text:                              STATE OF WEST VIRGINIA
  
                             SUPREME COURT OF APPEALS
  
  
  State of West Virginia, Plaintiff Below,                                             FILED
  Respondent                                                                        August 31, 2015
                                                                                  RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
  vs) No. 14-0485 (Wood County 12-F-6)                                              OF WEST VIRGINIA
  
  
  Howard C., Defendant Below,
  Petitioner
  
  
                                MEMORANDUM DECISION
         Petitioner Howard C.,1 by counsel John N. Ellem, appeals the Circuit Court of Wood
  County’s April 10, 2014, order sentencing him to a term of not less than one nor more than five
  years of incarceration followed by thirty years of supervised release.2 The State, by counsel
  Shannon Fredrick Kiser, filed a response. On appeal, petitioner alleges that the circuit court erred
  in admitting testimony under Rule 404(b) of the West Virginia Rules of Evidence; allowing the
  victim to make an in-court identification; denying his motion for a judgment of acquittal;
  denying his motion to dismiss; and by subjecting him to supervised release and heightened
  examinations.
  
          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.
  
         In January of 2012, petitioner was indicted on five counts of various sexual offenses
  involving two separate victims.3 On December 10, 2013, the circuit court held a pretrial hearing
  regarding the State’s motion to use 404(b) evidence and petitioner’s motion for pre-indictment
  
         1
           In keeping with this Court’s policy of protecting the identity of minors, we will refer to
  petitioner by his last initial throughout this memorandum decision.
         2
          The circuit court suspended the prison sentence and placed petitioner on home
  incarceration and supervised release for an additional thirty years.
         3
           Counts two through five of the indictment allegedly occurred in 2003 and involved a
  separate victim. Petitioner made a motion to dismiss these counts, which was granted, and counts
  two through five were dismissed. The sole remaining count of the indictment charged petitioner
  with first-degree sexual abuse involving the victim, N.H.
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  delay. During the hearing, the circuit court heard testimony from the victim of count one of the
  indictment against petitioner, regarding petitioner’s lustful disposition towards minors. On
  December 10, 2012, petitioner’s jury trial commenced. After a two-day trial, the jury found
  petitioner guilty of one count of first-degree sexual abuse of the second victim, N.H.
  
           On January 6, 2014, the circuit court entered a final order regarding trial proceedings and
  reflecting the jury verdict of guilty. In April of 2014, petitioner was sentenced to not less than
  one nor more than five years of incarceration. The circuit court suspended the sentence and
  placed him on home incarceration and supervised release for an additional thirty years. The
  resulting final and sentencing orders are now on appeal. Petitioner raises five separate
  assignments of error, which are each discussed below. “‘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.’ Syl. Pt. 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).” Syl.
  Pt. 6, State v. Anderson, 233 W.Va. 75, 754 S.E.2d 761 (2014).
  
          Upon our review, we find no error in the circuit court allowing the 404(b) testimony
  regarding petitioner’s prior bad acts. The testimony of a separate victim, K.R., that petitioner
  inappropriately touched the victim in her crotch area through her clothing, that she identified
  petitioner as her abuser in the circuit court, the State noticed its intention to use Rule 404(b)
  testimony to prove petitioner’s lustful disposition, and the circuit court correctly admitted the
  testimony following a hearing.4 The circuit court then instructed the jury that the testimony was
  explicitly introduced for the purpose of proving petitioner’s lustful disposition towards children
  and prohibited the jury from using the testimony as indicia of proof for any other element of the
  crime charged. We have previously held “that evidence of prior bad acts involving child sexual
  abuse or assault may be introduced under Rule 404(b) of the West Virginia Rules of Evidence in
  criminal cases involving the same to show that a defendant has a ‘lustful disposition towards
  children.’” Syl. Pt. 1, State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990).
  Accordingly, the circuit court did not err in allowing the admission of 404(b) evidence related to
  petitioner’s lustful disposition.
  
          Second, petitioner argues that the circuit court abused its discretion in allowing the victim
  to identify him during trial and refer to him as “Howard.” According to petitioner, the victim did
  not recognize him before she saw him at the courthouse the day of trial. Therefore, petitioner
  argues that the victim should not have been allowed to identify him during her testimony. We
  disagree. For the purpose of determining the veracity or truthfulness of a witness who is making
  an in-court identification of a criminal defendant, we have indicated that such a finding is
  “clearly a question properly submitted to a jury.” State v. Gravely, 171 W.Va. 428, 436, 299
  S.E.2d 375, 383 (1982). In this case, the victim’s in-court identification was properly a question
  for the jury, who were competent enough to discern the truth following extensive cross-
  examination of the victim by petitioner’s defense counsel. The victim had ample time to view
  
         4
           The circuit court found that through the testimony of a separate victim, K.R., that
  petitioner inappropriately touched the victim in her crotch area through her clothing, that she
  identified petitioner as her abuser, that the act was more recent than the crime charged in the
  underlying criminal matter, and that the abuse was likely recent enough to bar any challenges to
  K.R.’s recollection.
                                                       2
  
  
  petitioner at the time of the crime. The victim knew the identity of petitioner and, although she
  had trouble recalling his physical features, she immediately recognized petitioner upon seeing
  him again. The victim was consistent throughout her testimony, repeatedly replaying the events
  of her abuse. Petitioner was an adult at the time of the abuse and there was likely not a
  significant change in his core physical traits between the time of abuse and his prosecution.
  Because the totality of the circumstances indicates that both the victim’s identification of
  petitioner and the circuit court’s examination of the victim’s testimony were procedurally sound,
  petitioner is not entitled to the relief he seeks.
  
          As to petitioner’s argument that the circuit court erred by not granting a judgment of
  acquittal, this Court finds no merit to this argument. We apply “a de novo standard of review to
  the denial of a motion for judgement of acquittal based upon the sufficiency of the evidence.”
  State v. Juntilla, 227 W.Va. 492, 497, 711 S.E.29 562, 567 (2011) (citing State v. LaRock, 192
  W.Va. 294, 304, 470 S.E.2d 613, 623 (1996)). “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.” Id.
  Additionally, pursuant to Syl. Pt. 1, State v. Haid, 228 W.Va. 510, 721 S.E.2d 529 (2011), “[a]
  conviction for any sexual offense may be obtained on the uncorroborated testimony of the
  victim, unless such testimony in inherently incredible, [and] credibility is a question for the
  jury.”
  
          Here, the circuit court properly ruled that the State’s evidence was sufficient to warrant
  the denial of petitioner’s motion for acquittal. The State offered evidence of petitioner’s lustful
  disposition towards children, through the testimony of a separate victim, K.R. The State next
  offered the victim’s own testimony that she and petitioner were present at the church on the day
  of the abuse. The victim’s mother and one of petitioner’s relatives also testified that the victim
  and petitioner were present at the church on the day of the abuse. The State offered evidence
  showing that petitioner was the abuser, the victim had been abused, establishing the location of
  the abuse, uncovering the circumstances of the abuse, and revealing the method by which
  petitioner abused the victim. Therefore, the State offered proof, capable of producing a verdict of
  guilt beyond a reasonable doubt that petitioner sexually abused the victim. Taking that evidence
  into consideration in the light most favorable to the State, a reasonable trier of fact could find
  petitioner guilty beyond a reasonable doubt, as the jury ultimately decided in this matter. For
  these reasons, we find no error in the circuit court denying petitioner’s motion.
  
          Petitioner next argues that the circuit court erred by not granting his motion to dismiss for
  pretrial delay insofar as petitioner was indicted in January of 2012 for a crime that was alleged to
  have been committed in July of 1999. Petitioner argues that even though a hearing on pre-
  indictment delay was held in this matter, the prejudice to him is inescapable. We disagree. In
  State v. Poore, 226 W.Va. 727, 735, 704 S.E.2d 727, 735 (2010), we set forth the following
  guidelines that lower courts must observe to protect the due process rights of criminal defendants
  against the dangers of unfair prejudice caused by unreasonable preindictment delay:
  
         [t]o maintain a claim that preindictment delay violates the Due Process Clause of
         the Fifth Amendment to the U.S. Constitution and Article III, Section 10 of the
         West Virginia Constitution, the defendant must show actual prejudice has resulted
  
                                                       3
  
  
         from the delay. Once the showing has been made, the trial court must then
         balance the resulting prejudice against the reasonableness of the delay. In
         balancing these competing interests, the core inquiry is whether the government’s
         decision is to prosecute after substantial delay violates fundamental notions of
         justice or the community’s sense of fair play.
  
         In this case, petitioner has been unable to show actual prejudice. Instead he can only
  speculate that now-unavailable church attendance records could indicate that the victim was not
  present during the time of the abuse. Based on our review of the record, there is simply nothing
  that would suggest petitioner suffered actual prejudice. Thus, we find that reversal is not
  warranted in light of the fact that the allegation of the unavailable attendance records went
  uninvestigated at trial and does not constitute the actual prejudice necessary to successfully
  challenge an indictment under Poore.
  
          Finally, petitioner argues that the circuit court erred by subjecting him to supervised
  release and heightened examinations pursuant to West Virginia Code § 62-12-26 insofar as these
  requirements were changed effective October 1, 2006, well beyond the crime’s commission in
  1999. Petitioner further contends that the imposition of the supervised release violates his rights
  under due process clauses and ex-post facto clauses of the United States and West Virginia
  Constitutions. We find that such an argument is in stark contrast to our previous holdings. We
  have previously held that supervised release and registration requirements for convicted sex
  offenders do not violate the ex-post facto clauses of the West Virginia and United States
  constitutions, as the aforementioned requirements are civil in nature, rather than punitive, and
  carry with them a legislative intent of supervision for the purposes of public safety. See generally
  Hensler v. Cross, 210 W.Va. 530, 558 S.E.2d 330 (2001); Haislop v. Edgell, 215 W.Va. 88, 593
  S.E.2d 839 (2003). Further, we have also found that the increased registration and supervision
  requirements have not impacted procedural due process safeguards, or invoked consideration
  under constitutional protections against cruel and unusual punishment or double jeopardy. See
  generally State v. James, 227 W.Va. 407, 710 S.E.2d 98 (2011); State v. Hargus, 232 W.Va. 735,
  753 S.E.2d 893 (2013). In fact, in his petition, petitioner concedes that unsuccessful ex post facto
  challenges have previously been made to the West Virginia Sex Offender Registration Act. In
  making his argument, petitioner relies on rulings from other states interpreting their own
  reporting and registration statutes. This Court, however, does not find these authorities
  persuasive and, based upon West Virginia jurisprudence, finds that petitioner is entitled to no
  relief.
  
         For the foregoing reasons, the circuit court’s April 10, 2014, sentencing order is hereby
  affirmed.
  
                                                                                           Affirmed.
  
  
  
  
                                                       4
  
  
  ISSUED: August 31, 2015
  
  CONCURRED IN BY:
  
  Chief Justice Margaret L. Workman
  Justice Robin Jean Davis
  Justice Brent D. Benjamin
  Justice Allen H. Loughry II
  
  DISSENTING:
  
  Justice Menis E. Ketchum
  
         I dissent and would bring the case in for argument on the issue of whether the victim
  waiting ten years to come forward, and the resultant loss of potential exculpatory evidence in the
  form of Sunday school attendance records, violates the sense of fair play.
  
  
  
  
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