State v. Todd C.

• Docket Number: 21-0969,22-0278
• Decision Date: 01 November 2023
• Parties: STATE OF WEST VIRGINIA, Plaintiff Below, Respondent, v. TODD C., Defendant Below, Petitioner.
• Court: West Virginia Supreme Court

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STATE OF WEST VIRGINIA, Plaintiff Below, Respondent, v. TODD C., Defendant Below, Petitioner.

Nos. 21-0969, 22-0278

Supreme Court of Appeals of West Virginia

November 1, 2023

Submitted: September 27, 2023

Appeal from the Circuit Court of Putnam County The Honorable Phillip M. Stowers, Judge Case No. CC-40-2020-F-92

Mark A. Barney, Esq. BARNEY LAW PLLC Hurricane, West Virginia Counsel for Petitioner

Patrick Morrisey, Esq. Attorney General Lindsay See, Esq. Solicitor General Jason David Parmer, Esq. Assistant Attorney General Charleston, West Virginia Counsel for Respondent

SYLLABUS BY THE COURT

1. "A trial court's evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review under an abuse of discretion standard." Syllabus Point 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).

2. "The function of an appellate court when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt." Syllabus Point 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

3. "The corpus delicti may not be established solely with an accused's extrajudicial confession or admission. The confession or admission must be corroborated in a material and substantial manner by independent evidence. The corroborating evidence need not of itself be conclusive but rather, is sufficient if, when taken in connection with the confession or admission, the crime is established beyond a reasonable doubt." Syllabus Point 5, State v. Garrett, 195 W.Va. 630, 466 S.E.2d 481 (1995).

4. "The State in a criminal case may prove the venue of the crime by a preponderance of the evidence, and is not required to prove the same beyond a reasonable doubt." Syllabus Point 5, State v. Burton, 163 W.Va. 40, 254 S.E.2d 129 (1979).

5. "Under the 'plain error' doctrine, 'waiver' of error must be distinguished from 'forfeiture' of a right. A deviation from a rule of law is error unless there is a waiver. When there has been a knowing and intentional relinquishment or abandonment of a known right, there is no error and the inquiry as to the effect of a deviation from the rule of law need not be determined. By contrast, mere forfeiture of a right-the failure to make timely assertion of the right-does not extinguish the error. In such a circumstance, it is necessary to continue the inquiry and to determine whether the error is 'plain.' To be 'plain,' the error must be 'clear' or 'obvious.'" Syllabus Point 8, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

6. "To trigger application of the 'plain error' doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings." Syllabus Point 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

7. "An unpreserved error is deemed plain and affects substantial rights only if the reviewing court finds the lower court skewed the fundamental fairness or basic integrity of the proceedings in some major respect. In clear terms, the plain error rule should be exercised only to avoid a miscarriage of justice. The discretionary authority of this Court invoked by lesser errors should be exercised sparingly and should be reserved for the correction of those few errors that seriously affect the fairness, integrity, or public reputation of the judicial proceedings." Syllabus Point 7, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996).

8. "A babysitter may be a custodian under the provisions of W.Va. Code 61-8D-5 [1998], and whether a babysitter [is] in fact a custodian under this statute is a question for the jury." Syllabus Point 1, State v Stephens, 206 W.Va. 420, 525 S.E.2d 301 (1999).

OPINION

WALKER, CHIEF JUSTICE

Petitioner Todd C. was convicted at trial of eight counts of sexual abuse of his four nieces.^[1] He was sentenced to four concurrent terms of one to five years for violation of West Virginia Code § 61-8B-7 (sexual abuse in the first degree) that were to run consecutively with his four consecutive terms of incarceration for violation of West Virginia Code § 61-8D-5 (sexual abuse by a parent, guardian, custodian, or person in a position of trust).^[2] In these consolidated appeals, Petitioner, for the first time, raises an ex post facto violation relative to the jury's instruction and seeks a new trial. But he cannot meet his burden under a plain error analysis to show that the statutory amendments operated to his detriment such that the jury would have reached a different outcome. Petitioner alternatively seeks a reduction in his sentence based on ex post facto principles, namely that his criminal conduct that led to his conviction on Count III occurred before the statute was amended to increase the penalty. We affirm the circuit court's conclusion that there was sufficient evidence of sexual abuse after the statutory amendments to subject him to the harsher penalty.

Petitioner also appeals the denial of his motion for a judgment of acquittal based on one niece's failure to testify, arguing that the corpus delicti of his crimes against her was not established independently from his confession. Specifically, Petitioner argues there was insufficient evidence for the jury to have convicted him on the two counts associated with her abuse because it was not shown that the crimes occurred in Putnam County or that he received sexual gratification. We find that the corpus delicti is not coextensive with every element of the State's case, and that here, the corpus delicti was readily satisfied. We likewise reject Petitioner's sufficiency of the evidence argument that a rational jury could not have concluded that the crimes were committed in Putnam County or that there was sufficient proof of sexual gratification.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case involves allegations of sexual abuse that were leveled nearly twenty years before Petitioner was indicted for the criminal conduct. Our factual recitation is chronological, but because the extent of the allegations was not fully developed until trial, trial testimony is used, where necessary, to supplement pre-indictment circumstances.

A. Underlying Criminal Conduct

Petitioner lived in his parents' basement in Putnam County, West Virginia. His brother, S.C., moved back to West Virginia in 1998 with his children and visited the grandparents' home once or twice per week. Petitioner had a television and video games in the basement. He would often take the children to his basement living space or would ask for one child in the basement at a time. In March 2003, three of Petitioner's nieces disclosed years-long abuse to their parents.^[3] S.C. emailed Petitioner informing him that niece M.C. had disclosed the abuse to her mother, J.C., and that the other girls recounted a similar pattern of abuse. S.C. demanded Petitioner stay away from the girls altogether. Petitioner called S.C. after receiving the email and wept and apologized, but maintained, "it's not that bad." S.C. responded that he knew the abuse went on for a long time with his daughter, H.C. and maybe his daughter, A.C., which Petitioner admitted to S.C. The conversation also led S.C. to ask if Petitioner had groomed S.C.'s other daughters, M.C. and L.C., in the same way he had groomed H.C., and Petitioner responded "yes."

The parents contacted law enforcement in Kanawha County. Petitioner willingly came in for an interview with then-Senior Trooper Christopher Zerkle of the West Virginia State Police.^[4] During that interview, Petitioner admitted to touching H.C.'s breasts when she was nine or ten years old and detailed that H.C. would place his hand between her legs on her vagina and apply pressure. Petitioner acknowledged that he should have removed his hand and did not, but he denied that it was sexual. Petitioner further stated that he was like "an extra dad or an older brother" to the children and admitted that he had touched the girls' buttocks either intentionally or by accident while rubbing their backs. The interview was digitally recorded and transcribed. However, the digital recording of that interview was disposed of, reportedly pursuant to State Police record retention policies.

Then-Senior Trooper Zerkle spoke with the prosecutor about how Petitioner should be charged, but in the meantime, SC decided not to pursue charges, claiming that he had been advised by the child liaison that the defense would be that the girls had provoked Petitioner into acting out sexual stimulations and that he should consider whether he wanted to subject the girls the trauma of investigation, trial, and cross-examination. The paternal grandparents sided with Petitioner and the families were estranged for three years until S.C. felt compelled by his faith to forgive Petitioner and reopened communication. The children expressed that they felt betrayed by that decision; H.C. in particular was traumatized and unresponsive to counseling.

B. Indictment and Pre-trial Matters

When L.C., the youngest of the girls, turned eighteen, she learned that it was not too late to pursue charges against Petitioner. While Kanawha County authorities declined to pursue charges, the Putnam County prosecutor, where the grandparents' home is located, did agree to pursue charges against Petitioner. Petitioner was indicted in November...