Carl N. v. Ballard, No. 13-0569

CourtSupreme Court of West Virginia
Writing for the CourtRobin Jean Davis
Decision Date25 April 2014
PartiesCarl N. II, Petitioner, Petitioner v. David Ballard, Warden, Mount Olive Correctional Complex, Respondent, Respondent
Docket NumberNo. 13-0569

Carl N. II, Petitioner, Petitioner
David Ballard, Warden,
Mount Olive Correctional Complex, Respondent, Respondent

No. 13-0569


ENTERED May 2, 2013
ISSUED: April 25, 2014

(Berkeley County 10-C-252)


Petitioner Carl N. II1, by counsel Christopher J. Prezioso, appeals the "Final Order Denying Amended Petition for Habeas Corpus" entered by the Circuit Court of Berkeley County on May 2, 2013. David Ballard, Warden of Mount Olive Correctional Complex, by counsel Christopher C. Quasebarth, responds in support of the circuit court's order.

This Court has considered the parties' briefs and the record on appeal, which includes an appendix and supplemental appendix. 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 error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

At trial in March of 2008, the State presented evidence that between October of 2003 and January of 2004, petitioner sexually molested his daughter, A.N., and showed her pornographic materials. The acts were committed when A.N. was twelve to thirteen years old. The State also presented evidence that petitioner showed pornography to his son, S.N., when S.N. was ten to eleven years old. A.N. and S.N. testified to these events at trial. In addition, pursuant to Rule 404(b) of the West Virginia Rules of Evidence, the State presented testimony from petitioner's niece, A.C., and nephew, R.B., who were adults at the time of trial. A.C. and R.B. testified to acts of sexual molestation that petitioner committed against them when they were children.

For his acts against A.N. and S.N., the jury found petitioner guilty of sexual assault in the first degree, West Virginia Code § 61-8B-3; sexual assault in the second degree, West Virginia Code § 61-8B-4; two counts of sexual abuse in the first degree, West Virginia Code § 61-8B-7; two counts of incest, West Virginia Code § 61-8-12; two counts of sexual abuse by a parent, guardian, or custodian, West Virginia Code § 61-8D-5(a); and two counts of display of obscene

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matter to a minor, West Virginia Code § 61-8A-2. Petitioner was sentenced to prison by order of June 19, 2008. This Court refused his direct petition for appeal on September 24, 2009.

Petitioner filed the instant petition for a writ of post-conviction habeas corpus in 2010. On June 28, 2011, A.N. (who was then 21 years old) signed an affidavit stating that her trial testimony was false and that an uncle sexually molested her, not petitioner. However, two weeks later, on July 14, 2011, A.N. signed a second affidavit recanting the June 28 affidavit and asserting that her trial testimony was true and petitioner was the perpetrator. The July 14 affidavit stated that petitioner and petitioner's mother Marian N., (A.N.'s grandmother), had pressured A.N. into signing the untrue June 28 affidavit. The July 14 affidavit stated that the June 28 affidavit was prepared from a sample provided by petitioner, and that petitioner had suggested she allege that her uncle had abused her.

The circuit court held an omnibus hearing on the habeas petition on January 10, 2013. Petitioner, A.N., Marian N., and petitioner's two trial counsel testified. By order entered May 2, 2013, the circuit court denied the habeas petition on all grounds.

Petitioner now appeals the May 2, 2013, habeas order to this Court. He raises the following assignments of error: (1) insufficient evidence to sustain the conviction; (2) ineffective assistance of trial and appellate counsel; (3) actual innocence and conviction upon false testimony; (4) admission of improper Rule 404(b) evidence; (5) the trial court erred in denying his motion for continuance of trial; and (6) cumulative error. We apply the following standard of review to this appeal:

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.

Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

Applying this standard of review, and upon a careful consideration of the record on appeal, we find no error in the circuit court's May 2, 2013, order. None of petitioners' assignments of error present constitutional problems warranting habeas relief. We find that the May 2, 2013, order is well-reasoned and supported by the record, and we hereby adopt and incorporate by reference the order's findings of fact and conclusions of law as to the issues raised in this appeal. The Clerk is directed to attach a copy of the May 2, 2013, order to this memorandum decision.2

We note that many of petitioner's arguments rest upon his allegation that A.N.'s trial testimony, July 14, 2011, affidavit, and habeas testimony were false. The habeas circuit court heard the evidence, including A.N.'s explanation of how she was coerced into executing a false

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affidavit. During the habeas hearing, A.N. reaffirmed her trial testimony, and the habeas circuit court found A.N.'s testimony to be credible. For the reasons set forth in the circuit court's order, we find no error in the circuit court's findings regarding the credibility of A.N.'s habeas testimony.

Accordingly, we affirm.



Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

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STATE ex rel. Carl N. II,


Mount Olive Correctional Complex,

Case No.: 10-C-252
(Division III)


On January 10, 2013, came the Petitioner, in person and by counsel, Christopher J. Prezioso, and the Respondent, by counsel, Christopher C. Quasebarth, Chief Deputy Prosecuting Attorney, for an omnibus habeas evidentiary hearing on the Petitioner's Amended Petition for Writ of Habeas Corpus. Upon the evidence then taken, upon the papers and pleadings herein, the argument of counsel, and a review of the underlying cxirninal case, State v. Carl E. N II, Berkeley County Case No: 07-F-162, the Court denies the Petition for Habeas Corpus.


A. The Criminal Trial.

1. The Petitioner was indicted for: one (1) felony count of Sexual Assault in the First Degree; one (1) felony count of Sexual Assault in the Second Degree; three (3) felony counts of Sexual Abuse in the First Degree; two (2) felony counts of Incest; two (2) felony counts of Sexual Abuse by Parent, Custodian or Guardian; and one (1) felony count of Distribute or Display Obscene Matter to a Minor, for crimes committed against his own daughter who was then twelve to thirteen years old. The Petitioner was also indicted for one (1) additional felony count of Distribute or Display Obscene Matter to a Minor, for crimes committed against his own son who was then ten to eleven years old. [Indictment, 10/23/07, Counts 1-11; State v. Carl E. N II, Case No.: 07-F-162.

2. The Petitioner's bail included a term that he have no contact with minors. The

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Petitioner's bail was revoked less than ninety days after indictment when it was discovered that he was residing with a step-sibling of the two victims. [Order Revoking Bail, 1/8/08.]

3. The State gave notice to the Petitioner of its intent to use W.V.R.E. 404(b) evidence. The factual basis for the notice included:

3. In addition to the evidence substantiating the indicted counts, the State will introduce evidence that the Defendant sexually assaulted, sexually abused and otherwise imposed his sexual misconduct upon his sister's children, the Defendant's nephew, R. and the Defendant's niece, when they were minors.
4. As early as when Ms. G was approximately six years old and continuing while she was a minor, the Defendant sexually assaulted, sexually abused and attemnted to sexually assault and sexually abuse Ms. by putting his fingers in her vagina, attempting to have intercourse with her and attempting to have oral sex with her. These incidents occurred at Ms. G parent's house when the Defendant was left to "babysit" she and her brother, at the house of Ms. grandmother (the Defendant's mother, with whom the Defendant lived), and at the house of Ms. grandmother's sister, all of which were in the State or Maryland. The Defendant also displayed pornography to Ms. when she was a rninor.
5. When Mr. was approximately eight to ten years old, the Defendant touched him on his penis on numerous occasions and masturbated in front of him, The" Defendant displayed pornography to Mr. when he was a minor. These incidents of sexual abuse and sexual misconduct generally occurred when Mr. was visiting his grandmother (the Defendant's

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