STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

State of West Virginia, FILED 

Plaintiff Below, Respondent May 19, 2017 

RORY L. PERRY II, CLERK 

vs) No. 16-0702 (Kanawha County 14-F-392) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Juan M.
 

Defendant Below, Petitioner
 

MEMORANDUM DECISION 

Petitioner Juan M., by counsel Andrew Shumate, appeals the Circuit Court of Kanawha 

County’s July 20, 2016, amended sentencing order following his convictions for nineteen counts 

of sexual abuse by a parent, guardian, custodian, or person in a position of trust.1 Respondent the 

State of West Virginia, by counsel Gordon L. Mowen II, filed a response in support of the circuit 

court’s order. Petitioner also submitted a reply. 

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 circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

J.S. was fifteen years old when her father, petitioner, allegedly sexually violated her by 

coming into her room at night and forcing her to perform oral sex upon him. This continued 

almost daily for over one year. Petitioner would ejaculate on the floor near the hallway or in 

J.S.’s hand but would use a towel to try to clean the carpet. After approximately a year, petitioner 

would also force J.S. to strip naked and rub her vagina on his penis. He unsuccessfully attempted 

to penetrate her vagina and anus. J.S. eventually confided in her boyfriend, D.R., that she was 

being abused, and police were notified. Petitioner was indicted on twenty counts of sexual abuse 

by a parent, guardian, custodian, or person in a position of trust under West Virginia Code § 61­

8D-5. 

Maureen Runyon, a forensic interviewer, conducted a recorded interview with J.S. 

During the interview, J.S. discussed the alleged sexual acts with Ms. Runyon, clearly identifying 

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 father as the perpetrator and describing moles on petitioner’s penis to Ms. Runyon. Prior to 

trial, petitioner filed a motion to suppress evidence relating to the interview on the ground that 

the State failed to preserve a diagram of a male body Ms. Runyon used during the interview, 

which was not marked upon or retained. The circuit court denied that motion. 

The police also interviewed petitioner during their investigation. They received consent 

to search the home when petitioner stated it did not matter where they checked in the house. 

During that search, police found semen stains in the area where J.S. testified that petitioner 

would ejaculate – in the hallway just outside of her room. Testing identified the sperm and 

related biological materials as matching petitioner’s DNA. Petitioner subsequently submitted a 

motion to suppress evidence of that DNA material on the carpet, asserting that he did not give 

police permission to search the hallway of his home. The circuit court denied that motion. 

During the course of the trial, petitioner’s trial counsel from the Kanawha County Public 

Defender’s Office, Sara Whittaker and Ronnie Sheets, became aware that their office also 

represented one of the trial witnesses, D.R., on unrelated charges. As a result, D.R. was 

appointed new counsel who was not affiliated with the Public Defender’s Office. 

Petitioner was found guilty of nineteen counts of the felony offense of sexual abuse by a 

parent, guardian, custodian, or person in position of trust following a jury trial. The circuit court 

convicted him of the same by order entered March 24, 2016. Pursuant to the amended sentencing 

order entered July 20, 2016, petitioner was sentenced to the following terms of incarceration: a) 

for counts one through seven, an indeterminate term of not less than ten nor more than twenty 

years, said sentences to run concurrently to each other; b) for counts eight, ten, eleven, and 

twelve, an indeterminate term of not less than ten nor more than twenty years, said sentences to 

run concurrently to each other but consecutively to the sentences for counts one through seven; 

c) for counts thirteen through sixteen, an indeterminate term of not less than ten nor more than 

twenty years, said sentences to run concurrently to each other but consecutively to the sentences 

imposed in counts one through seven and eight, ten, eleven, and twelve; and d) for counts 

seventeen through twenty, an indeterminate term of not less than ten nor more than twenty years, 

said sentences to run concurrently to each other but consecutively to the sentences imposed in 

counts one through seven, eight, ten, eleven, twelve, and thirteen through sixteen. In addition to 

the effective sentence of forty to eighty years of incarceration, petitioner was ordered to serve ten 

years of extended supervision, pursuant to West Virginia Code § 62-12-26, following the 

expiration of the sentences of incarceration and ordered to register as a sexual offender for life. 

However, the circuit court stayed the execution of the sentence pursuant to West Virginia Code § 

62-7-1. Petitioner appeals his convictions. 

On appeal, petitioner asserts four assignments of error with differing standards of review. 

First, petitioner argues that the circuit court erred in refusing to declare a mistrial after 

discovering that petitioner’s attorneys had a conflict of interest. He contends that another client 

of the Kanawha County Public Defender’s office, D.R., appeared as a witness for the State at 

trial, so petitioner’s counsel was unable to properly attack D.R.’s credibility as a witness. He 

asserts that he was not asked to waive the conflict. He contends that this was an actual conflict so 

he was not required to show prejudice in order to sustain his claim of ineffective assistance of 

counsel. Petitioner asserts that Rule 1.7(a)(2) of the West Virginia Rules of Professional Conduct 

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supports his contention that the apparent concurrent conflict of interest existed because there was 

a significant risk that the representation of one or more clients would be materially limited by the 

lawyers’ responsibilities to D.R.2 

We note that we have repeatedly held as follows: 

It is the extremely rare case when this Court will find ineffective 

assistance of counsel when such a charge is raised as an assignment of error on a 

direct appeal. The prudent defense counsel first develops the record regarding 

ineffective assistance of counsel in a habeas corpus proceeding before the lower 

court, and may then appeal if such relief is denied. This Court may then have a 

fully developed record on this issue upon which to more thoroughly review an 

ineffective assistance of counsel claim. 

Syl. Pt. 10, State v. Triplett, 187 W .Va. 760, 421 S.E.2d 511 (1992). This Court does not have a 

sufficient record to determine whether petitioner received ineffective assistance of counsel at 

trial. However, to the extent petitioner asserts that his counsel had a conflict of interest, such 

contention is negated by the record currently before this Court. A review of the record reveals 

that it was the prosecutor’s office that brought the potential conflict issue to the attention of the 

circuit court and petitioner’s counsel. Based on petitioner’s counsels’ discussion with the circuit 

court, the circuit court concluded that petitioner’s counsel was unaware that the public defender’s 

office may have been representing D.R. at the time of petitioner’s trial. Petitioner’s trial counsel 

explained that they had no idea the public defender’s office had been appointed to represent 

D.R.; they had no contact with D.R. regarding his misdemeanor case; and they had not had any 

contact with the attorney who had been appointed to handle D.R.’s case. They were also unsure 

whether the public defender’s office actually represented D.R. at that time. Based on that 

information, the circuit court appointed a private attorney to handle D.R.’s misdemeanor charge 

and prohibited petitioner’s counsel from communicating with the attorneys involved in D.R.’s 

representation. Therefore, it is apparent from the record on appeal that the circuit court averted 

any potential for conflict involving petitioner’s trial counsel, petitioner, and D.R. 

Petitioner next argues that law enforcement violated his Fourth Amendment rights by 

conducting a warrantless search of his home, which resulted in the discovery of the semen stain. 

He contends that he consented only to a search of J.S.’s bedroom, which he asserts did not 

include the hallway outside of her bedroom. However, the semen stain at issue was found in the 

hallway using what he describes as advanced scientific equipment. 

2 West Virginia Rule of Professional Conduct 1.7(a)(2) provides as follows: 

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the 

representation involves a concurrent conflict of interest. A concurrent conflict 

of interest exists if: . . . (2) there is a significant risk that the representation of 

one or more clients will be materially limited by the lawyer’s responsibilities 

to another client, a former client or a third person or by a personal interest of 

the lawyer. 

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Our decision in State v. Buzzard, 194 W. Va. 544, 461 S.E.2d 50 (1995), is particularly 

relevant to our consideration of petitioner’s argument. As we set forth therein, 

The State has the burden of proving by a preponderance of the evidence that the 

consent to search was given voluntarily. State v. Worley, 179 W.Va. 403, 410, 369 

S.E.2d 706, 713, cert. denied, 488 U.S. 895, 109 S.Ct. 236, 102 L.Ed.2d 226 

(1988) (citing State v. Hacker, 158 W.Va. 182, 209 S.E.2d 569 (1974)). 

“‘Whether a consent to a search is in fact voluntary or is the product of duress or 

coercion, express or implied, is a question of fact to be determined from the 

totality of all the circumstances.’ Syllabus Point 8, State v. Craft, 165 W.Va. 741, 

272 S.E.2d 46 (1980).” Syl.Pt. 4, Worley, 179 W.Va. at 406, 369 S.E.2d at 709. 

However, in making a factual assessment concerning the existence of voluntary 

consent, the inquiry focuses upon whether the facts available to the officer at the 

moment of entry ‘“‘warrant a man of reasonable caution in the belief’” ‘that the 

party had voluntarily authorized the officer's entry onto the premises. Illinois v. 

Rodriguez, 497 U.S. 177, 188, 110 S.Ct. 2793, 2801, 111 L.Ed.2d 148 (1990) 

(quoting Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1879-81, 20 L.Ed.2d 

889 (1968)). Finally, we review a trial court's legal conclusions regarding 

suppression determinations de novo, and the factual determinations involving 

those legal conclusions are reviewed under the clearly erroneous standard. State v. 

Honaker, 193 W.Va. 51, 56, 454 S.E.2d 96, 101 (1994) (citing State v. Farley, 

192 W.Va. 247, 452 S.E.2d 50 (1994) and State v. Stuart, 192 W.Va. 428, 452 

S.E.2d 886 (1994)). 

Buzzard at 550, 461 S.E.2d at 56. In addition, in Buzzard, we set forth the following rule: 

“The general rule is that the voluntary consent of a person who owns or 

controls premises to a search of such premises is sufficient to authorize such 

search without a search warrant, and that a search of such premises, without a 

warrant, when consented to, does not violate the constitutional prohibition against 

unreasonable searches and seizures.” Syl. Pt. 8, State v. Plantz, 155 W.Va. 24, 

180 S.E.2d 614 (1971), overruled in part on other grounds by State ex rel. White 

v. Mohn, 168 W.Va. 211, 283 S.E.2d 914 (1981). 

Syl. Pt. 1, Buzzard. Petitioner does not contend that he was under duress or was coerced into 

giving consent. Therefore, he does not contest the voluntariness of the search and appears to take 

issue only with the extent of his voluntary consent. Petitioner’s consent to the search was 

recorded by law enforcement, and it reveals that petitioner specifically stated “it don’t [sic] 

matter where you check at in the house, you know. . . .” Officers understood that to be consent to 

search anywhere inside the residence. Petitioner does not dispute making that statement, and he 

did not challenge the authenticity of that recording. Therefore, we find that based on the specific 

facts of this case, petitioner’s Fourth Amendment rights were not violated by law enforcement’s 

search of the hallway outside J.S.’s room following petitioner’s consent to the search. 

Petitioner’s third assignment of error is that the testimony regarding the location of moles 

on his penis should have been excluded pursuant to State v. Osakalumi, 194 W. Va. 758, 461 

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S.E.2d 504 (1995). It is undisputed that during J.S.’s interview with Ms. Runyon, J.S. pointed to 

a diagram to indicate the location and number of moles on petitioner’s body. However, that 

diagram was not preserved. While that interview was recorded on video, petitioner asserts that 

the positioning of the camera and poor video quality make it impossible to tell where J.S. was 

pointing on that diagram. Petitioner, therefore, argues that he was prejudiced by the State’s 

failure to disclose the diagram. 

When the State had or should have had evidence requested by a criminal 

defendant but the evidence no longer exists when the defendant seeks its 

production, a trial court must determine (1) whether the requested material, if in 

the possession of the State at the time of the defendant’s request for it, would have 

been subject to disclosure under either West Virginia Rule of Criminal Procedure 

16 or case law; (2) whether the State had a duty to preserve the material; and (3) if 

the State did have a duty to preserve the material, whether the duty was breached 

and what consequences should flow from the breach. In determining what 

consequences should flow from the State's breach of its duty to preserve evidence, 

a trial court should consider (1) the degree of negligence or bad faith involved; (2) 

the importance of the missing evidence considering the probative value and 

reliability of secondary or substitute evidence that remains available; and (3) the 

sufficiency of the other evidence produced at the trial to sustain the conviction. 

Syl. Pt. 2, Osakalumi. As the circuit court found in the instant matter, the record establishes that 

Ms. Runyon used a blank diagram of a male’s body during her conversation but the diagram was 

not preserved because it remained blank. Even if the recording of the interview was insufficient 

to determine where J.S. was pointing, but petitioner’s complaint related solely to the blank 

diagram. The State made an identical blank diagram available to petitioner. Therefore, we find 

that the State did not have a duty to preserve the blank diagram used during the interview with 

J.S. and that there was no violation of our holding in Osakalumi caused by the State’s failure to 

preserve and present the original blank diagram to petitioner. 

Finally, petitioner argues that his conviction should be overturned due to a lack of 

evidence. Without citing a single case, statute, rule, or the record on appeal, petitioner argues that 

his case clearly fell below the standard required to reach a criminal conviction, pointing to the 

fact that the only evidence presented at trial was the testimony of J.S. and the DNA evidence 

from the carpet in the hallway. He also criticizes J.S.’s credibility based upon her “conflicting 

stories” and “subsequent legal issues,” which he fails to identify. 

Pursuant to Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure, in pertinent 

part, a petitioner’s 

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 

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adequately supported by specific references to the record on appeal. 

Petitioner failed to include a single citation to any authority or any reference to the record before 

this Court to support this assignment of error. Therefore, we decline to address the merits of this 

alleged error. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: May 19, 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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