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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia,

Plaintiff Below, Respondent

vs.) No. 19-0037 (Marion County CC-24-2004-F-62) 

Carter Perry King,

Defendant Below, Petitioner

MEMORANDUM DECISION

Petitioner Carter Perry King, by counsel Scott A. Shough, appeals the Circuit Court of 

Marion County’s December 21, 2018, order finding that the evidence of his guilt was sufficient to 

support convictions for the crimes charged and reimposing his commitment under the court’s 

supervision for the remainder of his sentence following his hearing to present a defense other than 

not guilty by reason of mental illness pursuant to West Virginia Code § 27-6A-6. Respondent State 

of West Virginia, by counsel Scott E. Johnson, filed a response in support of the circuit court’s 

order. On appeal, petitioner argues that the presiding circuit judge should have been permitted to 

recuse himself and that the circuit court erred in finding that petitioner would have been convicted 

at trial.

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 on two counts of sexual abuse by a parent, guardian, or custodian 

and two counts of second-degree sexual assault in February of 2004. These charges arose from 

petitioner’s alleged conduct in which he either engaged, or attempted to engage, in sexual 

intercourse or intrusion with a child in his care, custody, or control. See State v. King, 240 W. Va. 

373, 374-75, 813 S.E.2d 26, 27-28 (2018). Later that year, the circuit court committed petitioner 

to the William R. Sharpe Jr. Memorial Hospital (“Sharpe Hospital”) for a short period because it 

found that he was not capable of participating substantially in his defense or understanding the 

nature and consequences of a criminal trial and may have posed a danger to himself or others. Id. 

at 375, 813 S.E.2d at 28. After various motions and hearings over the next several years, the circuit 

court ultimately found in October of 2008 

FILED

April 6, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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that the petitioner was not competent to stand trial “because he does not exhibit 

sufficient present ability to consult with his lawyer with a reasonable degree of 

rational understanding and a rational as well as factual understanding of the 

proceedings against him.” The circuit court further found that the petitioner was 

“not substantially likely to attain competency and that the indictment against the

[petitioner] involves acts of violence against a person.” 

Id. at 376, 813 S.E.2d at 29. Based on these findings, 

[t]he circuit court ordered that the petitioner be committed to [Sharpe Hospital] and 

that the court “maintains jurisdiction over the [petitioner] for forty (40) years to 

(90) years, the maximum possible sentence [petitioner] would have received if he 

had been convicted of the crime(s) charge[d], or until the [petitioner] regains 

competency and the criminal charges reach resolution which[ever] is sooner.”

Id. Following a subsequent evaluation, and because it constituted the least restrictive suitable 

placement, the circuit court later transferred petitioner to the Browns Mill Group Home.

In April of 2013, petitioner moved for “an ‘opportunity to offer a defense to the charges 

pending against [him] before the court’ pursuant to West Virginia Code § 27-6A-6” because he 

“believe[d] that he [could] establish a defense of not guilty.”1 King, 240 W. Va. at 376, 813 S.E.2d 

at 29. The circuit court held a hearing on the issue and directed the parties to file additional briefing. 

Id. Ultimately, 

[b]y order entered December 9, 2016, the circuit court denied the petitioner’s 

request for a hearing on the merits of his potential defense. The circuit court found 

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West Virginia Code § 27-6A-6 provides as follows:

If a defendant who has been found to be not competent to stand trial believes 

that he or she can establish a defense of not guilty to the charges pending against 

him or her, other than the defense of not guilty by reason of mental illness, the 

defendant may request an opportunity to offer a defense thereto on the merits before 

the court which has criminal jurisdiction. If the defendant is unable to obtain legal 

counsel, the court of record shall appoint counsel for the defendant to assist him or 

her in supporting the request by affidavit or other evidence. If the court of record 

in its discretion grants such a request, the evidence of the defendant and of the State 

shall be heard by the court of record sitting without a jury. If after hearing such 

petition the court of record finds insufficient evidence to support a conviction, it 

shall dismiss the indictment and order the release of the defendant from criminal 

custody. The release order, however, may be stayed for ten days to allow civil 

commitment proceedings to be instituted by the prosecutor pursuant to article five 

[§§ 27-5-1 et seq.] of this chapter: Provided, [t]hat a defendant committed to a 

mental health facility pursuant to subsection (f) or (h), section three [§ 27-6A-3] of 

this article shall be immediately released from the facility unless civilly committed.
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that on December 18, 2008, the petitioner was not competent to stand trial and that 

he “would have been convicted of the offenses for which he was indicted but for 

his lack of competency.” The circuit court stated that “there was no request by the 

[d]efense for a hearing for the [petitioner] to offer a defense pursuant to W. Va. 

Code § 27-6A-6 at that time or within a reasonable time thereafter.” The circuit 

court then concluded that it would not disturb the findings made by Judge Fox in 

his December 18, 2008, order. Further, the circuit court determined that while the 

petitioner may request the opportunity to offer a defense on the merits after a 

finding of incompetency pursuant to West Virginia Code § 27-6A-6, whether to 

grant such request was within the sole discretion of the court. The circuit court 

denied the petitioner’s request.

King, 240 W. Va. at 378, 813 S.E.2d at 31. Petitioner appealed the denial of this hearing, and this 

Court ultimately remanded the matter for a hearing pursuant to West Virginia Code § 27-6A-6. 

King, 240 W. Va. at 382, 813 S.E.2d at 35. 

Upon remand, petitioner moved to disqualify the presiding judge on the grounds that he 

previously found that the evidence against petitioner was sufficient to warrant a conviction and 

expressed deference to the prior judge’s decisions made in the case in 2008. In response, the 

presiding judge indicated that he would request a new judge to preside over the matter to avoid the 

appearance of impropriety, even though he believed he could fairly preside over the matter. This 

Court, however, denied the request for a new judge by order entered in May of 2018. 

Thereafter, the circuit court held evidentiary hearings in August and October of 2018. The 

victim testified to petitioner’s conduct and specifically indicated that he took off her clothes against 

her will, “held her down with his arms,” and “put his penis inside [her] vagina.” The victim, who 

was twelve years old at the time, testified that she repeatedly told petitioner to stop but that he 

continued and threatened her if she did not comply. The victim further testified that petitioner 

sodomized her. The State also presented testimony from the investigating officer, who confirmed 

that the victim’s medical records corroborated her statement about petitioner’s crimes. Based upon 

the evidence presented, the circuit court found sufficient support for petitioner’s conviction of the 

crimes charged and ruled that the prior order regarding petitioner’s commitment be enforced. It is 

from the resulting order that petitioner appeals. 

“With regard to the petitioner’s assertion of unconstitutional error arising from West 

Virginia Code § 27-6A-6, our review is plenary.” King, 240 W. Va. at 378, 813 S.E.2d at 31 

(citations omitted). Further, as this Court has long held, 

“[i]n reviewing challenges to the findings and conclusions of the circuit 

court, we apply a two-prong deferential standard of review. We review the final 

order and the ultimate disposition 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. 2, Walker v. 

West Virginia Ethics Com’n, 201 W.Va. 108, 492 S.E.2d 167 (1997).

Syl., State v. Maisey, 215 W. Va. 582, 600 S.E.2d 294 (2004). 
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On appeal, petitioner first alleges that the presiding circuit court judge should have been 

disqualified, given that he previously denied petitioner a hearing on his possible defense and found 

that the evidence would have been sufficient to support his conviction while expressing deference 

to the findings and decision of the prior judge who presided over the matter. As set forth above, 

the judge agreed to his disqualification, although he nonetheless maintained that he was able to

remain impartial. Based on the same allegations currently before this Court, we previously denied 

the disqualification, finding that these allegations were “insufficient to warrant disqualification.” 

“The matter of judicial recusal and disqualification is a matter of discretion reposed solely in the 

presiding judge and the Chief Justice of this Court.” Patton v. Cty. of Berkeley, -- W. Va. --, 835 

S.E.2d 559, 563 (2019) (citation omitted). As this Court found in Patton, “reiterating the same 

argument” from a motion for disqualification that this Court has previously denied and “fail[ing]

to offer any new evidence or argument in support of [the] assertion that the proceedings below 

were not fair” is insufficient to entitle a party to relief on appeal. Id. Given that petitioner is simply 

alleging the same grounds for disqualification that this Court previously found to be insufficient, 

we find he is entitled to no relief on appeal. 

Finally, we find no error in regard to petitioner’s argument that the circuit court erred in 

evaluating the evidence against him.

2 According to petitioner, the victim’s testimony was 

inherently incredible and, therefore, insufficient to find that he would have been convicted at trial. 

However, the record shows that the circuit court specifically found that “the testimony of the victim 

. . . is credible, clear, and convincing.” This Court has long held that “[a]n appellate court may not 

decide the credibility of witnesses or weigh evidence as that is the exclusive function and task of 

the trier of fact.” State v. Guthrie, 194 W. Va. 657, 669 n.9, 461 S.E.2d 163, 175 n.9 (1995) 

(citation omitted). Citing what he believes to be inconsistencies in the victim’s testimony, 

petitioner argues that “without corroborating evidence” the testimony “should not have been 

sufficient to support a conviction.” However, this Court has established that “‘[a] conviction for 

any sexual offense may be obtained on the uncorroborated testimony of the victim, unless such 

testimony is inherently incredible[.] . . . [C]redibility is a question for the jury.’ Syl. pt. 5, State v. 

Beck, 167 W.Va. 830, 286 S.E.2d 234 (1981).” Syl. Pt. 1, State v. Haid, 228 W. Va. 510, 721 

S.E.2d 529 (2011). Accordingly, we find that the victim’s vivid testimony regarding petitioner’s 

crimes is not inherently incredible and, thus, the circuit court’s determination regarding the 

victim’s credibility is entitled to substantial deference. 

Additionally, petitioner’s argument on appeal is flawed in that it ignores other important 

and substantial evidence admitted during the evidentiary hearings below. In addition to his 

erroneous assertion that the victim’s allegations were uncorroborated, petitioner asserts that “[t]he 

sole evidence against [him] . . . was the testimony of the alleged sexual assault victim.” (Emphasis 

added). This argument, however, ignores testimony from the investigating officer regarding the 

victim’s medical records. Based on the admission of those medical records and the officer’s

testimony, the circuit court specifically found that the investigating officer “corroborated [the 

2

Petitioner does not assert that the State failed to prove any essential element of either of 

the crimes with which he was charged or otherwise challenge the sufficiency of the evidence in 

regard to those elements. Petitioner’s entire argument on appeal is predicated only upon his 

assertion that the victim’s testimony is incredible. 
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victim’s] disclosure with [her] medical records.” Other than asserting—without any citation to 

expert medical testimony that would support his conclusion—that the victim’s “anal injury was 

the result of [a] . . . pinworm infection,” petitioner provides no argument on appeal to dispute the 

officer’s testimony regarding the fact that the medical records corroborate the victim’s disclosure.

As such, we conclude that the circuit court’s finding as to the corroborating nature of the medical 

records was not in error. 

Finally, it is important to note that the evidentiary standard in this proceeding was lower 

than it would have been at a criminal trial. This Court has established that 

the hearing provided in [West Virginia Code § 27-6A-6] is “civil in nature[,]” that

“the quantitative level of proof required under West Virginia Code § 27-6A-6 is 

sufficient evidence and not the criminal standard requiring evidence beyond a 

reasonable doubt[,]” and that the purpose of the statute was “directed at the joint 

purposes of protecting the public and ensuring appropriate treatment for individuals 

who are both incompetent and criminally violent.”

King, 240 W. Va. at 381, 813 S.E.2d at 34 (citation omitted). Accordingly, given that the victim’s 

testimony alone would have been sufficient to support a criminal conviction under a much higher 

burden of proof even if it were uncorroborated, which it was not, we do not find error in the circuit 

court’s determination that the evidence was sufficient to support petitioner’s continued 

commitment. 

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: April 6, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison