315 S.E.2d 574 (W.Va. 1983), 15799, State v. Peyatt

Docket Nº15799.
Citation315 S.E.2d 574, 173 W.Va. 317
Opinion JudgeMcHUGH, Justice:
Party NameSTATE of West Virginia v. Mack PEYATT.
AttorneyJanet Frye Steele, Asst. Atty. Gen., Charleston, Linda Nelson Garrett, Pros. Atty., Webster County, Webster Springs, for appellee. Howard J. Blyler, Cowen, for appellant.
Case DateDecember 15, 1983
CourtSupreme Court of Appeals of West Virginia

Page 574

315 S.E.2d 574 (W.Va. 1983)

173 W.Va. 317

STATE of West Virginia

v.

Mack PEYATT.

No. 15799.

Supreme Court of Appeals of West Virginia.

December 15, 1983

Rehearing Denied April 11, 1984.

Page 575

[173 W.Va. 318] Syllabus by the Court

1. "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." Syl. pt. 8, State v. Zaccagnini, W.Va., 308 S.E.2d 131 (1983), quoting Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

2. "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, W.Va., 301 S.E.2d 596, 599 (1983).

3. " 'Whether the State in a criminal proceeding may introduce further evidence after a defendant has rested his case is a matter within the sound discretion of the trial court, and the exercise of that discretion will rarely be cause for reversal.' Point 2, Syllabus, State v. Fitzsimmons, 137 W.Va. 585 [73 S.E.2d 136]." Syl. pt. 8, State v. Pietranton, 140 W.Va. 444, 84 S.E.2d 774 (1954).

4. "The admissibility of evidence as rebuttal is within the sound discretion of the trial court, and the exercise of such discretion does not constitute ground for reversal unless it is prejudicial to the defendant." Syl. pt. 4, State v. Blankenship, 137 W.Va. 1, 69 S.E.2d 398 (1952), overruled on other grounds, State v. McAboy, W.Va., 236 S.E.2d 431, 432 (1977).

Janet Frye Steele, Asst. Atty. Gen., Charleston, Linda Nelson Garrett, Pros. Atty., Webster County, Webster Springs, for appellee.

Howard J. Blyler, Cowen, for appellant.

McHUGH, Justice:

This action is before this Court upon the appeal of Mack Peyatt, appellant and defendant below, from convictions in the Circuit Court of Webster County for incest, 1 first degree sexual assault 2 and third degree

Page 576

sexual assault. 3 Pursuant to such convictions, the trial court sentenced the appellant to indeterminate terms of not less than five nor more than ten years, not less than ten nor more than twenty years and not less than one nor more than five years, respectively, to be served concurrently. This Court has before it the petition for appeal, all matters of record and the briefs and oral argument of counsel.

[173 W.Va. 319] The indictment in this case was based upon the allegations of the appellant's daughter, S, 4 who claimed that the appellant had frequently engaged in sexual intercourse with her from the time of her fourth birthday until she was approximately twelve years old. Upon the appellant's motion for a bill of particulars, the prosecution tendered the following answer:

[T]he acts alleged in the indictment occurred on March 3, 1980 in the defendant's home in Webster County, West Virginia on December 8, 1979; on every birthday of ... [S] ... since she was four years old, except for the last one in 1981; on May 21, 1980 in the defendant's home in Webster County, West Virginia; on the weekend before the end of the school term in defendant's home in Webster County, West Virginia; on the Saturday and Sunday two weeks after the fall 1980 term of school started in defendant's home in Webster County, West Virginia; on every Sunday in ... [S's] ... memory with the earliest date being her fourth birthday; in all rooms of defendant's home except the kitchen, in the woods behind said home and one time during a summer, in the defendant's automobile, all in Webster County, West Virginia. 5

Prior to trial, the appellant filed various motions, one of which was to determine the competency of the appellant to stand trial. At a subsequent hearing on the matter, a psychiatrist testified that the appellant possessed sufficient mental ability to appreciate his actions during the commission of the crimes and that the appellant was competent to stand trial. In addition, the trial court refused to order further psychiatric examination of S to determine whether she was fabricating the allegations against her father.

At trial, the prosecution introduced, in addition to S's testimony, expert medical evidence that S's "hymen was obliterated. It look[ed] like that of a married woman." During S's testimony, she gave a fairly detailed description of the acts the appellant was accused of committing, including the locations where the acts occurred. S further testified that she finally decided to report the activity with her father only after she saw a "commercial about sexual abuse on TV." She stated that "it got me shook up and I decided I should tell before I got hurt."

The appellant sought to show that S fabricated the story about the appellant as a result of her taking medication for epilepsy from which she has suffered since age nine. The defense further attempted to introduce evidence that S had been sexually promiscuous with other males in order to rebut the inference raised by the prosecution's medical expert that the appellant was responsible for her "obliterated" hymen.

Page 577

This latter contention was supported by the testimony of S's siblings, her mother and the appellant. However, after an in camera hearing on the issue, the trial court refused to allow the introduction of such evidence under West Virginia's rape shield statute. 6

The prosecution offered rebuttal witnesses who testified that epileptic seizures and the medication prescribed to treat them would not cause S to fabricate the allegations against her father and that it is common for sexually abused children to report long-term sexual abuse upon reaching puberty.

The appellant's principal assignments of error are as follows: (1) his separate indictments, convictions and sentences for first and third degree sexual assaults and incest violate the double jeopardy clauses of the Constitutions of West Virginia and the United States; (2) the trial court violated his rights under the confrontation clauses of the Constitutions of West Virginia and the United States when it refused to allow the appellant to introduce evidence of the [173 W.Va. 320] victim's past sexual conduct; (3) the trial court erred when it permitted the prosecution to introduce rebuttal witnesses; and (4) the trial court erred when it gave various instructions to the jury upon the definition of reasonable doubt. 7

I

The appellant contends that the trial court erred when it refused to dismiss the indictment or require the prosecution to elect between the sexual assault charges and the incest charge. The appellant argues that separate indictments, convictions and sentences for violating our incest statute and our sexual assault statutes, when such convictions arise out of the same act, infringe upon his rights under the double jeopardy clauses of the Constitution of West Virginia and the Constitution of the United States. 8

Page 578

In West Virginia, "[w]here 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." Syl. pt. 8, State v. Zaccagnini, W.Va., 308 S.E.2d 131 (1983), 9 quoting Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Under the Blockburger test it must be determined whether convictions for violations of the first and third degree sexual assault statutes and conviction for incest constitute convictions for the same offense when such convictions arise out of the same act.

In West Virginia, a conviction for first degree sexual assault includes sexual intercourse by an offender fourteen years of [173 W.Va. 321] age or older with a person who is incapable of consent because he is less than eleven years old or physically helpless and sexual intercourse obtained by "forcible compulsion." W.Va.Code, 61-8B-3 [1976]. See supra note 2. In addition, a conviction for third degree sexual assault may be obtained by proving "sexual intercourse with another person who is incapable of consent because he is mentally defective or mentally incapacitated ..." or sexual intercourse by a person sixteen years of age or older with a person who is "incapable of consent because he is less than sixteen years old ... [and] ... at least four years younger than the defendant." W.Va.Code, 61-8B-5 [1976]. See supra note 3. Conviction for incest may be achieved solely by proving sexual intercourse between the proscribed relationships. W.Va.Code, 61-8-12 [1931]. See supra note 1.

It is clear that convictions under the sexual assault statutes and the incest statute require proof of different elements and are, therefore, not the same offense under the Blockburger test. In the case of first and...

To continue reading

Request your trial
107 practice notes
  • 359 S.E.2d 566 (W.Va. 1987), 17284, State v. Nixon
    • United States
    • West Virginia Supreme Court of Appeals of West Virginia
    • July 15, 1987
    ...in allowing a party to reopen its case. E.g., Syl. Pt. 4, State v. Duell, 175 W.Va. 233, 332 S.E.2d 246 (1985); Syl. Pt. 3, Peyatt, 173 W.Va. 317, 315 S.E.2d 574; Syl. Pt. 4, Daggett, 167 W.Va. 411, 280 S.E.2d 545; Syl. Pt. 4, State v. Fischer, 158 W.Va. 72, 211 S.E.2d 666 (1974). There has......
  • 390 S.E.2d 15 (W.Va. 1990), 18909, State v. Dietz
    • United States
    • West Virginia Supreme Court of Appeals of West Virginia
    • March 8, 1990
    ...court's sound discretion and should not be disturbed unless there has been an abuse of discretion.' " Syl.pt. 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983) (quoting State v. Louk, 171 W.Va. 639, 643, 301 S.E.2d 596, 599 (1983)). 8. "This Court will not consider an error......
  • 390 S.E.2d 796 (W.Va. 1990), 18773, Board of Educ. of McDowell County v. Zando, Martin & Milstead, Inc.
    • United States
    • West Virginia Supreme Court of Appeals of West Virginia
    • February 22, 1990
    ...unless there has been an abuse of discretion." State v. Louk, W.Va., 301 S.E.2d 596, 599 (1983).' Syllabus Point 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983)." Syllabus Point 7, State v. Miller, 175 W.Va. 616, 336 S.E.2d 910 (1985). 11. " 'If scientific, technical......
  • 406 S.E.2d 458 (W.Va. 1991), 19753, State v. Farmer
    • United States
    • West Virginia Supreme Court of Appeals of West Virginia
    • June 14, 1991
    ...has been an abuse of discretion.' State v. Louk, W.Va. [171 W.Va. 639], 301 S.E.2d 596, 599 (1983)." Syl. pt. 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983). 5. "In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidenc......
  • Request a trial to view additional results
107 cases
  • 359 S.E.2d 566 (W.Va. 1987), 17284, State v. Nixon
    • United States
    • West Virginia Supreme Court of Appeals of West Virginia
    • July 15, 1987
    ...in allowing a party to reopen its case. E.g., Syl. Pt. 4, State v. Duell, 175 W.Va. 233, 332 S.E.2d 246 (1985); Syl. Pt. 3, Peyatt, 173 W.Va. 317, 315 S.E.2d 574; Syl. Pt. 4, Daggett, 167 W.Va. 411, 280 S.E.2d 545; Syl. Pt. 4, State v. Fischer, 158 W.Va. 72, 211 S.E.2d 666 (1974). There has......
  • 390 S.E.2d 15 (W.Va. 1990), 18909, State v. Dietz
    • United States
    • West Virginia Supreme Court of Appeals of West Virginia
    • March 8, 1990
    ...court's sound discretion and should not be disturbed unless there has been an abuse of discretion.' " Syl.pt. 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983) (quoting State v. Louk, 171 W.Va. 639, 643, 301 S.E.2d 596, 599 (1983)). 8. "This Court will not consider an error......
  • 390 S.E.2d 796 (W.Va. 1990), 18773, Board of Educ. of McDowell County v. Zando, Martin & Milstead, Inc.
    • United States
    • West Virginia Supreme Court of Appeals of West Virginia
    • February 22, 1990
    ...unless there has been an abuse of discretion." State v. Louk, W.Va., 301 S.E.2d 596, 599 (1983).' Syllabus Point 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983)." Syllabus Point 7, State v. Miller, 175 W.Va. 616, 336 S.E.2d 910 (1985). 11. " 'If scientific, technical......
  • 406 S.E.2d 458 (W.Va. 1991), 19753, State v. Farmer
    • United States
    • West Virginia Supreme Court of Appeals of West Virginia
    • June 14, 1991
    ...has been an abuse of discretion.' State v. Louk, W.Va. [171 W.Va. 639], 301 S.E.2d 596, 599 (1983)." Syl. pt. 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983). 5. "In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidenc......
  • Request a trial to view additional results