STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Zachary G., 

Defendant Below, Petitioner FILED 

June 9, 2017 

vs) No. 15-1143 (Berkeley County 12-F-172) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA State of West Virginia, 

Plaintiff Below, Respondent 

MEMORANDUM DECISION 

Petitioner Zachary G.1, by counsel Paul G. Taylor, appeals his conviction for the offense 

third degree sexual assault. Respondent State of West Virginia, by counsel Cheryl K. Saville, 

filed a response. Petitioner filed a reply. With leave of this Court, petitioner filed a supplemental 

brief. Respondent filed a supplemental response; to which petitioner filed a supplemental reply 

brief. 

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 affirming the order of the circuit court is appropriate under 

Rule 21 of the Rules of Appellate Procedure. 

Petitioner was indicted by the Berkeley County Grand jury for one count of third degree 

sexual assault of H.S. (“the victim”), a thirteen year old girl at the time of the offense, and one 

count of second degree sexual assault of the victim in May of 2012. 

Prior to trial, petitioner moved the circuit court to order a psychological evaluation of the 

victim. In discovery, the State provided information to petitioner regarding an incident that 

occurred with the victim, in Tazewell Virginia. The victim’s mother disapproved of one of her 

friends, and rather than tell her mother that she was with that friend, the victim told her mother 

that she had been kidnapped. As a result, petitioner was charged with filing a false police report. 

That charge was dismissed. Petitioner’s counsel sought to have the victim evaluated in an 

attempt to determine if the victim had “a propensity and proclivity for lying,” and to determine if 

1 Consistent with our long-standing practice in cases with sensitive facts, we use initials where 

necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va. 254, 773 

S.E.2d 20 (2015); In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993); State v. Edward Charles 

L., 183 W. Va. 641, 398 S.E.2d 123 (1990). 

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her injury in this matter was self-inflicted. The State argued that this was improper, and that 

credibility determinations are to be made by a jury. The circuit court agreed with the State, 

denied petitioner’s motion, and found that the evidence was not probative on the issue of whether 

petitioner caused the injury on August 18, 2010. 

The evidence at trial revealed that on August 18, 2010, petitioner was eighteen years of 

age and in a relationship with a seventeen-year-old girl, K.W. The victim was a thirteen year old 

girl. According to petitioner’s statement, he was in the process of breaking up with K.W., and 

K.W. contacted him asking him to purchase cigarettes for the victim. Petitioner refused. Later, 

petitioner met the victim and K.W. at K.W.’s house, and K.W. told petitioner that the victim 

wanted to apologize. Ultimately, according to the victim, petitioner had sexual intercourse with 

her and K.W. After petitioner penetrated her, the victim was in pain and bleeding, and left the 

room while petitioner was having sex with K.W., and called her mother. The victim’s mother 

then contacted the police who interviewed petitioner. 

Petitioner gave two statements to Sergeant Snyder of the Berkeley County Sheriff’s 

Department. On August 18, 2010, petitioner recounted the events to police, but denied having 

sex with the victim. Petitioner admitted to the police that he intended to have sex with K.W. and 

that the victim was in the room, with her shirt off, and watched. The next day, August 19, 2010, 

petitioner gave another statement to police, and Sgt. Snyder confronted him with evidence from 

the hospital that the victim suffered tears in her vagina and hymen, and that medical 

professionals recovered hair and DNA from the victim’s body and clothing. Petitioner continued 

to deny that he had sexual intercourse with the victim, and requested an attorney. 

Following a jury trial in July of 2013, Petitioner was convicted in the Circuit Court of 

Berkeley County, of the offense of third degree sexual assault. The matter was continued several 

times and at a sentencing hearing on February 24, 2014, the circuit court chose to defer 

sentencing and placed petitioner at the Anthony Correctional Center for Youthful Offenders 

(“Anthony Center”). Petitioner completed the program at the Anthony Center, and the circuit 

court sentenced him to a term of one to five years in the penitentiary. The circuit court suspended 

the sentence and placed petitioner on probation for a period of five years. Petitioner was also 

ordered to serve five years of supervised release pursuant to West Virginia Code § 62-12-26. As 

a condition of his sentence, petitioner was required to register as a sexual offender for life. 

Following his release on probation, petitioner moved into a rescue mission shelter, 

however, once he registered as a sex offender, he was no longer allowed to stay in the mission 

due to the mission’s resident guidelines. Petitioner was unable to secure a suitable residence. 

Because he was unable to find a suitable residence, petitioner was incarcerated at the Eastern 

Regional Jail until such time as he could arrange for a verifiable residence in conformity with the 

terms of his probation. 

The parties agreed, and by orders entered on August 12, 2015, and September 4, 2015, 

petitioner was released from the jail during the day in order to seek employment opportunities, 

pursue educational opportunities, participate in community based programming and services, 

attend mental health treatment, and other activities approved by the circuit court. On August 18, 

2015, petitioner’s intensive supervision probation officer instructed petitioner to call him every 

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day of his release so that they could discuss his plans for the day. The probation officer also 

asked petitioner to keep a record of his employment efforts. After petitioner was released for 

several days, the probation officer discovered that petitioner was not making contact with him, 

and that petitioner had no record regarding his employment efforts. Further, petitioner reported 

to his probation officer that during the day he was at a “friend’s house.” A petition to revoke 

petitioner’s probation was filed, and a capias was issued for petitioner’s arrest. 

Petitioner’s probation revocation hearing was held on December 4, 2015. At the hearing, 

the circuit court heard evidence regarding petitioner’s non-compliance with the terms of his 

probation. Petitioner moved for the court to allow him to live in the home of a friend. This 

motion was denied because the friend had small children in the home, which would be in 

violation of the terms of petitioner’s supervised release. 

On December 22, 2015, the circuit court revoked petitioner’s probation, and sentenced 

him to a term of incarceration of not less than one nor more than five years in the penitentiary. In 

addition, petitioner was required to serve an additional term of five years supervised release 

following his incarceration pursuant to West Virginia Code § 62-12-26. The circuit court found 

that petitioner was not amenable to probationary control and discipline, and had not found a 

verifiable residence within Berkeley County. Petitioner filed a notice of appeal before this Court 

in November of 2015, and perfected that appeal in July of 2016. 

Petitioner’s term of incarceration expired on June 23, 2016, and he was placed on 

supervised release. Petitioner was again unable to find a residence, and the probation officer 

placed him at Crossroads, a shelter facility in Charleston, West Virginia. Reportedly, petitioner 

was belligerent and refused placement at the shelter, and reportedly stated that “he could just be 

taken back to jail.” On July 20, 2016, petitioner’s probation officer filed a petition for revocation 

of supervised release, alleging that petitioner did not have a verifiable residence, and that he 

refused the shelter option. The circuit court revoked petitioner’s supervised release again, on 

August 19, 2016, and sentenced petitioner to serve a determinate term of five years of 

incarceration in the penitentiary. 

Petitioner filed a motion to stay, which was denied by the circuit court. Petitioner argued 

that the circuit court did not have the authority to issue the revocation as this matter was still 

pending before the West Virginia Supreme Court. On November 7, 2016, the circuit court 

entered an order that stayed the imposition of sentence for petitioner’s supervised release 

violation, and suspended petitioner’s sentence of five years of incarceration. The circuit court 

then granted petitioner post-conviction bail under the terms of a work-release program.2 

Petitioner now appeals the December 23, 2015, and the August 19, 2016, orders of the Circuit 

Court of Berkeley County. 

2 In August of 2016, petitioner filed a motion to modify and amend the scheduling order, 

and this Court issued an amended scheduling order, to allow petitioner to brief issues related to 

his supervised release and incarceration. 

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On appeal petitioner alleges that the circuit court erred by (1) denying petitioner’s motion 

for a psychological evaluation of the victim; and (2) revoking petitioner’s probation and 

imposing sentence.3 In his supplemental brief petitioner alleges that the circuit court (1) did not 

have jurisdiction to revoke his supervised release and (2) the circuit court erred in revoking his 

supervised release and imposing sentence due to petitioner’s “willful homelessness.” As an 

initial matter we note, 

3 Petitioner also complains as assignments of error, (1) that the circuit court erred in 

denying his motion to dismiss based upon the presentation of false evidence to the grand jury and 

cites testimony from a grand jury proceeding which petitioner asserts took place on July 22, 

2013, and (2) that the circuit court erred in denying his proposed jury instructions regarding 

missing evidence. However, there was no July 22, 2013, grand jury proceeding reflected in the 

record. In fact, the July 22, 2013, pre-trial hearing took place more than one year after 

petitioner’s indictment by the grand jury in May of 2012. The record before this Court does not 

contain the relevant portion of the grand jury testimony, nor does petitioner’s brief properly cite 

to this testimony in the record. In addition, petitioner’s argument regarding the proposed jury 

instruction simply refers this Court to the relevant portion of the trial transcript, and instructs this 

Court to review that transcript in order to ascertain petitioner’s argument. Pursuant to Rule 

10(c)(7) of the West Virginia Rules of Appellate Procedure, 

[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. 

Once again, we emphasize that, ““[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, Dep’t of Health & Human Res., Child Advocate Office on Behalf of Robert 

Michael B. v. Robert Morris N., 195 W. Va. 759, 765, 466 S.E.2d 827, 833 (1995). 

Consequently, we decline to consider these assignments. 

As an additional assignment of error, petitioner inexplicably argues that his statement to 

law enforcement was hearsay, and inadmissible. We find petitioner’s argument is without merit. 

Pursuant to Rule 801(d)(2)(A) of the West Virginia Rules of Evidence, in relevant part, a 

statement is not hearsay if “[t]he statement is offered against an opposing party and . . . was 

made by the party in an individual or representative capacity.” Here, petitioner is not contesting 

that he made the statement, or that the statement was voluntary, and the State sought to introduce 

the statement into evidence against him. Accordingly, petitioner’s statement is not hearsay. 

Consequently the circuit court did not err in allowing its admission. 

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[i]n 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). 

Petitioner first argues that the circuit court erred in denying his motion for a 

psychological evaluation of the victim. Petitioner argues that pursuant to syllabus point three of 

State v. Delaney, 187 W. Va. 212, 417 S.E.2d 903 (1992), there were compelling facts that 

warranted this evaluation, specifically, the testimony of a nurse who indicated that the victim’s 

injuries could have been self-inflicted. The State counters that the actual purpose of this motion 

was to have a psychologist impermissibly evaluate the victim’s credibility. 

While a defendant has a right to present evidence on his own behalf and to confront 

adverse witnesses, pretrial discovery is generally within the discretion of the trial court. See Syl. 

Pt. 8, State v. Audia, 171 W. Va. 568, 301 S.E.2d 199 (1983). Further, “the decision whether to 

require a psychiatric evaluation prior to determining a child’s capacity to testify is within the trial 

court’s discretion.” Delaney, 187 W. Va. at 215, 417 S.E.2d at 906. In Delaney, we held that 

[i]n order for a trial court to determine whether to grant a party’s request for 

additional physical or psychological examinations, the requesting party must 

present the judge with evidence that he has a compelling need or reason for the 

additional examinations. In making the determination, the judge should consider: 

(1) the nature of the examination requested and the intrusiveness inherent in that 

examination; (2) the victim’s age; (3) the resulting physical and/or emotional 

effects of the examination on the victim; (4) the probative value of the 

examination to the issue before the court; (5) the remoteness in time of the 

examination to the alleged criminal act; and (6) the evidence already available for 

the defendant’s use. 

Syl. Pt. 3, id. 

It is clear from the record that the circuit court carefully considered these factors in 

making the determination to deny petitioner’s motion. The circuit court noted that at the time the 

motion was filed, the victim was sixteen years old, and that while a psychological examination is 

not as intrusive as a physical examination, there was the potential for some emotional harm to 

the victim. Importantly, the circuit court found that the psychological examination would have 

little probative value, as the victim did not have a history of prior self-harm. The circuit court 

further found that the value of any evaluation would be diminished as three years had passed 

since the commission of the offense and the motion for evaluation. Finally, the circuit court 

found that petitioner had evidence in the form of the police report of the incident in Virginia, and 

was free to cross-examine the victim on the issue. Based upon the above, we find no abuse of 

discretion, and decline to reverse the circuit court’s ruling. 

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Next, petitioner claims that the circuit court erred in revoking his probation and imposing 

sentence.4 Petitioner argues that the circuit court improperly revoked his probation and 

supervised release due to his status as a homeless person. Petitioner asserts that the evidence 

presented at his revocation hearings revealed that he was indigent, homeless, and without the 

ability to be gainfully employed due to his homelessness. Petitioner argues that before one may 

have his probation or parole terminated or revoked, it must be demonstrated that the violation is 

not due to the lack of financial resources of the defendant. See State v. Haught, 179 W. Va. 557, 

371 S.E.2d 54 (1988); State v. Minor, 176 W. Va. 92, 341 S.E.2d 838 (1986); and Armistead v. 

Dale, 170 W. Va. 319, 294 S.E.2d 122 (1982). Petitioner also argues that the circuit court lacked 

the jurisdiction to impose a five year incarceration sentence once his first appeal was filed with 

this Court. 

We find petitioner’s argument unpersuasive. We have previously held that “probation is a 

privilege of conditional liberty bestowed upon a criminal defendant through the grace of the 

circuit court. . . . Accordingly, the decision as to whether the imposition of probation is 

appropriate in a certain case is entirely within the circuit court’s discretion.” State v. Duke, 200 

W. Va. 356, 364, 489 S.E.2d 738, 746 (1997). The record reflects that petitioner was sentenced 

to the Anthony Center pursuant to the Youthful Offenders Act, and upon release, was unable to 

live at the local homeless shelter because of his status as a registered sex offender. In an attempt 

to accommodate petitioner’s homelessness, the circuit court granted petitioner work-release from 

the regional jail in order to allow petitioner the ability to secure employment, participate in 

community services, attend educational pursuits, and obtain mental health treatment. Rather than 

comply with these terms, petitioner refused to call his probation officer daily, as required, and 

could provide no records to show that he sought employment, leaving large gaps of his time 

unaccounted for, which were clear violations of the terms and conditions of probation. Pursuant 

to West Virginia Code § 62-12-10, in relevant part, 

“[i]f the court or judge finds reasonable cause exists to believe that the 

probationer: . . . [v]iolated a special condition of probation designed either to 

protect the public or a victim; the court or judge may revoke the suspension of 

imposition or execution of sentence, impose sentence if none has been imposed 

and order that sentence be executed.” 

Accordingly, we find that under these circumstances, the circuit court did not abuse its discretion 

in revoking petitioner’s probation. 

4 Petitioner also argues that under West Virginia Code § 62-12-10(a)(2), the maximum 

sentence he should have received for his probation revocation was sixty days. However, the 

circuit court found that petitioner violated three conditions of probation, and pursuant to said 

section, “[f]or the third violation, the judge may revoke the suspension of imposition or 

execution of sentence, impose sentence if none has been imposed and order that sentence be 

executed, with credit for time spent in confinement under this section.” Id., in relevant part. 

There is no requirement that three separate petitions be filed against a defendant. Accordingly, 

we find this argument lacks merit. 

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In petitioner’s supplemental brief, he argues that the circuit court did not have jurisdiction 

to revoke his supervised release and sentence him to serve five years of that supervision in the 

penitentiary while his original appeal was pending before this Court. For support, petitioner cites 

syllabus point three of Fenton v. Miller, 182 W. Va. 731, 391 S.E.2d 744 (1990), in which this 

Court held that “[o]nce this Court takes jurisdiction of a matter pending before a circuit court, the 

circuit court is without jurisdiction to enter further orders in the matter except by specific leave 

of this Court.” 

Although in syllabus point one, in part, of State v. Doom, 237 W. Va. 754, 791 S.E.2d 

384 (2016), this Court held that “[w]hen the Supreme Court of Appeals of West Virginia grants a 

petition for appeal all proceedings in the circuit court relating to the case in which the petition for 

appeal has been granted are stayed pending this Court’s decision in the case[,]” we find 

petitioner’s argument to be without merit. The circuit court sentenced petitioner under West 

Virginia Code § 62-12-26, which allows for extended supervision of certain sex offenders. Under 

the very narrow circumstances of this case, it is untenable that the circuit court would not retain 

jurisdiction to revoke the supervised release of a registered sex offender, who was unable and 

unwilling to provide a suitable address as required for his supervision. 

Had the circuit court not acted, petitioner likely would have been released without a 

suitable address, in violation of the terms and conditions of his supervised release. Consequently, 

the circuit court retained its authority to hear matters of executing and effectuating revocations of 

probation or supervised release. The United States Supreme Court has drawn a distinction 

between the imposition of sentence, which creates a final judgment for appeal in a criminal case, 

and the execution of that sentence, which is “entirely apart from any re-examination of the merits 

of the litigation.” Berman v. U.S., 302 U.S. 211, 213 (1937). Unlike the motion to reduce 

sentence that was granted in Doom, the State’s motion to revoke petitioner’s supervised release 

was not a re-examination of the merits of the litigation. 

At the time of the hearing on petitioner’s motion for supervised release, petitioner was 

convicted of the offense of third offense sexual assault, and was sentenced to a term of 

incarceration, with an additional term of supervised release pursuant to West Virginia Code § 62­

12-26. The motion to revoke supervised release did not re-submit the question of the suitability 

of petitioner for probation, the motion pertained to the execution of the original sentence. 

Further, with respect to the due process rights of petitioner, we have recognized that “the 

revocation of parole (probation) is not part of a criminal prosecution and thus the full panoply of 

rights due a defendant in such a proceeding does not apply to parole (probation) revocation.” 

Sygman v. Whyte, 165 W. Va. 356, 359, 268 S.E.2d 603, 605 (1980) (citation omitted). 

Therefore, we find under the very limited circumstances of this case, that the circuit court 

retained jurisdiction for the purposes of executing the original sentence. 

Petitioner finally complains that the circuit court erred in revoking his supervised release 

because of his homeless status. Petitioner argues that pursuant to State v. Hargus, 232 W. Va. 

735, 753 S.E.2d 893 (2013), a five year sentence imposed by the circuit court for a “purely 

technical” violation violates article 3, section 10 of the West Virginia Constitution and the 

Fourteenth Amendment of the United States Constitution. Petitioner asserts that his sentence is 

so disproportionate to the crime in this matter that it shocks the conscience. 

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We disagree. In Hargus, we found that a five year term of imprisonment imposed on a 

defendant was not unconstitutionally disproportionate and held that, “West Virginia Code § 62– 

12–26(g)(3) (2011) does not facially violate procedural due process principles of the Fourteenth 

Amendment to the Constitution of the United States or Article III, § 10 of the Constitution of 

West Virginia.” Syl. Pt. 5, Hargus. In addition, there are two tests to determine whether a 

sentence is so disproportionate to a crime that it violates the West Virginia Constitution. The 

subjective test is found in syllabus point five of State v. Cooper, 172 W. Va. 266, 304 S.E.2d 851 

(1983), which provides: 

Punishment may be constitutionally impermissible, although not cruel or 

unusual in its method, if it is so disproportionate to the crime for which it is 

inflicted that it shocks the conscience and offends fundamental notions of human 

dignity, thereby violating West Virginia Constitution, Article III, Section 5 that 

prohibits a penalty that is not proportionate to the character and degree of an 

offense. 

When it cannot be found that a sentence shocks the conscience, a disproportionality challenge is 

guided by the objective test which provides: 

In determining whether a given sentence violates the proportionality 

principle found in Article III, Section 5 of the West Virginia Constitution, 

consideration is given to the nature of the offense, the legislative purpose behind 

the punishment, a comparison of the punishment with what would be inflicted in 

other jurisdictions, and a comparison with other offenses within the same 

jurisdiction. 

Syl. Pt. 5, Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981). 

This Court finds that the circuit court’s order does not violate the constitutional 

proportionality principle. Petitioner was convicted and sentenced under the extended supervision 

statute for the offense of sexual assault in the third degree, perpetrated upon a minor. Further, it 

is clear from the record that petitioner refused suitable placement, and could not provide a 

verifiable residence which is a requirement in order to ensure the safety and security of the 

community. For these reasons, this Court finds that the post-revocation sanctions levied against 

petitioner do not shock the conscience or offend fundamental notions of human dignity. 

This Court also finds that petitioner’s post-revocation sanctions do not violate the 

objective test for constitutional disproportionality. Petitioner has failed to specifically address 

how the nature of the offense, the legislative purpose behind the punishment, and a comparison 

of other offenses within the same jurisdiction compel the finding that his post-revocation 

sanctions violate our constitution’s proportionality principle. 

For the foregoing reasons, we affirm. 

Affirmed. 

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ISSUED: June 9, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

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