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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

January 2015 Term 

_____________ FILED 

April 10, 2015 

No. 14-0173 released at 3:00 p.m. 

_____________ RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

STATE OF WEST VIRGINIA,
 

Plaintiff Below, Respondent
 

v. 

KENNETH SEEN,
 

Defendant Below, Petitioner
 

Appeal from the Circuit Court of Roane County
 

The Honorable Thomas C. Evans, III, Judge
 

Civil Action No. 13-M-02
 

AFFIRMED IN PART AND REVERSED IN PART
 

Submitted: February 10, 2015
 

Filed: April 10, 2015
 

S. Benjamin Bryant, Esq. Patrick Morrisey, Esq.
 

Carey, Scott, Douglas & Kessler, PLLC Attorney General
 

Charleston, West Virginia Benjamin F. Yancey, III, Esq.
 

Attorney for the Petitioner Assistant Attorney General
 

Charleston, West Virginia 

Attorneys for the Respondent 

CHIEF JUSTICE WORKMAN delivered the Opinion of the Court. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “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). 

2. “A criminal defendant challenging the sufficiencyof 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). 

3. “In order for a sentencing judge to make a finding pursuant to W. Va. Code 

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§ 15-12-2(c) (2001) that a defendant who has been convicted of a criminal offense - after a 

trial or by means of a plea of guilty or nolo contendere - was ‘sexually motivated’ in the 

commission of that offense, the defendant must have been advised prior to trial or the entry 

of a plea of the possibility of such a finding.” Syl. Pt. 1, State v. Whalen, 214 W.Va. 299, 

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

4. “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). 

5. “To trigger application of the ‘plain error’ doctrine, there must be (1) an 

error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, 

integrity, or public reputation of the judicial proceedings.” Syl. Pt. 7, State v. Miller, 194 

W.Va. 3, 459 S.E.2d 114 (1995). 

6. “Although it is a well-settled policy that the Supreme Court of Appeals 

normally will not rule upon unassigned or imperfectly assigned errors, this Court will take 

cognizance of plain error involving a fundamental right of an accused which is protected by 

the Constitution.” Syl. Pt. 4, State v. Starr, 158 W.Va. 905, 216 S.E.2d 242 (1975). 

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7. “Failure to observe a constitutional right constitutes reversible error unless 

it can be shown that the error was harmless beyond a reasonable doubt.” Syl. Pt. 5, State ex 

rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975). 

8. “In a criminal case, the burden is upon the beneficiary of a constitutional 

error to prove beyond a reasonable doubt that the error complained of did not contribute to 

the verdict obtained.” Syl. Pt. 3, State v. Frazier, 229 W.Va. 724, 735 S.E.2d 727 (2012). 

9. “Errors involving deprivation of constitutional rights will be regarded as 

harmless only if there is no reasonable possibility that the violation contributed to the 

conviction.” Syl. Pt. 20, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974). 

10. “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). 

iii 
 

 

 

 

 

 

 

11. “When a criminal defendant undertakes a sufficiency challenge, all the 

evidence, direct and circumstantial, must be viewed from the prosecutor’s coign of vantage, 

and the viewer must accept all reasonable inferences from it that are consistent with the 

verdict. This rule requires the trial court judge to resolve all evidentiary conflicts and 

credibility questions in the prosecution’s favor; moreover, as among competing inferences 

of which two or more are plausible, the judge must choose the inference that best fits the 

prosecution’s theory of guilt.” Syl. Pt. 2, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 

(1996). 

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Workman, Chief Justice: 

This is an appeal by Kenneth Seen (hereinafter “petitioner”) from a judgment 

of the Circuit Court of Roane County in which the lower court found the petitioner guilty of 

battery, found that the offense was sexually motivated, and ordered the petitioner to register 

as a sex offender. Upon thorough review of the appendix record, the arguments of the 

parties, and the applicable precedent, this Court affirms the battery conviction and reverses 

the finding that the offense was sexually motivated. 

I. Factual and Procedural History 

On August 31, 2012, Mr. John S., a patient1 at the long term care component 

of Roane General Hospital in Spencer, West Virginia, bit off a portion of the petitioner’s 

tongue. The petitioner, a physician employed as a hospitalist at Roane General Hospital from 

2003 until October 2012, had begun an examination of Mr. S. at approximately 8:00 p.m. and 

had advised a nurse that he did not need assistance in the examination.2 

1

Mr. S. was seventy-seven years of age at the time of the incident and was suffering 

from dementia, Parkinson’s Disease, arthritis, depression, and anxiety. He is now deceased. 

This Court continues to follow the practice of using initials to identify individuals in cases 

with sensitive facts. See In re Jeffrey R.L., 190 W.Va. 24, 26 n. 1, 435 S.E.2d 162, 164 n. 

1 (1993). 

2

Although another doctor typicallyhandled patient admissions, the petitioner indicated 

that he wished to admit Mr. S. on the evening in question due to the fact that the petitioner 

had taken care of Mr. S. when he was previously in the long term care unit. 

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During the examination, Mr. S. bit off a portion of the petitioner’s tongue. 

According to the record, the petitioner did not immediately report this incident. He departed 

Mr. S.’s room, deposited the chart at the nurse’s station, and went to his office. 

Approximately one hour after the incident occurred, the petitioner telephoned a physician on 

duty in the hospital’s emergency room, Dr. Jason Fincham, and asked Dr. Fincham to 

examine the petitioner in the emergency room. The petitioner did not explain his injury at 

that time. Dr. Fincham informed the petitioner that the emergency room was very busy. 

The petitioner thereafter informed staff members that Mr. S. had bitten his 

tongue. The nurse with whom the petitioner spoke testified that the petitioner’s mouth was 

covered with a paper towel or washcloth and that he motioned to her to read what he had 

typed into his laptop computer. The message informed her that he had been performing an 

assessment of Mr. S. and had leaned in toward Mr. S. to better hear him. The petitioner 

explained that when he bent down, Mr. S. grabbed his tongue and bit it. Nurses then 

examined the petitioner and observed that a portion of his tongue was missing. 

Dr. Fincham was contacted again, and he arrived at the acute care floor to 

begin treating the petitioner. The petitioner informed Dr. Fincham that he was licking his 

lips when Mr. S. bit his tongue. Dr. Fincham administered pain medications and other 

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necessary medications to the petitioner and arranged for the petitioner to be transported by 

ambulance to Charleston Area Medical Center in Charleston, West Virginia, to consult a 

specialist. The petitioner was examined and treated at Charleston Area Medical Center and 

was released later that same night. 

After transferring the petitioner to Charleston, Dr. Fincham examined Mr. S. 

Dr. Fincham testified that Mr. S. was alert, but confused, disoriented and unable to 

communicate. Mr. S. had blood around his lips and in his mouth. He was also chewing 

something.3 Due to his arthritic condition, the joints of Mr. S.’s hands were swollen, his 

fingers were drawn inward, and his grip strength was poor. Dr. Fincham believed that Mr. 

S. lacked the fine motor skills, strength, and grasping ability to hold the petitioner’s tongue.4 

On September 1, 2012, Dr. Timothy Metzger examined Mr. S. Dr. Metzger 

indicated that Mr. S. was weak and unable to move his hands well. Mr. S. did not 

demonstrate any physical aggression toward any staff member; however, Mr. S. was not 

3

Later in the evening of August 31, 2012, two certified nursing assistants entered Mr. 

S.’s room to perform the routine procedures of bathing, shaving, and brushing teeth. The 

assistants noticed fresh blood on the floor and bedspread. During the process of brushing 

Mr. S.’s teeth, the assistants recovered a bloody substance from Mr. S.’s mouth, thought to 

be a portion of the petitioner’s tongue. 

4

A nurse who treated Mr. S. also testified that he was elderly, debilitated, and lacked 

the strength to sit up. The nurse indicated that Mr. S. did not have strong grasping ability and 

that his hands were arthritic and stiffened, with fingers curled inward toward his palms. She 

testified that she had never seen Mr. S. extend or open his fingers. 

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compliant when Dr. Metzger attempted to conduct an examination of Mr. S.’s mouth. When 

Dr. Metzger asked Mr. S. about the incident with the petitioner, Mr. S. became upset and 

indicated to Dr. Metzger that something had happened between him and the petitioner. Mr. 

S. refused to talk about it and stated that he did not want to dwell on it. 

Mr. Douglas Bentz, the Chief Executive Officer of Roane General Hospital, 

investigated the incident and telephoned the petitioner on September 1, 2012. During this 

conversation, the petitioner reported that the incident occurred as he was leaning over to hear 

what Mr. S. was saying. The petitioner further reported that Mr. S. had grabbed the back of 

the petitioner’s neck and bit his tongue. Mr. Bentz also met with the petitioner on September 

7, 2012. During this meeting, the petitioner reported that Mr. S. had grabbed the back of his 

neck with one hand and had reached up with his other hand to grab the petitioner’s tongue, 

pulling the petitioner toward him. 

On September 18, 2012, Mr. S.’s daughter filed a criminal complaint with the 

West Virginia State Police. Trooper Frederick Hammack investigated the matter and visited 

Mr. S. on October 1, 2012. Trooper Hammack indicated that Mr. S. was unable to speak and 

had very little grip strength. Trooper Hammack further noted that the knuckles of Mr. S.’s 

hands were bent, with his fingers pointing inward towards his body. Trooper Hammack 

indicated that he found Mr. S. to be “as frail . . . a human being as [he had] ever attempted 

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. . . to speak to about anything.” 

On March 18, 2013, the petitioner was charged by information with violating 

the general battery statute, West Virginia Code § 61-2-9 (c) (2013). The information alleged 

that the petitioner “did unlawfully and intentionally make physical contact of an insulting or 

provoking nature with the person of John [S.] when [the petitioner] did place his tongue 

inside the mouth of said John [S.] . . . .” The petitioner moved for a bench trial, waiving his 

right to a jury, and the case was tried before the lower court on October 30 and 31, 2013.5 

The State did not provide pretrial notice of its intent to seek a finding that the 

alleged battery was sexually motivated. As the State prepared to call its first witness, the 

circuit court requested an opening statement, and the State then asked the court to find the 

petitioner guilty of the crime of battery for physical conduct of an insulting and provoking 

nature. Additionally, the State expressed its intent to request a finding of sexual motivation. 

The prosecutor’s comments in that opening statement constituted the first and only notice to 

the petitioner that the State was seeking the finding of sexual motivation.6 

5

The West Virginia Board of Medicine has suspended the petitioner’s license, based 

upon the allegations in this case. 

6

West Virginia Code §§ 15-12-2(b) and (e) identify the circumstances under which 

a convicted person must register as a sex offender. First, any person convicted of a 

“qualifying offense” must register as a sex offender, and these “qualifying offenses” are 

listed in West Virginia Code § 15-12-2(b)(1) - (7). These offenses include explicitly sexual 

elements. Additionally, pursuant to West Virginia Code § 15-12-2(c), a convicted person 

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On October 31, 2013, the trial court found beyond a reasonable doubt that the 

petitioner was guilty of battery. The court further found that the battery was sexually 

motivated. An order was entered on November 4, 2013, enunciating the court’s findings and 

ordering the petitioner to register with the West Virginia State Police as a sex offender, 

pursuant to West Virginia Code §§ 15-12-1 to -10 (2014). 

The petitioner filed a motion for a new trial on November 14, 2013, 

challenging evidentiary findings and asserting that the sexual motivation finding was 

erroneous. On December 16, 2013, the court denied the motion and sentenced the petitioner 

to two years probation with the requirement of 300 hours of community service. The court 

further ordered the petitioner to register as a sex offender for ten years and pay a $500 fine, 

as well as other costs and fees. The final order was entered on December 23, 2013. 

The petitioner now appeals to this Court, contending that (1) the trial court’s 

finding of sexual motivation and consequent order that the petitioner register as a sex 

offender constitute plain error and must be vacated because neither the State nor the court 

gave the petitioner pretrial notice concerning sex offender status and registration; (2) the trial 

court’s finding of sexual motivation was based on speculation and must be vacated; and (3) 

must register as a sex offender where convicted of another crime, if the sentencing judge 

makes a written finding that the offense was “sexually motivated.” W. Va. Code § 

15-12-2(c). 

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the trial court’s finding that the petitioner was guilty of battery was not supported by 

sufficient evidence. For purposes of evaluation on appeal, this Court will combine the 

petitioner’s two issues regarding the finding of sexual motivation. 

II. Standard of Review 

The petitioner’s first assignment of error involves a question of law on the 

issue of pretrial notice concerning the State’s intention to seek a finding of sexual motivation. 

This Court has consistently observed: 

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). 

The petitioner’s remaining assignment of error is based upon sufficiency of the 

evidence and is consequently governed by a separate standard of review. In syllabus point 

three of State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995), this Court explained: 

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 

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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. 

With these standards as guidance, we address the contentions of the parties. 

III. Discussion 

A. Pretrial Notice of Intent to Seek Finding of Sexual Motivation 

The petitioner first asserts that his due process rights were violated by the 

State’s failure to provide pretrial notice of its intent to seek a finding of sexual motivation. 

The petitioner further contends that the trial court’s finding of sexual motivation and 

consequent order requiring him to register as a sex offender constitute plain error7 requiring 

reversal. 

The petitioner agues that a violation of a defendant’s constitutional rights to 

due process under the Fourteenth Amendment to the United States Constitution occurs when 

the defendant is not provided with required pretrial notice. See U.S. Const. amend. XIV, § 

1 (“No State shall make or enforce any law which shall abridge the privileges or immunities 

7

The petitioner failed to preserve the issue of pretrial notice by objecting in the 

proceedings below. Thus, evaluation of this issue on appeal is limited to plain error analysis. 

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of citizens of the United States; nor shall any State deprive any person of life, liberty, or 

property, without due process of law; nor deny to any person within its jurisdiction the equal 

protection of the laws.”); W. Va. Const. art. III, § 10 (“No person shall be deprived of life, 

liberty, or property, without due process of law. . . .); W. Va. Const. art. III, § 14 (providing 

that in all criminal trials, “the accused shall be fully and plainly informed of the character and 

cause of the accusation. . . .”). As the United States Supreme Court explained in Mathews 

v. Eldridge, 424 U.S. 319 (1976), procedural due process protections impose constraints on 

the procedures through which the government can deprive an individual of protected liberty 

or property interests. Id. at 349. Notice of potential deprivations and opportunity to be heard 

are required. Id.8 

In State v. Whalen, 214 W.Va. 299, 588 S.E.2d 677 (2003), this Court 

addressed the issue of procedural protections and specifically required that pretrial notice be 

provided to a defendant of the State’s intention to seek a finding of sexual motivation. 

Syllabus point one of Whalen explains: 

In order for a sentencing judge to make a finding 

pursuant to W.Va. Code, 15-12-2(c) [2001] that a defendant 

who has been convicted of a criminal offense that is not 

specifically identified in the Sex Officer Registration Act at 

W.Va. Code, 15-12-2(b) [2001] - after a trial or by means of a 

plea of guilty or nolo contendere - was “sexually motivated” in 

8

See also Lankford v. Idaho, 500 U.S. 110, 126 (1991) (“Notice of issues to be 

resolved by the adversary process is a fundamental characteristic of fair procedure.”). 

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the commission of that offense, the defendant must have been 

advised prior to trial or the entry of a plea of the possibility of 

such a finding. 

214 W.Va. at 300, 588 S.E.2d at 678. The Court also held in syllabus point two of Whalen 

that “[t]he evidentiary standard for a finding of ‘sexual motivation’ pursuant to W. Va. Code 

§ 15-12-2(c) (20001) 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.” Id. 

In Whalen, the defendant had pled guilty to burglary, and the circuit court found that the 

burglary was sexually motivated. Id. On appeal, the defendant argued that neither he nor his 

counsel knew the circuit court intended to make such a finding. 

In this Court’s analysis in Whalen, we recognized the distinction between the 

offenses listed in West Virginia Code § 15-12-2(b), containing explicitly sexual elements, 

and the extensive array of other crimes that do not contain an explicitly sexual element. 

Nonetheless, the statute, as quoted above, specifies that other crimes maybe deemed sexually 

motivated, and a defendant may be required to register as a sex offender. 214 W.Va. at 301, 

588 S.E.2d at 679. This Court concluded in Whalen that the defendant would be permitted 

to withdraw his guilty plea due to the State’s failure to provide pretrial notice of its intent to 

seek a finding of sexual motivation. 214 W.Va. at 304, 588 S.E.2d at 682. 

In the present case, the petitioner contends that the information alleged only 

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that he had committed battery by placing his tongue inside Mr. S.’s mouth. The petitioner 

was not provided with pretrial notice of the potential for a finding that the battery was 

sexually motivated, and battery is not listed as a “qualifying offense” in West Virginia Code 

§ 15-12-2(b). He was therefore not advised, prior to trial, of the potential to be classified a 

sex offender with the concomitant registration requirements. 

The petitioner admits that his counsel did not object during the State’s opening 

statement when the prosecuting attorneyfirst announced that the State would request a sexual 

motivation finding from the trial court. Likewise, the petitioner did not assert the lack of pretrial notice as error in his motions for judgment of acquittal and new trial. Nevertheless, on 

appeal, the petitioner contends that the absence of notice constitutes plain error and warrants 

the consideration of this Court. 

This Court has consistently held: “[t]o trigger application of the ‘plain error’ 

doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and 

(4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” 

Syl. Pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995); see also Syl. Pt. 2, State v. 

White, 231 W.Va. 270, 744 S.E.2d 668 (2013). Moreover, this Court has held that “[a]lleged 

errors of a constitutional magnitude will generally trigger a review by this Court under the 

plain error doctrine.” State v. Salmons, 203 W.Va. 561, 571 n.13, 509 S.E.2d 842, 852 n.13 

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(1998). Similarly, in syllabus point four of State v. Starr, 158 W.Va. 905, 216 S.E.2d 242 

(1975), this Court explained: “Although it is a well-settled policy that the Supreme Court of 

Appeals normally will not rule upon unassigned or imperfectly assigned errors, this Court 

will take cognizance of plain error involving a fundamental right of an accused which is 

protected by the Constitution.” 

We have also stated: “Failure to observe a constitutional right constitutes 

reversible error unless it can be shown that the error was harmless beyond a reasonable 

doubt.” Syl. Pt. 5, State ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975). 

Indeed, an error involving a deprivation of a constitutional right may be regarded as harmless 

only “if there is no reasonable possibility that the violation contributed to the conviction.” 

Syl. Pt. 20, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974). Moreover, in syllabus 

point three of State v. Frazier, 229 W.Va. 724, 735 S.E.2d 727 (2012), this Court explained: 

“In a criminal case, the burden is upon the beneficiary of a constitutional error to prove 

beyond a reasonable doubt that the error complained of did not contribute to the verdict 

obtained.” 

Likewise, in deciding the issue of whether a constitutional violation is 

harmless, the United States Supreme Court held in Chapman v. California, 386 U.S. 18 

(1967), that the burden is on “the beneficiary of a constitutional error to prove beyond a 

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reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id. 

at 24; see Bessey v. State, 239 S.W.3d 809, 814 (Tex. Crim. App. 2007) (finding omitted 

admonition regarding sex offender registration harmless where defendant not eligible for 

parole for 100 years and therefore would never be released and required to register as sex 

offender). 

In the case sub judice, the State explained in its brief that it “agrees with 

Petitioner that error was committed and that such error was plain.” The petitioner contends 

that the failure to provide notice profoundlyprejudiced him and affected his substantial rights 

by limiting his notice of the nature of the case being prosecuted against him, the elements the 

prosecution had to prove, and precisely what he needed to defend at trial. He argues that he 

knew only that this was a battery case involving an alleged insulting or provocative physical 

contact and that he did not know he would be required to defend against an allegation that 

the crime was sexually motivated. Had the State provided pretrial notice as required by 

Whalen, the petitioner contends that he could have presented evidence to rebut the issue of 

sexual motivation and would have considered utilizing expert evidence to prove he was not 

attracted to men and that he would not receive sexual gratification from kissing a man. 

In this Court’s decision in Whalen, we unequivocally declared the requirement 

for pretrial notice in circumstances like those encountered in the present case. Pretrial notice 

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in this criminal setting is a requirement of constitutional magnitude and involves procedural 

due process rights to which a defendant is entitled prior to trial. The Court finds that the 

error affected the petitioner’s substantial rights and prejudiced him by severely limiting his 

ability to prepare a defense at trial. We further find that this error seriously affected the 

fairness of the judicial proceedings instituted against the petitioner. 

In this situation, it is incumbent upon the State to prove that the error was 

harmless beyond a reasonable doubt. The State has not succeeded in proving harmless error 

in this case. As the petitioner contends, his trial strategy would have been altered drastically 

if he had known he had to defend against the contention that the act was sexually motivated. 

Based upon the foregoing, this Court vacates the portion of the underlying 

decision finding that the petitioner’s battery of Mr. S. was sexually motivated and that the 

petitioner must register as a sex offender. 

B. Sufficiency of the Evidence 

The petitioner also contends that the battery conviction was not supported by 

sufficient evidence. As explained above in syllabus point three of Guthrie, a defendant 

carries a heavyburden in challenging the sufficiency of the evidence supporting a conviction. 

194 W. Va. at 663, 461 S.E.2d at 169; see also Syl. Pt. 3, State v. White, 231 W.Va. 270, 744 

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S.E.2d 668 (2013). In syllabus point one of Guthrie, this Court also held: 

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. 

194 W. Va. at 663, 461 S.E.2d at 169. 

The petitioner contends that the trial court incorrectly assessed the evidence 

regarding Mr. S.’s capacity to grab the petitioner and bite his tongue. The petitioner 

contends that although Mr. S. was somewhat physically impaired, he had picked up a pair of 

support hose earlier on the day of this incident and had placed them in his mouth. He had 

also previouslybecome aggressive, had requested a gun, had made sexual comments, and had 

touched a hospital staff member’s breast. The petitioner also places emphasis on the 

evidence that Mr. S.’s lack of oral hygiene was particularly egregious. 

The petitioner further contends that he did not make any truly inconsistent 

statements regarding the incident, having informed various hospital personnel that Mr. S. 

either grabbed his tongue or pulled him down and that the petitioner had a habit of sticking 

out his tongue. The petitioner argues that these inconsistencies relate only to the exact 

15
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

mechanism by which Mr. S. bit the petitioner’s tongue and do not constitute any attempt to 

obfuscate the issues or conceal the truth regarding the incident. Similarly, the petitioner 

contends that his actions subsequent to the incident may be attributable to his own 

humiliation, rather than efforts to disguise the truth. 

In response to the petitioner’s contentions, the State asserts that the evidence 

was sufficient to sustain the verdict of guilt on the battery charge. The State emphasizes that 

the petitioner did not immediately report this incident or seek medical attention. Rather, the 

evidence indicated that the petitioner exited the area and went to his office. Approximately 

one hour later, he telephoned an emergency room physician but did not inform him of the any 

details regarding the incident. 

The State further contends that the evidence regarding Mr. S.’s physical 

condition clearly supports the trial court’s ultimate findings. The testimony of multiple 

individuals, including two doctors, three registered nurses, two certified nursing assistants, 

and the police officer in charge of investigating the case, indicated that Mr. S. lacked the 

ability to grab the petitioner’s tongue and bite it. The State argues that although Mr. S. had 

grabbed support hose hours before this incident, the evidence further indicated the limitations 

of his strength, as demonstrated by the fact that nurses were readily able to remove the 

stockings from Mr. S. 

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The State also addresses the evidence regarding Mr. S.’s prior verbal threats, 

sexual hallucinations, a request for a gun, and touching a staff member’s breast. The State 

contends that all evidence was properly submitted to the trial court for evaluation and that 

the determination bythe court was premised upon issues of credibilityand weight appropriate 

for evaluation by the court. For instance, the trial court analyzed the evidence presented and 

reasoned as follows: 

Now, there was evidence while he [Mr. S.] was on the extended 

care unit of agitated behavior, somewhat aggressive behavior, of 

sexual comments. If you - there was put into evident [sic] these 

behavior flow charts for a 12-month period. If you look at those 

carefully, you could see that for the last several months leading 

up to the date that this incident occurred, that there was little, if 

any of this sort of aggressive conduct noted in these charts. 

The court also addressed the method by which the petitioner’s tongue may have been bitten, 

as follows: 

I listened to Dr. Seen’s lengthy testimony, and I read the reports 

here. I noted the inconsistencies in statements made by Dr. Seen 

to various officials about what had happened, and I come back 

to application of what I think is just common sense. I mean, I 

think it is highly unusual, highly bizarre that a physician in these 

circumstances could get the tip of their tongue bitten off. . . . 

[T]he attending physician at Roane General said one-half to 

three-quarters of an inch of the man’s tongue was bitten off but 

he didn’t see him [the attending physician] for an hour. He 

didn’t see him for at least an hour after the event[.] 

The court continued: “I am of the opinion that when Dr. Seen left Mr. S.’s room that night, 

. . . his actions there afterwards were simply designed to cover-up what had happened. That 

is the consistent explanation from the uncontradicted evidence in this case.” 

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This Court’s review clearly indicates that the trial court engaged in a thorough 

and exhaustive analysis of the evidence presented. The trial court adhered to the mandates 

expressed in syllabus point two of State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996), 

which provided as follows: 

When a criminal defendant undertakes a sufficiency 

challenge, all the evidence, direct and circumstantial, must be 

viewed from the prosecutor’s coign of vantage, and the viewer 

must accept all reasonable inferences from it that are consistent 

with the verdict. This rule requires the trial court judge to 

resolve all evidentiary conflicts and credibility questions in the 

prosecution’s favor; moreover, as among competing inferences 

of which two or more are plausible, the judge must choose the 

inference that best fits the prosecution’s theory of guilt. 

Viewed in a light most favorable to the prosecution, the evidence in this case demonstrated 

that Mr. S. was very weak and unlikely to be physically capable of grabbing the petitioner’s 

tongue or pulling the petitioner close to him. The trial court analyzed the evidence of the 

petitioner’s response to the incident and his delay in revealing the injury and explaining the 

circumstances of its occurrence. We find no merit in the petitioner’s assertion that the 

evidence was insufficient to support the conclusion that the petitioner committed battery. 

IV. Conclusion 

Based upon the foregoing, this Court concludes that the petitioner was denied 

due process by the State’s failure to provide pretrial notice as required by this Court in 

Whalen. Consequently, the sexual motivation finding and order to register as a sex offender 

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are vacated. This Court further finds that the battery conviction is supported by sufficient 

evidence, and that conviction is therefore affirmed. 

Affirmed, in part, and reversed, in part. 

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