STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Harold Stephen M., FILED 

Petitioner Below, Petitioner January 15, 2014 

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. 

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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). 

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Petitioner 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, 

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694, 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. 

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For 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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