STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

State of West Virginia, FILED 

Plaintiff Below, Respondent August 29, 2014 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

vs) No. 13-0712 (Putnam County 13-MAP-4) OF WEST VIRGINIA 

Paul E. Carbonneau, 

Defendant Below, Petitioner 

MEMORANDUM DECISION 

Petitioner Paul E. Carbonneau, by counsel Timothy J. LaFon, appeals the June 12, 2013, 

final order of the Circuit Court of Putnam County affirming his conviction for one count of 

domestic battery in violation of West Virginia Code § 61-2-28(a).1 The State of West Virginia, 

by counsel Laura Young, filed a summary response. 

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 standards of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 

of the West Virginia Rules of Appellate Procedure. 

On December 25, 2012, around 4:30 or 5:00 p.m., Deputy C.M. Savilla of the Putnam 

County Sheriff’s Department responded to a 911 call of a domestic disturbance at petitioner’s 

1 West Virginia Code § 61-2-28(a) provides as follows: 

Domestic battery. -- Any person who unlawfully and intentionally makes physical 

contact of an insulting or provoking nature with his or her family or household 

member or unlawfully and intentionally causes physical harm to his or her family 

or household member, is guilty of a misdemeanor and, upon conviction thereof, 

shall be confined in a county or regional jail for not more than twelve months, or 

fined not more than five hundred dollars, or both. 

W.Va. Code § 61-2-28(e) further provides that the phrase “family or household member,” as 

used in the above section, is defined in W.Va. Code § 48-27-204. In that provision, “family or 

household member” means, in relevant part, “persons who: ... (5) are or were residing together 

in the same household.” 

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residence in Hurricane, West Virginia. Petitioner lived at that residence with T.B.2 and her two 

minor children—A.B. (fourteen years old) and C.B. (eight years old). Petitioner had resided in 

the same household with T.B. and her children for approximately seven years. On that date, 

petitioner told the officer that petitioner and T.B. had been in a verbal argument. The officer, 

noticing that A.B. was crying and distraught, spoke with her in private. A.B. told the officer that 

petitioner had struck her several times in the face during an argument between petitioner and her 

mother. The officer witnessed redness on A.B.’s face and neck. Petitioner was arrested and 

charged with one count of domestic battery. 

A referral of child abuse was made to Child Protective Services (“CPS”) regarding the 

December 25, 2012, incident. Intake worker Nancy Booth was assigned to the case. Ms. Booth 

met with various witnesses, including A.B., on December 26, 2012, one day after the incident, 

and reviewed the matter consistent with her duties. After completing her investigation, Ms. 

Booth compiled a report on February 19, 2013, in which reported that she could not substantiate 

the allegations of abuse by petitioner against A.B. Ms. Booth determined that there were 

inconsistencies in A.B.’s story, including A.B.’s claim that petitioner hit her in the face several 

times where A.B. had only minimal scratching the next day. Also, an in-home care worker had 

overheard A.B. state that if petitioner were removed from the home her biological father, then 

incarcerated, could return to the family. 

Following a bench trial in magistrate court on March 8, 2013, petitioner was convicted of 

one count of domestic battery. On March 14, 2013, he appealed the conviction to the circuit 

court, which held a bench trial de novo on May 24, 2013. A.B. testified that, during the argument 

between petitioner and her mother, petitioner struck her “multiple times” in the face. A.B. 

explained, as she had to the officer on the day of the incident, that she stepped in between 

petitioner and her mother, and that is when petitioner struck her. A.B. was cross-examined as to 

the incident, her prior statements regarding the incident, and those issues raised by Ms. Booth in 

her report. The officer testified that on December 25, 2012, petitioner admitted to arguing with 

T.B., but he maintained that the argument was verbal, not physical. The officer testified that A.B. 

appeared distraught and crying. He spoke to her privately, and A.B. told him that petitioner had 

“punched her several times.” The officer witnessed redness on A.B.’s face area consistent with 

that claim. Several pictures related to the incident were admitted into evidence without objection, 

including pictures of A.B. at the time of the incident. 

Relevant to this appeal, the CPS worker testified as to her investigation and report 

regarding the incident between petitioner and A.B. The CPS worker was permitted to testify as to 

her report, including the inconsistencies she detailed in A.B.’s story, and her report was admitted 

into evidence. During direct examination, petitioner’s counsel asked the CPS worker whether she 

“ultimately reach[ed] a conclusion as to the veracity or whether [A.B.] was telling the truth about 

2 Because of the sensitive nature of this case, we use the initials of the victim and those 

persons related to the victim. Here, however, petitioner is not related to, nor does he share the 

same name with, the victim. See State v. Edward Charles L., 183 W.Va. 641, 645 n. 1, 398 

S.E.2d 123, 127 n. 1 (1990) (“Consistent with our practice in cases involving sensitive matters, 

we use the victim's initials. Since, in this case, the victim [is] related to the appellant, we have 

referred to the appellant by his last name initial.” (citations omitted)). 

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this incident?” The State immediately objected on grounds of relevance and inadmissible 

opinion testimony. Petitioner countered that the CPS worker was a “quasi-expert” and could give 

opinion based upon her “expertise.” The court sustained the objection, noting that the CPS 

worker had not been qualified as an expert and no foundation had yet been laid for her opinion 

on the issue. The CPS worker did not answer the question, nor did petitioner’s counsel make an 

offer of proof on the record as to her answer. 

At the close of testimony, the circuit court stated that the case rested on a determination 

of credibility. The court then found A.B. more credible than petitioner, who had testified that 

despite a verbal argument with T.B., he had not hit nor attempted to hit anyone. The circuit court 

convicted petitioner of domestic battery and sentencing him to ninety days in jail, suspended, and 

imposed one year of probation. This appeal followed. 

This Court reviews orders by a court after a bench trial as follows: 

In reviewing challenges to the findings and conclusions of the circuit court made 

after a bench trial, a two-pronged deferential standard of review is applied. The 

final order and the ultimate disposition are reviewed under an abuse of discretion 

standard, and the circuit court's underlying factual findings are reviewed under a 

clearly erroneous standard. Questions of law are subject to a de novo review. 

Syllabus Point 1, Public Citizen, Inc. v. First Nat. Bank in Fairmont, 198 W.Va. 

329, 480 S.E.2d 538 (1996). 

Syl. Pt. 1, State v. Mechling, 219 W.Va. 366, 368, 633 S.E.2d 311, 313 (2006). 

On appeal to this Court, petitioner raises two assignments of error. First, petitioner asserts 

that the circuit court abused its discretion in excluding the opinion testimony of the CPS worker 

as to the veracity of A.B.’s version of the incident. According to petitioner, Ms. Booth had 

investigated this matter thoroughly and had collected evidence that was critical to the facts at 

issue in petitioner’s case. In support of his position, petitioner cites Rule 701 of the West 

Virginia Rules of Evidence,3 as well as our holdings in State v. Jameson, 194 W.Va. 561, 568, 

461 S.E.2d 67 (“The determination of whether a witness has sufficient knowledge of the material 

in question so as to be qualified to give his opinion is largely within the discretion of the trial 

court, and will not ordinarily be disturbed on appeal unless clearly erroneous.”) and Hatcher v. 

McBride, 221 W.Va. 5, 650 S.E.2d 104 (2006) (affirming decision to allow a judge to testify at a 

sentencing hearing as to the defendant’s dangerousness, due to the judge’s past experience with 

the defendant as juvenile and observations of the defendant’s demeanor.). 

This Court has held as follows: 

3 West Virginia Rule of Evidence 701 provides the following: 

If the witness is not testifying as an expert, his or her testimony in the form of 

opinions or inferences is limited to those opinions or inferences which are (a) 

rationally based on the perception of the witness and (b) helpful to a clear 

understanding of the witness' testimony or the determination of a fact in issue. 

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“If a party offers evidence to which an objection is sustained, that party, in order 

to preserve the rejection of the evidence as error on appeal, must place the 

rejected evidence on the record or disclose what the evidence would have shown, 

and the failure to do so prevents an appellate court from reviewing the matter on 

appeal.” Syl. Pt. 1, Horton v. Horton, 164 W.Va. 358, 264 S.E.2d 160 (1980). 

Syl. Pt. 10, State v. McIntosh, 207 W.Va. 561, 534 S.E.2d 757 (2000). Offers of proof both 

permit a trial court to reevaluate its decision in light of the actual evidence and allow an appellate 

court to determine whether the exclusion of evidence rose to the level of prejudicial error. State 

v. Blake, 197 W.Va. 700, 708, 478 S.E.2d 550, 558 (1996). 

In the case sub judice, petitioner’s counsel asked the CPS worker whether she “ultimately 

reach[ed] a conclusion as to the veracity or whether [A.B.] was telling the truth about this 

incident?” Before the CPS worker could respond, the following exchange occurred between the 

State, the court, and petitioner’s counsel: 

THE STATE: Your Honor, I’m going to object to the relevance. This is
 

for the Court to decide. I don’t see that you need an opinion of a CPS
 

worker.
 

THE COURT: Yeah, I don’t know what a lay opinion—well, what’s your
 

position, Mr. LaFon?
 

PETITIONER’S COUNSEL: I think she has expertise in investigating
 

these types of events. She’s a quasi-expert. And if it assists the Court, then
 

it’s allowable. It’s the standard for expertise and her expertise, she
 

investigated and reached certain conclusions based thereupon.
 

THE STATE: I don’t believe a CPS worker is an expert in domestic
 

violence. They might be in child abuse. But domestic battery can be
 

different from child abuse.
 

THE COURT: I’m not going to—I mean, based on what—I mean, first of
 

all, I don’t think Ms. Booth has been qualified as an expert or recognized
 

here as an expert in this matter, and I’m not sure that there has been a
 

foundation laid for her to offer these opinions, and I’m going to sustain the
 

objection and not allow Ms. Booth to give that type of opinion testimony.
 

Immediately following this exchange, petitioner’s counsel proceeded into another line of 

questioning with the CPS worker. Therefore, she did not present her opinion to the circuit court, 

and no offer of proof was made as to what her opinion would have been in the record before this 

Court. In the absence of such an offer of proof, this Court will not review the matter on appeal. 

That said, even if the alleged error had been properly preserved for appeal, we have 

consistently emphasized the significant discretion afforded to trial courts in making evidentiary 

rulings. State v. Wood, 194 W.Va. 525, 534, 460 S.E.2d 771, 780 (1995) (“Whether a witness is 

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qualified to state an opinion is a matter which rests within the discretion of the trial court and its 

ruling on that point will not ordinarily be disturbed unless it clearly appears that its discretion has 

been abused.”). We see no abuse of discretion in the circuit court’s decision to exclude opinion 

testimony. A.B. testified, and the trier of fact had the opportunity to witness her testimony and 

determine her veracity. 

In his second and final assignment of error, petitioner argues that his conviction was 

clearly against the weight of the evidence presented at trial. According to petitioner, the only 

evidence offered by the State to prove his guilt beyond a reasonable doubt was A.B.’s testimony. 

Petitioner avers that A.B. was incredible as a witness because she was a teenager in the middle of 

family turmoil. Further, petitioner argues that if he had struck A.B. several times she would have 

had bruises or welts as a result. Petitioner also argues that his own testimony completely 

contradicted A.B. and the officer, and the lower court failed to properly consider the CPS 

worker’s report. 

In essence, petitioner’s challenges the sufficiency of the evidence at trial. In reviewing a 

defendant’s challenge to the sufficiency of the evidence to convict, we have stated that: 

“[t]he 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). 

Syl. Pt. 1, State v. Juntilla, 227 W.Va. 492, 711 S.E.2d 562 (2011). We have also stated that 

“[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. 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, State v. McFarland, 228 W.Va. 492, 721 S.E.2d 62 (2011). Applying this standard to 

our consideration of the parties’ arguments and the record on appeal, we see no reason to reverse 

the conviction on a sufficiency of the evidence challenge. A.B. testified that petitioner hit her 

several times during the argument with her mother, and the officer testified that A.B. exhibited 

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red marks in the area where she claimed to have been hit. Viewing this evidence alone in the 

light most favorable to the prosecution and granting all credibility assessments in favor of the 

prosecution, the evidence was sufficient for the circuit court, sitting as trier of fact, to have 

convicted petitioner of domestic battery beyond a reasonable doubt. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: August 29, 2014 

CONCURRED IN BY: 

Chief Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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