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Date: 02-08-2021

Case Style:

State of West Virginia vs. Joshua Ray Lell

Case Number: 19-1038

Judge: CONCURRED IN BY: Chief Justice Evan H. Jenkins Justice Elizabeth D. Walker Justice Tim Armstead Justice John A. Hutchison Justice William R. Wooton


Plaintiff's Attorney: Andrew J. Hilber

Defendant's Attorney:

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Charleston, WV - Criminal defense attorney represented Joshua Ray Lell with an order affirming his conviction for second-degree sexual abuse charge.

In March of 2018, petitioner, who worked at a home for mentally challenged and
handicapped individuals, was arrested for second-degree sexual abuse after the victim, a resident,
reported that in February of 2018, petitioner groped his genitals, slapped his buttocks, and
watched a pornographic film while masturbating in front of him. Following a bench trial in
Wood County Magistrate Court, petitioner was found guilty of second-degree sexual abuse and
sentenced to ninety days of incarceration, which was suspended for one year of unsupervised
probation. Further, petitioner was ordered to register as a sex offender for ten years and was
forbidden from working with incapacitated persons.
February 2, 2021
Petitioner appealed his conviction to the Wood County Circuit Court, which held a bench
trial in September of 2019. The victim, N.A.,1 testified that he was a client and resident of the
home where petitioner had worked. Relevant to this appeal, N.A. stated that he was his own
guardian but needed help with everyday activities like cooking, cleaning, and transportation. He
also said that he had a part-time job as a janitor and had a girlfriend. N.A. testified that in
February of 2018, petitioner assisted him with a shower and grabbed his penis and that petitioner
watched a pornographic film while masturbating in his presence. N.A. stated that he alerted staff
about these incidents. However, N.A. also admitted to calling the police several times with
allegations against the staff at his home in an effort to get them in trouble. On cross-examination,
N.A. stated that he was friends with petitioner and was previously jealous of petitioner giving
more attention to another client in the home.
Next, a staff member of the home testified that N.A., age thirty-four, requires twentyfour-hour protective oversight, help with daily chores and activities, and guidance to accomplish
tasks on his own. She explained that N.A. gets times and dates confused.2 The staff member
testified that she witnessed petitioner and N.A. roughhousing on the day of the incident in
question in 2018 and that N.A. made a comment about petitioner “bouncing” on his penis. She
also stated that she found the DVD containing the pornographic movie that N.A. testified to and
that she gave it to management at the facility. Finally, she stated that N.A. called the police on
staff on a couple of prior occasions when he was angry, but that no charges ever came from the
The State then called the investigating police officer who testified that he interviewed
petitioner in March of 2018 after having him sign a waiver of Miranda3 rights. The officer
testified that petitioner denied touching N.A.’s penis but changed his story several times, first
stating that N.A. tried to kiss him then stating that N.A. tried to embrace him during the incident
in the shower. Notably, the officer stated that petitioner admitted to having sexual fantasies about
N.A. and that if petitioner had not stopped working at the home, “something may or may not
have happened” with N.A.
At the conclusion of the State’s case-in-chief, petitioner moved for judgment of acquittal
arguing that the State failed to prove all elements of second-degree sexual abuse beyond a
reasonable doubt. Namely, petitioner argued that the State failed to prove that N.A. was mentally
defective, citing the lack of medical records or expert testimony to establish that N.A. suffered
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); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419
(2013); State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles
L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
As an example of N.A.’s inability to accurately remember dates and discern the passage
of time, N.A.’s testimony shows that he thought that his shower with petitioner lasted several
hours. The staff member testified that N.A.’s showers were usually around fifteen minutes.
Miranda v. Arizona, 384 U.S. 436, 444 (1966).
from a mental disease or defect. Petitioner argued that N.A., as his own guardian, was able to
consent to sexual contact. The State responded that N.A. lived in a facility specifically designed
for round-the-clock care of mentally challenged adults and that the court, having heard N.A.’s
testimony, was apprised of N.A.’s obvious delays and mental shortcomings. Regarding N.A.’s
ability to appraise his own conduct, the State argued that during N.A.’s testimony, he often acted
childlike when explaining the sexual abuse, such as using hand movements to explain
masturbation. Further, the State noted that N.A. required constant supervision and prompting to
meet his basic needs throughout the day. The circuit court agreed with the State and denied
petitioner’s motion.
Petitioner then presented the testimony of a program director of the home who has known
N.A. as a client and resident of the home for the past twenty years. She explained the N.A. was
his own guardian, but he had an appointed conservator to handle all financial matters as well as a
“health care surrogate” through the West Virginia Department of Health and Human Resources
(“DHHR”) who made all medical decisions on his behalf. As his own guardian, N.A. was able to
“give input” into his day-to-day activities. She testified that N.A. likes to call the police to see
their “uniforms” and get their attention, but that no arrests have occurred. The director stated that
N.A.’s intelligence quotient indicated a low degree of functioning, that he was mentally
challenged, had treatment plans to address his difficulties, and had an accepted diagnosis of
“mental retardation.” She also explained that N.A. cannot drive a vehicle and does not have a
driver’s license.
Finally, petitioner testified that he worked directly with several client-residents, including
N.A., and that although he helped N.A. shower (due to an injured toe), he did not touch N.A.’s
penis. Petitioner further denied any instance of touching N.A.’s penis but admitted to horseplaying with N.A. on the day in question in 2018 by sitting on N.A. Petitioner explained that the
residents were allowed to have girlfriends and were allotted an hour of personal time for sexual
contact, during which the staff would not disturb them. On cross-examination, petitioner stated
that N.A. tried to kiss him, yet could not give clear answers as to whether he thought N.A. had
romantic feelings for him or had tried other sexual advances towards him. When asked whether
he had ever sexually fantasized about N.A., petitioner replied, “define fantasy” then stated “no.”
He further denied masturbating in front of N.A. or watching pornography with N.A.
After hearing closing arguments, the circuit court found petitioner guilty of seconddegree sexual abuse, finding that N.A.’s testimony and childlike responses, as well as the
testimony of others, proved that N.A. met the meaning of someone with a mental defect. The
circuit court ruled that the previously imposed sentence remain in effect by order entered on
October 15, 2019. It is from this order petitioner now appeals.
This Court reviews orders by a circuit court after a bench trial as follows:
“‘In reviewing challenges to the findings and conclusions of the circuit
court made after a bench trial, a two-pronged deferential standard of review is
applied. The final order and the ultimate disposition are reviewed under an abuse
of discretion standard, and the circuit court’s underlying factual findings are
reviewed under a clearly erroneous standard. Questions of law are subject to a de
novo review.’ Syllabus Point 1, Public Citizen, Inc. v. First Nat. Bank in
Fairmont, 198 W.Va. 329, 480 S.E.2d 538 (1996).” Syl. Pt.
1, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).
Syl. Pt. 1, State v. Knotts, 233 W. Va. 665, 760 S.E.2d 479 (2014).
On appeal, petitioner argues that the circuit court erred in denying his motion for
judgment of acquittal. According to West Virginia Code § 61-8B-8, “[a] person is guilty of
sexual abuse in the second degree when such person subjects another person to sexual contact
who is mentally defective or mentally incapacitated.” Further, West Virginia Code § 61-8B-1(3)
defines “[m]entally defective” to mean “that a person suffers from a mental disease or defect
which renders that person incapable of appraising the nature of his or her conduct.” On appeal,
petitioner challenges the sufficiency of the State’s evidence that N.A. suffered from a mental
defect or disease. Petitioner cites N.A.’s part-time work as a janitor and having a girlfriend as
proof that N.A. had the ability to participate in daily life decisions. According to petitioner, the
circuit court “ignored the fact” that N.A. acted as his own guardian and inappropriately relied
“primarily upon the fact that the alleged victim lived in a group home and suffers from mental
retardation.”4 Finally, petitioner argues that there were inconsistences in N.A.’s testimony
regarding the dates and times of the alleged sexual abuse and that the evidence was insufficient
to convict petitioner of second-degree sexual abuse.5 Upon review, we find petitioner is entitled
to no relief.
“The Court applies a de novo standard of review to the denial of a motion for judgment
of acquittal based upon the sufficiency of the evidence.” State v. Juntilla, 227 W. Va. 492, 497,
711 S.E.2d 562, 567 (2011) (citation omitted). Moreover,
[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.
Syl. Pt. 1, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). Further,
In petitioner’s reply brief, he references the circuit court’s remarks at trial that N.A.’s
group home was akin to “being institutionalized” and that this finding supported elements
required of crimes concerning incarcerated individuals. However, the circuit court was obviously
referring to persons institutionalized in facilities for mental illness or disease and not
incarcerated individuals.
For clarity and brevity, petitioner’s three separate assignments of error have been
combined into one.
[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.
Id. at 663, 461 S.E.2d at 169, syl. pt. 3, in part. See also State v. Boyd, 238 W. Va. 420, 431, 796
S.E.2d 207, 218 (2017) (“[I]t is now well recognized and firmly settled that proof of guilt may be
established by circumstantial evidence . . . .” (quoting State v. Bailey, 151 W. Va. 796, 804, 155
S.E.2d 850, 855 (1967))).
In viewing the evidence in the light most favorable to the prosecution, we find that any
rational trier of fact could have found the essential elements of second-degree sexual abuse
proved beyond a reasonable doubt. Petitioner points to N.A.’s janitorial job and romantic
relationship with a woman as proof that he suffers from no defect, but the record belies this
contention. Contrary to petitioner’s assertions, the record shows that although N.A. was his own
guardian who could give input into his day-to-day decisions, he was not, in fact, autonomous, as
the staff directed most of his daily activities and he could only leave the home under supervision.
Also, petitioner concedes that N.A. had an appointed conservator who made all financial
decisions for him as well as a health care surrogate through the DHHR who made all medical
decisions on N.A.’s behalf. Indeed, the overwhelming majority of testimony gathered from staff
at N.A.’s group home as well as that of N.A. established that N.A. has a low I.Q., lower
cognitive functioning, and mental challenges to the point where he is unable to make most of his
own decisions. Thus, a rational trier of fact could find that N.A. suffered from a mental defect
that impacted his ability to appraise his own conduct.
Lastly, petitioner makes much of the West Virginia Guardianship and Conservatorship
Act, arguing that because N.A. was appointed as his own guardian,
6 he must not suffer from an
intellectual disability, mental incompetency, or other handicap. However, petitioner disregards
the fact that N.A. was appointed a conservator,
7 which required a finding that he is a protected
West Virginia Code § 44A-1-4(5) defines “guardian” as “a person appointed by the
court who is responsible for the personal affairs of a protected person, and, where the context
plainly indicates, the term ‘guardian’ means or includes a ‘limited guardian’ or a ‘temporary
Likewise, “conservator” is defined as “a person appointed by the court who is
responsible for managing the estate and financial affairs of a protected person, and, where the
context plainly indicates, the term ‘conservator’ means or includes a ‘limited conservator’ or a
‘temporary conservator.’” W. Va. Code § 44A-1-4(1).
“Protected person” means an adult individual, eighteen years of age or older, who
has been found by a court, because of mental impairment, to be unable to receive
and evaluate information effectively or to respond to people, events, and
environments to such an extent that the individual lacks the capacity: (A) To meet
the essential requirements for his or her health, care, safety, habilitation, or
therapeutic needs without the assistance or protection of a guardian; or (B) to
manage property or financial affairs or to provide for his or her support or for the
support of legal dependents without the assistance or protection of a conservator.
A finding that the individual displays poor judgment, alone, is not sufficient
evidence that the individual is a protected person within the meaning of this
subsection. “Protected person” also means a person whom a court has determined
is a missing person.
W. Va. Code § 44A-1-4(13). Petitioner disregards this finding and also ignores N.A.’s
appointment of a healthcare surrogate by the DHHR who handled his decisions regarding his
healthcare, treatments, etc. Further, petitioner cites no authority to support his assertion that a
mentally disabled person who is his own guardian fails to meet the definition of “mentally
defective” as set out in West Virginia Code § 61-8B-1(3). Indeed, taken as a whole, N.A.’s lack
of autonomy and inability to make day-to-day decisions is apparent as he lived in a group home
with constant care, supervision, and guidance, and had a health care surrogate with the DHHR to
make all medical decisions. Petitioner cannot reconcile his position with the overwhelming
evidence that N.A. suffered from a mental defect.
As for the alleged inconsistences in N.A.’s statements regarding the dates and times of
the alleged abuse, petitioner’s own testimony belies this assertion. Petitioner alleges that N.A.
lied about the sexual encounter in the shower in 2018 because his shift did not begin until 3:00
p.m. and that another worker would have had N.A. shower earlier that morning. However, the
testimony of the staff member established that N.A. only completed a hygiene routine that
morning, which did not specify whether he took a shower then or later in the day. Regardless of
the exact date and time, petitioner admitted to being in the bathroom with N.A. and helping him
shower due to N.A.’s broken toe. These are the same facts as testified to by N.A. Further,
petitioner admitted to roughhousing or horse playing with N.A. on the day in question and
briefly sitting on top of N.A. Although petitioner denied any sexual contact with N.A.’s penis,
the circuit court found N.A.’s testimony more credible, especially in light of the fact that the
officer testified that petitioner admitted to having sexual fantasies about N.A. during his
interview. Finally, petitioner attacks N.A.’s credibility due to his past behavior of contacting the
police with complaints against staff members of the group home. Ultimately, these are all
credibility issues that the circuit court resolved in the State’s favor and we decline to disturb
them on appeal. See Guthrie, 194 W. Va. at 663, 461 S.E.2d at 169, syl. pt. 3, in part
(“Credibility determinations are for a jury and not an appellate court.”). Having reviewed the
entirety of the evidence presented, we conclude that the State met its burden of proving that the
victim suffered “from a mental disease or defect which renders that person incapable of
appraising the nature of his or her conduct” so as to satisfy the element required in West Virginia
Code § 61-8B-8(a). W. Va. Code § 61-8B-1(3).

Outcome: For the foregoing reasons, the circuit court’s October 15, 2019, order is hereby affirmed.

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