STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

State of West Virginia, 

Plaintiff Below, Respondent FILED 

September 6, 2016 

vs) No. 15-0591 (Clay County 14-JD-9) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA S.Y., a juvenile,
 

Defendant Below, Petitioner
 

MEMORANDUM DECISION 

Petitioner S.Y., by counsel Kevin C. Duffy, appeals the Circuit Court of Clay County’s 

May 11, 2015, order finding her to be a juvenile delinquent.1 The State, by counsel Shannon 

Frederick Kiser, filed a response in support of the circuit court’s order. On appeal, petitioner 

argues that the circuit court erred in (1) adjudicating her as a juvenile delinquent for committing 

domestic battery when the State failed to prove beyond a reasonable doubt that she committed 

that offense; and (2) “considering allegations which would amount to a status offense when 

weighing the credibility of [petitioner’s] testimon[y] against that of the sole witness presented 

against her, [her legal guardian, A.D.]”2 

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. 

In October of 2014, the State filed a juvenile delinquency petition against petitioner in 

which it alleged that she committed the act of domestic battery and other offenses from July to 

September of 2014. In its petition, the State specifically alleged that petitioner physically 

attacked A.D. and A.D.’s minor daughter, K.D., on September 21, 2014. 

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

A.D. relinquished her legal guardianship of petitioner in November of 2014. 

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In February of 2015, the circuit court held an adjudicatory hearing on the State’s 

petition.3 At that hearing, the circuit court heard from two witnesses—A.D. and petitioner. A.D. 

testified that she and petitioner began arguing in July of 2014 when petitioner was removed from 

a school immersion program due to her prohibited body piercings and for “sneaking out” of 

student housing after permissible hours. When A.D. began to testify that another child’s “mother 

called and told me” about petitioner sneaking out of the student housing, petitioner’s counsel 

stated “I’m going to object to that, Your Honor.” Without further discussion, the circuit court 

stated “[o]bjection’s sustained.” A.D. also testified that petitioner would sneak out of her home 

against her instructions, as alleged in the petition. A.D. claimed that petitioner sneaked out to 

meet a man. According to A.D.’s testimony, she and petitioner got into a physical altercation on 

September 21, 2014, when A.D. asked petitioner to end her involvement with that man. In A.D.’s 

account of the altercation, petitioner “punched [A.D.] between the eyes and kicked [her] in the 

knee” before subsequently physically attacking her daughter, K.D. Following this testimony, the 

State rested its case-in-chief. Petitioner then moved to dismiss the charge that petitioner 

committed domestic battery against K.D. because K.D. did not testify for the State. The circuit 

court noted that K.D. had no obligation to testify if the evidence was otherwise sufficient to 

prove the charge and denied the motion. 

In her case-in-chief, petitioner testified that A.D. “shoved” her because petitioner made 

an accusation of attempted sexual abuse about M.R., another child living in A.D.’s home.4 

Petitioner maintained that she merely defended herself from A.D.’s attack. Petitioner further 

testified upon questioning by her counsel that she left the school immersion program voluntarily 

and did not sneak out of A.D.’s home to meet a man. 

By order entered on May 11, 2015, the circuit court found that the evidence supported the 

charge that petitioner committed domestic battery against A.D., but that the evidence failed to 

support the charge of domestic battery as to K.D. In so doing, the circuit court found A.D.’s 

testimony more credible than petitioner’s and specifically noted that petitioner was removed 

from the school immersion program for non-compliance. Petitioner was later placed on 

probation. This appeal followed. 

West Virginia Code § 49-1-4(9) defines “juvenile delinquent” as “a juvenile who has 

been adjudicated as one who commits an act which would be a crime under state law or a 

municipal ordinance if committed by an adult[.]”5 This Court has explained that “‘an 

3

Petitioner was represented at the adjudicatory hearing by Wayne King, Esq. 

4

Although unclear from the record on appeal, it appears that M.R. is A.D.’s son. It is also 

unclear from the record on appeal whether petitioner’s accusation of attempted sexual abuse was 

investigated by law enforcement or the Department of Health and Human Resources, and, if so, 

what any such investigation found. 

5

We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and 

recodified during the 2015 Regular Session of the West Virginia Legislature. The new 

enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and 

became effective ninety days after the February 19, 2015, approval date. In this memorandum 

decision, we apply the statutes as they existed during the pendency of the proceedings below. 

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adjudication of delinquency is subject to the same standards of review on appeal as is a criminal 

conviction.’” State v. Eddie “Tosh” K., 194 W.Va. 354, 358, 460 S.E.2d 489, 493 (1995) quoting 

State v. William T., 175 W.Va. 736, 738, 338 S.E.2d 215, 218 (1985). With that in mind, we will 

set forth the applicable standards of review in our discussion of each assignment of error below. 

On appeal, petitioner first argues that the circuit court erred in adjudicating her as a 

juvenile delinquent for committing an act that would constitute domestic battery when she claims 

that the State failed to prove that she committed that act beyond a reasonable doubt. West 

Virginia Code § 61-2-28(a) provides that a person is guilty of the misdemeanor offense of 

domestic battery when that person “unlawfully and intentionally makes physical contact [] 

capable of causing physical pain or injury to his or her family or household member or 

unlawfully and intentionally causes physical harm to his or her family or household member[.]”6 

We review a sufficiency-of-the-evidence argument under the following framework: 

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 note that 

[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. Viewing the evidence in this case in the light most 

favorable to the prosecution, we conclude that a rational trier of fact could have found that the 

essential elements of domestic violence were proven beyond a reasonable doubt. 

6

Petitioner does not dispute the domestic element of West Virginia Code § 61-2-28(a), 

which refers to West Virginia Code § 48-27-204 to define when persons are domestic: “‘[f]amily 

or household members’ means persons who . . . (5) [a]re or were residing together in the same 

household[.]” It is clear from the record on appeal that petitioner resided in the same household 

as A.D. at the time of the underlying incident. 

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Petitioner now contends that the circuit court erred in finding that her testimony was less 

credible than A.D.’s testimony as to the events of September 24, 2014. In other words, 

petitioner’s primary request is for this Court to find that the circuit court made improper witness 

credibility determinations and gave portions of A.D.’s testimony too much weight in light of 

other circumstances. We have long held that we will not review on appeal questions regarding 

the credibility of witnesses or the weight of the evidence. See Syl. Pt. 2, State v. Martin, 224 

W.Va. 577, 687 S.E.2d 360 (2009) (holding that “the trier of the facts . . . is the sole judge as to 

the weight of the evidence and the credibility of the witnesses.” (internal quotations and citation 

omitted)); Guthrie, 194 W.Va. at 669, 461 S.E.2d at 175 (holding that “appellate review is not a 

device for this Court to replace a [fact-finder’s] finding with our own conclusion. On review, we 

will not weigh evidence or determine credibility.”); Id., 194 W.Va. at 670 n. 9, 461 S.E.2d at 176 

n. 9 (stating 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. . . . It is for the [fact-finder] 

to decide which witnesses to believe or disbelieve. Once the [fact-finder] has spoken, this Court 

may not review the credibility of the witnesses.”); Syl. Pt. 1, State v. Harlow, 137 W.Va. 251, 71 

S.E.2d 330 (1952) (holding that “[i]n the trial of a criminal prosecution, where guilt or innocence 

depends on conflicting evidence, the weight and credibility of the testimony of any witness is for 

the [fact-finder’s] determination.”). 

At the adjudicatory hearing, A.D. and petitioner gave conflicting accounts of the events 

of September 24, 2014. The circuit court also heard petitioner’s arguments that A.D.’s accounts 

of that day were incorrect because A.D. was allegedly emotionally distraught at the time and 

because the five intervening months had blurred A.D.’s memory. Notwithstanding these 

arguments, the circuit court found A.D.’s testimony that petitioner punched and kicked her more 

credible than petitioner’s claim of self-defense. We find no reason to reverse that finding based 

on our review of the record on appeal. While it is true that the circuit court found A.D.’s 

testimony insufficient to adjudicate petitioner as a delinquent for the allegations regarding K.D., 

petitioner’s counsel fails to cite any authority that a finder of fact must credit all or none of a 

witness’ testimony. Likewise, although petitioner asserts that the State failed to introduce any 

medical evidence to support A.D.’s injuries, she provides no authority that domestic battery can 

be proven only by medical evidence of a victim’s injuries. The testimony regarding petitioner’s 

physical attack on A.D. is sufficient under the facts of this case to support petitioner’s 

adjudication as a juvenile delinquent. As such, we find no merit to petitioner’s first assignment 

of error.7 

Petitioner next assigns error to the circuit court’s consideration of evidence of her 

involvement in the school immersion program when it weighed her credibility as a witness. 

7

To the extent petitioner argues that the circuit court failed to apply the correct legal 

standard and, instead, adjudicated her as a juvenile delinquent “out of an abundance of caution,” 

we note that petitioner’s counsel fails to cite any portion of the record on appeal or legal 

authority to support this claim. As such, we do not address this concern. See W.Va. R. App. P. 

10(c)(7) (providing that “[t]he 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 . . . . 

The Court may disregard errors that are not adequately supported by specific references to the 

record on appeal”). 

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Petitioner claims that, even if true, evidence of her involuntary removal from the school 

immersion program was improper for the circuit court’s consideration because it was not alleged 

in the petition and amounts to a status offense. Petitioner also argues that evidence of the school 

immersion program constituted inadmissible hearsay.8 We have long held that “[a] trial court’s 

evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review 

under an abuse of discretion standard.” Syl. Pt. 4, State v. Rodoussakis, 204 W.Va. 58, 511 

S.E.2d 469 (1998). Further, “‘[r]ulings on the admissibility of evidence are largely within a trial 

court’s sound discretion and should not be disturbed unless there has been an abuse of 

discretion.’ State v. Louk, 171 W.Va. 639, 301 S.E.2d 596, 599 (1983).” Syl. Pt. 3, State v. 

Payne, 225 W.Va. 602, 694 S.E.2d 935 (2010). 

Following a thorough review of the record herein, we find no error in the circuit court’s 

consideration of the circumstances of petitioner’s school immersion program. We first note that 

petitioner provided an extremely abbreviated objection below to A.D.’s testimony about the 

school immersion program that did not raise any of her current arguments regarding that 

evidence. As such, our review would be quite hindered. “To preserve an issue for appellate 

review, a party must articulate it with such sufficient distinctiveness to alert a circuit court to the 

nature of the claimed defect.” Syl. Pt. 2, State ex rel. Cooper v. Caperton, 196 W.Va. 208, 470 

S.E.2d 162 (1996). While we may speculate at the nature of petitioner’s objection to A.D.’s 

testimony, we find it unnecessary to do so. Despite the obscurity of petitioner’s objection, it is 

abundantly clear from the record on appeal that the circuit court sustained it and the State did not 

introduce any further evidence of the school immersion program at that time. 

However, in her case-in-chief, petitioner testified that she was not removed from the 

school immersion program as A.D. had claimed. Therefore, petitioner introduced in her defense 

the very evidence she had successfully precluded from the State’s case-in-chief. We have long 

explained that, generally, a party may not introduce error and then later use that error as a means 

8

On this issue, petitioner cites no case law or other legal authority to support her claims. 

We caution petitioner’s counsel that Rule 10(c)(7) of the West Virginia Rules of Appellate 

Procedure requires that 

[t]he 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 . . 

. [and] must contain appropriate and specific citations to the record on appeal[.] 

The Court may disregard errors that are not adequately supported by specific 

references to the record on appeal. 

Additionally, in an Administrative Order entered December 10, 2012, “Re: Filings That Do Not 

Comply With the Rules of Appellate Procedure,” Chief Justice Menis E. Ketchum specifically 

noted that “[b]riefs that lack citation of authority [or] fail to structure an argument applying 

applicable law” are not in compliance with this Court’s rules. Further, he explained that “[b]riefs 

with arguments that do not contain a citation to legal authority to support the argument presented 

and do not ‘contain appropriate and specific citations to the record on appeal. . .’ as required by 

rule 10(c)(7)” are not in compliance with this Court’s rules. 

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to set aside its consequences. In State v. Crabtree, 198 W.Va. 620, 627 482 S.E.2d 605, 612 

(1996), this Court stated that 

“[i]nvited error” is a cardinal rule of appellate review applied to a wide range of 

conduct. It is a branch of the doctrine of waiver which prevents a party from 

inducing an inappropriate or erroneous response and then later seeking to profit 

from that error. The idea of invited error is not to make the evidence admissible 

but to protect principles underlying notions of judicial economy and integrity by 

allocating appropriate responsibility for inducement of error. Having induced an 

error, a party in a normal case may not at a later stage of trial use the error to set 

aside its immediate and adverse consequences. 

Given petitioner’s introduction of this evidence following her sustained objection to it during the 

State’s case-in-chief, we find that petitioner is not now entitled to relief on that issue. 

For the foregoing reasons, the circuit court’s May 11, 2015, order finding her to be a 

juvenile delinquent is hereby affirmed. 

Affirmed. 

ISSUED: September 6, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

VOLUNTARILY DISQUALIFIED: 

Justice Brent D. Benjamin 

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