STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

State of West Virginia, FILED Plaintiff Below, Respondent 

October 20, 2017 

vs) No. 16-0430 (Berkeley County 15-F-52) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

E.K.,
 

Defendant Below, Petitioner
 

MEMORANDUM DECISION 

Petitioner E.K.,1 by counsel Michael Santa Barbara, appeals his convictions for the 

offenses of sexual assault in the first degree, sexual abuse by a parent, guardian, or custodian, 

sexual abuse in the first degree, parent filming a minor in sexually explicit conduct, and 

possession of material portraying a minor in sexually explicit conduct. The State of West 

Virginia, by counsel Robert L. Hogan filed a response. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the 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. 

Petitioner was indicted by a Berkeley County Grand Jury for one count of sexual assault 

in the first degree; four counts of sexual abuse by a parent guardian or custodian; one count of 

incest; three counts of sexual abuse in the first degree; one count of possession of material 

portraying a minor in sexually explicit conduct; one count of incest; one count of “parent filming 

a minor in sexually explicit conduct”. All of these charges related to petitioner’s step-daughter, 

V.K. Petitioner was also indicted for two additional counts of sexual abuse by a parent guardian 

or custodian, relating to his other step-daughter, B.K. 

As a part of the investigation, West Virginia State Troopers obtained a search warrant for 

all of petitioner’s electronic devices. After executing the warrant, officers seized one thumb1 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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drive, one laptop computer, and a cell phone. Twenty-three images were obtained from the 

seized evidence which depicted petitioner and a minor female engaged in “acts on a bed.” 

Petitioner’s jury trial was held on October 30, 2015. At trial, the jury heard the testimony 

of V.K., B.K., and their mother. The girls’ mother testified that she met petitioner in Africa, 

where they both grew up, and re-met and later married him while they were living in the United 

States. The parties married in 2009, and petitioner adopted B.K. and V. K. The parties separated 

in 2014, at which time B.K. told her mother that petitioner tried to have sex with her while she 

was in high school. As a result, the girl’s mother spoke with V.K., who disclosed that “every 

time” her mother worked at night, petitioner would come into her room, undress her, suck her 

breasts, and touch her vagina. V.K. testified to several of these episodes involving petitioner, and 

that the acts started when she was eight or nine years old. B.K. testified that during her senior 

year, petitioner touched her breasts, and later, tried to touch her breasts again. B.K. also testified 

that petitioner would frequently make comments about wanting to have sex with her. 

Petitioner testified on his own behalf, and denied the allegations. Following deliberations, 

the jury found petitioner not guilty on the counts related to B.K., and as to one count of sexual 

abuse by a parent, guardian or custodian and one count of sexual abuse in the first degree related 

to V.K. Petitioner was found guilty of the remaining counts in the indictment. For his 

convictions, petitioner received a sentence of not less than twenty-five, nor more than one 

hundred years in the penitentiary, and a fine of $5,000 for his conviction of the offense of sexual 

assault in the first degree; not less than ten nor more than twenty years, each, for his convictions 

of three counts of sexual abuse by a parent, custodian, or guardian; not less than five nor more 

than fifteen years for his conviction of incest; not less than five nor more than twenty-five years, 

each, for his convictions of two counts of first degree sexual abuse; ten years for the offense of 

parent filming a minor in sexually explicit conduct; and two years for the offense of possession 

of material portraying a minor in sexually explicit conduct. Petitioner now appeals his 

convictions. 

On appeal, petitioner raises three assignments of error.2 First, petitioner argues that there 

was insufficient evidence to sustain a verdict of guilt. Second, petitioner argues that the circuit 

2 In his brief petitioner designates six assignments of error, however, assignments two 

and four are identical, and petitioner only provides argument for five assignments. Petitioner also 

asserts, without citation to the record on appeal, that the circuit court improperly admitted 

evidence of uncharged conduct, and that he was denied a fair trial due to the racial composition 

of the jury panel. Because these issues were not properly developed, and not adequately briefed, 

we decline to consider them. See State v. LaRock, 196 W.Va. 294, 302, 470 S.E.2d 613, 621 

(1996), which states 

[a]lthough we liberally construe briefs in determining issues presented for review, 

issues which are . . . mentioned only in passing but are not supported with 

pertinent authority, are not considered on appeal. State v. Lilly, 194 W.Va. 595, 

605 n. 16, 461 S.E.2d 101, 111 n. 16 (1995) (“casual mention of an issue in a 

brief is cursory treatment insufficient to preserve the issue on appeal”). 

(continued . . .) 

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court erred in denying his motion to sever. Finally, petitioner asserts that the circuit court erred in 

denying his motion to suppress. 

Regarding the sufficiency of evidence, we have held that, 

“[t]he function of an appellate court when reviewing the sufficiency of the 

evidence to support a criminal conviction is to examine the evidence admitted at 

trial to determine whether such evidence, if believed, is sufficient to convince a 

reasonable person of the defendant’s guilt beyond a reasonable doubt. Thus, the 

relevant inquiry is whether, after viewing the evidence in the light most favorable 

to the prosecution, any rational trier of fact could have found the essential 

elements of the crime proved beyond a reasonable doubt.” Syllabus point 1, State 

v. Guthrie, 194 W.Va. 657, 663, 461 S.E.2d 163, 169 (1995). 

Syl. Pt. 1, State v. Boyd, 238 W. Va. 420, 796 S.E.2d 207 (2017). 

Further, 

“[a] criminal defendant challenging the sufficiency of the evidence to support a 

conviction takes on a heavy burden. An appellate court must review all the 

evidence, whether direct or circumstantial, in the light most favorable to the 

prosecution and must credit all inferences and credibility assessments that the jury 

might have drawn in favor of the prosecution. The evidence need not be 

inconsistent with every conclusion save that of guilt so long as the jury can find 

guilt beyond a reasonable doubt. Credibility determinations are for a jury and not 

an appellate court. Finally, a jury verdict should be set aside only when the record 

contains no evidence, regardless of how it is weighed, from which the jury could 

find guilt beyond a reasonable doubt. To the extent that our prior cases are 

inconsistent, they are expressly overruled.” Syllabus point 3, State v. Guthrie, 194 

W.Va. 657, 663, 461 S.E.2d 163, 169 (1995). 

Syl. Pt. 2, Boyd. This Court finds that viewed in the light most favorable to the prosecution, the 

evidence was sufficient to support petitioner’s convictions. Id. The testimony of V.K., alone, 

supports the jury’s verdict that petitioner committed the offenses of first degree sexual assault 

and sexual abuse, sexual abuse by a parent, guardian or custodian, and incest. Further, the State 

introduced, and the circuit court admitted, photographic evidence to support petitioner’s 

convictions for the offenses of parent filming a minor in sexually explicit conduct, and 

possession of material portraying a minor in sexually explicit conduct. Thus, viewed in the light 

See also State, Dep’t of Health & Human Res. v. Robert Morris N., 195 W. Va. 759, 765, 466 

S.E.2d 827, 833 (1995) (“‘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.’”) (quoting 

United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991).). 

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most favorable to the prosecution there was more than sufficient evidence to support petitioner’s 

convictions. 

Petitioner next argues that the circuit court erred in denying his motion to suppress the 

search warrant. Prior to trial, petitioner moved to suppress the search warrant, arguing that the 

warrant was not valid because it failed to establish probable cause, and failed to establish the 

reliability of the information therein. The circuit court rejected petitioner’s arguments and found 

that the warrant stated with particularity the area to be searched and established probable cause. 

“When reviewing a ruling on a motion to suppress, an appellate court 

should construe all facts in the light most favorable to the State, as it was the 

prevailing party below. Because of the highly fact-specific nature of a motion to 

suppress, particular deference is given to the findings of the circuit court because 

it had the opportunity to observe the witnesses and to hear testimony on the 

issues. Therefore, the circuit court’s factual findings are reviewed for clear error.” 

Syllabus point 1, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996). 

Syl. Pt. 13, State v. White, 228 W. Va. 530, 722 S.E.2d 566 (2011). 

We agree with the circuit court. According to the affidavit, the girls’ mother reported to 

law enforcement that petitioner sexually abused her daughters from August of 2010 to July of 

2014. The affidavit also advises that the girls’ mother reported to law enforcement that her 

daughter begged her not to work night shift because she did not want to be home with petitioner 

and that she observed child pornography on petitioner’s computer. The girls’ mother also told 

officers, according to the warrant, that petitioner used a cell phone to film his minor daughter 

taking a shower. The circuit court found that the information was reliable, as the witnesses gave 

their names, and addresses, and presented information that they personally experienced or 

observed. Finding no clear error, we decline to overturn petitioner’s convictions on this ground. 

Petitioner also argues that the circuit court erred in denying his motion to sever the counts 

of the indictment pertaining to B.K., from the counts pertaining to V.K. Petitioner complains that 

the circuit court found that the testimony of the crimes committed against both sisters was 

admissible at trial under Rule 404(b) of the West Virginia Rules of Evidence, and asserts that 

because the incidents involving V.K., are remote in time from the incidents involving B.K., that 

joinder of the offenses was unduly prejudicial. We have held that, 

“[e]ven where joinder or consolidation of offenses is proper under the West 

Virginia Rules of Criminal Procedure, the trial court may order separate trials 

pursuant to Rule 14(a) on the ground that such joinder or consolidation is 

prejudicial. The decision to grant a motion for severance pursuant to 

W.Va.R.Crim.P. 14(a) is a matter within the sound discretion of the trial court.” 

Syllabus Point 3, State v. Hatfield, 181 W.Va. 106, 380 S.E.2d 670 (1988). 

Syl. Pt. 1, State v. Milburn, 204 W. Va. 203, 511 S.E.2d 828 (1998). Further, “[a] defendant is 

not entitled to relief from prejudicial joinder pursuant to Rule 14 of the West Virginia Rules of 

Criminal Procedures when evidence of each of the crimes charged would be admissible in a 

separate trial for the other.” Syl. Pt. 2, id. 

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Here, there is no abuse of discretion, and it is clear that evidence of the crimes committed 

against one sister would have been admissible in a separate trial of the crimes committed against 

another. The acts were similar in nature, and each involved an allegation of petitioner’s lustful 

disposition toward children in his care. See Syl. Pt. 2, in part, Edward Charles L., (“Collateral 

acts or crimes may be introduced in cases involving child sexual assault or sexual abuse victims 

to show the perpetrator had a lustful disposition towards the victim, a lustful disposition towards 

children generally, or a lustful disposition to specific other children provided such evidence 

relates to incidents reasonably close in time to the incident(s) giving rise to the indictment.”) 

Accordingly, we find the trial court did not abuse its discretion in denying severance. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: October 20, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

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