# Larry A. Clement v. David Ballard, Warden

> West Virginia Supreme Court · November 3, 2014

URL: https://www.frixlaw.com/law-library/cases/2747622

## Case

- **Court:** West Virginia Supreme Court
- **Decided:** November 3, 2014
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** Civil-Other
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2747622

## Opinion text

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Larry A. Clement,
Petitioner Below, Petitioner FILED
November 3, 2014
vs) No. 13-1173 (Fayette County 10-C-63) RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
David Ballard, Warden,
Mount Olive Correctional Complex
Respondent Below, Respondent

MEMORANDUM DECISION
Petitioner Larry A. Clement, by counsel D. Adrian Hoosier, II, appeals the order of the
Circuit Court of Fayette County, entered September 27, 2013, that denied his petition for post-
conviction habeas corpus relief. Respondent David Ballard, Warden, by counsel Laura Young,
filed a response in support of the circuit court’s order, to which petitioner replied.

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 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.

In his underlying criminal case, petitioner was indicted on May 8, 2007, on sixteen
counts of sexual assault in the second degree in violation of West Virginia Code § 61-8B-4;
thirty-two counts of sexual abuse in the second degree in violation of West Virginia Code § 61­
8B-7(a)(1); thirty-two counts of sexual abuse by a parent, guardian, or custodian in violation of
West Virginia Code § 61-8B-5; and sixteen counts of sexual assault in the first degree in
violation of West Virginia Code § 61-8B-3. The crimes occurred between September of 2005
and December of 2006. Petitioner’s victims, A.C.H. and A.S.H.,1 were the minor granddaughters
of the woman petitioner had lived with for many years. The children, who—at the time of
petitioner’s crimes—were about thirteen and ten years old, visited frequently with petitioner and
their grandmother and often spent the night at the couple’s home.

Early in 2007, petitioner retained Charles B. Mullins II2 to serve as his defense counsel.
Petitioner’s jury trial commenced on January 28, 2008. During trial, both child victims testified.

1
Consistent with our practice in cases involving sensitive matters, we use the child
victims’ initials. See State v. Edward Charles L., 183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127
n.1 (1990); see also W.Va. R. App. P. 40(e)(1).
2
Mr. Mullins was disbarred on October 17, 2011, well after petitioner’s January of 2008
trial.
1

A.C.H. was then sixteen years old and A.S.H. was thirteen. Each child testified that, when their
grandmother was asleep or on the computer in another room, petitioner would grab her breasts or
place his hand down her pants and rub her vagina. Each girl also testified that petitioner had, on a
few occasions, inserted his finger or the tip of his finger into her vagina. The children’s father
testified that petitioner had lived with the children’s grandmother for years, and that he (the
father) had trusted petitioner to look after the children when they were at petitioner’s house. The
State presented no physical evidence of the abuse, but did present the testimony of the counselor
who had treated the children. At the close of the State’s case-in-chief, Mr. Mullins moved the
trial court for a judgment of acquittal. In response, the trial court noted that the question would
be whether petitioner had been the children’s custodian. The trial court then said that the State’s
evidence was sufficient for the matter to go to the jury and denied the motion. At the close of
petitioner’s case, the trial court denied Mr. Mullins’s renewed motion for a judgment of
acquittal. Thereafter, the jury found petitioner guilty on all ninety-six counts of the indictment.

On February 8, 2008, petitioner filed a motion for a new trial in which he argued, inter
alia, that the trial court improperly excluded the defense from playing the recordings of the child
victims’ forensic interviews. The trial court denied the motion on the ground that the victims’
trial testimony was not contradictory to the victims’ recorded testimony and, therefore, it was not
necessary to admit the recording to impeach the victims’ testimony.

Petitioner was sentenced on March 20, 2008, to a term of not less than fifty-one nor more
than one hundred and seventy-five years in prison.

This Court denied petitioner’s direct appeal on September 9, 2009.

On March 9, 2010, petitioner filed a pro se petition for writ of habeas corpus in the
Circuit Court of Fayette County. The next day, the habeas court appointed the West Virginia
Public Defender Services (“WVPDS”) as petitioner’s counsel. Thereafter, the WVPDS filed a
motion for the appointment of D. Adrian Hoosier, II as co-habeas counsel. Mr. Hoosier filed an
amended habeas petition on petitioner’s behalf on February 13, 2012. Thereafter, Mr. Hoosier
filed a supplemental amended petition. Petitioner also filed his own supplemental petition.
Contained within these various petitions was the claim that petitioner’s trial counsel had been
ineffective.

The habeas court held various evidentiary hearings on the matter. At one such hearing, on
November 15, 2011, Mr. Mullins testified as follows: He began practicing law in 1988. About
85% of his practice was in the field of criminal law and he had handled about twenty sexual
assault cases. He had represented 2,000 to 3,000 defendants and taken 100 to 125 cases to a jury
verdict. He believed petitioner’s case should be tried on the issue of witness credibility given that
there was no DNA evidence and no neutral corroborating witness. He attempted plea
negotiations, but the State offered petitioner nothing less than life in prison. At trial, the children
were coherent and non-emotional witnesses. His strategy was to get the children off the stand as
quickly as possible, which he did. He engaged an expert witness, a psychologist, who testified at
petitioner’s trial that the victims’ statements, made during their forensic interviews, seem
rehearsed and may have been coached. He did not retain a medical expert because years had
passed between the date of the children’s disclosure and trial, and the children claimed only

2

occasional fingertip penetration. Thus, whether the girls’ hymens were intact was irrelevant. In
regard to whether petitioner was the children’s custodian, he stated that the evidence at trial
showed that A.C.H. and A.S.H. had an on-going relationship with petitioner, petitioner had
supervised them and kept them safe, and he purchased the food that the children ate at his house.
He also noted that the jury was instructed on the statutory definition of “custodian.” He conferred
with petitioner throughout the case and told petitioner they were fighting an uphill battle.

In its September 27, 2013, order denying habeas relief, the circuit court found that Mr.
Mullins’s “trial strategy and his performance at trial were well within ‘the broad ranges of
professionally competent assistance.’” The circuit court then dismissed petitioner’s various
habeas petitions with prejudice—with one exception: the circuit court amended petitioner’s
sentencing and commitment order so that it reflected the statutory sentence in effect at the time
petitioner committed the crimes at issue in this case.

Petitioner now appeals the circuit court’s September 27, 2013, order. We apply the
following standard of review in such cases:

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, 418, 633 S.E.2d 771, 772 (2006).

On appeal, petitioner raises four assignments of error, all of which claim that petitioner’s
trial counsel rendered ineffective assistance of counsel. We have said,

In the West Virginia courts, claims of ineffective assistance of counsel are
to be governed by the two-pronged test established in Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel’s performance
was deficient under an objective standard of reasonableness; and (2) there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceedings would have been different.

Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). We have also said,

In reviewing counsel’s performance, courts must apply an objective
standard and determine whether, in light of all the circumstances, the identified
acts or omissions were outside the broad range of professionally competent
assistance while at the same time refraining from engaging in hindsight or second-
guessing of trial counsel’s strategic decisions. Thus, a reviewing court asks
whether a reasonable lawyer would have acted, under the circumstances, as
defense counsel acted in the case at issue.

Syl. Pt. 6, id.

3

Petitioner’s first assignment of error is that the habeas court erred in failing to find that
Mr. Mullins was ineffective as petitioner’s trial counsel because he failed to retain an expert to
rebut the testimony of petitioner’s alleged sexual acts.

We find this assignment of error, at best, disingenuous. The record on appeal shows that
Mr. Mullins did retain an expert (1) to review the statements made by the child victims in this
case, and (2) to testify at petitioner’s trial. Petitioner acknowledged this fact in his pro se petition
for habeas relief, in which he said,

Petitioner hired Dr. David Clayman, a qualified clinical . . . psychologist
to review the criminal reports, statements[,] audio and video tapes[,] and FMRS
records from two (2) allege [sic] victims. He was further ask [sic] to use his skills
and expertise to review the said information and determine any comments he had
regarding the accuracy of the interview, whether there was any coaching and
other suggestive techniques.

Dr. Clayman testified that after reviewing the allege [sic] victim’s [sic]
video tape [sic], he found some coaching, lack of detail as to what happen [sic].
The victim’s [sic] stories were the same and seem [sic] rehearsed.

Further, at petitioner’s omnibus hearing, Mr. Mullins confirmed that he had hired an
expert on petitioner’s behalf when he testified as follows:

Mr. Mullins: . . . but I recall that we did in some capacity retain a David—I think
this is correct—David Claymore. . . . And Dr. Claymore is, in my opinion, one of
the leading authorities in the State of West Virginia on sexual abuse and sexual
assault-type crimes. And I showed a note where we had delivered some records to
Dr. Claymore for him to do an evaluation, and we were seeking a couple of
opinions from Dr.—

The State: Your Honor, I don’t mean to interrupt, but for the record, it’s Dr.
David Clayman.

Mr. Mullins: Clayman, I’m sorry. He is correct, Your Honor.

The Court: Alright.

Mr. Mullins: But in any event, Dr. Clayman, we were seeking two opinions from
him. One . . . whether he could offer light as to whether he believed the forensic
interviews . . . cast doubt on the credibility and reliability of those statements. The
doctor would not offer such an opinion, but the doctor was prepared, and I believe
did testify, that he offered an opinion that the procedures, the way that the
interviews were taken—and one of his big concerns . . . . And so I guess that’s a
long-winded answer to your question, but we did employ Dr. Clayman in some
capacity. . . . I had used Dr. Clayman numerous times before and had a prior

4

relationship with him. In fact, my paralegal and I drove to Charleston and spent
about a half a day with the doctor discussing those issues.

Petitioner also argues that Mr. Mullins was ineffective because he failed to hire a medical
expert to testify at his trial. As we noted above, during Mr. Mullins’s testimony at petitioner’s
omnibus hearing, Mr. Mullins stated that he did not retain a medical expert because years had
passed between the date of the children’s disclosure and petitioner’s trial, and the children
claimed only occasional fingertip penetration. Thus, whether the girls’ hymens were intact would
not have provided any relevant information in this case. The habeas court considered petitioner’s
claim regarding a medical expert in light of Mr. Mullins’s testimony and found that this
assignment of error had no merit. We agree. The State entered no physical or medical evidence at
petitioner’s trial. Therefore, there was no such evidence to contest. Further, Mr. Mullins did hire
a relevant expert who examined the evidence in the case and testified at petitioner’s trial. On this
record, we cannot say that the circuit court erred in finding that Mr. Mullins’s performance was
not ineffective in regard to the hiring of experts on petitioner’s behalf.

Petitioner’s second assignment of error is that the habeas court erred in finding that Mr.
Mullins was not ineffective where he failed to challenge the jury’s finding that petitioner had
served as the children’s custodian. Specifically, petitioner claims that Mr. Mullins was
ineffective because he failed to move the trial court to dismiss the thirty-two counts of his
indictment charging sexual abuse by a parent, guardian, or custodian in violation of West
Virginia Code § 61-8D-5.

West Virginia Code § 61-8D-5(a) provides that,

[i]f any . . . 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 . . . sexual intrusion or
sexual contact with a child under his or her care, custody or control, . . . then such
. . . custodian or person in a position of trust shall be guilty of a felony. . . .

West Virginia Code § 61-8D-1(4) defines a “custodian” as

a person over the age of fourteen years who has or shares actual physical
possession or care and custody of a child on a full-time or temporary basis,
regardless of whether such person has been granted custody of the child by any
contract, agreement or legal proceeding. “Custodian” shall also include, but not be
limited to, the spouse of a parent, guardian or custodian, or a person cohabiting
with a parent, guardian or custodian in the relationship of husband and wife,
where such spouse or other person shares actual physical possession or care and
custody of a child with the parent, guardian or custodian.

(Emphasis added.)

The question regarding whether petitioner was the victims’ “custodian” pursuant to West
Virginia Code § 61-8D-1(4) was a question of fact for the jury, and not a legal question to be
decided by the trial court. With regard to petitioner’s “custodian” status, the State presented

5

evidence to the jury that (1) petitioner had cohabited for years with the children’s grandmother,
(2) petitioner had an ongoing relationship with the children, (3) the children were frequently in
petitioner’s home and in his presence while their grandmother was asleep or occupied elsewhere,
(4) the children’s father expected petitioner to watch over the children when they were in
petitioner’s home, (5) the children’s mother expected petitioner to keep the children safe while
they were with him, and (6) petitioner ensured that the children were fed while they were with
him. At the close of evidence, the trial court instructed the jury on the legal definition of
“custodian.” Thereafter, the jury found that petitioner had, in fact, served as the child victims’
custodian.

Based on this record, we cannot say that the habeas court erred in finding that (1) Mr.
Mullins performance on this issue was not deficient under an objective standard of
reasonableness, and (2) if Mr. Mullins had moved to dismiss the counts of petitioner’s indictment
based West Virginia Code § 61-8D-5, there was no reasonable probability that the motion would
have been granted by the trial court.

Petitioner’s third assignment of error is that the habeas court erred in finding that Mr.
Mullins was not ineffective where Mr. Mullins failed to object to the trial court’s denial of
petitioner’s motion to admit the recordings of the child victims’ January 8, 2007, forensic
interviews or the transcripts of those recordings into evidence at petitioner’s trial. Petitioner
claims that if the recordings or a transcript of the same had been entered into evidence, the jury
would have seen that the children’s statements were coached or rehearsed just as Dr. Clayman
opined at trial. The habeas court found that the trial court properly excluded those recordings
because the child victims’ testimony was consistent with their recorded statements and, thus,
there was no need to use the recordings to impeach the victims. Further, Mr. Mullins cross-
examined both victims and, during the defense’s case, entered Dr. Clayman’s expert opinion
regarding the victims’ statements. Therefore, we concur with the habeas court’s conclusion that
even if petitioner’s trial counsel had erred in failing to object to the circuit court’s denial of the
exclusion of the recordings, such error would have had no impact on the outcome of petitioner’s
trial.

Petitioner’s fourth and final assignment of error is that the habeas court erred in failing to
find that Mr. Mullins was ineffective due to his many errors at trial. Specifically, petitioner
claims that Mr. Mullins (1) failed to object to the State’s contention that digital penetration of a
vagina would not leave any physical damage despite the fact that the State laid no foundation for
this contention; (2) failed to object to jury instructions; (3) failed to offer instructions of lesser
included offenses; (4) failed to object to inflammatory statements made by the prosecution
during closing argument; (5) failed to call impeachment witnesses; (6) failed to subpoena “the
victim’s” medical records; (7) failed to call school personnel to discredit “the victim”; (8) failed
to properly prepare a witness who testified regarding petitioner’s prior bad acts; and (9) failed to
request cautionary instructions.

6

In contravention of Rule 10(c)(7)3 of the West Virginia Rules of Appellate Procedure,
petitioner’s argument contains no citations to the appendix record showing when or how any of
these alleged errors occurred at trial. Further, petitioner does not argue, or even speculate, how
these alleged acts constituted ineffective assistance of counsel or prejudiced his case. We have
said,

“‘[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)).
Furthermore, this Court has adhered to the rule that “[a]lthough we liberally
construe briefs in determining issues presented for review, issues . . . mentioned
only in passing but [] not supported with pertinent authority, are not considered on
appeal.” State v. LaRock, 196 W.Va. 294, 302, 470 S.E.2d 613, 621 (1996).

State v. Kaufman, 227 W.Va. 537, 555 n.39, in part, 711 S.E.2d 607, 625 n.39, in part (2011).
Thus, we decline to address petitioner’s cumulative error argument as it was not properly
developed on appeal.

For the foregoing reasons, we affirm the habeas court’s lengthy and extraordinarily
thorough order.

Affirmed.

ISSUED: November 3, 2014

CONCURRED IN BY:

Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:

Chief Justice Robin Jean Davis

3
Rule of Appellate Procedure 10(c)(7), regarding appeal briefs to this Court, requires that such
briefs

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.
7

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2747622. Public record. Not legal advice.