### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Harold Stephen M., 

### FILED

January 15, 2014 Petitioner Below, Petitioner

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS vs) No. 12-1034 (Wood County 07-P-141) OF WEST VIRGINIA

David Ballard, Warden, Mount Olive Correctional Complex, Respondent Below, Respondent



### MEMORANDUM DECISION

Petitioner Harold Stephen M. 1 , by counsel Wells H. Dillon, appeals the July 19, 2012 order of the Circuit Court of Wood County denying petitioner’s petition for habeas corpus relief. Respondent David Ballard, Warden, by counsel Christopher S. Dodrill, has filed a response in support of the circuit court’s order.

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 tried upon allegations that he molested his ten-year-old stepdaughter and

her friend. Both victims testified at trial. Petitioner was convicted on two counts of sexual assault in the first degree; two counts of sexual abuse in the first degree; two counts of sexual abuse by a parent; and, one count of battery in Wood County in August of 1993. Petitioner moved for a new trial based on: (a) the court’s denial of his motions for judgment of acquittal or directed verdict; (b) the court allowing the State to reopen its case-in-chief for the presentation of additional evidence after the State rested; and, (c) the court’s denial of petitioner’s pretrial motions regarding severance of the counts of the indictment involving one victim from those involving the other victim. Petitioner was sentenced to fifteen to twenty-five years of incarceration on each count of sexual assault; one to five years of incarceration on each count of sexual abuse in the first degree; five to ten years of incarceration on each count of sexual abuse by a parent; and, one year in the county jail on the battery charge. All sentences were to run consecutively.

1 Because of sensitive facts, we protect the identities of those involved. See State ex rel. West Virginia Dept. of Human Services v. Cheryl M., 177 W.Va. 688, 689 n.1, 356 S.E.2d 181, 182

n.1 (1987).

1Petitioner filed his first petition for writ of habeas corpus in October of 2001, seeking resentencing. On November 27, 2001, petitioner’s sentence was amended based on the trial court’s miscalculation. His sentence was amended to fifteen to twenty-five years of incarceration on each count of first degree sexual assault; one to five years on each of the sexual abuse convictions; five to ten years on each of two counts of sexual abuse by a parent; and, one year in jail on the battery charge. Also in November of 2001, petitioner was resentenced for purposes of filing a direct appeal. The appeal was refused by this Court on July 12, 2002.

Petitioner then filed another petition for writ of habeas corpus in October of 2002, which was summarily denied as “without merit” in a two-sentence order. Petitioner appealed that denial to this Court, which granted the petition and remanded the case for appointment of counsel and an omnibus hearing. Current counsel was appointed, and an amended petition was filed on May 16, 2007, arguing twenty separate grounds for relief. Evidentiary hearings were held on January 23, 2008, and February 4, 2009. On July 19, 2012, the circuit court issued its opinion denying the petition for writ of habeas corpus except as to Ground 16, which requested a resentencing hearing based on an improper sentence. The circuit court granted petitioner a resentencing hearing.

This Court reviews appeals of circuit court orders denying habeas corpus relief under the following standard:

“In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three-prong standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standard; and questions of law are subject to a de novo review.” Syllabus point 1, Mathena v.

Haines , 219 W.Va. 417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, State ex rel. Franklin v. McBride , 226 W.Va. 375, 701 S.E.2d 97 (2009).

Petitioner argues two assignments of error on appeal. First, he argues that the circuit court erred in not granting his request to dismiss the indictment filed against him or grant him a new trial due to the ineffectiveness of his trial counsel James Bradley Jr. This Court has applied the following standard to claims concerning ineffective assistance of counsel:

In the West Virginia courts, claims of ineffective assistance of counsel are to be governed by the two-pronged test established in Strickland v. Washington

, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel's performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.

Syl. Pt. 5, State v. Miller , 194 W.Va. 3, 459 S.E.2d 114 (1995). Furthermore, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington , 466 U.S. 668,

2694, 104 S.Ct. 2052, 2068 (1984). In the present case, petitioner gives a list of actions or inactions he feels illustrates his counsel’s ineffective assistance. These include: allowing the preliminary hearing to be held when petitioner was not present; failing to have petitioner’s competency evaluated; failing to file a motion for a bill of particulars until after the trial was continued; failing to object to the State’s motion to continue the trial based on one victim’s unavailability; failing to insist on inspecting counseling records of one of the victims; failing to move for a mistrial when testimony regarding petitioner’s right to remain silent was brought up at trial; failing to have petitioner submit to a sexual offender evaluation; failing to hire an expert witness; failing to request a lesser included instruction; failing to object to the improper sentence which has now been corrected; and, failing to appeal for eight years. However, petitioner gives no analysis of how these actions or inactions affected the outcome of his trial. Nonetheless, a review of the circuit court’s order denying habeas relief shows that the circuit court examined each allegation in depth and found each to be baseless. We agree and find no error in the circuit court’s finding that petitioner’s trial counsel was not ineffective.

Second, petitioner argues that the circuit court erred in not finding that his constitutional right to a fair trial was violated by the trial judge’s failure to conduct a proper 404(b) evidentiary hearing. The testimony was proffered and no in camera hearing was held. This Court has stated

as follows:

Where an offer has been made of lustful disposition evidence pursuant to
State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990), the reviewing court must evaluate the admissibility of that evidence as required by Edward

Charles L. and State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).

Syl. Pt. 3, State v. Jonathan B., 230 W.Va. 229, 737 S.E.2d 257 (2012). Upon our review of the record, we do not find that the circuit court abused its discretion. This Court has stated:

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. To the

extent that this conflicts with our decision in State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986), it is overruled.

Syl. Pt. 2, State v. Edward Charles L. , 183 W.Va. 641, 398 S.E.2d 123 (1990). Pursuant to our caselaw, evidence that petitioner had sexually molested his daughter in other ways - including putting his tongue in her mouth - was clearly admissible to show his lustful disposition toward children. Further, we agree with the circuit court’s finding during the habeas corpus proceeding that there was sufficient evidence to show that the acts occurred; that the evidence was admissible for a legitimate purpose; and, that the evidence of “other acts” was more probative than prejudicial pursuant to Rule 403 of the West Virginia Rules of Evidence. Thus, although no hearing was held, the court conducted a proper analysis and determined that the evidence was

admissible.

3For the foregoing reasons, we affirm.

ISSUED: January 10, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis Justice Brent D. Benjamin Justice Margaret L. Workman

Justice Menis E. Ketchum Justice Allen H. Loughry II Affirmed.

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