State v. James H., No. 19-0299

CourtSupreme Court of West Virginia
Writing for the CourtChief Justice Tim Armstead Justice Margaret L. Workman Justice Elizabeth D. Walker Justice Evan H. Jenkins Justice John A. Hutchison
Decision Date20 April 2020
PartiesState of West Virginia, Plaintiff Below, Respondent v. James H., Defendant Below, Petitioner
Docket NumberNo. 19-0299

State of West Virginia, Plaintiff Below, Respondent
v.
James H., Defendant Below, Petitioner

No. 19-0299

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

April 20, 2020


(Marion County CC-24-2018-F-70)

MEMORANDUM DECISION

Petitioner James H., by counsel D. Conrad Gall, appeals the Circuit Court of Marion County's January 18, 2019, order denying his post-trial motions and imposing sentence following his convictions of twelve counts of sexual abuse and twelve counts of sexual abuse by a parent, guardian, custodian or person in a position of trust to a child. Respondent the State of West Virginia, by counsel Scott E. Johnson, filed a response to which petitioner submitted a reply.

The Court has considered the parties' briefs and 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 is appropriate under Rule 21 of the Rules of Appellate Procedure.

Petitioner was arrested on August 4, 2017, and charged with twenty-two counts of sexual abuse by a parent, guardian, custodian or person in a position of trust and twenty-two counts of first-degree sexual abuse of petitioner's granddaughter, S.C. The alleged criminal conduct occurred in 2016 and 2017, and S.C.'s mother contacted her child's counselor on April 27, 2017. After conducting sessions on April 28 and May 3, 2017, the counselor advised the mother to contact the Department of Health and Human Resources ("DHHR"), who contacted the sheriff's department. On May 4, 2017, S.C. was interviewed by the sexual assault nurse examiner at United Hospital Center, where she reiterated the original allegations that her grandfather touched her inappropriately while engaged in a "tickle game." S.C. was also interviewed at the Marion County Child Advocacy Center ("CAC"), at which time she made two new allegations that petitioner had gone into her bedroom closet and exposed his penis to her, including having her touch his penis twice.

The State moved to dismiss counts twenty-five through forty-four of the indictment, and the circuit court granted that motion.1 Petitioner was tried before a jury in December of 2018, and

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the jury convicted him of counts one through twenty-four of the indictment. Thereafter, petitioner filed the following motions: motion for a new trial, motion for post-verdict judgment of acquittal, motion in arrest of judgment, and renewed motion for post-conviction bond. By order entered on January 18, 2019, the circuit court denied all of those motions. Thereafter, the circuit court entered its sentencing order on February 25, 2019, sentencing petitioner to imprisonment for not less than five nor more than twenty-five years for each count of first-degree sexual abuse (the odd numbered counts) and not less than ten nor more than twenty years for each count of sexual abuse by a parent, guardian, custodian or person in a position of trust to a child (the even numbered counts), in addition to fines. Each of the terms of imprisonment for first-degree sexual abuse were ordered to run consecutively to one another, and the same is true for the sexual abuse by a parent, guardian, custodian or person in a position of trust to a child sentences. However, the sentences on the odd numbered counts are to run concurrently to the sentences on the even numbered counts. In addition, upon release, petitioner was ordered to serve twenty years of supervised release. Petitioner appeals from these orders.

In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error 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. 3, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000).

On appeal, petitioner sets forth nine assignments of error. However, many of petitioner's arguments do not comply with Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure. That rule provides 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, under headings that correspond with the assignments of error. The argument must contain appropriate and specific citations to the record on appeal, including citations that pinpoint when and how the issues in the assignments of error were presented to the lower tribunal. 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, this Court 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, "[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. Id. "A skeletal 'argument,' really nothing more than an assertion, does not preserve a claim. . . . Judges are not like pigs, hunting for truffles buried in briefs." State v. Kaufman, 227 W. Va. 537, 555 n.39, 711 S.E.2d 607, 625 n.39 (2011) (quoting U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)).

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A. Ineffective assistance of counsel and prosecutorial misconduct

Petitioner first asserts "ineffective assistance of counsel or prosecutorial misconduct as to witness Denver Grace," arguing that the facts for those arguments "are identical[.]" Petitioner sets forth the alleged factual basis for these assertions, explaining that Mr. Grace was S.C.'s mother's boyfriend during the relevant time period.2 However, in doing so, he only cites to the criminal complaint, which does not support his factual assertions.3 He complains that "[t]he unavailability of Mr. Grace for [petitioner] created a significant weakness in [his] case when questioning was limited to the [d]etective who was involved and could not question Mr. Grace." However, he fails to set forth any analysis as to this contention. Further, although petitioner claims that his trial counsel was ineffective, his trial counsel is also his appellate counsel who now appears to claim that his own work was insufficient. While he points to the ineffective assistance of counsel standards set forth in Strickland v. Washington, 466 U.S. 688 (1984), he simply asserts that "[t]he net effect of not having Mr. Grace at the [t]rial either by [petitioner's] counsel's ineffectively not obtaining an out-of-state [s]ubpoena or the State misrepresentation and misconduct significantly affected [petitioner's] defense by not raising the issue of recanting and the threats to create reasonable doubt."

Petitioner's argument is not set forth in accordance with Rule 10(c)(7). In addition, we have held that "[i]t is the extremely rare case when this Court will find ineffective assistance of counsel when such a charge is raised as an assignment of error on a direct appeal." Syl. Pt. 10, in part, State v. Triplett, 187 W. Va. 760, 421 S.E.2d 511 (1992). As we have explained, "the preferred way of raising ineffective assistance of . . . counsel is to file a subsequent petition for a writ of habeas corpus raising the issue in the court below." Watts v. Ballard, 238 W. Va. 730, 735-36 n.7, 798 S.E.2d 856, 861-62 n.7 (2017) (internal quotations and citation omitted). Consequently, "we decline to address an alleged ineffective assistance of counsel claim in this direct appeal. The record has not been developed on this issue. This is an issue that must be developed in a habeas corpus proceeding." State v. Richardson, 240 W. Va. 310, 319-20 n.13, 811 S.E.2d 260, 269-70 n.13 (2018). Thus, we cannot find that the circuit court erred in denying petitioner's post-trial motions on these grounds.

B. Dr. Christy Glass, the victim's pediatrician

Petitioner next argues that Dr. Christy Glass failed to appear at trial and petitioner was unable "to introduce photos and other evidence." Again petitioner cites to only two pages of the appendix record, pages seven and ten to support this argument. Page seven is the first page of the

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criminal complaint that does not support petitioner's assertion that S.C. had a severe skin condition as indicated by the photos petitioner listed as an exhibit to which the State objected.4 In addition, he cites to page ten for the proposition that the circuit court refused to allow the admission of photographs. However, page ten is a part of the criminal complaint that does not address photographs or any ruling by the circuit court. Therefore, we decline to address the merits of petitioner's second assignment of error.

C. Dr. Saar, the State's expert witness

Petitioner then argues that the circuit court erred by allowing the State's expert witness, Dr. Timothy Saar, to sit through the entire trial, rather than requiring that he be sequestered. Petitioner also argues that because Dr. Saar consulted with petitioner, petitioner's wife, and petitioner's trial counsel before he was contacted by the State, his testimony is, at a minimum, tainted because he was given an insight into petitioner's defense. Petitioner contends that while he "cannot find a specific rule, Rule 1.7 of the Rules or Professional Conduct for Attorneys would exclude this." He further contends that Dr. Saar was allowed to sit through and listen...

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