STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

State of West Virginia, 

Plaintiff Below, Respondent, FILED 

November 10, 2016 vs) No. 14-0889 (Gilmer County 12-F-26) released at 3:00 p.m. 

RORY L. PERRY, II CLERK 

SUPREME COURT OF APPEALS 

Robert H., OF WEST VIRGINIA 

Defendant Below, Petitioner. 

MEMORANDUM DECISION 

Petitioner Robert H.,1 by counsel, Matthew Brummond, appeals from the August 4, 

2014, order entered by the Circuit Court of Gilmer County, West Virginia, denying his 

motions to dismiss forty-three counts of a sixty-three count indictment and to grant him a 

new trial, and sentencing petitioner to an effective sentence of 112 to 145 years in prison. 

The sentence is based upon petitioner’s jury conviction on sixty-three counts2 relating to 

sexual assault, sexual abuse, sexual abuse by a parent, guardian, custodian or person in a 

position of trust, and attempted sexual abuse by a parent, guardian, custodian or person in a 

1

Pursuant to West Virginia Rule of Appellate Procedure 40(e), we identify both 

petitioner and the child victims in this case by their initials. See also State v. Edward Charles 

L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990) (stating that “[c]onsistent with 

our practice in cases involving sensitive matters, we use the victim’s initials. Since, in this 

case, the victims are related to the appellant, we have referred to the appellant by his last 

name initial. See Benjamin R. v. Orkin Exterminating Co., 182 W. Va. 615, 390 S.E.2d 814 

n. 1 (1990) (citing In re Jonathan P., 182 W. Va. 302, 303, 387 S.E.2d 537, 538 n. 1 (1989)); 

State v. Murray, 180 W. Va. 41, 44, 375 S.E.2d 405, 408 n. 1 (1988).”). 

2

Also included in the sixty-three counts was a misdemeanor count of providing 

alcohol to a minor in violation of West Virginia Code § 60-3A-24(c) and a misdemeanor 

count of making harassing phone calls in violation of West Virginia Code § 61-8-16(a)(4). 

1
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

J.B.5 

position of trust of both petitioner’s daughter, A.H., and her friend, J.B.3 Respondent, by 

counsel J. Zak Ritchie and Thomas M. Johnson, Jr., filed a response to which petitioner 

replied.4 We note at the outset that petitioner does not challenge any of his convictions for 

sexually assaulting J.B. and A.H., sexually abusing J.B. and A.H., or providing alcohol to 

Petitioner raises the following assignments of error: 1) the indictment alleged a bare 

solicitation in support of the attempted sexual abuse by a parent counts and, therefore, he was 

deprived of the constitutionally required notice because a solicitation is an insufficient overt 

act to support an attempt charge; 2) the proof at trial offered by respondent went beyond the 

bare solicitation noticed in the indictment to include the allegation that petitioner tried to 

physically direct A.H. to the bedroom, thereby creating a fatal variance to the indictment 

which prejudiced petitioner; 3) the indictment charged petitioner with “Making Harassing 

Telephone Calls During which Conversation Ensues,” West Virginia Code § 61-8-16(a)(4), 

but alleged as a factual predicate that he only left text and voicemail messages, conduct that 

the statute does not prohibit;6 and 4) the evidence introduced at trial was insufficient to 

3

See W. Va. Code § 61-8B-4(a)(1) (pertaining to sexual assault in second degree); § 

61-8D-5(a) (pertaining to sexual abuse by parent, guardian, custodian or person in position 

of trust or attempt thereof and sometimes referred to herein as “attempted sexual abuse by 

a parent”); § 61-8B-7(a)(1) (pertaining to sexual abuse in first degree). 

4

Respondent initially filed a summary response. Given the poor quality of that 

response, this Court, by order entered on April 6, 2016, directed respondent to file “a new 

respondent’s brief which include[d] some modicum of legal reasoning and accurate and 

complete citations to the record and relevant law[.]” Respondent complied with this directive 

and petitioner filed a second reply brief in response. 

5

Based upon the remaining counts in the indictment upon which petitioner stands 

convicted, and none of which petitioner challenges on appeal, petitioner maintains that he 

will remain sentenced to approximately 82 to 185 years in prison if the Court reverses his 

convictions on all the counts he challenges. 

6

Petitioner did not challenge count 10 regarding making harassing telephone calls to 

J.B. in violation of West Virginia Code § 61-8-16(a)(4) below and raises this issue for the 

first time on appeal. Rule 12(b)(2) of the West Virginia Rules of Criminal Procedure 

provides that pretrial motions that “must be raised prior to trial[,]” include “[d]efenses and 

objections based on defects in the indictment or information. . . .” (Emphasis added). 

Further, we held in syllabus point one of State v. Miller, 197 W. Va. 588, 476 S.E.2d 535 

(continued...) 

2
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

convict petitioner of ten of the counts alleging attempted sexual abuse by a parent and two 

counts involving first degree sexual abuse and sexual abuse by a parent for petitioner 

allegedly touching his daughter’s breasts. 

Upon review of the parties’ briefs and oral arguments, the appendix record including 

supplements thereto, and the pertinent authorities, we affirm the circuit court, in part, and 

reverse, in part, on the grounds that there was insufficient evidence to convict petitioner for 

eight7 of the counts charging attempted sexual abuse by a parent, as well as two counts 

involving first degree sexual abuse and sexual abuse by a parent based upon allegations that 

petitioner touched his daughter’s breasts. This case is remanded so that the circuit court can 

resentence petitioner consistent with this memorandum decision. 

This case does not present a new or significant question of law, and, therefore, it is 

properly disposed of through this memorandum decision. For the errors upon which we 

reverse, the “limited circumstance” requirement of Rule 21(d) of the Rules of Appellate 

Procedure is satisfied. As for the remaining assigned errors upon which we affirm, 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. 

6

(...continued) 

(1996): 

Rule 12(b)(2) of the West Virginia Rules of Criminal 

Procedure requires that a defendant must raise any objection to 

an indictment prior to trial. Although a challenge to a defective 

indictment is never waived, this Court literally will construe an 

indictment in favor of validity where a defendant fails timely to 

challenge its sufficiency. Without objection, the indictment 

should be upheld unless it is so defective that it does not, by any 

reasonable construction, charge an offense under West Virginia 

law or for which the defendant was convicted. 

Accord Syl. Pt. 6, State v. Chic-Colbert, 231 W. Va. 749, 749 S.E.2d 642 (2013). In light of 

the foregoing standard of review, we find that this count in the indictment was not “so 

defective that it does not, by any reasonable construction, charge an offense under West 

Virginia law or for which the defendant was convicted.” Miller, 197 W. Va. at 592-93, 476 

S.E.2d at 539-40. Consequently, we find no merit to petitioner’s assignment of error 

concerning this count in the indictment. 

7

See infra notes 8 and 9. 

3
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

I. Indictment/Motions to Dismiss 

In the instant appeal petitioner challenges counts 11 through 40 and 54 through 638 

contained within the indictment returned against him on November 9, 2012.9 Each of these 

counts charged petitioner with attempted sexual abuse of a child by a parent under West 

Virginia Code § 61-8D-5(a). Petitioner argued below and now before this Court that there 

was nothing alleged about an overt act in these counts charging attempted sexual abuse, 

which is a necessary element for any attempt count, making the indictment insufficient. See 

Syl. Pt. 1, State v. Burd, 187 W. Va. 415, 419 S.E.2d 676 (1991) (“In order to constitute the 

crime of attempt, two requirements must be met: (1) a specific intent to commit the 

underlying substantive crime; and (2) an overt act toward the commission of that crime, 

which falls short of completing the underlying crime.” Syl. Pt. 2, State v. Starkey, 161 W. Va. 

517, 244 S.E.2d 219 (1978).”). 

Petitioner moved to dismiss the indictment as being insufficient due to the numerous 

similar, but separate, counts of sexual abuse committed over a period of several months.10 

Subsequent to this motion being filed below, this Court issued Ballard v. Dilworth, 230 W. 

Va. 449, 739 S.E.2d 643 (2013). In Dilworth, we found that an indictment containing ten 

identically worded and factually indistinguishable counts of sex abuse by a guardian to be 

8

Petitioner’s challenge to count 11 and count 54 of the indictment is without support. 

Both counts allege that petitioner either committed or attempted to commit sexual abuse by 

a parent in violation of West Virginia Code § 61-8D-5(a). Neither of these two counts was 

subject to the motion to dismiss the indictment that petitioner filed after respondent provided 

its bill of particulars. Moreover, the additional language provided by respondent regarding 

count 11 as part of the bill of particulars was that “[d]efendant undressed in the presence of 

his fourteen (14) year old daughter, grabbed her hand and attempted to place her hand on his 

penis[]” undeniably sets forth an overt act. A.H.’s trial testimony supported the allegations 

in this count. Further, in the bill of particulars, respondent added the following language to 

count 54: “Defendant did, on or about the 26th day of June, 2012, in the marital bedroom, 

forcibly, against his daughter’s protests, penetrate his daughter’s vagina with his penis.” Our 

review of the trial transcript demonstrates that A.H.’s testimony supported the allegations 

contained in both count 11 and 54. As such, the jury’s conviction on these two counts will 

not be disturbed on appeal. 

9

Accordingly, at issue in this appeal are thirty-eight counts out of sixty-three counts 

in the indictment that concern the attempt to commit sexual abuse by a parent. 

10In this motion to dismiss, petitioner raised no argument regarding the sufficiency of 

the attempt counts on the basis that those counts lacked allegations of overt acts. 

4
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

constitutionally sufficient. Id. at 458-59, 739 S.E.2d at 652-53. Consequently, the circuit 

court determined, based upon Dilworth, that no counts in the indictment should be dismissed. 

Thereafter, petitioner moved for a bill of particulars, requesting respondent to identify 

the specific acts committed by him that supported counts in the indictment. Respondent filed 

a bill of particulars, wherein a copy of each count in the indictment was provided with certain 

additional language italicized. In pertinent part, for counts 12 through 40, respondent 

provided a copy of each respective count from the indictment and then added the following 

language: “Defendant pled with his minor daughter to have intercourse with him.” 

Concerning counts 55 through 63, the respondent produced copies of each count as they 

appeared in the indictment and then added the language: “Defendant relentlessly, continually 

and insistently pursue[d] sexual intercourse by verbal proposition to his daughter.” 

Petitioner filed a second motion to dismiss the indictment on June 21, 2013. In this 

motion, petitioner argued, in relevant part, that counts 12 through 40 and 55 through 63 

should be dismissed because “the description of events does not meet the elements of the 

offense charged in that the allegations is [sic] that the Defendant requested the contact 

verbally but took no action to attempt the contact.” The circuit court denied the motion, 

finding that: 1) the indictment set forth the statutory language and was sufficient to apprise 

petitioner of the crimes charged; and 2) the issues regarding the attempt counts were best 

addressed at the close of respondent’s evidence. The court stated: “[T]he statute says 

attempt and i[t] becomes a question of fact for the jury, if the jury believes that, in fact, he 

proposition[ed] the victims . . . and whether or not that is an attempt within the statute. The 

jury will be adequately instructed. The [c]ourt will consider that argument once I hear the 

evidence.”11 

II. Facts 

The evidence offered during petitioner’s two-day jury trial was that on the evening 

June 30, 2012, J.B., who was a friend of petitioner’s daughter, A.H., spent the night with 

A.H. in petitioner’s home where A.H. also lived. There was no electricity in the house that 

evening because of a recent storm.12 Also, J.B. testified that she had no cell service because 

of the storm. According to J.B.’s testimony, petitioner provided alcohol to both girls and they 

11The trial was continued until March of 2014 when petitioner’s trial counsel moved 

to withdraw and the circuit court appointed a new attorney for petitioner. Petitioner’s new 

counsel also moved the circuit court to dismiss the attempt counts on the same grounds 

already decided by the circuit court. Thus, the circuit court again denied the motion. 

12J.B. testified that the storm was the derecho that had moved through West Virginia. 

5
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

became very intoxicated. Eventually A.H. went to her bedroom for the night and J.B. slept 

on the couch in the living room. 

J.B. testified that around 1:00 a.m. petitioner came into the living room and “rolled 

. . . [J.B.] over and said seductive things” to her. J.B. said that she told petitioner no “several 

times and he said he wouldn’t take no as an answer.” Petitioner eventually started touching 

J.B., including in her “privates,” which J.B. said meant her vagina. J.B. testified that 

petitioner began taking her shorts off and “then he inserted his finger in me.” This encounter 

occurred over a ten minute period. Petitioner left the living room. 

J.B. kept checking her cell phone for service so that she could call home, but her 

phone continued to be without service. Around 3:00 a.m., J.B. testified that petitioner came 

back into the living room. J.B. stated that she was awakened to petitioner taking off her 

shorts again. “I told him to go back to bed where his wife was and to leave me alone and I 

told him to stop[.]” J.B. stated that he penetrated her digitally again and placed her hand on 

his penis, despite her repeatedly telling him “no.” 

Petitioner again left the room only to return a third time. J.B. begged him to leave her 

alone. This time petitioner forced J.B. to kiss him by forcing himself on her. 

The next day, J.B. testified that she was scared and did not know “who to tell or how 

to explain it because I was embarrassed, so I didn’t tell anybody.” A.H., not knowing the 

events J.B. experienced the night before, “begged” J.B. to stay with her again. This second 

night, the two girls went to A.H.’s room and locked the doors. J.B. testified that she felt that 

something was wrong with A.H. J.B. also testified that A.H. “seemed scared.” According 

to J.B., A.H. had not told her anything about her father’s actions towards A.H. at that point. 

J.B. testified that petitioner did not physically abuse her again. She stated, however, 

that he pursued her by sending her text messages and calling her on her cell phone and 

leaving her voicemail messages. The evidence introduced at trial showed that petitioner sent 

J.B. about 111 text messages and left twelve voicemail messages. J.B. testified that she 

responded to one of petitioner’s text messages and told him that if he sent her another 

message, she would tell her father. Petitioner continued sending text messages to J.B. 

J.B. testified that on July 5, 2012, petitioner, who had been stalking her, came into the 

weight room at her high school where she was lifting weights. He came into the room three 

times, asking her to leave with him and she would not leave with him. At this point, J.B. told 

a fellow student, who was in the weight room at the time petitioner came into the room. J.B. 

and her classmate then went to the classmate’s mother, who was a teacher at the school. The 

teacher then informed J.B.’s mother and petitioner’s conduct was reported to the West 

6
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Virginia State Police. 

Corporal Robert Smith with the West Virginia State Police testified that he 

investigated the allegations made by J.B., which resulted in the police obtaining an arrest 

warrant for petitioner and a search warrant for petitioner’s residence on July 6, 2012. The 

State Police arrested petitioner. As a result of the State Police executing the search of 

petitioner’s home, Corporal Smith encountered A.H. Corporal Smith testified that A.H. came 

out of her bedroom looking “like a scolded dog. You know, like when you whip a dog, her 

head was down, she didn’t want to make eye contact with us.” Corporal Smith stated that 

he had a “gut feeling that there was something more here.” Corporal Smith testified that he 

spoke with A.H. on three occasions.13 

A.H. testified at trial and stated that going back to 2011, when she and her family 

lived in Cedarville, West Virginia, petitioner would proposition her to have sex. A.H. 

testified: “I’d just be doing stuff around the house or I would be doing chores and he would 

come up to me and ask me if I wanted to have fun or if I wanted to go do something or he 

had something to show me.” A.H. testified that she came to understand that what petitioner 

meant was that “[h]e wanted to have sex.”14 

A.H. stated that between 2011 through February 14, 2012, while they were living in 

Cedarville, petitioner propositioned her “nine or ten times.” In February 14, 2012, petitioner 

and his family moved to Glenville, West Virginia. A.H. testified that her father continued 

to proposition her “to have sex, have fun, show you something[]” in their new home. 

According to A.H., petitioner’s propositioning of her occurred, “double” the number of times 

that occurred in Cedarville. She stated “[a]t least double that again, 20 times and many more. 

I don’t know, just over and over.” During cross-examination of A.H., however, petitioner’s 

attorney asked A.H.: “That you had had . . . [petitioner] proposition you for sex at least 30, 

40 times in Cedarville and Glenville from June of ‘11 up until July of – July 5th of 2012, is 

that fair to say?” A.H. responded: “Approximately 30 times, yeah.” 

There was also detailed testimony from A.H. that in June of 2012 petitioner raped her 

in their Glenville home. A.H. also testified to other occasions when her father touched her 

sexually while they lived in Glenville. Petitioner threatened his daughter to keep quiet about 

13Corporal Smith testified that he spoke with A.H. briefly that night and again the next 

day. The third statement was obtained on July 25, 2012. 

14A.H. also testified that petitioner “would grab my arm and try to tug me towards the 

bedroom.” Her testimony, however, was unclear as to whether this occurred every time he 

propositioned her. 

7 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

the sexual abuse and rape, otherwise A.H. “would wreck the family and ruin his marriage.” 

At the close of the State’s case, petitioner moved for a judgment of acquittal on the 

attempt counts. Petitioner did not testify and did not offer any evidence on his behalf. After 

deliberating, the jury returned a verdict convicting petitioner of all sixty-three counts in the 

indictment. 

Petitioner filed a post-trial motion to dismiss forty counts alleged in the indictment 

pertaining to the attempted sexual abuse by a parent. Further, he moved to set aside the 

verdict and to grant him a new trial on the basis that the circuit court improperly allowed the 

attempt counts to go to the jury, because they were not supported by an overt act. The circuit 

court heard the motions at the sentencing hearing and denied both motions. The circuit court 

imposed an effective sentence of 112 to 145 years for the sixty-three counts. This appeal 

followed. 

III. Discussion 

We begin by addressing whether the allegations set forth in the indictment are 

sufficient to support the attempted sexual abuse by a parent counts. See W. Va. Code § 61­

8D-5(a). Petitioner argues that “a bare solicitation15 is an insufficient overt act to support a 

charge of attempted sexual abuse by a parent.” (Footnote added). According to petitioner, 

the indictment “failed to notify” him concerning those counts. As petitioner argues, the 

allegation charging him “with attempting to sexually abuse A.H. by ‘propositioning’” her 

failed to put him on notice because “conduct which would have been a mere solicitation at 

common law cannot be an overt act towards an attempt.” Respondent counters that the 

counts charging petitioner with attempted sexual abuse by a parent were constitutionally 

sufficient. We agree. 

15At first glance, petitioner’s argument suggests that he could have been charged with 

solicitation. Petitioner expresslymaintains, however, that his argument is not that respondent 

charged him with the wrong crime, “but rather that it did not supply sufficient factual 

allegations to sustain the crime it did charge.” Respondent could not have charged petitioner 

with solicitation as set forth in West Virginia Code § 61-11-8a (setting forth elements of 

solicitation to commit certain felonies). The solicitation statute is very specific as to the 

crimes for which there can be solicitation and sexual abuse by a parent, West Virginia Code 

§ 61-8D-5(a), is not one of those crimes subject to West Virginia Code § 61-11-8a. But see 

W. Va. Code § 61-3C-14b (relating to soliciting minor via computer and soliciting minor 

and traveling to engage minor in prohibited sexual activity). 

8
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

This Court previously held in syllabus point two of Miller that “[g]enerally, the 

sufficiency of an indictment is reviewed de novo. An indictment need only meet minimal 

constitutional standards, and the sufficiency of an indictment is determined by practical 

rather than technical considerations.” 197 W. Va. at 593, 476 S.E.2d at 540, Syl. Pt. 2. As 

we held in syllabus points three and four of Dilworth: 

“‘An indictment for a statutory offense is sufficient if, in 

charging the offense, it substantially follows the language of the 

statute, fully informs the accused of the particular offense with 

which he is charged and enables the court to determine the 

statute on which the charge is based.’ Syl. Pt. 3, State v. Hall, 

172 W. Va. 138, 304 S.E.2d 43 (1983).” Syl. Pt. 1, State v. 

Mullins, 181 W. Va. 415, 383 S.E.2d 47 (1989). 

“‘An indictment is sufficient under Article III, § 14 of the 

West Virginia Constitution and W. Va. R. Crim. P. 7(c)(1) if it 

(1) states the elements of the offense charged; (2) puts a 

defendant on fair notice of the charge against which he or she 

must defend; and (3) enables a defendant to assert an acquittal 

or conviction in order to prevent being placed twice in 

jeopardy.’ Syl. Pt. 6, State v. Wallace, 205 W. Va. 155, 517 

S.E.2d 20 (1999).” Syl. Pt. 5, State v. Haines, 221 W. Va. 235, 

654 S.E.2d 359 (2007).” 

Dilworth, 230 W. Va. at 449, 739 S.E.2d at 644, Syl. Pts. 3 and 4. 

The statute at issue is West Virginia Code § 61-8D-5(a), which provides, in relevant 

part: 

If any parent, guardian or custodian of or other person in a 

position of trust in relation to a child under his or her care, 

custody or control, shall engage in or attempt to engage in 

sexual exploitation of, or in sexual intercourse, sexual intrusion 

or sexual contact with, a child under his or her care, custody or 

control, . . . then such parent, guardian, custodian or person in 

a position of trust shall be guilty of a felony and, upon 

conviction thereof, shall be imprisoned in a correctional facility 

not less than ten nor more than twenty years. . . . 

(Emphasis added). 

9
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

We have held that an attempt to commit a crime requires both criminal intent to 

commit the underlying crime and an overt act toward the commission of that crime. See 

Burd, 187 W. Va. at 415, 419 S.E.2d at 676, Syl. Pt. 1.16 Thus, in this case, there must be an 

overt act toward the commission of sexual abuse by a parent. Id. 

From our review of the appendix record, the counts at issue involving the attempted 

sexual abuse by a parent of A.H. track the language of West Virginia Code § 61-8D-5(a), set 

forth the elements of the offense charged, place petitioner on fair notice of the charges 

against which he must defend and enable him to assert an acquittal or conviction in order to 

avoid double jeopardy. See Dilworth, 230 W. Va. at 449, 739 S.E.2d at 644, Syl. Pt. 3. 

Moreover, the crux of petitioner’s position is that the “propositioning” or 

“solicitation” of his daughter amounts to nothing more than simple words that fail to satisfy 

the overt act requirement for attempt. To trivialize petitioner’s conduct in this case to 

nothing more than words would be disingenuous at best. Rather, the petitioner’s overt acts 

within the context of a father and minor daughter relationship where he repeatedly tried to 

lure his daughter to engage in numerous sexual encounters with him are sufficient to 

establish the elements of the crimes charged.17 We therefore affirm the circuit court’s 

decision to deny the motion to dismiss these counts. 

Next, we address whether respondent failed to introduce sufficient evidence to convict 

petitioner of ten counts of attempted sexual abuse by a parent and two counts of first degree 

sexual abuse and abuse by a parent for touching A.H.’s breasts. Petitioner argues that the 

16Petitioner also relies upon State v. Baller, 26 W. Va. 90 (1885). In Baller, in 

resolving the issue of whether an indictment was sufficient to charge the crime of attempt to 

obstruct and impede the administration of justice at common law, we acknowledged under 

common law that “mere solicitations to commit a crime” would not make “a party indictable 

for an attempt to commit” a crime. Id. at 101. As Baller was decided under the common law 

it is easily distinguishable from the instant matter and we therefore decline to rely upon it. 

17Because we find that petitioner’s conduct alleged in the indictment was sufficient 

to support the attempted sexual abuse counts by a parent challenged by petitioner, we need 

not address petitioner’s assigned error of whether the evidence offered at trial that petitioner 

physically directed petitioner towards his bedroom created a fatal variance and prejudiced 

petitioner. See Syl. Pt. 3, State v. Corra, 223 W. Va. 573, 575, 678 S.E.2d 306, 308 (2009) 

(“‘A conviction based upon evidence that varies materially from the charge contained in the 

indictment cannot stand and must be reversed.’ Syllabus Point 3, State v. Nicholson, 162 W. 

Va. 750, 252 S.E.2d 894 (1979), overruled on other grounds by State v. Petry, 166 W. Va. 

153, 273 S.E.2d 346 (1980).”). 

10
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

evidence at trial supports only thirty counts of attempted sexual abuse, not the forty for which 

he stands convicted. Further, he argues that there was no evidence to support his conviction 

for the counts involving the touching of his daughter’s breasts. 

We are guided by the following standard of review in our examination of this issue: 

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). We also held in 

syllabus point three of Guthrie: 

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. 

Id. at 663, 461 S.E.2d at 169, Syl. Pt. 3, in part. 

Based upon our review of the record, A.H. testified that her father attempted to 

sexually abuse her thirty times. Specifically, A.H. testified that her father attempted to 

sexually abuse her “[n]ine or ten times[]” at the Cedarville home and then “[a]t least double 

that again, 20 times and many more[]” in the Glenville home. On cross-examination, 

however, A.H. was asked whether petitioner had propositioned her for sex “at least 30, 40 

times in Cedarville and Glenville from June of ‘11 up until July of – July 5th of 2012, is that 

11
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

fair to say?” A.H. responded: “Approximately 30 times, yeah.” Therefore, the evidence 

offered at trial only supports thirty counts of attempt to commit sexual abuse by a parent and, 

therefore, petitioner’s conviction on the remaining eight counts must be vacated.18 

Furthermore, after review of all the evidence offered at trial, A.H. never testified to 

petitioner touching her breasts. Respondent conceded during oral argument before this Court 

that there was no specific reference to support petitioner touching A.H.’s breasts in the 

evidence offered at trial. Consequently, petitioner’s conviction on count 43 concerning 

sexual abuse in the first degree and count 44 concerning sexual abuse by a parent are not 

supported by the evidence and those two counts are therefore vacated. 

Consequently, other than the specific ten counts referenced above that are vacated, 

petitioner stands firmly convicted by a jury of the remaining fifty-three counts with which 

he was charged. 

IV. Conclusion 

For the foregoing reasons, we affirm the circuit court’s August 14, 2014, order, in 

part, and reverse, in part, and remand the case to the circuit court for resentencing of 

petitioner consistent with this memorandum decision. 

Affirmed, in part; 

Reversed, in part, and remanded. 

ISSUED: November 10, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

18See supra notes 8 and 9. 

12