STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia,
Plaintiff Below, Respondent
FILED
October 20, 2017
vs) No. 16-0430 (Berkeley County 15-F-52) RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
E.K.,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner E.K.,1 by counsel Michael Santa Barbara, appeals his convictions for the
offenses of sexual assault in the first degree, sexual abuse by a parent, guardian, or custodian,
sexual abuse in the first degree, parent filming a minor in sexually explicit conduct, and
possession of material portraying a minor in sexually explicit conduct. The State of West
Virginia, by counsel Robert L. Hogan filed a response.
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 indicted by a Berkeley County Grand Jury for one count of sexual assault
in the first degree; four counts of sexual abuse by a parent guardian or custodian; one count of
incest; three counts of sexual abuse in the first degree; one count of possession of material
portraying a minor in sexually explicit conduct; one count of incest; one count of “parent filming
a minor in sexually explicit conduct”. All of these charges related to petitioner’s step-daughter,
V.K. Petitioner was also indicted for two additional counts of sexual abuse by a parent guardian
or custodian, relating to his other step-daughter, B.K.
As a part of the investigation, West Virginia State Troopers obtained a search warrant for
all of petitioner’s electronic devices. After executing the warrant, officers seized one thumb
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials where
necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va. 254, 773
S.E.2d 20 (2015); In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993); State v. Edward Charles
L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
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drive, one laptop computer, and a cell phone. Twenty-three images were obtained from the
seized evidence which depicted petitioner and a minor female engaged in “acts on a bed.”
Petitioner’s jury trial was held on October 30, 2015. At trial, the jury heard the testimony
of V.K., B.K., and their mother. The girls’ mother testified that she met petitioner in Africa,
where they both grew up, and re-met and later married him while they were living in the United
States. The parties married in 2009, and petitioner adopted B.K. and V. K. The parties separated
in 2014, at which time B.K. told her mother that petitioner tried to have sex with her while she
was in high school. As a result, the girl’s mother spoke with V.K., who disclosed that “every
time” her mother worked at night, petitioner would come into her room, undress her, suck her
breasts, and touch her vagina. V.K. testified to several of these episodes involving petitioner, and
that the acts started when she was eight or nine years old. B.K. testified that during her senior
year, petitioner touched her breasts, and later, tried to touch her breasts again. B.K. also testified
that petitioner would frequently make comments about wanting to have sex with her.
Petitioner testified on his own behalf, and denied the allegations. Following deliberations,
the jury found petitioner not guilty on the counts related to B.K., and as to one count of sexual
abuse by a parent, guardian or custodian and one count of sexual abuse in the first degree related
to V.K. Petitioner was found guilty of the remaining counts in the indictment. For his
convictions, petitioner received a sentence of not less than twenty-five, nor more than one
hundred years in the penitentiary, and a fine of $5,000 for his conviction of the offense of sexual
assault in the first degree; not less than ten nor more than twenty years, each, for his convictions
of three counts of sexual abuse by a parent, custodian, or guardian; not less than five nor more
than fifteen years for his conviction of incest; not less than five nor more than twenty-five years,
each, for his convictions of two counts of first degree sexual abuse; ten years for the offense of
parent filming a minor in sexually explicit conduct; and two years for the offense of possession
of material portraying a minor in sexually explicit conduct. Petitioner now appeals his
convictions.
On appeal, petitioner raises three assignments of error.2 First, petitioner argues that there
was insufficient evidence to sustain a verdict of guilt. Second, petitioner argues that the circuit
2
In his brief petitioner designates six assignments of error, however, assignments two
and four are identical, and petitioner only provides argument for five assignments. Petitioner also
asserts, without citation to the record on appeal, that the circuit court improperly admitted
evidence of uncharged conduct, and that he was denied a fair trial due to the racial composition
of the jury panel. Because these issues were not properly developed, and not adequately briefed,
we decline to consider them. See State v. LaRock, 196 W.Va. 294, 302, 470 S.E.2d 613, 621
(1996), which states
[a]lthough we liberally construe briefs in determining issues presented for review,
issues which are . . . mentioned only in passing but are not supported with
pertinent authority, are not considered on appeal. State v. Lilly, 194 W.Va. 595,
605 n. 16, 461 S.E.2d 101, 111 n. 16 (1995) (“casual mention of an issue in a
brief is cursory treatment insufficient to preserve the issue on appeal”).
(continued . . .)
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court erred in denying his motion to sever. Finally, petitioner asserts that the circuit court erred in
denying his motion to suppress.
Regarding the sufficiency of evidence, we have held that,
“[t]he 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, 663, 461 S.E.2d 163, 169 (1995).
Syl. Pt. 1, State v. Boyd, 238 W. Va. 420, 796 S.E.2d 207 (2017).
Further,
“[a] criminal defendant challenging the sufficiency of the evidence to support a
conviction takes on a heavy burden. An appellate court must review all the
evidence, whether direct or circumstantial, in the light most favorable to the
prosecution and must credit all inferences and credibility assessments that the jury
might have drawn in favor of the prosecution. The evidence need not be
inconsistent with every conclusion save that of guilt so long as the jury can find
guilt beyond a reasonable doubt. Credibility determinations are for a jury and not
an appellate court. Finally, a jury verdict should be set aside only when the record
contains no evidence, regardless of how it is weighed, from which the jury could
find guilt beyond a reasonable doubt. To the extent that our prior cases are
inconsistent, they are expressly overruled.” Syllabus point 3, State v. Guthrie, 194
W.Va. 657, 663, 461 S.E.2d 163, 169 (1995).
Syl. Pt. 2, Boyd. This Court finds that viewed in the light most favorable to the prosecution, the
evidence was sufficient to support petitioner’s convictions. Id. The testimony of V.K., alone,
supports the jury’s verdict that petitioner committed the offenses of first degree sexual assault
and sexual abuse, sexual abuse by a parent, guardian or custodian, and incest. Further, the State
introduced, and the circuit court admitted, photographic evidence to support petitioner’s
convictions for the offenses of parent filming a minor in sexually explicit conduct, and
possession of material portraying a minor in sexually explicit conduct. Thus, viewed in the light
See also State, Dep’t of Health & Human Res. v. Robert Morris N., 195 W. Va. 759, 765, 466
S.E.2d 827, 833 (1995) (“‘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.’”) (quoting
United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991).).
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most favorable to the prosecution there was more than sufficient evidence to support petitioner’s
convictions.
Petitioner next argues that the circuit court erred in denying his motion to suppress the
search warrant. Prior to trial, petitioner moved to suppress the search warrant, arguing that the
warrant was not valid because it failed to establish probable cause, and failed to establish the
reliability of the information therein. The circuit court rejected petitioner’s arguments and found
that the warrant stated with particularity the area to be searched and established probable cause.
“When reviewing a ruling on a motion to suppress, an appellate court
should construe all facts in the light most favorable to the State, as it was the
prevailing party below. Because of the highly fact-specific nature of a motion to
suppress, particular deference is given to the findings of the circuit court because
it had the opportunity to observe the witnesses and to hear testimony on the
issues. Therefore, the circuit court’s factual findings are reviewed for clear error.”
Syllabus point 1, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996).
Syl. Pt. 13, State v. White, 228 W. Va. 530, 722 S.E.2d 566 (2011).
We agree with the circuit court. According to the affidavit, the girls’ mother reported to
law enforcement that petitioner sexually abused her daughters from August of 2010 to July of
2014. The affidavit also advises that the girls’ mother reported to law enforcement that her
daughter begged her not to work night shift because she did not want to be home with petitioner
and that she observed child pornography on petitioner’s computer. The girls’ mother also told
officers, according to the warrant, that petitioner used a cell phone to film his minor daughter
taking a shower. The circuit court found that the information was reliable, as the witnesses gave
their names, and addresses, and presented information that they personally experienced or
observed. Finding no clear error, we decline to overturn petitioner’s convictions on this ground.
Petitioner also argues that the circuit court erred in denying his motion to sever the counts
of the indictment pertaining to B.K., from the counts pertaining to V.K. Petitioner complains that
the circuit court found that the testimony of the crimes committed against both sisters was
admissible at trial under Rule 404(b) of the West Virginia Rules of Evidence, and asserts that
because the incidents involving V.K., are remote in time from the incidents involving B.K., that
joinder of the offenses was unduly prejudicial. We have held that,
“[e]ven where joinder or consolidation of offenses is proper under the West
Virginia Rules of Criminal Procedure, the trial court may order separate trials
pursuant to Rule 14(a) on the ground that such joinder or consolidation is
prejudicial. The decision to grant a motion for severance pursuant to
W.Va.R.Crim.P. 14(a) is a matter within the sound discretion of the trial court.”
Syllabus Point 3, State v. Hatfield, 181 W.Va. 106, 380 S.E.2d 670 (1988).
Syl. Pt. 1, State v. Milburn, 204 W. Va. 203, 511 S.E.2d 828 (1998). Further, “[a] defendant is
not entitled to relief from prejudicial joinder pursuant to Rule 14 of the West Virginia Rules of
Criminal Procedures when evidence of each of the crimes charged would be admissible in a
separate trial for the other.” Syl. Pt. 2, id.
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Here, there is no abuse of discretion, and it is clear that evidence of the crimes committed
against one sister would have been admissible in a separate trial of the crimes committed against
another. The acts were similar in nature, and each involved an allegation of petitioner’s lustful
disposition toward children in his care. See Syl. Pt. 2, in part, Edward Charles L., (“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.”)
Accordingly, we find the trial court did not abuse its discretion in denying severance.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: October 20, 2017
CONCURRED IN BY:
Chief Justice Allen H. Loughry
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
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