1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia, Plaintiff Below, Respondent

vs

. ) No. 1 9

- 1038 ( Wood County 1 9

- M

- AP

- 2 )

Joshua Ray Lell, Defendant Below, Petitioner



### MEMORANDUM DECISION

Petitioner Joshua Ray Lell , by counsel Andrew J. Hilber , appeals the Circuit Court of Wood County’s October 15 , 201 9

, order affirming his conviction for second

- degree sexual

abuse

. The State of West Virginia, by counsel Mary Beth Niday , filed a response. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in denying his motion for judgment of acquittal and erred in convicting him based upon the insuffi ciency of the evidence.

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 th e 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 A ppellate Procedure.

In March of 2018, p etitioner, who worked at a home for mentally challenged and handicapped individuals, was arrested for second

- degree sexual abuse after the victim, a resident, reported that in February of 2018, petitioner groped his genitals, slapped his buttocks, and watched a pornographic film while masturbating in front of him. Following a bench trial in Wood County Magistrate Court, petitioner was found guilty of second

- degree sexual abuse and sentenced to ninety days of incarcer ation, which was suspended for one year of unsupervised probation. Further, petitioner was ordered to register as a sex offender for ten years and was forbidden from working with incapacitated persons. 

### FILED
February 2, 2021

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 Petitioner appealed his conviction to the Wood Coun ty Circuit Court, which held a bench trial in September of 201 9

. The victim, N.A., 1 testified that he was a client and resident of the

home where petitioner had worked. Relevant to this appeal, N.A. stated that he was his own guardian but needed help with everyday activities like cooking, cleaning, and transportation. He also said that he had a part

- time job as a janitor and had a girlfriend. N.A. testified that in February of 2018, petitioner assis t ed him with a shower and gr abbed his penis and that petitioner

watched a porn ographic film while masturbating in his presence

. N.A. stated that he alerted staff

about these incidents. However, N.A. also a dmitted to calling the police several times with allegations against the staff at his home in an effort to get them in trouble. On cross

- examination, N.A. stated that he was friends with petitioner and was previously jealous of petitioner giving

more attention to another client in the home.

Next, a staff member of the home testified that N.A. , age thirty

- fou r , requires twenty

four

- hour protective oversight, help with daily chores and activities, and guidance to accomplish

tasks on his own. S he explained that N.A. gets time s and dates confused. 2 The staff member testified that she witnessed petitioner and N.A. roughhousing on the day of the incident in question in 2018 and that N.A. made a comment about petitioner “bouncing” on his penis

. She

also stated that she found the D VD containing the pornographic movie that N.A. testified to and

that she gave it to management at the facility . Finally, she stated that N.A. call ed the police on staff on a couple of prior occasions when he was angry , but that no charges ever came from th e calls.

The S tate then called the investigating police officer who testified that he interviewed petitioner in March of 2018 after having him sign a waiver of Miranda 3 rights. The officer testified that petitioner denied touching N.A.’s penis but changed his story several times, first stating that N.A. tried to kiss him then stating that N.A. tried to embrace him during the incident

in the shower. Notably, the officer stated that petitioner admitted to having sexua l fantasies about

N.A. and that if petitioner had not stopped working at the home, “something may or may not have happened” with N.A.

At the conclusion of the S tate’s case

- in

- chief, petitioner moved for judgment of acquittal arguing that the State failed to prove all elements of second

- degree sexual abuse beyond a

reasonable doubt. N amely

, petitioner argued that the State failed to prove th at N.A. was mentally

defective , citing the lack of medical records or expert testimony to establish that N.A. s uffered

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); Melinda H. v. William R. II , 230 W. Va . 731, 742 S.E.2d 419 (2013); State v. Brandon B. , 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles

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

2 As an example of N.A.’s inability to accurately remember dates and discern the pas sage of time, N .A.’s testimony show s that he thought that his shower with petitioner lasted several

hours. The staff member testified that N.A.’s showers were usually around fifteen minutes.

3 Miranda v. Arizona , 384 U.S. 436, 444 (1966).3 from a mental disease or def ect. Petitioner argued that N.A., as his own guardian, was able to

consent to sexual contact. The State responded that N.A. lived in a facility specifically designed

for round

- the

- clock care of mentally challenged adults and that the court, having heard N.A.’s testimony, was apprised of N.A.’s obvious delays and mental shortcomings. Regarding N.A.’s ability to appr ai se his own conduct, the State argued that during N.A.’s testimony

, he often acted

c hildlike when explaining the sexual abuse, such as using hand movements to explain masturbation. Further, the State noted that N.A. required constant supervision and prompting to meet his basic needs throughout the day. T he circuit court agreed with the State and denied petitioner’s motion

.

Petitioner then presented the testimony of a program director of the home who has known N.A. as a client and resident of the home for the past twenty years. She explained the N.A. was his own guardian, but he had an appointed conservator to handle all financial matters as well as a

“health care sur rogate” through the West Virginia Department of Health and Human Resources (“DHHR”) who made all medical decisions on his behalf. As his own guardian, N.A. was able to “give input” into his day

- to

- day activities. She testified that N.A. likes to call the p olice to see their “uniforms” and get their attention , but that no arrests have occurred. The director stated that

N.A. ’s intelligence quotient indicated a low degree of functioning

, that he was mentally challenged, had treatment plans to address his diffi culties , and had a n accepted diagnosis of

“ mental retardation. ” She also explained that N.A. cannot drive a vehicle and does not have a

driver’s license.

Finally, petitioner testified that he worked directly with several client

- r esidents, including

N.A.

, and that although he helped N.A. shower ( due to an injured toe ) , he did not touch N.A

. ’s penis. Petitioner further denied any instance of touching N.A.’s penis but admitt ed to horse

playing with N.A. on the day in question in 2018 by sittin g on N.A. Petitioner explained that the residents were allowed to have girlfriends and were allotted an hour of personal time for sexual contact, during which the staff would not disturb them

. On cross

- examination, petitioner stated

that N.A. tried to kiss him, yet could not give clear answers as to whether he though t N.A. had romantic feelings for him or had tried other sexual advances towards him. When asked whether he had ever sexually fanta sized about N.A., petitioner replied, “define fantasy” then stat ed “no.” He further denied masturbating in front of N.A. or watching pornography with N.A.

After hearing closing arguments, t he circuit court found petitioner guilty of second

degree sexual abuse , finding that N.A. ’s testimony and childlike responses, as well as the testimony of others, proved that N.A. met the meaning of someone with a mental defect. The

circuit court ruled that the previously imposed sentence remain in effect by order entered on October 15, 2019. It is from this order petitioner now appeals.

This Court reviews orders by a circuit 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 deferentia l 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 subj ect to a de4 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, 633 S.E.2d 311 (2006)

.

Syl. Pt. 1, State v. Knotts , 233 W. Va. 665, 760 S.E.2d 479 (2014).

On appeal, petitioner argues that the circuit court erred in denying his motion for judgment of acquittal . According to West Virginia Code § 61

- 8B

- 8, “[a] person is guilty of sexual abuse in the second degree when such person subjec ts another person to sexual contact who is mentally defective or mentally incapacitated.” Further, W est V irginia Code § 61

- 8B

- 1 (3)

defines “ [m] entally defective” to mean “that a person suffers from a mental disease or defect which renders that person incap able of appraising the nature of his or her conduct.” On appeal, petitioner challenges the sufficiency of the State’s evidence that N.A. suffered from a mental

defect or disease

. Petitioner cites N.A.’s part

- time work as a janitor and having a girlfriend as proof that N.A. had the ability to participate in daily life decisions. According to petitioner, the circuit court “ignored the fact ” t hat N.A. acted as his own guardian and inappropriately relied “primarily up on the fact that the alleged victim lived in a group home and suffers from mental

retardation.” 4 Finally, petitioner argues that there were inconsistences in N.A.’s testimony regarding the dates and times of the alleged sexual abuse and that the evidence was insufficient to convict petitioner of second

- degree sexual abuse. 5 Upon review, we find petitioner is entitled

to no relief.

“The Court applies a de novo standard of review to the denial of a motion for judgment

of acquittal based upon the sufficiency of the evidence.” State v. Juntilla , 227 W. Va. 492, 497, 711 S.E.2d 562, 567 (2011) (citation omitted) . Moreover,

[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 t he 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) . Further,

4 In petitioner’s reply brief, he references the circuit court’s remarks at trial that N.A.’s group home was akin to “being institutionalized” and that this finding supported elements required of crimes concerning incarcerated individuals. However, the circu it court was obviously referring to persons institutionalized in facilities for mental illness or disease and not

incarcerated individuals.

5 For clarity and brevity, petitioner’s three separate assignments of error have been

combined into one.5 [a] criminal defendant c hallenging 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.

I

d . at 663, 461 S.E.2d at 169, syl. pt. 3, in part. See also State v. Boyd , 238 W. Va. 420, 431, 796 S.E.2d 207, 218 (2017) (“ [ I]t is now well recognized and firmly settled that proof of guilt may be established by circumstantial evidence . . . .” (quoting State v. Bailey , 151 W. Va. 79 6, 804, 155 S.E.2d 850, 855 (1967))).

In viewing the evidence in the light most favorable to the prosecution, we find that any rational trier of fact could have found the essential elements of second

- degree sexual abuse proved beyond a reasonable doubt. Petitioner points to N.A.’s janitorial job and romantic relationship with a woman as proof that he suffers from no defect, but the record belies this

contention . Contrary to petitioner’s assertions, t he record shows that although N.A. was his own guardian who could give input into his day

- to

- day decisions, he was not, in fact, autonomous

, as the staff directed most of his daily activities and he could only leave the home under supervision

. Also, p etitioner concedes that N.A. had an appointed conservator who made all financial

decisions for him as well as a health care surrogate through the DHHR who made all medical

decisions on N.A.’s behalf. Indeed, the overwhelming majority of testimony gathered from staff at N.A.’s group home as well as that of N.A. estab lished that N.A. has a l ow I.Q

. , lower cognitive functioning

, and mental challenge s to the point where he is unable to make most of his

own decisions

. Th us, a rational trier of fact could find that N.A. suffered from a mental defect that impacted his ability to appr aise his own conduct.

Lastly, petitioner makes much of the West Virginia G uardianship and Conservatorship

Act , arguing that because N.A. was appointed as his own guardian

, 6 he must not suff er from an intellectual disability , mental incompetency, or other handicap. However, petitioner disregards

the fact that N.A. was appointed a conservator

, 7 which required a finding that he is a protected

person.

6 West Virginia Code § 44A

- 1

- 4(5) defines “guardian” as “ a person appointed by the court who is responsible for the personal affairs of a protected person, and, where the context plainly indicates, the term ‘guardian’ means or includes a ‘limited guardian’ o r a ‘temporary guardian.’”

7 Likewise, “conservator” is defined as “a person appointed by the court who is responsible for managing the estate and financial affairs of a protected person, and, where the context plainly indicates, the term ‘ conservator ’ me ans or includes a ‘ limited conservator ’ or a

‘ temporary conservator. ’ ” W. Va. Code § 44A

- 1

- 4 (1).6 “Protected person” means an adult individual, eighteen years of age or older, who has been found by a court, because of mental impairment, to be unable to receive and evaluate information effectively or to respond to people, events, and

environments to suc h an extent that the individual lacks the capacity: (A) To meet the essential requirements for his or her health, care, safety, habilitation, or therapeutic needs without the assistance or protection of a guardian; or (B) to manage property or financial af fairs or to provide for his or her support or for the support of legal dependents without the assistance or protection of a conservator. A finding that the individual displays poor judgment, alone, is not sufficient evidence that the individual is a protec ted person within the meaning of this subsection. “Protected person” also means a person whom a court has determined is a missing person.

W. Va. Code § 44A

- 1

- 4 (13). Petitioner disregards this finding and also ignores N.A.’s appointment of a healthcare sur rogate by the DHHR who handl ed his decisions regarding his

health care, treatments, etc . Further, petitioner cites no authority to support his assertion that a mentally disabled person who is his own guardian fails to meet the definition of “mentally

defective” as set out in W est V irginia Code § 61

- 8B

- 1 (3)

. Indeed, taken as a whole, N.A.’s lack

of autonomy and inability to make day

- to

- day decisions is apparent a s he lived in a group home

with constant care, supervision, and guidance , and had a health care surrogate with the DHHR to

make all medical decisions. Petitioner cannot reconcile his position with the overwhelming

evidence that N.A. suffered from a mental defect

.

As for the alleged inconsistences in N.A.’s statements regarding the dates and times of the alleged abuse, petitioner’s own testimony belies this assertion. Petitioner alleges that N.A.

lied about the sexual encounter in th e shower in 2018 because his shift did not begin until 3:00 p.m. and that another worker would have had N.A. shower earlier that morning. However, the testimony of the staff member established that N.A. only completed a hygiene routine that morning , which did not specify whether he took a shower then or later in the day

. Regardless of

the exact date and time , petitioner admitted to being in the bathroom with N.A. and helping him

shower due to N.A.’s broken toe. These are the same facts as testified to by N.A. Further, petitioner admitted to roughhousing or horse playing with N.A. on the day in question and

br iefly sitting on top of N.A

. Although petitioner denied any sexual contact with N.A.’s penis, the circuit court found N.A.’s testimony more credible , e specially in light of the fact that the officer testified that petitioner admitted to having sexual fanta sies about N.A. during his

interview. Finally, petitioner attacks N.A.’s credibility due to his past behavior of contact ing the police with complaints against staff members of the group home. Ultimately, these are all credibility issues that the circuit co urt resolved in the State’s favor and we decline to disturb them on appeal

. See Guthrie , 194 W. Va. at 663, 461 S.E.2d at 169, syl. pt. 3, in part (“ Credibility determinations are for a j ury and not an appellate court.”). Having reviewed the entirety of the evidence presented, we conclude that the State met its burden of proving that the

victim suffered “ from a mental disease or defect which renders that person incapable of7 appraising the nature of his or her conduct” so as to satisf y the element required in West Virginia Code § 61

- 8B

- 8 (a). W

. V a

. Code § 61

- 8B

- 1 (3)

.

For the foregoing reasons, the circuit court’s October 15, 2019, order is hereby affirmed.

Affirmed.

ISSUED : February 2, 2021

CONCURRED IN BY :

Chief Justice Evan H. Jenkins

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton