State ex rel. Morgan v. Trent

• Decision Date: 17 November 1995
• Docket Number: 22847,Nos. 22886,s. 22886
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Robert E. MORGAN, Relator, v. George TRENT, Warden, Mt. Olive Correctional Center, Respondent. Larry F. DEAN, Petitioner Below, Appellant, v. William C. DUNCIL, Warden, Huttonsville Correctional Center, Respondent Below, Appellee.

Page 257

465 S.E.2d 257

195 W.Va. 257

STATE of West Virginia ex rel. Robert E. MORGAN, Relator, v. George TRENT, Warden, Mt. Olive Correctional Center, Respondent.

Larry F. DEAN, Petitioner Below, Appellant, v. William C. DUNCIL, Warden, Huttonsville Correctional Center,

Respondent Below, Appellee.

Nos. 22886, 22847.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 12, 1995.

Decided Nov. 17, 1995.

Syllabus by the Court

1. " 'In a criminal prosecution, the State is required to prove beyond a reasonable doubt every material element of the crime with which the defendant is charged....' Syllabus Point 4, State v. Pendry, 159 W.Va. 738, 227 S.E.2d 210 (1976)[.]" Syllabus Point 7, in part, State v. Jenkins, 191 W.Va. 87, 443 S.E.2d 244 (1994).

2. "To trigger application of the 'plain error' doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings." Syllabus Point 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

3. "Under the 'plain error' doctrine, 'waiver' of error must be distinguished from 'forfeiture' of a right. A deviation from a rule of law is error unless there is a waiver. When there has been a knowing and intentional relinquishment or abandonment of a known right, there is no error and the inquiry as to the effect of a deviation from the rule of law need not be determined. By contrast, mere forfeiture of a right--the failure to make timely assertion of the right--does not extinguish the error. In such a circumstance, it is necessary to continue the inquiry and to determine whether the error is 'plain.' To be 'plain,' the error must be 'clear' or 'obvious.' " Syllabus Point 8, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

4. "Assuming that an error is 'plain,' the inquiry must proceed to its last step and a determination made as to whether it affects the substantial rights of the defendant. To affect substantial rights means the error was prejudicial. It must have affected the outcome of the proceedings in the circuit court, and the defendant rather than the prosecutor bears the burden of persuasion with respect to prejudice." Syllabus Point 9, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

5. In construing an ambiguous criminal statute, the rule of lenity applies which requires that penal statutes must be strictly construed against the State and in favor of the defendant.

6. " 'A criminal statute must be set out with sufficient definiteness to give a person of ordinary intelligence fair notice that his contemplated conduct is prohibited by statute and to provide adequate standards for adjudication.' Syl. pt. 1, State v. Flinn, 158 W.Va. 111, 208 S.E.2d 538 (1974)." Syllabus Point 1, State v. Blair, 190 W.Va. 425, 438 S.E.2d 605 (1993).

7. " 'Criminal statutes, which do not impinge upon First Amendment freedoms or other similarly sensitive constitutional rights, are tested for certainty and definiteness by construing the statute in light of the conduct to which it is applied.' Syl. pt. 3, State v. Flinn, 158 W.Va. 111, 208 S.E.2d 538 (1974)." Syllabus Point 3, State v. Blair, 190 W.Va. 425, 438 S.E.2d 605 (1993).

8. The language of W.Va.Code, 61-8B-3(a)(2) (1991), that identifies the victim of sexual assault in the first degree as a person "who is eleven years old or less" applies to a person who is eleven years old, but who has not reached his or her twelfth birthday.

John Boothroyd, Assistant Public Defender, Charleston, for Relator.

Silas B. Taylor, Managing Deputy Attorney General, Charleston, for Respondent and Appellee.

D. Conrad Gall, Fairmont, for Appellant.

MILLER, Justice: ¹

These two cases are consolidated for purposes of appeal because they involve the same issue. Both relators ² were convicted under W.Va.Code, 61-8B-3(a) (1991), which provides, in relevant part, that "[a] person is guilty of sexual assault in the first degree when ... [s]uch person, being fourteen years old or more, engages in sexual intercourse or sexual intrusion with another person who is eleven years old or less." ³ They claim the State failed to prove the victims were eleven years old or less.

The parties agree that in the Morgan case the victim was eleven years and eight months old at the time the assault occurred in 1985. In the Dean case, the victim was approximately the same age as the victim in Morgan at the time the assault occurred in 1986. Both relators argue that because the victims were over the age of eleven, their convictions are invalid. They assert that under the statutory language a crime is only committed if the victim is eleven years old or less. Consequently, they argue once a person reaches his or her eleventh birthday, he or she has already lived eleven years and any time after the eleventh birthday makes such person beyond the age of eleven. The State counters with the argument that the common meaning of being eleven years of age encompasses those months until the person reaches the twelfth birthday. For the following reasons, we agree with the State's position.

I.

Both relators concede that the age issue, which is essentially a question of statutory construction, was not raised at their criminal trials, which occurred in different counties in 1986. Nor was the issue raised on the appeals of their criminal convictions to this Court, which appeals were denied. The relators, however, claim that under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and its progeny, a constitutional error exists because the State failed to prove all the essential elements of the crime under W.Va.Code, 61-8B-3(a)(2). The missing element was proof that the victims were just eleven years old or less as the State's evidence showed both victims were eleven years and eight months old. In Jackson, the United States Supreme Court posed this question, which it answered in the affirmative:

"This is the first of our cases to expressly consider the question whether the due process standard recognized in [In re] Winship [, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) ] constitutionally protects an accused against conviction except upon evidence that is sufficient fairly to support a conclusion that every element of the crime has been established beyond a reasonable doubt." 443 U.S. at 313-14, 99 S.Ct. at 2786, 61 L.Ed.2d at 570.

This fundamental due process point has been impliedly recognized by this Court as evidenced by Syllabus Point 7, in part, of State v. Jenkins, 191 W.Va. 87, 443 S.E.2d 244 (1994):

" 'In a criminal prosecution, the State is required to prove beyond a reasonable doubt every material element of the crime with which the defendant is charged....' Syllabus Point 4, State v. Pendry, 159 W.Va. 738, 227 S.E.2d 210 (1976)[.]"

See also State v. Stacy, 181 W.Va. 736, 741, 384 S.E.2d 347, 352 (1989).

Moreover, in a number of cases, we have utilized the doctrine of plain error to examine unobjected error that is prejudicial to a defendant and may have materially affected the outcome of the criminal proceeding. See, e.g., State v. Mayo, 191 W.Va. 79, 443 S.E.2d 236 (1994) (unconstitutional instruction involving a presumption to supply proof of an element of the crime); State v. Stacy, supra (failure to instruct on the underlying felony in a felony murder case); State v. England, 180 W.Va. 342, 376 S.E.2d 548 (1988) (defective instruction on aggravated robbery).

In our recent case of State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), we addressed the elements of the plain error doctrine found in Rules 30 and 52(b) of the West Virginia Rules of Criminal Procedure. ⁴ This analysis was done following the United States Supreme Court's discussion in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), of the plain error doctrine which is contained in Rules 30 and 52(b) of the Federal Rules of Criminal Procedure. ⁵ In Syllabus Points 7, 8, and 9 of Miller, we extracted the essence of the plain error doctrine following Olano 's methodology:

"7. To trigger application of the 'plain error' doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings.

"8. Under the 'plain error' doctrine, 'waiver' of error must be distinguished from 'forfeiture' of a right. A deviation from a rule of law is error unless there is a waiver. When there has been a knowing and intentional relinquishment or abandonment of a known right, there is no error and the inquiry as to the effect of a deviation from the rule of law need not be determined. By contrast, mere forfeiture of a right--the failure to make timely assertion of the right--does not extinguish the error. In such a circumstance, it is necessary to continue the inquiry and to determine whether the error is 'plain.' To be 'plain,' the error must be 'clear' or 'obvious.'

"9. Assuming that an error is 'plain,' the inquiry must proceed to its last step and a determination made as to whether it affects the substantial rights of the defendant. To affect substantial rights means the error was prejudicial. It must have affected the outcome of the proceedings in the circuit court, and the defendant rather than the prosecutor bears the burden of persuasion with respect to prejudice."

In the context of this case, it is clear that if the relators' view of our first degree sexual assault statute is correct, then the relators' convictions would be void because the victims were over the age of eleven by some eight months. This would meet the plain error doctrine set out in Miller because the age of the victims was a substantial element of the crime. The error was plain, affected substantial rights, that is, proof of an element of the crime, and seriously affected the fairness and integrity of the judicial system. Moreover,...