Ballard v. Dilworth

• Citation: 739 S.E.2d 643,230 W.Va. 449
• Decision Date: 22 February 2013
• Docket Number: No. 11–1456.,11–1456.
• Court: Supreme Court of West Virginia
• Parties: David BALLARD, Warden, Respondent Below, Petitioner v. Steve Lee DILWORTH, Petitioner Below, Respondent.

230 W.Va. 449

739 S.E.2d 643

David BALLARD, Warden, Respondent Below, Petitioner

v.Steve Lee DILWORTH, Petitioner Below, Respondent.

No. 11–1456.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 16, 2013.

Filed Feb. 22, 2013.

Syllabus by the Court

1. “In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three-prong standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standard; and questions of law are subject to a de novo review.” Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

2. “Generally, the sufficiency of an indictment is reviewed de novo. An indictment need only meet minimal constitutional standards, and the sufficiency of an indictment is determined by practical rather than technical considerations.” Syl. Pt. 2, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996).

3. “ ‘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.’ Syl. Pt. 3, State v. Hall, 172 W.Va. 138, 304 S.E.2d 43 (1983).” Syl. Pt. 1, State v. Mullins, 181 W.Va. 415, 383 S.E.2d 47 (1989).

4. “ ‘An indictment is sufficient under Article III, § 14 of the West Virginia Constitution and W.Va. R.Crim. P. 7(c)(1) if it (1) states the elements of the offense charged; (2) puts a defendant on fair notice of the charge against which he or she must defend; and (3) enables a defendant to assert an acquittal or conviction in order to prevent being placed twice in jeopardy.’ Syl. Pt. 6, State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999).” Syl. Pt. 5, State v. Haines, 221 W.Va. 235, 654 S.E.2d 359 (2007).

Gerald B. Hough, Esq., Prosecuting Attorney for Gilmer County, Glenville, WV, for the Petitioner.

Ray M. Shepard, Esq., Smith, Gildea & Schmidt LLC Towson, MD, for the Respondent.

PER CURIAM:

Petitioner David Ballard, Warden of the Mount Olive Correctional Complex (hereinafter “Warden Ballard”),¹ appeals from the September 21, 2011, order of the Circuit Court of Gilmer County setting aside the conviction and sentence of the respondent herein and petitioner below, Steve Lee Dilworth (hereinafter “Mr. Dilworth”), on nine of ten counts of sexual abuse by a guardian. In granting relief to Mr. Dilworth on his habeas corpus petition, the circuit court found that the indictment was constitutionally deficient because it did not provide adequate notice of each of the charges and potentially subjected him to double jeopardy.² The circuit court did not disturb Mr. Dilworth's conviction and sentence on Count One finding that the indictment provided him with adequate notice to defend as to one count of sexual abuse by a guardian. Warden Ballard seeks to reverse the circuit court's ruling and argues that the indictment was constitutionally sufficient. Having fully considered the appendix record in this matter in conjunction with the parties' briefs and the arguments presented, this Court reverses the circuit court's order granting habeas relief and orders that Mr. Dilworth remain imprisoned under the sentencing order entered in the underlying criminal proceeding.

I. Factual and Procedural Background

On July 6, 2006, Mr. Dilworth was indicted on ten counts of sexual abuse by a guardian. Each count of the indictment involved Mr. Dilworth's stepdaughter, D.H. (hereinafter “the victim”),³ who was seventeen years old when she reported the abuse to her mother, Christine Dilworth. Mrs. Dilworth confronted Mr. Dilworth and later contacted law enforcement. Mr. Dilworth was taken into custody on May 24, 2006. While in police custody, Mr. Dilworth confessed to sexually abusing the victim throughout a period of several years, although he could not identify specific dates and times.

Each count ⁴ of Mr. Dilworth's indictment charged an offense under West Virginia Code § 61–8D–5(a) (2005), which provides, in pertinent part, as follows:

If any parent, guardian or custodian of or other person in a position of trust in relation to a child under his or her care, custody or control, shall engage in or attempt to engage in sexual exploitation of, or in sexual intercourse, sexual intrusion or sexual contact with, a child under his or her care, custody or control, notwithstanding the fact that the child may have willingly participated in such conduct, or the fact that the child may have consented to such conduct or the fact that the child may have suffered no apparent physical injury or mental or emotional injury as a result of such conduct, then such parent, guardian, custodian or person in a position of trust shall be guilty of a felony....

At trial, held on January 30 and 31, 2007, the victim testified to sexual conduct that began when she was eight years old while the family was living in Maryland. As to the acts of sexual abuse that occurred in 2001, in West Virginia, the victim testified, as follows:

Q: And tell us about the year 2001 and any activities of sexual abuse by [Mr. Dilworth] upon you.

A: [Mr. Dilworth] would come into my bedroom in Coxs Mill, and it was usually always in the early morning ... he would lay behind me and just start to, like, rub my back and stuff underneath of my shirt or pajamas, and that would turn to, like, breast fondling, and he would rub his penis on my butt area, and then sometimes he would lick or suck on my breasts, and he'd pull down my pants sometimes and, like, just, you know, spread my legs and look in my vaginal area ...

...

Q: Can you say exactly how many times he [Mr. Dilworth] came in your room in 2001?

A: No, I can't.

Q: Would you be able to truthfully tell this jury it was more than once?

A: (Nodded.) Yes.

Q: Was it as many as ten times?

A: (Nodded.) Yes.

Q: Was it at least ten times?

A: Yes. (Crying.)

...

Q: So between January 1, 2001, when you're 12 and your last clearly recollected ... out of the ten is in November 2001. Between January 2001 and November 2001, did that defendant early in the morning come into your bedroom and touch you sexually?

A: Yes.

Q: More than once?

A: Yes.

Q: At least ten times?

A: Yes. (Crying.)

Q. Can you recollect the exact date? Did you mark them on a calendar?

A. (Shook head.) No.

Q. Was it the routine in the household for ... your stepdad, to come in and help you get started for school, to get dressed, or to get ready?

A. He would wake me up.

...

Q. In the year 2001, did that defendant (indicated) wake you up ten times sexually?

A. Yes.

Although Mr. Dilworth did not testify at trial, his incriminating statement ⁵ given to West Virginia State Trooper Robert Smith on May 24, 2006, was read into evidence at trial by Trooper Smith. In this statement, Mr. Dilworth stated, in part, as follows:

Q: Where did you touch her [the victim]?

A: I touch [sic] her a* *, and I then touch [sic] her boobs about five years ago. It started by cuddling, then I touched her boobs, I knew I was wrong. (Emphasis added).

...

Q: Approximately, how many time [sic] would you say you touch [sic] her breast or butt?

A: I do not known [sic].

Q: Where would this take place in the house?

A: Usually in her room.

Q: How would it started [sic]?

A: It didn't start out sexually. I wasn't trying to get fu* *ed, it was loving. I fu* *ed up years ago ... You can't take back what you did.

...

Q: When you touched her breast, how would you touch them?

A: Just rub them.

Q: How about her butt?

A: Just rub on it.

Q: Did you become sexually arouse [sic]?

A: Yes.

...

Q: Can you recall the first incident?

A: No.

Q: Do you know the year?

A: No.

Q: How about the season?

A: No.

...

Q: Would you say you touched her breast or butt more than ten times [sic]?

A: Yes

Q: How about twenty time [sic]?

A: I don't know. Once is bad enough.

Q: Did the touching happen often?

A: I don't remember.

Q: Over how many years did this occurr [sic]?

A: Many year [sic]. I do not remember individivul [sic] times, if I could I could count them.

At the close of the State's case and, again, after the defense rested, Mr. Dilworth moved for a judgment of acquittal pursuant to Rule 29 of the West Virginia Rules of Criminal Procedure. Mr. Dilworth argued that the State's evidence failed to prove that he was the victim's “guardian” as charged in the indictment. The trial court denied both of these motions. On January 31, 2007, the jury returned its verdict finding Mr. Dilworth guilty on all ten counts of the indictment. By order entered on April 19, 2007, the circuit court sentenced Mr. Dilworth to ten to twenty years of incarceration on each of the ten counts, running the sentences imposed on Counts One, Two, and Three consecutively, suspending the sentences imposed on Counts Three through Ten, and imposing a probationary period of five years upon Mr. Dilworth's release from incarceration.

On January 10, 2008, Mr. Dilworth's direct appeal to this Court was refused unanimously.⁶ On July 20, 2010, following the stay of his federal habeas proceeding,⁷ Mr. Dilworth filed a petition for a writ of habeas corpus and a supporting memorandum of law in the circuit court setting forth six grounds for relief.⁸

On September 21, 2011, the circuit court entered an order denying habeas relief on all but one of the grounds propounded by Mr. Dilworth on the basis that he was estopped under West Virginia Code § 53–4A–1(b)⁹ from asserting claims previously adjudicated by the district court in his federal habeas proceeding.¹⁰ The circuit court addressed Mr. Dilworth's challenge to the constitutional sufficiency of his indictment based on the identical wording of the counts. Relying upon Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), and Valentine v. Konteh, 395 F.3d 626 (6th Cir.2005), the circuit court found that...