STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED State of West Virginia, May 17, 2013 Plaintiff Below, Respondent RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA vs) No. 12-0233 (Gilmer County 10-F-18) 

Kenneth M.,
 

Defendant Below, Petitioner
 

MEMORANDUM DECISION 

Petitioner Kenneth M.,1 by counsel, David Karickhoff, appeals his convictions for ten 

felony offenses of sexual abuse by a custodian in violation of West Virginia Code § 61-8D-5(a). 

The State of West Virginia, by counsel, The Office of the Attorney General, filed its response. 

Petitioner seeks the reversal of the convictions and requests that the matter be remanded for a 

new trial. 

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 is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

Petitioner was convicted of engaging in sexual contact with W.S., petitioner’s stepdaughter, on ten separate occasions when she was thirteen years of age. The sexual contact is 

alleged to have occurred between November of 2007 and January of 2008 when petitioner was 

married to and resided with W.S.’s mother. When the allegations were reported to police, 

Trooper First Class Rob Smith gave petitioner his Miranda warning before obtaining a 

statement. Trooper Smith estimates that the interview lasted approximately one hour. During the 

jury trial, Trooper Smith read from the transcript of petitioner’s statement during which 

petitioner admitted he touched W.S. in the vaginal area on two occasions while swimming but 

denied that the touching was sexual. However, when petitioner was asked whether he ever went 

into W.S.’s room and touched W.S. inappropriately, petitioner told Trooper Smith that he did not 

remember. During the statement, petitioner denied ever touching W.S.’s vagina when he went 

into her room to cover her up at night. He then contradicted himself and said that when he would 

go into W.S.’s room to cover her up, he had touched her vagina twice. 

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Consistent with this Court’s practice of protecting the identity of juveniles in sensitive 

matters, we identify the names of the parties and family members in this case by their initials or 

partial names only. 

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Following a jury trial, petitioner was convicted of all ten felony counts of sexual abuse by 

a custodian. The jury sentenced petitioner to a term of fifty to one hundred years by order entered 

January 9, 2012.2 Petitioner appeals those convictions. 

On appeal, petitioner asserts a single assignment of error: The evidence presented at trial 

was insufficient to support the convictions. In support of that contention, petitioner argues that he 

did not commit the crimes for which he was convicted. Petitioner argues that eight of the counts 

of the indictment could not have occurred as alleged because those incidents occurred when 

petitioner claims he was living with his mother in order to perform work on her water line. 

Petitioner states that he cannot read or write, and he lacks both education and sophistication. He 

claims that when he was interviewed by Trooper Smith, he did not fully understand that he could 

assert his right to remain silent or request that he have an attorney present. He argues that it was 

only after repeated questioning by Trooper Smith that he followed the officer’s direction and told 

Trooper Smith what the officer wanted to hear. Petitioner contends that the State failed to prove 

beyond a reasonable doubt that petitioner unlawfully, knowingly, intentionally, and feloniously 

engaged in or attempted to engage in sexual contact with W.S. while petitioner was the custodian 

or in a position of trust to W.S., who was in his care, custody, or control. Petitioner also argued 

that W.S.’s testimony that some of the sexual contact occurred while W.S.’s younger sister was 

in bed with her is “inherently incredible.” 

The State argues that despite petitioner’s assertion to the contrary, petitioner had the 

opportunity to sexually abuse his step-daughter, as they lived in the same house. He admitted to 

Trooper Smith that he touched W.S.’s vagina, including explaining that he did so at night, in her 

bedroom, just as she described. Petitioner’s wife testified that petitioner lived with her at all 

times relevant to the charges, so there was no impossibility. The State asserts that the jury 

weighed the credibility of the witnesses and chose to believe W.S. and her mother. The State 

disputes petitioner’s contention that there is anything “inherently incredible” about W.S.’s 

testimony. 

“The function of an appellate court when 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 sufficient to convince a 

reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the 

relevant inquiry is whether, after viewing 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). 

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Petitioner’s original petition was filed on May 9, 2012. However, because the brief 

lacked any citation to the record, the State filed a motion requesting that petitioner submit an 

appropriate amended brief. This Court then entered a scheduling order which required petitioner 

to submit an amended brief no later than July 30, 2012. Petitioner’s amended brief was not 

received until August 1, 2012, but petitioner also filed a “Statement of Good Cause as to Why 

Brief was Untimely” stating that the brief was placed in the mail on July 27, 2012 with the belief 

that it would arrive no later than July 30, 2012. The amended petition was considered in its 

entirety. 

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Syl. Pt. 1, State v. McFarland, 228 W.Va. 492, 721 S.E.2d 62 (2011). 

AA 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. To the extent that our prior cases are 

inconsistent, they are expressly overruled.@ Syl. pt. 3, State v. Guthrie, 194 W. Va. 

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

Syl. Pt. 2, McFarland; Syl. Pt. 7, State v. White, 228 W.Va. 530, 722 S.E.2d 566 (2011). Further, 

testimony should be found inherently incredible “only when the testimony defies physical laws.” 

State v. McPherson, 179 W.Va. 612, 617, 371 S.E.2d 333, 338 (W.Va. 1988). Based on the 

record before this Court, we find that petitioner failed to meet the heavy burden needed to 

establish that the evidence presented to the jury was insufficient to support his convictions. The 

jury made its credibility determination and found that petitioner was guilty of all charges. 

Therefore, viewing the evidence in the light most favorable to the prosecution, this Court finds 

that a rational trier of fact could have found the essential elements of the crime proved beyond a 

reasonable doubt. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: May 17, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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