CHARLESTON, W.Va. -- The West Virginia Supreme Court did not properly analyze a jury instruction, which arguably told jurors they could convict Joseph Lavigne Jr. if they believed his daughter's testimony and did not require the state to prove she identified the defendant as her assailant, Lavigne's lawyer argues in a new petition.

Greg Ayers made that and several other claims in a petition for rehearing filed with the Supreme Court seeking to have the court reconsider its decision, which immediately returned Lavigne to prison for the rape of his then-5-year-old daughter.

Last year, now-retired Putnam Circuit Judge O.C. Spaulding ruled the jury instruction given during the 1996 trial unconstitutional, finding that it relieved the state of part of its burden of proof of guilt beyond a reasonable doubt.

Lavigne was released from jail last year after serving 15 years. However, Putnam County prosecutor Mark Sorsaia appealed Spaulding's decision.

Last month, the Supreme Court overturned Spaulding's ruling, which reinstated Lavigne's conviction and returned him to prison to finish his 22- to 60-year sentence.

The argument centers around the pre-trial statements and in-court testimony of Lavigne's daughter. According to the trial record, the child told several witnesses she believed her attacker was her father or "looked like" her father.

Ayers' petition points out, however, that the actual description the child gave bore no resemblance to Lavigne.

Ayers argues the court should not have found that the jury determined the child was a credible witness and that there was sufficient evidence to support the conviction.

The jury instruction stated: "The Court instructs the jury that a conviction for any sexual offense may be obtained on the uncorroborated testimony of the victim, unless such testimony is inherently incredible.

"Thus, if you believe the testimony of [Lavigne's daughter] beyond a reasonable doubt you may return a verdict of guilty under the indictment."

Ayers states that "this improper instruction invaded the province of the jury by telling the jury [Lavigne's daughter's] testimony was sufficient to convict Joe; and thereby supplied by presumption the material element of the identity of [Lavigne's daughter's] assailant."

The petition also asks the court to reconsider its rulings on issues Lavigne raised on cross-appeal, including ineffective assistance of counsel and the absence of a determination of whether the child victim was a competent witness.

Reach Kate White at kate.wh...@wvgazette.com or 304-348-1723.