State v. Hulbert

• Decision Date: 12 March 2001
• Docket Number: No. 28394.,28394.
• Citation: 544 S.E.2d 919,209 W.Va. 217
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. William Glen HULBERT, Defendant Below, Appellant.

544 S.E.2d 919

209 W.Va. 217

STATE of West Virginia, Plaintiff Below, Appellee, v. William Glen HULBERT, Defendant Below, Appellant.

No. 28394.

Supreme Court of Appeals of West Virginia.

Submitted January 23, 2001.

Decided March 12, 2001.

Darrell V. McGraw, Jr., Attorney General, Jeffrey G. Blaydes, Deputy Attorney General, for the Appellee.

Dreama D. Sinkkanen, Public Defender Corporation, Clarksburg, for the Appellant.

ALBRIGHT, Justice:

Appellant William Glen Hulbert appeals from his convictions for third offense domestic assault and wanton endangerment with a firearm. In challenging his conviction for domestic assault under West Virginia Code § 61-2-28(c) (1994) (Repl.Vol.2000), Appellant argues that a third offense conviction under this statute is only permitted when the predicate offenses were committed in this state. Because his two prior convictions were from Kalamazoo County, Michigan, Defendant contends that the third offense conviction cannot be upheld. Appellant challenges his conviction under West Virginia Code § 61-7-12 (1994) (Repl.Vol.2000) for wanton endangerment with a firearm, arguing that a required element of that offense is a discharge of the firearm. Appellant further asserts error based on the trial court's refusal to strike for cause a particular juror, whose voir dire testimony suggested an increased propensity to find Appellant guilty if she was apprised of prior domestic assault convictions. Based on our review of the record, we find no merit to Appellant's assignments of error concerning the wanton endangerment conviction and voir dire, but we do find error with regard to the domestic violence conviction. Accordingly, we affirm, in part; reverse, in part; and remand for entry of a new sentencing order consistent with the holdings of this opinion.

I. Factual and Procedural Background

On July 24, 1999, a domestic incident involving Appellant and his female companion, Linda Gowers, began at the Singleton residence¹ where Appellant and Ms. Gowers had been residing for several weeks. After leaving the Singleton residence on the morning of July 24th,² Appellant returned to the Singleton's property at about 3:20 p.m. Following some initial conversation outside, Ms. Gowers followed Appellant into the pantry in the Singleton home, where the Singletons kept both knives and guns. During the twohour period³ when Ms. Gowers remained in the pantry, Appellant showed Ms. Gowers a 7 millimeter rifle;⁴ asked Ms. Gowers to help Appellant kill himself; brandished a knife; and threatened to kill both Ms. Gowers and her children. At approximately 9:30 p.m. on this same date, Appellant was arrested and charged with domestic violence and wanton endangerment.

At trial, which occurred on October 18 and 19, 1999, the State offered two witnesses: Ms. Gowers and the arresting officer, Harrison County Sheriff's deputy Don Quinn. Appellant did not take the stand in his own defense. Based on two prior convictions for domestic violence in the State of Michigan, the State prosecuted Appellant for a third offense of domestic violence—an offense which contains a built-in sentence enhancement. See W.Va.Code § 61-2-28(c). Appellant was convicted on both counts, third offense domestic violence and wanton endangerment. Following the sentencing hearing on November 29, 1999, the trial court entered an order on December 9, 1999, sentencing Appellant to one to five years for third offense domestic battery and five years for wanton endangerment with a firearm, with the sentences to be served consecutively.

II. Standard of Review

With regard to the issues raised concerning the elements necessary to prove convictions under West Virginia Code §§ 61-2-28(c) and 61-7-12, our standard of review is de novo because statutory interpretation is clearly involved. See Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995) ("Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review."). We review the issue concerning the lower court's failure to strike for cause juror Fullen under an abuse of discretion standard. See Syl. Pt. 2, State v. Beacraft, 126 W.Va. 895, 30 S.E.2d 541 (1944) (holding that "[i]n a criminal case, the inquiry made of a jury on its voir dire is within the sound discretion of the trial court and not subject to review, except when the discretion is clearly abused"); see also Syl. Pt. 2, Michael on Behalf of Estate of Michael v. Sabado, 192 W.Va. 585, 453 S.E.2d 419 (1994) (recognizing that "[t]he official purposes of voir dire is to elicit information which will establish a basis for challenges for cause and to acquire information that will afford the parties an intelligent exercise of peremptory challenges" and that "[t]he means and methods that the trial judge uses to accomplish these purposes are within his discretion").

III. Discussion

A. Domestic Violence Conviction

1. Out-of-State Convictions as Predicate Offenses

Appellant seeks a reversal of his conviction for third offense domestic violence, contending that only such offenses which have resulted in convictions in this state can serve as the necessary prior convictions under the West Virginia statute. To support his position, Appellant looks to the language of West Virginia Code § 61-2-28(c), which defines an offense of domestic assault and/or battery by cross-referencing the definitions for the criminal offenses of assault and battery, as stated in West Virginia Code § 61-2-9 (1978) (Repl. Vol.2000). Since the statute expressly refers to the West Virginia definitions of assault and/or battery, Appellant reasons that only offenses committed in West Virginia can serve as predicate offenses within the statutory contemplation of West Virginia Code § 61-2-28(c). In addition, Appellant asserts that if the Legislature had intended that outof-state domestic violence convictions could serve as the predicate offenses for a third offense conviction, West Virginia Code § 61-2-28(c) would have been written in terms similar to West Virginia Code § 17C-5-2(l)(3) (1996) (Repl.Vol.2000), which expressly provides for the use of out-of-state convictions as the predicate offenses for third offense DUI convictions.

In response to Appellant's contentions, the State argues that the language of West Virginia Code § 61-2-28(c) suggests legislative approval for using out-of-state convictions as predicate offenses. Citing the inclusion of the terms "as defined" in reference to the offenses of domestic assault and battery, the State suggests that this statutory language indicates an inclusive, rather than an exclusive, approach to the use of outof-state convictions. According to the State, the key to whether an out-of-state offense can qualify as a predicate offense is determined by whether the foreign conviction was for an offense that substantially parallels the elements of offenses under West Virginia Code § 61-2-28. Furthermore, the State notes that nothing in the statutory scheme suggests that our Legislature intended that the enhanced penalties set forth in West Virginia Code § 61-2-28(c) would apply only when the predicate domestic violence offenses occurred within this state's boundaries.⁵ The State suggests that the exact opposite is true and cites to the enactment of the Domestic Violence Act, West Virginia Code §§ 48-2A-1 to -14 (1998) (Repl.Vol. 1999), and its clear adoption of legislative policy aimed at both preventing and punishing domestic violence.⁶See W.Va.Code § 48-2A-1. The State contends that the objectives of the Domestic Violence Act should be examined as an aid to our determination of whether out-of-state convictions can be used to enhance punishment for a domestic violence offense under West Virginia Code § 61-2-28.⁷

In stating the purpose of the Domestic Violence Act, the Legislature has declared the following:

(1) No one should be a victim of domestic or family violence. All people have a right to be safe in their homes and in their families;

(2) Children are often physically assaulted or witness violence against one of their parents or other family or household members, violence which too often ultimately results in death. These children may suffer deep and lasting emotional harm from victimization and from exposure to domestic or family violence;

(3) Domestic or family violence is a major health and law-enforcement problem in this state with enormous costs to the state in both dollars and human lives. It affects people of all racial and ethnic backgrounds and all socioeconomic classes; and

(4) Domestic or family violence can be deterred, prevented or reduced by legal intervention that treats this problem with the seriousness that it deserves.

W.Va.Code § 48-2A-1(a).

The State convincingly posits that nothing in the objectives articulated in West Virginia Code § 48-2A-1, or in the language of West Virginia Code § 61-2-28, evinces a legislative concern to limit the scope of this state's policy against domestic violence to those offenses that occur in this state. Given the legislative decision to treat repeat domestic offenders more severely, combined with the legislative recognition of the seriousness of domestic violence, we agree with the State's contention that permitting out-of-state domestic violence offenses to serve as predicate offenses for enhancement purposes is consistent with the Legislature's articulated policy of preventing and deterring domestic violence. See West Virginia Code § 48-2A-1.⁸ Upon a careful examination of the Domestic Violence Act in conjunction with West Virginia Code § 61-2-28, we are convinced that the Legislature intended to punish second or third instances of domestic violence more severely, regardless of where the earlier conduct occurred. To do otherwise, would invite repeat domestic offenders to move to this state to take advantage of the proverbial "clean slate," thereby...