State v. Lewis

Decision Date29 May 2015
Docket NumberNo. 14–0339.,14–0339.
Citation235 W.Va. 694,776 S.E.2d 591
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia, Plaintiff Below, Respondent v. Robert Lee LEWIS, Defendant Below, Petitioner.

235 W.Va. 694
776 S.E.2d 591

STATE of West Virginia, Plaintiff Below, Respondent
v.
Robert Lee LEWIS, Defendant Below, Petitioner.

No. 14–0339.

Supreme Court of Appeals of West Virginia.

Submitted April 8, 2015.
Decided May 29, 2015.


Matthew A. Victor, Esq., Victor, Victor & Helgoe LLP, Charleston, WV, for Petitioner.

Patrick Morrisey, Esq., Attorney General, Derek A. Knopp, Esq., Assistant Attorney General, Charleston, WV, for Respondent.

Opinion

LOUGHRY, Justice:

235 W.Va. 698

This case is before us upon the appeal of the petitioner, Robert Lee Lewis, from the March 28, 2014, order of the Circuit Court of Kanawha County re-sentencing him1 on his convictions for burglary, abduction with intent to defile, second degree sexual assault, violation of a domestic violence protective order, and recidivism. The petitioner seeks to set aside his conviction for abduction with intent to defile on the basis that the criminal offense set forth in West Virginia Code § 61–2–14(a) (2014) is unconstitutionally vague. He challenges his convictions for abduction with intent to defile and second degree sexual assault on grounds of double jeopardy. The petitioner's remaining assignments of error allege an insufficiency of the State's evidence to convict him of the crimes of burglary and second degree sexual assault, the inadequacy of the jury instruction on abduction with intent to defile, and errors related to his recidivist conviction and sentencing. Following a careful review of the briefs, the arguments of counsel, the record submitted, and the applicable law, this Court finds no reversible error and affirms the petitioner's convictions and attendant sentencing.

I. Facts and Procedural Background

Around 10:00 p.m. on March 26, 2009, the victim, L.F.,2 was in her apartment with her boyfriend, Harry Jones, when she heard a knock at the front door. L.F. went to her front door wearing only a t-shirt. When the person at her door identified himself as “George,” L.F.'s friend, the victim unlocked and opened the door far enough to say that she needed to get dressed. She immediately discovered that the person at her door was the petitioner, her former boyfriend against whom a domestic violence protective order was in place. This protective order required the petitioner to stay away from L.F., and it gave her sole possession of the apartment.3

Although L.F. attempted to close her front door, the petitioner kicked it open and entered the apartment. The victim ran toward her bedroom, but was caught by the petitioner, who forcibly carried her from the apartment as she screamed for help. Mr. Jones, who was naked at the time, witnessed the abduction and ran to the bedroom to retrieve his cellular telephone to call 911. Given his state of undress, he did not immediately pursue L.F. As he was telephoning the police, Mr. Jones attempted to observe where the petitioner was taking L.F., but lost sight of them. The police responded to Mr. Jones's 911 call and searched the general vicinity, but could not locate either the victim or her abductor.

L.F. continued to struggle and scream for help as the petitioner carried her to an apartment located a couple of blocks away on Grant Street.4 While at that apartment, which was unoccupied at the time, the petitioner had forcible vaginal intercourse with the victim, choking her as he held her down.5 L.F. was uncertain as to how long she was in the Grant Street apartment. When an opportunity

235 W.Va. 699
776 S.E.2d 596

to escape arose, she ran barefoot back to her apartment, arriving around midnight. The petitioner followed the victim back to her apartment and sat on her front steps. According to the victim, the petitioner said she should telephone the police because he knew he was going to prison for rape and kidnapping.6 The police were then contacted for the second time that evening.7

Following the second emergency call, the police returned to the victim's apartment and arrested the petitioner. L.F. was transported to the hospital where photographs of the bruising to her back, neck, chest, arms, and legs were taken. She left the hospital during the early morning hours of March 27, 2009.

On July 31, 2009, a grand jury returned a six-count indictment against the petitioner, charging him with burglary by breaking and entering (Count One);8 burglary by entering without breaking (Count Two);9 kidnapping (Count Three);10 second degree sexual assault (vaginal intercourse) (Count Four);11 second degree sexual assault (oral intercourse) (Count Five);12 and the willful and knowing violation of the terms of the domestic violence protective order (Count Six).13 Prior to the commencement of the petitioner's trial on November 2, 2009, he pled guilty to Count Six. Thereafter, his trial proceeded on the remaining counts.

The State presented the testimony of the victim and Mr. Jones, who each testified consistently with the facts set forth above. The State's evidence also included the testimony of the police officers who responded to the 911 calls on the night in question, as well as the police photographs of the victim's front door, which showed signs of forcible entry, and the bruising to the victim's back, neck, chest, arms, and legs.

At the close of the State's case-in-chief, the petitioner moved for an acquittal on all charges. The trial court denied the motion, and the petitioner did not call any witnesses in his defense. The jury returned its verdict, finding the petitioner guilty of burglary by entering without breaking (Count Two); abduction with the intent to defile, a lesser included offense of kidnapping (Count Three); and second degree sexual assault (Count Four). The petitioner was found not guilty on the remaining counts.

Prior to sentencing, the State filed a Recidivist Information against the petitioner. The State alleged that the petitioner was convicted of a felony in the state of Virginia in 1994. The Virginia documentation produced by the State showed that the petitioner was indicted for murder, but pled guilty to the lesser included felony offense of voluntary manslaughter. The documentation further showed that the Virginia court imposed a penitentiary sentence upon the petitioner for a term of ten years, with six years of that term suspended.14

On March 29, 2010, a recidivist trial was held. The State's evidence included documentation demonstrating that the petitioner was the same Robert Lee Lewis who was convicted of the felony in Virginia in 1994. The petitioner did not call any witnesses nor present any evidence. The jury returned a guilty verdict finding the petitioner “guilty of having been convicted of a crime punishable by confinement in a penitentiary as contained in [the] recidivist information.”

During the sentencing hearing conducted on April 20, 2010, the trial court imposed upon the petitioner the following terms of imprisonment: one to fifteen years for burglary; three to ten years for abduction with

235 W.Va. 700
776 S.E.2d 597

intent to defile; and twelve months for violating the domestic violence protective order. In addition, based on the recidivist conviction, the trial court enhanced the petitioner's sentence for second degree sexual assault by increasing the statutory ten to twenty-five-year term of imprisonment15 to twenty to twenty-five years, as provided for in West Virginia Code § 61–11–18 (2014), the recidivist sentencing statute. The trial court also ordered all sentences to be served consecutively with the exception of the twelve-month sentence, which was ordered to run concurrently with the other sentences. The petitioner's sentencing was reiterated in the trial court's order entered on April 27, 2010. An order re-sentencing the petitioner and appointing appellate counsel was entered on March 28, 2014. This appeal followed.

II. Standard of Review

The petitioner asserts several assignments of error. A double jeopardy challenge is raised regarding his convictions for abduction with intent to defile and second degree sexual assault. As we have previously held, “a double jeopardy claim [is] reviewed de novo. ” Syl. Pt. 1, in part, State v. Sears, 196 W.Va. 71, 468 S.E.2d 324 (1996). Likewise, our review is necessarily plenary regarding the petitioner's claim that the abduction with intent to defile statute is unconstitutionally vague, as well as his alleged instructional error concerning abduction with intent to defile. See Syl. Pt. 1, State v. Rutherford, 223 W.Va. 1, 672 S.E.2d 137 (2008) (“The constitutionality of a statute is a question of law which this Court reviews de novo. ”); Syl. Pt. 1, in part, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996) (“[T]he question of whether a jury was properly instructed is a question of law, and the review is de novo. ”).

The petitioner also challenges the sufficiency of the State's evidence against him on the charges of burglary and second degree sexual assault. In this regard, we observe that

[a] criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a
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