State v. Jensen, 13-1088
| Decision Date | 13 June 2014 |
| Docket Number | No. 13-1088,13-1088 |
| Court | West Virginia Supreme Court |
| Parties | State of West Virginia, Plaintiff, Respondent v. Christopher M. Jensen, Defendant, Petitioner |
Petitioner, Christopher M. Jensen, by counsel Benjamin M. Hiller and Don M. Wyre, appeals his convictions for sexual assault and sexual abuse by a parent, guardian, custodian, or person in a position of trust, and the denial of his post-trial motion for judgment of acquittal. Respondent State of West Virginia, by counsel Cheryl K. Saville, responds in support of the convictions and the circuit court's post-trial 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 order is appropriate under Rule 21 of the Rules of Appellate Procedure.
In 2007, W.T. was four years old and his brother, J.T., was three years old. Their mother, S.T., asked petitioner, then sixteen years old, to babysit the boys while she went to dinner with friends.1 When she returned, S.T. noticed that decorative bathroom towels were covered in ketchup. In early 2012, W.T. went to his parents and told them that he never wanted petitioner to babysit again. Due to the gap in time between petitioner babysitting the boys and the discussion, the parents asked why. W.T. and J.T. then told their parents that petitioner had taken the boys into the bathroom one at a time, locked the doors, blindfolded them, covered his penis with ketchup, and put his penis into each boy's mouth. At the time the parents learned of the criminal conduct, petitioner was twenty years old.
A juvenile petition was filed in the Circuit Court of Berkeley County due to petitioner's age at the time of the offenses. A motion to transfer petitioner to the adult jurisdiction was made by the State, and a full hearing was held. During the hearing, the circuit court granted the State's motion and transferred petitioner. Petitioner was indicted by the grand jury on October 18, 2012, on two felony counts of sexual assault in the first degree and two felony counts of sexual abuseby a parent, guardian, custodian, or person in a position of trust. Following a trial by jury beginning on February 5, 2013, petitioner was acquitted of sexual assault in the first degree regarding J.T. Petitioner was, however, found guilty of sexual assault in the first degree regarding W.T. and two felony counts of sexual abuse by a parent, guardian, custodian, or person in a position of trust, one for each of the boys.
On February 15, 2013, petitioner filed post-trial motions for a new trial and for judgment of acquittal. On February 28, 2013, the circuit court ordered petitioner delivered to the custody of the Division of Corrections for the purpose of examination, diagnosis, and classification for a period not to exceed sixty days, pursuant to West Virginia Code § 62-12-7a. The circuit court considered the pre-sentence investigation report, the diagnostic evaluation, and the evidence presented at the sentencing hearing and sentenced petitioner to serve an indeterminate sentence of not less than fifteen years nor more than thirty-five years of incarceration for the first degree sexual assault conviction. Petitioner was further ordered to serve an indeterminate sentence of not less than ten nor more than twenty years of incarceration pursuant to each of his convictions for sexual abuse by a parent, guardian, custodian, or person in a position of trust. The sentences were ordered to run consecutively to one another for an aggregate sentence of thirty-five to seventy-five years of incarceration. Petitioner was further sentenced to fifty years of supervised release and required to register as a sexual offender for his lifetime. The circuit court also denied petitioner's post-trial motions. Petitioner appeals from that order, in addition to rulings made by the circuit court prior to and during trial.
On appeal, petitioner asserts six assignments of error. First, petitioner asserts that the circuit court erred in denying his post-trial motion for judgment of acquittal. Petitioner argues that the State did not present sufficient evidence to meet its burden of proof for count two of the indictment - sexual abuse by a parent, guardian, custodian, or person in a position of trust of J.T. He contends that the evidence presented by the State was manifestly inadequate and that his conviction for this count is wholly unwarranted. In support of his contention, petitioner points to the fact that the jury acquitted him of first degree sexual assault of J.T. He also argues that J.T.'s use of the pronoun "us," rather than "me," when he said that "Michael made us suck his weenie" demonstrates that J.T. was simply agreeing with W.T.'s version of events.
Syl. Pt. 2, State v. McFarland, 228 W.Va. 492, 721 S.E.2d 62 (2011); Syl. Pt. 7, State v. White, 228 W.Va. 530, 722 S.E.2d 566 (2011). In this case, petitioner did not meet his burden to show that there was insufficient evidence to sustain his conviction. There was undisputed evidence that J.T. was left in the care, custody, and control of petitioner for one evening in November of 2007. W.T. testified that while petitioner was babysitting them, petitioner called J.T. into the bathroom and locked both doors to block W.T.'s entry into the room. W.T. further testified that when petitioner opened the door, he witnessed J.T. sitting on the bathroom counter with ketchup on the counter. He testified that petitioner then blindfolded W.T., put ketchup on petitioner's penis, and petitioner put his penis in W.T.'s mouth. J.T. testified that petitioner made the boys "suck his weenie," and the boys' mother, S.T., testified that the evening petitioner babysat the boys, she observed an empty ketchup bottle in the kitchen and that her decorative towels in the bathroom were covered in ketchup. In relevant part, the West Virginia Code defines sexual abuse by a parent, guardian, custodian, or person in a position of trust to a child as follows:
If any parent, guardian or custodian of or other person in a position of trust in relation to a child under his or her care, custody or control, shall engage in or attempt to engage in sexual exploitation of, or in sexual intercourse, sexual intrusion or sexual contact with, a child under his or her care, custody or control, . . . then such parent, guardian, custodian or person in a position of trust shall be guilty of a felony. . . .
W.Va. Code § 61-8D-5(a), in part. Despite petitioner's argument to the contrary, by definition, a finding that he engaged in sexual abuse by a parent, guardian, custodian, or person of trust to a child does not require a finding that petitioner sexually assaulted J.T. When viewing the evidence in the light most favorable to the prosecution, it is clear there was sufficient evidence on which the jury could base a finding of guilt for this charge. For this reason, we find that the circuit court did not err in denying petitioner's post-trial motion for judgment of acquittal.
Petitioner's second, third, and fourth assignments of error all concern evidence regarding Z.W., an unrelated child, admitted at trial pursuant to Rule 404(b) of the West Virginia Rules of Evidence. Therefore, they will be addressed together. Those assignments of error are as follows: that the circuit court abused its discretion when it admitted Rule 404(b) evidence related to Z.W. because it failed to properly follow the standard for admission established by State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994); the circuit court abused its discretion when it allowed the admission of the Rule 404(b) evidence because the State failed to identify a proper, relevant purpose for its admission; and the circuit court abused its discretion when it allowed the admission of the Rule 404(b) evidence to show lustful disposition because it failed to perform the requisite analysis according to McGinnis and State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990). Z.W. testified that in March or April of 2008 when he was four years old, petitioner sexually assaulted him while petitioner was babysitting Z.W.
Petitioner contends that the circuit court failed to properly conduct the Rule 403 balancing test and that the use of the Rule 404(b) evidence was prejudicial to petitioner becausethe State dedicated much of its resources to proving the Rule 404(b) evidence, including discussing the evidence in its opening and closing statements....
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