1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia,

Plaintiff Below, Respondent

vs.) No. 19-0299 (Marion County CC-24-2018-F-70)

James H.,

Defendant Below, Petitioner

MEMORANDUM DECISION

Petitioner James H., by counsel D. Conrad Gall, appeals the Circuit Court of Marion

County’s January 18, 2019, order denying his post-trial motions and imposing sentence following 

his convictions of twelve counts of sexual abuse and twelve counts of sexual abuse by a parent, 

guardian, custodian or person in a position of trust to a child. Respondent the State of West 

Virginia, by counsel Scott E. Johnson, filed a response to which petitioner submitted a reply.

The Court has considered the parties’ briefs and 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 is appropriate under Rule 21 of the Rules of Appellate Procedure.

Petitioner was arrested on August 4, 2017, and charged with twenty-two counts of sexual 

abuse by a parent, guardian, custodian or person in a position of trust and twenty-two counts of 

first-degree sexual abuse of petitioner’s granddaughter, S.C. The alleged criminal conduct 

occurred in 2016 and 2017, and S.C.’s mother contacted her child’s counselor on April 27, 2017. 

After conducting sessions on April 28 and May 3, 2017, the counselor advised the mother to 

contact the Department of Health and Human Resources (“DHHR”), who contacted the sheriff’s 

department. On May 4, 2017, S.C. was interviewed by the sexual assault nurse examiner at United 

Hospital Center, where she reiterated the original allegations that her grandfather touched her 

inappropriately while engaged in a “tickle game.” S.C. was also interviewed at the Marion County 

Child Advocacy Center (“CAC”), at which time she made two new allegations that petitioner had 

gone into her bedroom closet and exposed his penis to her, including having her touch his penis 

twice. 

The State moved to dismiss counts twenty-five through forty-four of the indictment, and 

the circuit court granted that motion.

1 Petitioner was tried before a jury in December of 2018, and 

1 The State’s motion to dismiss these counts does not indicate the reason for request to 

dismiss.

FILED

April 20, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

the jury convicted him of counts one through twenty-four of the indictment. Thereafter, petitioner 

filed the following motions: motion for a new trial, motion for post-verdict judgment of acquittal, 

motion in arrest of judgment, and renewed motion for post-conviction bond. By order entered on 

January 18, 2019, the circuit court denied all of those motions. Thereafter, the circuit court entered 

its sentencing order on February 25, 2019, sentencing petitioner to imprisonment for not less than 

five nor more than twenty-five years for each count of first-degree sexual abuse (the odd numbered 

counts) and not less than ten nor more than twenty years for each count of sexual abuse by a parent, 

guardian, custodian or person in a position of trust to a child (the even numbered counts), in 

addition to fines. Each of the terms of imprisonment for first-degree sexual abuse were ordered to 

run consecutively to one another, and the same is true for the sexual abuse by a parent, guardian, 

custodian or person in a position of trust to a child sentences. However, the sentences on the odd 

numbered counts are to run concurrently to the sentences on the even numbered counts. In addition, 

upon release, petitioner was ordered to serve twenty years of supervised release. Petitioner appeals 

from these orders.

In reviewing challenges to findings and rulings made by a circuit court, we 

apply a two-pronged deferential standard of review. We review the rulings of the 

circuit court concerning a new trial and its conclusion as to the existence of 

reversible error 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. 3, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000).

On appeal, petitioner sets forth nine assignments of error. However, many of petitioner’s 

arguments do not comply with Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure. 

That rule provides that 

[t]he brief must contain an argument exhibiting clearly the points of fact and law 

presented, the standard of review applicable, and citing the authorities relied on, 

under headings that correspond with the assignments of error. The argument must 

contain appropriate and specific citations to the record on appeal, including 

citations that pinpoint when and how the issues in the assignments of error were 

presented to the lower tribunal. The Court may disregard errors that are not 

adequately supported by specific references to the record on appeal.

Additionally, in an Administrative Order entered December 10, 2012, Re: Filings That Do Not

Comply With the Rules of Appellate Procedure, this Court specifically noted that “[b]riefs that lack 

citation of authority [or] fail to structure an argument applying applicable law” are not in 

compliance with this Court’s rules. Further, “[b]riefs with arguments that do not contain a citation 

to legal authority to support the argument presented and do not ‘contain appropriate and specific 

citations to the record on appeal . . . ’ as required by rule 10(c)(7)” are not in compliance with this 

Court’s rules. Id. “A skeletal ‘argument,’ really nothing more than an assertion, does not preserve 

a claim. . . . Judges are not like pigs, hunting for truffles buried in briefs.” State v. Kaufman, 227

W. Va. 537, 555 n.39, 711 S.E.2d 607, 625 n.39 (2011) (quoting U.S. v. Dunkel, 927 F.2d 955,

956 (7th Cir. 1991)).
3

A. Ineffective assistance of counsel and prosecutorial misconduct

Petitioner first asserts “ineffective assistance of counsel or prosecutorial misconduct as to 

witness Denver Grace,” arguing that the facts for those arguments “are identical[.]” Petitioner sets 

forth the alleged factual basis for these assertions, explaining that Mr. Grace was S.C.’s mother’s 

boyfriend during the relevant time period.2 However, in doing so, he only cites to the criminal 

complaint, which does not support his factual assertions.3 He complains that “[t]he unavailability 

of Mr. Grace for [petitioner] created a significant weakness in [his] case when questioning was 

limited to the [d]etective who was involved and could not question Mr. Grace.” However, he fails 

to set forth any analysis as to this contention. Further, although petitioner claims that his trial 

counsel was ineffective, his trial counsel is also his appellate counsel who now appears to claim 

that his own work was insufficient. While he points to the ineffective assistance of counsel 

standards set forth in Strickland v. Washington, 466 U.S. 688 (1984), he simply asserts that “[t]he 

net effect of not having Mr. Grace at the [t]rial either by [petitioner’s] counsel’s ineffectively not 

obtaining an out-of-state [s]ubpoena or the State misrepresentation and misconduct significantly 

affected [petitioner’s] defense by not raising the issue of recanting and the threats to create 

reasonable doubt.” 

Petitioner’s argument is not set forth in accordance with Rule 10(c)(7). In addition, we 

have held that “[i]t is the extremely rare case when this Court will find ineffective assistance of 

counsel when such a charge is raised as an assignment of error on a direct appeal.” Syl. Pt. 10, in 

part, State v. Triplett, 187 W. Va. 760, 421 S.E.2d 511 (1992). As we have explained, “the 

preferred way of raising ineffective assistance of . . . counsel is to file a subsequent petition for a 

writ of habeas corpus raising the issue in the court below.” Watts v. Ballard, 238 W. Va. 730, 735-

36 n.7, 798 S.E.2d 856, 861-62 n.7 (2017) (internal quotations and citation omitted). 

Consequently, “we decline to address an alleged ineffective assistance of counsel claim in this 

direct appeal. The record has not been developed on this issue. This is an issue that must be 

developed in a habeas corpus proceeding.” State v. Richardson, 240 W. Va. 310, 319-20 n.13, 811

S.E.2d 260, 269-70 n.13 (2018). Thus, we cannot find that the circuit court erred in denying 

petitioner’s post-trial motions on these grounds.

B. Dr. Christy Glass, the victim’s pediatrician

Petitioner next argues that Dr. Christy Glass failed to appear at trial and petitioner was 

unable “to introduce photos and other evidence.” Again petitioner cites to only two pages of the 

appendix record, pages seven and ten to support this argument. Page seven is the first page of the 

2 Without citing to the record or in any way supporting the contention, petitioner claims 

that when Mr. Grace and S.C.’s mother ended their relationship, Mr. Grace contacted petitioner 

and his wife to inform them that S.C. had recanted her allegations. However, when Mr. Grace 

spoke to the prosecuting attorney, “he was intoxicated and did not recall his conversation” with 

petitioner and his wife.

3 The two-page criminal complaint, the only pages referenced by petitioner in this section 

of argument, does not address or mention Mr. Grace. 

(continued . . .)
4

criminal complaint that does not support petitioner’s assertion that S.C. had a severe skin condition 

as indicated by the photos petitioner listed as an exhibit to which the State objected.4 In addition, 

he cites to page ten for the proposition that the circuit court refused to allow the admission of 

photographs. However, page ten is a part of the criminal complaint that does not address 

photographs or any ruling by the circuit court. Therefore, we decline to address the merits of 

petitioner’s second assignment of error.

C. Dr. Saar, the State’s expert witness

Petitioner then argues that the circuit court erred by allowing the State’s expert witness, 

Dr. Timothy Saar, to sit through the entire trial, rather than requiring that he be sequestered. 

Petitioner also argues that because Dr. Saar consulted with petitioner, petitioner’s wife, and 

petitioner’s trial counsel before he was contacted by the State, his testimony is, at a minimum, 

tainted because he was given an insight into petitioner’s defense. Petitioner contends that while he 

“cannot find a specific rule, Rule 1.7 of the Rules or Professional Conduct for Attorneys would 

exclude this.” He further contends that Dr. Saar was allowed to sit through and listen to all of the 

trial testimony while his expert, Dr. Deryn Strange, was required to testify via Skype and could 

not attend the entire trial. While petitioner properly cites to the appendix regarding Dr. Saar 

speaking with petitioner’s wife and counsel, he fails to cite to the record for any of his contentions 

regarding Dr. Strange. Further, his argument regarding Dr. Strange does not comply with Rule 

10(c)(7) because he did not cite a single case, rule, or statute in support of that argument. Therefore, 

we will address only his argument regarding Dr. Saar’s interaction with petitioner’s wife and 

counsel.

In ruling on the issue, the circuit court considered our holding in syllabus point 3 of State 

ex rel. Billups v. Clawges, 218 W. Va. 22, 620 S.E.2d 162 (2005):

In cases where disqualification of an expert witness is sought, the party 

moving for disqualification bears the burden of proving that at the time the moving 

party consulted with the expert: (1) it was objectively reasonable for the moving 

party to have concluded that a confidential relationship existed with the expert; and 

(2) confidential or privileged information was disclosed to the expert by the moving 

party. Disqualification is warranted only when the evidence satisfactorily 

demonstrates the presence of both of these conditions.

Further, the decision regarding disqualification of an expert witness rests within the sound 

discretion of the trial court. Id. at 26, 620 S.E.2d at 166 (citing State v. LaRock, 196 W. Va. 294, 

306, 470 S.E.2d 613, 625 (1996)). “Thus, our review in most instances is restrained and the lower 

court’s decision will stand unless there is an abuse of discretion.” Billups, 218 W. Va. at 26, 620 

S.E.2d at 166. 

Prior to Dr. Saar’s trial testimony, the circuit court conducted an in camera hearing before 

ruling on petitioner’s motion to disqualify Dr. Saar “filed just a few days” prior. During that 

4 It is unclear from petitioner’s brief what skin condition is at issue, which is compounded 

by his failure to cite to the correct pages in the record.
5

hearing, Dr. Saar testified that he had no recollection of speaking with petitioner’s counsel or wife 

prior to being retained by the State. However, after being notified by the State of a potential issue, 

Dr. Saar’s secretary researched and found that Dr. Saar had spoken to petitioner’s wife and 

encouraged her to have petitioner’s attorney call him. He testified that 

[a]pparently, I took the call and gave her some general opinions and told her to have 

her lawyer contact me. This is based on what [petitioner’s counsel] had informed 

me. And then when he and I spoke again, he had stated he had contacted my office 

and asked if I was basically a memory expert, per se. At that time I said I was not, 

more with regards to disclosures. And that’s the last I think he and I communicated 

until I contacted him after I was reminded about the case. . . . I don’t have a 

recollection. When he and I spoke the second time, it was more of he had said that 

he would get back to our office if they chose to utilize our services, if they were 

unable to find somebody who specialized in memory. . . . [T]here was never any 

engagement with regard to a contract signed or any type of therapeutic relationship 

certainly with [petitioner’s wife]. It was just kind of a fact-finding mission. We get 

quite a few of those where people call and want to know what services we provide. 

. . . At that time, and actually since I did not recall our conversations until after all 

the information was received and my opinion was formulated, I don’t see how it 

could negatively impact my opinion. 

It is clear from Dr. Saar’s testimony that he had no independent recollection of speaking with 

petitioner’s wife or counsel prior to being retained by the State or formulating his opinion. Thus, 

it is apparent from Dr. Saar’s testimony that the circuit court did not abuse its discretion in finding 

that petitioner failed to prove that it was objectively reasonable for petitioner, his wife, or his 

attorney to conclude that confidential, privileged information was disclosed to Dr. Saar.

D. Alleged 404(b) evidence

Petitioner’s fourth assignment of error is that the circuit court erred by allowing the 

introduction of “evidence of [petitioner’s] alleged affair through telephonic conversations after the 

court expressly prohibited this i[n] a pre-trial order and allegations of multiple counts for which 

[petitioner] was not tried and prosecutorial misconduct for doing so.” Petitioner looks to his alleged 

motion to prohibit the introduction of Rule 404(b) evidence, particularly the affair, but he fails to 

point this Court to the location of that motion or the resulting circuit court order in the record.5

Without explaining who Dr. Edward Baker is, petitioner states that “even at the trial when the 

defense objected to portions of Dr. Edward Baker’s report being introduced that had the allegation 

of the affair in it the [c]ourt required that the State redact it.” Continuing to fail to cite to the record, 

petitioner says that the State filed a motion to introduce the audio-taped transcripts of petitioner’s 

conversations with his wife but petitioner objected to that motion. He further contends that the 

“remaining facts of 404[(b)] relates[sic] to the allegation the [p]etitioner committed acts that were 

dismissed . . . and allegations that were never actually [i]ndicted when questioning the alleged 

victim.” Failing to cite any authority, he asserts that the purpose of Rule 404(b) is essentially to 

5 Rather than citing to the order at issue, he again cites to one page of the criminal 

complaint. 
6

prevent the introduction of other bad acts committed by a defendant to suggest to a jury that if he 

did the other bad acts before, he must have committed the contested offense. He is also critical of 

the State’s inquiry of S.C. as to how many times certain types of conduct occurred, which he 

contends was never res gestae nor warranted for any purpose other than to prejudice petitioner. 

Again, petitioner has failed to comply with Rule 10(c)(7). In addition, when the State 

questioned petitioner’s wife inquiring whether truth was a frequent emphasis of her calls with 

petitioner, she responded, “Yes. Because he had to tell me that he had a girlfriend . . . Because I 

did not know. And that’s how I talk to him. When I want to know something, that’s how I talk to 

him.” The State followed up with an unclear question of “[w]hat dropped you down to 50?” 

Petitioner’s wife responded, “The girlfriend. He had to tell me about his girlfriend, and that did 

it.”6 At that point, petitioner’s counsel objected “to this line of questioning” without presenting 

further detail or argument. As this Court has found, “[g]eneral objections are ordinarily not 

sufficient to preserve the error for appellate review . . . .” State v. Johnson, 179 W. Va. 619, 628, 

371 S.E.2d 340, 349 (1988). This Court has also found as follows:

“General objections are not favored under W.Va.R.Evid. 103(a)(1).” Hanshaw v.

Hanshaw, 180 W.Va. 478, 479 n. 1, 377 S.E.2d 470, 471 n. 1 (1988). Moreover, 

this Court has recognized:

A general objection overruled [italics in original] is of small value 

to the objector on appeal. . . . The rationale of this rule is that the 

proponent of the evidence should be given an opportunity to meet 

the objection by reframing the question, laying the necessary 

foundation, or by other means. A general objection does not offer 

him this opportunity. Thus, the objector in most instances will lose 

his rights on appeal by failing to take further action after 

his general objection has been overruled.

State v. McFarland, 175 W.Va. 205, 220, 332 S.E.2d 217, 232 (1985) (quoting F. 

Cleckley, Handbook On Evidence for West Virginia Lawyers § 18.B.3.c(2) at 91 

(1978)).

Craighead v. Norfolk and W. Ry. Co., 197 W. Va. 271, 280, 475 S.E.2d 363, 372 (1996). Based 

upon the transcript, it is unclear why petitioner’s counsel objected to this “line of questioning” so 

this Court cannot determine whether the circuit court properly overruled petitioner’s general 

objection. As we have previously set forth,

[t]he West Virginia Rules of Evidence and the West Virginia Rules of Civil 

Procedure allocate significant discretion to the trial court in making evidentiary and 

procedural rulings. Thus, rulings on the admissibility of evidence . . . are committed 

to the discretion of the trial court. Absent a few exceptions, this Court will review 

evidentiary and procedural rulings of the circuit court under an abuse of discretion 

standard.

6 It is unclear from the transcript what the State meant by “dropped you down to 50[.]”
7

Syl. Pt. 1, in part, McDougal v. McCammon, 193 W. Va. 229, 455 S.E.2d 788 (1995). Employing

these standards, we find that petitioner has failed to show that the circuit court abused its discretion 

in overruling petitioner’s general objection at issue.

Further, the circuit court found that petitioner’s other acts of sexual misconduct toward 

S.C. were “part and parcel” of the sexual misconduct for which petitioner was convicted, finding 

that the evidence was res gestae evidence, rather than Rule 404(b) evidence. This Court has 

explained that

[s]yllabus point 1 of State v. Spicer, 162 W.Va. 127, 245 S.E.2d 922 (1978), holds: 

“Other criminal act evidence admissible as part of the res gestae or same 

transaction introduced for the purpose of explaining the crime charged must be 

confined to that which is reasonably necessary to accomplish such 

purpose.” Accord syl. pt. 8, State v. Dennis, 216 W.Va. 331, 607 S.E.2d 437

(2004); syl. pt. 4, State v. Hager, 204 W.Va. 28, 511 S.E.2d 139 (1998); syl. pt. 

2, State v. McGhee, 193 W.Va. 164, 455 S.E.2d 533 (1995). See State v. McKinley,

234 W.Va. 143, 155, 764 S.E.2d 303, 315 (2014) (“Events, declarations and 

circumstances which are near in time, causally connected with and illustrative of 

transactions being investigated are generally considered res gestae and admissible 

at trial.” (citation omitted)).

State v. McDaniel, 238 W. Va. 61, 69, 792 S.E.2d 72, 80 (2016). Thus, we find that the circuit 

court did not abuse its discretion in permitting the admission of the res gestae evidence complained 

of by petitioner.

E. The victim’s statements allegedly contradicted the discovery

Petitioner next argues that S.C.’s statements were inconsistent and contradictory with 

discovery and “coached by the State[.]” Without citing to the record, petitioner asserts that the 

original complaint to the DHHR concerned a “tickle game” through S.C.’s clothing and that the 

CAC interview was not conducted until eight days later. He is critical of the CAC interview’s 

reassuring comment to S.C. of “good job,” but he fails to explain why that comment is important. 

While he contends that S.C. was counseled two times during that eight-day period, the page of 

testimony he cites does not support that assertion. He then sets forth a number of other facts without 

citing to the record before again citing the first page of the criminal complaint, contending that it 

“clearly states this action occurred on December 27, 2016, which is consistent with the original 

interviews.” He does not, however, address any other dates, so it is unclear what assertion he is 

making regarding the date or dates of his offenses. Petitioner also points to other counseling S.C. 

had with a different counselor, but without support from the record he contends that “her parents 

continued to encourage her to add allegations” and that she was “being rewarded for her 

victimization . . . .” He then draws this Court’s attention to the assistant prosecutor’s statement that 

he had “to prepare and assist” the victim with her testimony without setting forth any argument or 

analysis regarding that statement. Without identifying who “Robert and Miss Kim” are, he says 

that S.C. stated she had several long talks with those individuals, again without setting forth any 

argument or analysis. 
8

Petitioner’s brief on this point is particularly unclear, and it is questionable, at best, whether 

it complies with Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure. To the extent 

that his argument is a sufficiency of the evidence argument, 

“[a] criminal defendant challenging the sufficiency of the evidence to support a 

conviction takes on a heavy burden. An appellate court must review all the 

evidence, whether direct or circumstantial, in the light most favorable to the 

prosecution and must credit all inferences and credibility assessments that the jury 

might have drawn in favor of the prosecution. The evidence need not be 

inconsistent with every conclusion save that 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 verdict 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.” Syl. pt. 3, [State v.] Guthrie[, 194 W. Va. 

657, 461 S.E.2d 163 (1995).]

State v. Benny W., __ W. Va. __, __, 837 S.E.2d 679, 688 (2019). Further,

“‘[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate 

inferences from the facts are jury functions, not those of a judge . . .’ [Williams v. Precision Coil, 

Inc., 194 W. Va. 52, 59, 459 S.E.2d 329, 336 (1995)] (internal quotations and citations omitted).” 

Teubert Family Farms, LLC v. Bragg, __ W. Va. __, __, 836 S.E.2d 412, 416 (2019). Petitioner’s 

largely unsupported string of facts, without real argument or analysis, fails to satisfy the heavy 

burden of a sufficiency of the evidence argument.

F. The victim’s allegedly false memory

In his sixth assignment of error, petitioner argues “false memory of the victim after being 

encouraged and rewarded for adding incidents after the criminal complaint and indictment.” He 

asserts that Dr. Strange testified that S.C.’s testimony was consistent with false memory and 

provided detailed testimony as to how people can believe something happened that did not. 

However, he once again fails to cite to the record for that alleged testimony. Citing a single page 

of Dr. Strange’s testimony, petitioner contends that she “cited specific examples where her 

physical presence would have made an impact on the case,” but the page of testimony does not 

address that issue. She did, however, testify that children of S.C.’s age “are perhaps the most 

suggestible verbal people. . . . So you see a heightened suggestibility in young people.” Dr. Strange 

also testified about confirmation bias, which she explained was “[w]hen an adult asks questions of 

a child in a directed way where they have an existing belief about what may have happened” 

explaining that that “can lead to a very biased interviewing procedures[sic] which in turn can lead 

a child in particular into developing memory distortion for what actually happened in their past.” 

He also asserts that Dr. Strange concluded that there were suggestive influences present in this 

case that could have led to the development and maintenance of a distorted memory over time, but 

he fails to cite to the record for that alleged conclusion. Petitioner also contends that Dr. Strange’s 

assertions were not rebutted by Dr. Saar or any other witness.

As this Court has stated previously,
9

[t]he testimony of expert witnesses on an issue is not exclusive, and does not 

necessarily destroy the force or credibility of other testimony. The jury has a right 

to weigh the testimony of all witnesses, experts and otherwise; and the same rule 

applies as to the weight and credibility of such testimony.

Tri-State Petroleum Corp. v. Coyne, 240 W. Va. 542, 559, 814 S.E.2d 205, 222 (2018) (quoting 

Syl. Pt. 2, Papenhaus v. Combs, 170 W. Va. 211, 292 S.E.2d 621 (1982). The jury heard the 

testimony and considered the evidence, and petitioner does not argue that the circuit court erred in 

any way related to this evidence. Therefore, it is unclear what petitioner seeks from this Court 

regarding this allegation of error.

G. Counts 17 and 18 of the indictment

Petitioner’s seventh assignment of error is that there was no specific evidence introduced

at trial to support counts 17 and 18 of the indictment. Once again failing to cite to the record, 

petitioner asserts that both he and the jury questioned the significance of these counts, as they are 

the only counts that allege that specific acts occurred during a specific time over a thirty-day 

period, while the other counts allege that incidents occurred between September and April. He 

cites page fourteen of the record in support of his contention that the jury

was also confused as to why only these [two c]ounts had a specific date of March 

and none of the other [c]ounts had a specific time frame and asked the [j]udge by 

note sent from the jury room . . . which was answered by the [j]udge placing his 

initials . . . at the end of the answer.

However, that page of the record is actually a page in the criminal complaint that does not support 

petitioner’s assertions so he has, again, failed to comply with Rule 10(c)(7). Further, he contends 

that there was “virtually no testimony” regarding anything occurring in March, as the CAC 

interview referred to times near Halloween and Christmas.7 Citing State v. Davis, 139 W. Va. 645, 

81 S.E.2d 95 (1954), he argues that because the evidence was insufficient, the guilty verdict must 

be set aside.

As set forth above, a defendant challenging the sufficiency of the evidence to support a 

conviction takes on a heavy burden, and this Court reviews all the evidence in the light most 

favorable to the prosecution. Benny W., __ W. Va. at __, 837 S.E.2d at 688. Both of these counts 

provide that the conduct at issue occurred “on or about a day in March, 2017.” The State does not 

dispute that it must prove all elements of the crime beyond a reasonable doubt. However, it argues 

that the “date of the offense is not an element of the crime [so] the State was not required to prove 

the offense occurred on the date alleged in the charging instrument.” Count seventeen of the 

indictment, sexual abuse in the first degree pursuant to West Virginia Code § 61-8B-7(a)(3) and

7 Petitioner cites only two cases in support of this argument, one of which is inapplicable 

to this case, as it specifically addresses findings of a trial court when “a case tried by [a trial court] 

in lieu of a jury is against the preponderance of the evidence, is not supported by the evidence, or 

is plainly wrong . . . .” Syl. Pt. 1, in part, Bettinger v. Bettinger, 183 W. Va. 528, 396 S.E.2d 709 

(1990) (citations omitted). The instant case was tried before a jury.
10

(c), provides that the grand jurors charge petitioner with sexual abuse in the first degree by 

unlawfully and feloniously subjecting another person to sexual contact “to wit: by subjecting S.C., 

a child younger than twelve years of age, to sexual contact, by intentionally touching the vagina 

of S.C., in violation of W.Va. Code § 61-8B-7(a)(3) & (c), against the peace and dignity of the 

State.” Similarly, count eighteen charged petitioner was sexual abuse by a parent, guardian, 

custodian or person in a position of trust pursuant to West Virginia Code § 61-8D-5(a), 

to wit: by subjecting S.C., his granddaughter, a child under the age of eighteen 

years, to sexual contact, by intentionally touching the vagina of S.C., while 

[petitioner] was the parent, guardian or custodian to said child who was under his 

care, custody, or control, in violation of W.Va. Code § 61-8D-5(a), against the 

peace and dignity of the State.

It is clear from the indictments that the date of “on or about” a date in March of 2017 was not an 

element of the crimes charged in those counts. Further, the other counts charged petitioner with 

conduct occurring “between September 1, 2016, and April 27, 2017,” which encompasses March 

of 2017, in addition to dates shortly before and after March of 2017. Due, in part, to petitioner’s 

failure to comply with Rule 10(c)(7), he failed to demonstrate any type of jury confusion regarding 

these counts. Based on the facts of this case, we find that petitioner has not satisfied his heavy 

burden necessary to show that the evidence was insufficient to support his convictions on these 

counts.

H. The denial of petitioner’s motion for a directed verdict

Petitioner’s next assignment of error is that the circuit court failed to consider and grant his 

motion for directed verdict related to his alibi when the State allegedly failed to present rebuttal 

evidence. He also contends that S.C. alleged that the abuse occurred over Christmas break in late 

2016 through early 2017. However, petitioner introduced evidence at trial that from December 20, 

2016, through December 30, 2016, he and his wife were on vacation in Texas; that evidence 

included photos and airline tickets. Without citing to the record, petitioner further contends that 

“the children were not being cared for by [p]etitioner from mid-December when [their] mother . . 

. got out of nursing school until she returned to school in mid-January.” Without citing to the 

record, petitioner asserts that he requested a bill of particulars “to ascertain when, where, and what 

occurred to mount his defense” and that the State did not introduce testimony to refute petitioner’s 

alibi.8 Citing Guthrie, he asserts “[i]t is the State[’s] . . . burden to prove beyond a reasonable 

doubt. The [j]ury cannot simply infer guilt, and must make a prima fascia[sic] case that, in a light 

most favorable to the State, would allow a jury to infer guilt.” 

Petitioner appears to be confusing the various standards at issue. We have found that 

8 He also briefly discusses an alleged assault “in granny’s car when [p]etitioner’s vehicle 

was in the shop[,]” though he fails to cite the record or any law regarding that argument so we 

decline to address it. 
11

“‘[u]pon a motion [for judgment of acquittal], the evidence is to be viewed 

in the light most favorable to [the] prosecution. It is not necessary in appraising its 

sufficiency that the trial court or reviewing court be convinced beyond a reasonable 

doubt of the guilt of the defendant; the question is whether there is substantial 

evidence upon which a jury might justifiably find the defendant guilty beyond a 

reasonable doubt.’ State v. West, 153 W.Va. 325, [168 S.E.2d 716] (1969).” Syl. pt. 

1, State v. Fischer, 158 W.Va. 72, 211 S.E.2d 666 (1974).

Syl. Pt. 5, State v. Grimes, 226 W. Va. 411, 701 S.E.2d 449 (2009). Petitioner’s wife testified as 

to the flight itinerary for her trip with petitioner in December of 2016. Therefore, that information 

was presented to the jury. However, as set forth above, this Court “must credit all inferences and 

credibility assessments that the jury might have drawn in favor of the prosecution.” Benny W., __ 

W. Va. at __, 837 S.E.2d at 688. Petitioner does not argue that there was insufficient evidence 

upon which a jury might justifiably find him guilty beyond a reasonable doubt, particularly when 

viewing the evidence in the light most favorable to the State. Therefore, we find that the circuit 

court did not err in denying petitioner’s motion for a judgment of acquittal.

I. Jury instructions and verdict forms

Finally, petitioner argues that “the instructions and verdict forms were so vague that neither 

[petitioner] nor the jury could ascertain which count related to which incident and where such 

occurred such that [petitioner] had no reasonable ability to assert a defense.” Petitioner is critical 

of the verdict form, but he fails to point to that form in the record. He also fails to cite to the record 

to support his assertion that “[t]he language in the instructions was vague such that no one could 

defend or expect a jury to comprehend where or when the acts occurred. The [j]ury had no idea 

nor did [petitioner].” Continuing to fail to cite to the record, he references alleged incidents in 

“granny’s car[,]” asserting that the State produced records to “show that Pap’s truck was in the 

shop.” Due to petitioner’s continuing failure to cite to the record, as required by Rule 10(c)(7), and 

his extremely vague argument, this Court cannot fully consider petitioner’s final assignment of 

error. For instance, while he complains about the “vague and highly prejudicial” jury instructions, 

he does not specify which instructions raise concerns, whether he objected to those instructions, 

or whether he proposed alternative instructions. For these reasons, we decline to address the merits 

of this assignment of error. We hereby affirm the circuit court’s denial of petitioner’s post-trial 

motions.

Affirmed.

ISSUED: April 20, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison