-old victim stated that she was touched twice a week by petitioner in her interview with Ms. Musili. At trial, however, this victim stated that she was touched by petitioner twice a day. In short, petitioner’s remaining challenges to the sufficiency of the evidence call upon th is Court to judge witness credibility.

“On review, we will not weigh evidence or determine credibility. Credibility determinations are for a jury and not an appellate court.” Guthrie , 194 W.Va. at 669, 461 S.E.2d at 176. Indeed, “[t]he jury is the trier of the facts and in performi ng that duty it is the sole judge as to the weight of the ev idence and the credibility of the witnesses.” Syl. Pt. 2, State v. Bailey

, 151 W.Va. 796, 155 S.E.2d 850 (1967). Finally, “[w]hen in a criminal case the question of guilt depends upon the weight of eviden ce, or inferences and deductions from facts proved, the jury and not the court, is almost exclus ively and uncontrollably the judge.” Id. at 796, 115 S.E.2d at 851, Syl. Pt. 3. The jury heard all of the eviden ce, including the testimony petitioner asserts is contradictory or otherwise problematic, and nonetheless returned guilty verdicts. Because weighing evidence and determining credibility are functions reserved to the jury and not this Court, petitioner’s argume nts are without merit.

For the foregoing reasons, the circuit co urt’s December 29, 2016, sentencing is hereby

affirmed.

Affirmed.

ISSUED : May 14, 2018

CONCURRED IN BY :

Chief Justice Margaret L. Workman

Justice Robin Jean Davis

Justice Menis E. Ketchum Justice Allen H. Loughry II

Justice Elizabeth D. Walker

2 This argument was unrelated to petitioner’s charges.