State of WV v. Honaker
Annotate this Case
September 1993 Term
___________
No. 21658
___________
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
v.
GEORGE W.H.,
Defendant Below, Appellant
_______________________________________________________
Appeal from the Circuit Court of McDowell County
Honorable Booker T. Stephens, Judge
Criminal Indictment No. 91-F-119
AFFIRMED, IN PART, REVERSED, IN PART,
AND REMANDED
________________________________________________________
Submitted: September 21, 1993
Filed: December 13, 1993
Darrell V. McGraw, Jr.
Attorney General
Teresa L. Sage
Assistant Attorney General
Charleston, West Virginia
Attorney for the Appellee
Philip A. LaCaria
LaCaria & Hassan
Welch, West Virginia
Rudolph J. Murensky, II
Welch, West Virginia
Attorneys for the Appellant
JUSTICE MILLER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. "Under ex post facto principles of the United
States and West Virginia Constitutions, a law passed after the
commission of an offense which increases the punishment,
lengthens the sentence or operates to the detriment of the
accused, cannot be applied to him." Syllabus Point 1, Adkins v.
Bordenkircher, 164 W. Va. 292, 262 S.E.2d 885 (1980).
2. "The Double Jeopardy Clause of the Fifth Amendment
to the United States Constitution consists of three separate
constitutional protections. It protects against a second
prosecution for the same offense after acquittal. It protects
against a second prosecution for the same offense after
conviction. And it protects against multiple punishments for the
same offense." Syllabus Point 1, State v. Gill, 187 W. Va. 136,
416 S.E.2d 253 (1992).
3. "'The Double Jeopardy Clause in Article III,
Section 5 of the West Virginia Constitution, provides immunity
from further prosecution where a court having jurisdiction has
acquitted the accused. It protects against a second prosecution
for the same offense after conviction. It also prohibits
multiple punishments for the same offense.' Syllabus Point 1,
Conner v. Griffith, 160 W. Va. 680, 238 S.E.2d 529 (1977)."
Syllabus Point 2, State v. Gill, 187 W. Va. 136, 416 S.E.2d 253
(1992).
4. "Where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses or only one
is whether each provision requires proof of an additional fact
which the other does not." Syllabus Point 8, State v.
Zaccagnini, 172 W. Va. 491, 308 S.E.2d 131 (1983).
5. "A claim that double jeopardy has been violated
based on multiple punishments imposed after a single trial is
resolved by determining the legislative intent as to punishment."
Syllabus Point 7, State v. Gill, 187 W. Va. 136, 416 S.E.2d 253
(1992).
6. "In ascertaining legislative intent, a court
should look initially at the language of the involved statutes
and, if necessary, the legislative history to determine if the
legislature has made a clear expression of its intention to
aggregate sentences for related crimes. If no such clear
legislative intent can be discerned, then the court should
analyze the statutes under the test set forth in Blockburger v.
United States, 284 U.S. 299, 52 S. Ct. 180, 76 L.Ed 306 (1932), to
determine whether each offense requires an element of proof the
other does not. If there is an element of proof that is
different, then the presumption is that the legislature intended
to create separate offenses." Syllabus Point 8, State v. Gill,
187 W. Va. 136, 416 S.E.2d 253 (1992).
7. "W. Va. Code, 61-8D-5(a) (1988), states, in part:
'In addition to any other offenses set forth in this code, the
Legislature hereby declares a separate and distinct offense under
this subsection[.]' Thus, the legislature has clearly and
unequivocally declared its intention that sexual abuse involving
parents, custodians, or guardians, W. Va. Code, 61-8D-5, is a
separate and distinct crime from general sexual offenses, W. Va.
Code, 61-8B-1, et seq., for purposes of punishment." Syllabus
Point 9, State v. Gill, 187 W. Va. 136, 416 S.E.2d 253 (1992).
8. "'[Under Article III, Section 14 of the West
Virginia Constitution,] [a]n indictment is sufficient when it
clearly states the nature and cause of the accusation against a
defendant, enabling him to prepare his defense and plead his
conviction as a bar to later prosecution for the same offense.'
Syllabus Point 1, State v. Furner, 161 W. Va. 680, 245 S.E.2d 618
(1978)." Syllabus Point 1, State v. Childers, 187 W. Va. 54, 415 S.E.2d 460 (1992).
9. "'An indictment for a statutory offense is
sufficient if, in charging the offense, it substantially follows
the language of the statute, fully informs the accused of the
particular offense with which he is charged and enables the court
to determine the statute on which the charge is based.' Syllabus
Point 3, State v. Hall, 172 W. Va. 138, 304 S.E.2d 43 (1983)."
Syllabus Point 2, State v. Childers, 187 W. Va. 54, 415 S.E.2d 460 (1992).
10. "Rule 402 and Rule 403 of the West Virginia Rules
of Evidence [1985] direct the trial judge to admit relevant
evidence, but to exclude evidence whose probative value is
substantially outweighed by the danger of unfair prejudice to the
defendant." Syllabus Point 4, Gable v. Kroger Co., 186 W. Va.
62, 410 S.E.2d 701 (1991).
11. "'Rulings on the admissibility of evidence are
largely within a trial court's sound discretion and should not be
disturbed unless there has been an abuse of discretion.' State
v. Louk, 171 W. Va. 639, [643,] 301 S.E.2d 596, 599 (1983)."
Syllabus Point 2, State v. Peyatt, 173 W. Va. 317, 315 S.E.2d 574
(1983).
12. "A conviction for any sexual offense may be
obtained on the uncorroborated testimony of the victim, unless
such testimony is inherently incredible, the credibility is a
question for the jury." Syllabus Point 5, State v. Beck, 167
W. Va. 830, 286 S.E.2d 234 (1981).
13. "'In a criminal case, a verdict of guilt will not
be set aside on the ground that it is contrary to the evidence,
where the state's evidence is sufficient to convince impartial
minds of the guilt of the defendant beyond a reasonable doubt.
The evidence is to be viewed in the light most favorable to the
prosecution. To warrant interference with a verdict of guilt on
the ground of insufficiency of evidence, the court must be
convinced that the evidence was manifestly inadequate and that
consequent injustice has been done.' Syllabus Point 1, State v.
Starkey, 161 W. Va. 517, 244 S.E.2d 219 (1978)." Syllabus Point
10, State v. Gill, 187 W. Va. 136, 416 S.E.2d 253 (1992).
14. "Where the record of a criminal trial shows that
the cumulative effect of numerous errors committed during the
trial prevented the defendant from receiving a fair trial, his
conviction should be set aside, even though any one of such
errors standing alone would be harmless error." Syllabus Point
5, State v. Smith, 156 W. Va. 385, 193 S.E.2d 550 (1972).
Miller, Justice:
The defendant, George W.H., appeals from a final
order of the Circuit Court of McDowell County, entered August 3,
1992, sentencing him to six consecutive sentences for committing
sexually-related crimes against his daughter, Rita G.H. The
offenses were committed on two separate occasions. The first
incident occurred in either 1984 or 1985, and the second incident
occurred in May of 1990.
The defendant was indicted for committing the same
three offenses on both occasions. Counts one through three of
the indictment relate to the first incident, while counts four
through six relate to the second one. The indictment charges the
defendant in counts one and four with incest in violation of
W. Va. Code, 61-8-12; in counts two and five with sexual
assault in the second degree in violation of W. Va. Code, 61-8B-4
(1984); and in counts three and six with "sexual abuse by a
custodian" in violation of W. Va. Code, 61-8D-5(a) (1988).
The defendant was convicted by a jury on all six counts.
On appeal, the defendant makes the following
assignments of error: (1) that his convictions for the 1984 or
1985 incident of sexual abuse by a custodian, W. Va. Code, 61-8D-
5(a), and sexual assault in the second degree, W. Va. Code, 61-
8B-4, violate the prohibition against ex post facto laws found in
Section 10 of Article I of the United States Constitution and
Section 4 of Article III of the West Virginia Constitution; (2)
that his convictions for incest, W. Va. Code, 61-8-12, and sexual
abuse by a custodian, W. Va. Code, 61-8D-5(a), violate the Double
Jeopardy Clause of the Fifth Amendment to the United States
Constitution and Section 5 of Article III of the West Virginia
Constitution; and (3) that his convictions for both counts of
sexual assault in the second degree, W. Va. Code, 61-8B-4,
violate the Sixth Amendment to the United States Constitution and
Sections 4 and 14 of Article III of the West Virginia
Constitution because the indictment fails to allege an essential
element of the offense. The defendant also argues that his
convictions should be reversed because certain evidence should
have been excluded under Rule 403 of the West Virginia Rules of
Evidence, and because the verdicts were based on insufficient
evidence and cumulative error.
I.
FACTS
The essential facts are as follows. Rita G.H. lived
with her natural mother and father and her two younger brothers
in McDowell County. On May 11, 1990, Rita told school officials
that her father was having sexual intercourse with her. School
officials contacted the police and Rita gave a statement to
Trooper J. R. Pauley on that same day.
At the time, Rita was fifteen years old. She told
Trooper Pauley that her father had touched and felt her for as
long as she could remember, the earliest recollection of which
was at about age five. Rita described several incidents of
sexual abuse and sexual assault committed by her father. One of
the events involved the defendant penetrating her with his penis
when she was ten or eleven years old. Rita said it happened when
she was riding with her father in a red truck and he pulled off
the road into a dip where no one could see them. She recalled
that her father tied her hands behind her back, pulled up her
dress, took off her panties, and inserted his penis in her
vagina. After he finished, she stated that her father told her
that if she told anyone, he would beat her. At the end of the
statement, Trooper Pauley asked Rita if her father ever
"penetrated" her at any other times. She said she understood
what the word "penetrated" meant and replied no. Thereafter,
Rita was removed from her home.
In February of 1991, Rita gave another statement to the
police. She reported to Deputy Sheriff Ronald L. Blevins that
her father had "sexual intercourse" with her, by inserting his
penis in her vagina, the day before she reported the situation to
school officials and gave her statement to Trooper Pauley. On
this occasion, she said her father had intercourse with her after
he watched her take a bath. She stated that during the incident
her father held his hand over her mouth so she could not scream
and afterwards gave her twenty-five dollars. She told the police
officer "[m]y father would have sex with me about ten times a
month. This has been going on since I was five years old. When
my father wouldn't have sex with me he would play with my breasts
and and [sic] touch other parts of my body."
Rita's mother testified that Child Protective Services first became involved with their family and she first became aware of Rita's complaints back in 1988 after Rita attempted to run away from home. Although the record is not clear as to the actual reason why she left, Rita's parents found her within a day and brought her home. Rita's mother said she signed an agreement in 1988 with Child Protective Services promising not to leave Rita alone with the defendant. She stated she kept this promise.
Shortly before Rita informed officials of her father's
acts in May of 1990, she had a disagreement with her parents over
her participation in a school band program. Rita's mother and
the defendant testified that Rita was not permitted to
participate in the program because they could not afford it.
According to her parents and her brothers, Rita was upset over
the decision. Rita denied being angry.
The grand jury indicted the defendant for two of the
incidents Rita described in her statements, the one involving the
red truck when Rita was ten or eleven years old and the May 1990
incident reported to Deputy Blevins in February of 1991.
II.
EX POST FACTO
A.
The defendant asserts that his convictions for the 1984
or 1985 episode of sexual abuse by a custodian under W. Va. Code,
61-8D-5(a), and sexual assault in the second degree under W. Va.
Code, 61-8B-4, violate the constitutional prohibition of ex post
facto laws. In explaining the basic prohibition against ex
post facto laws, we stated in Syllabus Point 1 of Adkins v.
Bordenkircher, 164 W. Va. 292, 262 S.E.2d 885 (1980):
"Under ex post facto principles of the United States and West Virginia Constitutions, a law passed after the commission of an offense which increases the punishment, lengthens the sentence or operates to the detriment of the accused, cannot be applied to him."
In State v. R.H., 166 W. Va. 280, 288-89, 273 S.E.2d 578, 583-84 (1980), overruled on other grounds, State ex rel. Cook v. Helms, 170 W. Va. 200, 292 S.E.2d 610 (1981), we further defined an ex post facto law by adopting its classic definition as set forth by the United States Supreme Court in Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L. Ed. 648, ___ (1798):
"'(1) Every law that makes an action done
before the passing of the law, and which was
innocent when done, criminal, and punishes
such action; (2) every law that aggravates a
crime, or makes it greater than it was when
committed; (3) every law that changes the
punishment, and inflicts a greater punishment
than the law annexed to the crime when
committed; (4) every law that alters the
legal rules of evidence, and receives less or
different testimony than the law required at
the commission of the offense, in order to
convict the offender.'"
It would defy our notion of fundamental fairness to
allow otherwise and punish a defendant under a statute that
either did not exist at the time the act was committed or was
altered in such a way as to affect the substantive rights of the
defendant. It is clear that the crime of sexual abuse by a
custodian did not exist until 1988. Thus, count three of the
indictment charging the defendant with this offense for the 1984
or 1985 incident violates ex post facto principles. The State
concedes this point in its brief.
In the case at bar, the State also admits that count
two, for sexual assault in the second degree, violates ex post
facto principles. In the indictment, count two states, in
relevant part, that the defendant had "sexual contact without
[Rita's] consent and with lack of consent resulting from forcible
compulsion, thereby committing 'sexual assault in the second
degree[.]'" (Emphasis added). However, the circuit court
instructed the jury that "forcible compulsion," in part, means
"fear by a child under sixteen years of age caused by
intimidation, expressed or implied, by another person four years
older than the victim[.]" This instruction was based on the
definition of forcible compulsion in W. Va. Code, 61-8B-1(1)(c)
(1986). However, W. Va. Code, 61-8B-1(1)(c), was not a part of
the definition of forcible compulsion in 1984 or 1985, and, in
fact, did not become effective until July 1, 1986, well after the
1984 or 1985 incident.
This case is virtually identical to the situation that
arose in State v. Hensler, 187 W. Va. 81, 415 S.E.2d 885 (1992).
In that case, the defendant appealed his convictions of first-
degree sexual abuse, W. Va. Code, 61-8B-7, because the circuit
court gave an instruction to the jury that included a definition
of "forcible compulsion" as contained in W. Va. Code, 61-8B-
1(1)(c). The events that gave rise to the charges, however,
occurred during the 1985-86 school year which was prior to July
1, 1986, the effective date of subsection (1)(c). In reversing
the convictions, we held that the addition of subsection (1)(c)
"fundamentally altered the proof required for the offense."
Subsection (1)(c) permits a conviction to be obtained when a
defendant, "being four years older than a child under sixteen
years of age, obtained sexual contact with that child through any
sort of intimidation, regardless of whether it involved a threat
of death, injury, or kidnapping." State v. Hensler, 187 W. Va.
at 83-84 415 S.E.2d at 887-88.
For the foregoing reasons, we find it necessary to
reverse George W.H.'s conviction on count two of the indictment
for sexual assault in the second degree. As we did in Hensler,
where we remanded the case for a new trial, we likewise do not
foreclose the State's option to retry George W.H. using the
definition of "forcible compulsion" as it existed when the event
occurred in either 1984 or 1985. See note 8, supra.
B.
While we do not reverse the defendant's conviction under count five for sexual assault in the second degree for the May 1990 incident since subsection (1)(c) was adopted in 1986, we do note that the circuit court applied the wrong penalty for this offense. The circuit court sentenced the defendant under an amendment to W. Va. Code, 61-8B-4, effective July 1, 1991, to serve a term of "not less than ten nor more than twenty-five years" in the penitentiary. The 1984 version of the statute provides that upon conviction a defendant "shall be imprisoned in the penitentiary not less than ten nor more than twenty years[.]"
The same problem exists with the defendant's other
sentences. For the incest convictions in counts one and four
pursuant to W. Va. Code, 61-8-12, the defendant was sentenced
under a 1991 amendment to two terms of "not less than five years
nor more than fifteen years[.]" The applicable 1984 and 1986
versions of W. Va. Code, 61-8-12, both provide for a term of "not
less than five years nor more than ten years[.]"
Likewise, as to count six for the 1990 offense of
sexual abuse by a custodian, the defendant was sentenced to a
term of "not less than five nor more than fifteen years" under
the 1991 amendment to sexual abuse by a custodian, W. Va. Code,
61-8D-5(a). The 1988 version of W. Va. Code, 61-8D-5(a), states
the sentence should be "not less than five nor more than ten
years[.]"
Thus, the sentences for counts one, four, five, and six
violate ex post facto principles because none of the offenses
occurred after the 1991 amendments enhancing the penalties. As
we have earlier pointed out, ex post facto principles apply when
a defendant receives an enhanced punishment for an offense, but
the enhancement was enacted after the crime was committed.
Therefore, upon remand, the circuit court should sentence the
defendant in accordance with the provisions of the appropriate
statute.
III.
DOUBLE JEOPARDY
The defendant argues that his convictions for incest,
W. Va. Code, 61-8-12, and sexual abuse by a custodian, W. Va.
Code, 61-8D-5(a), violate the constitutional prohibition against
double jeopardy. Double jeopardy, however, is no longer an
issue with regard to the 1984 or 1985 incident because the
defendant's conviction of sexual abuse by a custodian is reversed
on ex post facto grounds. The question left to be resolved is
whether the defendant can be convicted of both incest and sexual
abuse by a custodian for the May 1990 incident.
The defendant contends he cannot be convicted of both
offenses because the indictment specifically reads that he
committed both offenses by engaging in "sexual intercourse" with
his daughter. The defendant asserts it would be impossible for
him to have committed sexual abuse by a custodian by having
sexual intercourse with his daughter without also committing
incest.
We previously addressed the issue of double jeopardy in
relation to sexual abuse by a parent, custodian, or guardian, W.
Va. Code, 61-8D-5(a), in State v. Gill, 187 W. Va. 136, 416 S.E.2d 253 (1992). In Syllabus Point 1 of Gill, we relied upon
the United States Supreme Court case of North Carolina v. Pearce,
395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656, 664-65,
(1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989), in outlining the
constitutional protections found in the Double Jeopardy Clause of
the Fifth Amendment:
"The Double Jeopardy Clause of the
Fifth Amendment to the United States
Constitution consists of three separate
constitutional protections. It protects
against a second prosecution for the same
offense after acquittal. It protects against
a second prosecution for the same offense
after conviction. And it protects against
multiple punishments for the same
offense."
We also said the West Virginia Constitution provides at least as many protections as the Fifth Amendment, and summarized these protections in Syllabus Point 2 of Gill: "'The Double Jeopardy Clause in Article III, Section 5 of the West Virginia Constitution, provides immunity from further prosecution where a court having jurisdiction has acquitted the accused. It protects against a second prosecution for the same offense after conviction. It also prohibits multiple punishments for the same offense.' Syllabus Point 1, Conner v. Griffith, 160 W. Va. 680, 238 S.E.2d 529 (1977)."
The focus in this case, as was the focus in the Gill case, is whether the sentences the defendant received violate the prohibition against multiple punishments for the same offense.
The United States Supreme Court addressed the issue of
multiple punishments in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). The Supreme Court said
that when "the same act or transaction constitutes a violation of
two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is whether
each provision requires proof of a fact which the other does
not." Blockburger, 284 U.S. at 304, 52 S. Ct. at 182, 76 L. Ed. at
309. (Citation omitted). However, in several subsequent cases,
the Supreme Court recognized that the Blockburger test is one of
statutory construction and should not control statutes in which
Congress has made its intent clear. In Garrett v. United
States, 471 U.S. 773, 778, 105 S. Ct. 2407, 2411, 85 L. Ed. 2d 764,
771 (1985), the Supreme Court announced: "Where the same conduct
violates two statutory provisions, the first step in the double
jeopardy analysis is to determine whether the legislature--in
this case Congress--intended that each violation be a separate
offense."
We have followed the Supreme Court's rulings in regard to multiple punishments for the same act or transaction. We adopted the Blockburger test in Syllabus Point 8 of State v. Zaccagnini, 172 W. Va. 491, 308 S.E.2d 131 (1983): "Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not."
We further said in Syllabus Points 7 and 8 of Gill:
"7. A claim that double jeopardy
has been violated based on multiple
punishments imposed after a single trial is
resolved by determining the legislative
intent as to punishment.
"8. In ascertaining legislative
intent, a court should look initially at the
language of the involved statutes and, if
necessary, the legislative history to
determine if the legislature has made a clear
expression of its intention to aggregate
sentences for related crimes. If no such
clear legislative intent can be discerned,
then the court should analyze the statutes
under the test set forth in Blockburger v.
United States, 284 U.S. 299, 52 S. Ct. 180, 76
L.Ed 306 (1932), to determine whether each
offense requires an element of proof the
other does not. If there is an element of
proof that is different, then the presumption
is that the legislature intended to create
separate offenses."
Gill is dispositive of the present case because it addressed
W. Va. Code, 61-8D-5(a), the same statutory provision involved in
the case at bar. In Syllabus Point 9 of Gill, we held:
"W. Va. Code, 61-8D-5(a) (1988),
states, in part: 'In addition to any other
offenses set forth in this code, the
Legislature hereby declares a separate and
distinct offense under this subsection[.]'
Thus, the legislature has clearly and
unequivocally declared its intention that
sexual abuse involving parents, custodians,
or guardians, W. Va. Code, 61-8D-5, is a
separate and distinct crime from general
sexual offenses, W. Va. Code, 61-8B-1, et
seq., for purposes of punishment." (Emphasis
added).
Although Syllabus Point 9 provides that sexual abuse by a parent,
custodian, or guardian is separate and distinct from the general
sexual offenses in W. Va. Code, 61-8B-1, et seq., the legislature
specifically directed that it be considered separate from other
offenses in the Code. We, therefore, hold that the defendant's
convictions under W. Va. Code, 61-8-12, for incest, and under
W. Va. Code, 61-8D-5(a), for sexual abuse by a custodian, do not
violate the double jeopardy prohibition against multiple
punishments for the same offense. The legislature made it
exceptionally clear that W. Va. Code, 61-8D-5(a), is a separate
offense from other Code sections. Therefore, it becomes
unnecessary for us to apply the Blockburger rule of statutory
construction.
IV.
DEFECTIVE INDICTMENT
The defendant next argues that both of his convictions
for sexual assault in the second degree under W. Va. Code, 61-8B-
4, violate the Sixth Amendment to the United States Constitution
and Sections 4 and 14 of Article III of the West Virginia
Constitution because both counts in the indictment fail to
state an essential element of the offense. Counts two and
five of the indictment, in part, read as follows:
"Charge: Sexual assault in the second degree "That . . . [appropriate date], in the said County of McDowell, George [W.H.], did, unlawfully and feloniously, subject another person, Rita [G.H.], to sexual contact without her consent and with lack of consent resulting from forcible compulsion, thereby committing 'sexual assault in the second degree', in violation of West Virginia Code 61-8B-4, as amended, against the peace and dignity of the State." (Emphasis added).
The defendant asserts that these counts are defective because
sexual assault in the second degree is committed by either
"sexual intercourse" or "sexual intrusion", and is not committed
by "sexual contact". Instead, the defendant points out that
"sexual contact" is an element of sexual abuse in the first
degree, W. Va. Code, 61-8B-7 (1984), which carries with it a much
lighter penalty.
In addressing the adequacy of an indictment, the United
States Supreme Court in United States v. Cruikshank, 92 U.S. (2
Otto) 542, 558, 23 L. Ed. 588, 593 (1875), explained two minimum
criteria that are necessary for an indictment to be sufficient
under the Sixth Amendment. First, the Court said the indictment
must provide the defendant with enough information to allow him
to prepare a defense and to protect him against further
prosecution for the same offense. Second, the indictment must
describe the charge with enough certainty for a court to
determine whether the facts "are sufficient in law to support a
conviction[.]"
Recently, in State v. Childers, 187 W. Va. 54, 415 S.E.2d 460 (1992), we reiterated our adoption of similar criteria to test the sufficiency of an indictment under our Constitution.
In Syllabus Point 1 of Childers, we stated:
"'[Under Article III, Section 14 of the West Virginia Constitution,] [a]n indictment is sufficient when it clearly states the nature and cause of the accusation against a defendant, enabling him to prepare his defense and plead his conviction as a bar to later prosecution for the same offense.' Syllabus Point 1, State v. Furner, 161 W. Va. 680, 245 S.E.2d 618 (1978)."
After expounding upon these criteria, we said in Syllabus Point 2
of Childers:
"'An indictment for a statutory offense is sufficient if, in charging the offense, it substantially follows the language of the statute, fully informs the accused of the particular offense with which he is charged and enables the court to determine the statute on which the charge is based.' Syllabus Point 3, State v. Hall, 172 W. Va. 138, 304 S.E.2d 43 (1983)."
Therefore, under both the United States Constitution and the West
Virginia Constitution, the indictment brought against George W.H.
must be evaluated in terms of whether it provided him with enough
information to defend against the charge of sexual assault in the
second degree and whether it will bar a future prosecution for
the same offense.
After reviewing the entire record, we find that the
defendant knew he was charged with sexual assault in the second
degree and not sexual abuse in the first degree and that he
prepared his defense in accordance with this belief. In fact, we
cannot find anywhere in the record where this issue was raised
below. From both the indictment itself and the State's answer to
a motion for discovery, the defendant was aware that the counts
related to two specific incidents involving "sexual
intercourse."
Moreover, counts two and five clearly state that the
charge is "sexual assault in the second degree . . . in violation
of West Virginia Code 61-8B-4". The counts follow the statutory
language of W. Va. Code, 61-8B-4(a)(1), except they include the
term "sexual contact" instead of "sexual intercourse" or "sexual
intrusion." Although these terms are defined differently in the
Code, we conclude that interchanging the terms, when the
count in all other ways identifies the charge as sexual assault
in the second degree and the defendant is fully aware of the
charge, is not sufficient to render the count defective. See
State v. Neal, 179 W. Va. 705, 711, 371 S.E.2d 633, 639 (1988)
(finding that the defendant was fully aware of the charge against
him, and that the indictment was sufficient in spite of the
defendant's contention that one of the counts contained the
statutory elements of two different offenses); State v. Neary,
179 W. Va. 115, 121, 365 S.E.2d 395, 401 (1987) (holding the
failure to use the words "pecuniary interest" in a charge under
W. Va. Code, 61-10-15 (1977), entitled "[p]ecuniary interest of
county and district officers, teachers and school officials in
contracts; exceptions; offering or giving compensation;
penalties," was not sufficient to invalidate the indictment when
"there can be no doubt that the defendant was fully informed of
the particular offense charged and the nature of his interest.");
see also State v. Mullins, 181 W. Va. 415, 418-19, 383 S.E.2d 47,
50-51 (1989) (stating that we require indictments to
"substantially follow" statutory language, although they need
"not strictly spell out statutory requirements[.]" (Emphasis in
original)).
For these same reasons, we conclude that the indictment
was sufficient to prevent the defendant from being prosecuted
again for the same offense. The defendant argues that nothing
prohibits another prosecutor from concluding that he was
convicted of sexual abuse in the first degree and, based upon the
same evidence, seeking a second conviction for sexual assault in
the second degree. However, as previously discussed, we find the
indictment was sufficient to show the defendant was charged with
sexual assault in the second degree. Therefore, we find the
indictment provided the defendant with enough information to
allow him to plead a bar to further prosecution for the offense.
V.
ADMISSIBILITY OF EVIDENCE
The defendant complains that the circuit court erred by
allowing the assistant prosecuting attorney to question a witness
about Rita being removed from the defendant's home as a result of
a prior court proceeding. The witness, the defendant's sister,
was called by the defendant to testify about his relationship
with his children and his reputation in the community. On cross-
examination, the assistant prosecuting attorney questioned the
witness as to whether the defendant had a good relationship with
his children and included the fact that Rita was removed from his
home after a court proceeding for child abuse and neglect. The
defendant made no objections to this line of inquiry.
On redirect, the defendant's attorney said to the
witness: "Mr. King [the assistant prosecuting attorney] asked
you a question concerning Rita [G.H.] being removed from the
home. Do you understand that she was removed from the home
because of allegations?" The witness responded affirmatively and
the defendant's attorney did not ask any more questions.
Immediately thereafter, the assistant prosecuting attorney asked
the witness if she understood that Rita "was removed from the
home by a legal, findings of fact and conclusions of the law by a
circuit judge who--" The defendant's counsel objected to the
question before it was completed and claimed the assistant
prosecuting attorney was misleading the jury to believe that the
prior proceeding somehow proved the defendant was guilty of
something. The record then reads as follows:
"The COURT: He's saying why she was removed from the home. That's overruled.
"Mr. KING: He [the defendant's
attorney] said allegations.
"The COURT: Is there a court order
saying she's removed from the home?
"Mr. KING: Certainly.
"The COURT: Well, then, that's
it."
The assistant prosecuting attorney then continued by questioning
the witness about whether she participated in the other
proceeding.
The defendant asserts that the objection should have
been sustained because evidence of a prior proceeding was
extremely prejudicial and had no probative value. Rule 403 of
the West Virginia Rules of Evidence (1985) provides: "Although
relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence." In Syllabus Point 4 of
Gable v. Kroger Co., 186 W. Va. 62, 410 S.E.2d 701 (1991), we
held:
"Rule 402 and Rule 403 of the West Virginia Rules of Evidence [1985] direct the trial judge to admit relevant evidence, but to exclude evidence whose probative value is substantially outweighed by the danger of unfair prejudice to the defendant."
We further stated in Syllabus Point 2 of State v. Peyatt, 173
W. Va. 317, 315 S.E.2d 574 (1983):
"'Rulings on the admissibility of evidence are largely within a trial court's sound discretion and should not be disturbed unless there has been an abuse of discretion.' State v. Louk, 171 W. Va. 639, [643,] 301 S.E.2d 596, 599 (1983)."
It was well established in the record before this
witness even testified that Rita was removed from the home and
placed under the protection of the State. Moreover, the
defendant never objected to the issue when it was first raised on
cross-examination and actually proceeded to question the witness
about the matter on redirect. It was not until the assistant
prosecuting attorney attempted to clarify defense counsel's use
of the word "allegations" that an objection was raised. Under
these facts and under the foregoing standards, we find no merit
in the defendant's contention that the circuit court erred by
overruling the objection.
VI.
INSUFFICIENT EVIDENCE
The defendant contends that the uncorroborated
testimony of the victim at trial was inherently untrustworthy
because it was substantially different from earlier statements
she gave to the police. The defendant also presented evidence at
trial, and asserts on appeal, that Rita fabricated the
allegations because she was angry at her parents for not allowing
her to participate in the high school band. After reviewing the
entire record, we find there was sufficient evidence to sustain
the convictions.
At the outset, we maintain our position that a
defendant can be found guilty of a sexually-related crime based
upon the uncorroborated testimony of a victim. In Syllabus Point
5 of State v. Beck, 167 W. Va. 830, 286 S.E.2d 234 (1981), we
stated:
"A conviction for any sexual offense may be obtained on the uncorroborated testimony of the victim, unless such testimony is inherently incredible, the credibility is a question for the jury."
We also reiterated our general position on the sufficiency of
evidence for criminal cases in Syllabus Point 10 of State v.
Gill, 187 W. Va. 136, 416 S.E.2d 253 (1992):
"'In a criminal case, a verdict of
guilt will not be set aside on the ground
that it is contrary to the evidence, where
the state's evidence is sufficient to
convince impartial minds of the guilt of the
defendant beyond a reasonable doubt. The
evidence is to be viewed in the light most
favorable to the prosecution. To warrant
interference with a verdict of guilt on the
ground of insufficiency of evidence, the
court must be convinced that the evidence was
manifestly inadequate and that consequent
injustice has been done.' Syllabus Point 1,
State v. Starkey, 161 W. Va. 517, 244 S.E.2d 219 (1978)."
It was within the jury's discretion to decide whether
to believe Rita's account of the events. The defendant pointed
out to the jury inconsistencies between her statements and her
testimony and, in fact, during closing argument, defense counsel
actually called the victim "a pathetic, habitual liar who doesn't
know the truth and the falsehoods any more." It was within the
jury's prerogative to decide whether she was telling the truth,
or whether she made up the story because she was not permitted to
participate in the band program.
The defendant also asserts it is unbelievable that Rita
could recall the May 1990 incident of sexual intercourse in her
February 1991 statement, but fail to mention it in her May 1990
statement that was given the day after the act allegedly
occurred. The defendant notes that, in fact, Rita said in her
May 1990 statement that her father only had "penetrated" her once
and it happened when she was ten or eleven years old. When
viewed in a light most favorable to the prosecution, this
inconsistency along with other inconsistencies mentioned by the
defendant do not make the evidence so manifestly inadequate as to
warrant setting aside the verdict, nor do they make Rita's
testimony "inherently incredible."
VII.
CUMULATIVE ERROR
We reject the defendant's final argument to apply the cumulative error doctrine. In Syllabus Point 5 of State v. Smith, 156 W. Va. 385, 193 S.E.2d 550 (1972), we said: "Where the record of a criminal trial shows that the cumulative effect of numerous errors committed during the trial prevented the defendant from receiving a fair trial, his conviction should be set aside, even though any one of such errors standing alone would be harmless error."
We do not find any trial error in the present case, either
individually or cumulatively, that prevented the defendant from
receiving a fair trial.
VIII.
CONCLUSION
Thus, to summarize our earlier discussion in Part II,
supra, concerning ex post facto principles, we find that counts
two and three for second-degree sexual assault and sexual abuse
by a custodian violate ex post facto principles because the
crimes were not defined as charged when the 1984 or 1985 incident
occurred. We give the State the right to retry the defendant on
count two for second-degree sexual assault under the statute as
it existed in 1984 and 1985. The defendant cannot be retried on
count three because the crime of sexual abuse by a custodian did
not exist in 1984 or 1985.
With regard to sentencing, the convictions for incest in count one, involving the 1984 or 1985 incident, and count four, regarding the 1990 event, are reversed because the circuit court violated ex post facto principles by using the enhanced sentence under a 1991 amendment to the incest statute, W. Va. Code, 61-8-12. The same ex post facto violations occurred as to the sentencing for count five for the conviction for second- degree sexual assault under W. Va. Code, 61-8B-4, and for count six for the conviction of sexual abuse by a custodian under W. Va. Code, 61-8D-5(a), because the circuit court used the 1991 amendments that enhanced the penalties under these statutes. On remand, these sentences must be adjusted to the penalties existing at the time the crimes were committed.
For the foregoing reasons, we hereby affirm, in part,
and reverse, in part, the final order of the Circuit Court of
McDowell County, and remand this case for further proceedings
consistent with this opinion.
Affirmed, in part,
reversed, in part,
and remanded..
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