State v. Allman
| Decision Date | 19 December 1986 |
| Docket Number | No. 16298,16298 |
| Citation | 177 W.Va. 365,352 S.E.2d 116 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia v. Clarden ALLMAN. |
Syllabus by the Court
1. Syl. pt. 2, State v. Wyer, --- W.Va. ----, 320 S.E.2d 92 (1984).
2. Where a child is in the care of a supervisory adult, the child is not the "voluntary social companion" of the adult within the meaning of W.Va. Code § 61-8B-3 (1981).
3. "The general rule is that where there is a delay between the commission of the crime and the return of the indictment or the arrest of the defendant, the burden rests initially upon the defendant to demonstrate how such delay has prejudiced his case if such delay is not prima facie excessive." Syl. pt. 1, State v. Richey, --- W.Va. ----, 298 S.E.2d 879 (1982).
Ernest M. Douglass, Parkersburg, for appellant.
Harry G. Dietzler, P.A., Parkersburg, for appellee.
This is an appeal from a judgment of the Circuit Court of Wood County, where a jury found the appellant, Clarden Allman, guilty of six counts of first degree sexual assault. On review we find error in the trial court's refusal to provide Mr. Allman access to certain psychological records of the complainant, and reverse.
Mr. Allman is accused by his granddaughter, who is also his niece, of forcing her to have sexual intercourse with him on six separate occasions. The granddaughter was fourteen at the time of the first alleged rape and fifteen at the time of the other five. Five of the offenses were alleged to have occurred in Mr. Allman's home, the other at a social gathering at the granddaughter's house to which Mr. Allman was invited. The offenses were alleged to have occurred from May, 1981, to February, 1982. The granddaughter testified that she did not immediately tell anyone about the assaults because Mr. Allman told her that if she told anyone, he would kill her parents. Further, she claimed that she blocked the incidents out of her mind.
After his arrest, Mr. Allman requested that the granddaughter submit to a mental examination and that he be allowed to review her psychological records. The psychological records were delivered to the court, who reviewed the records ex parte. After this review the court ruled that the records were not discoverable and also ruled that the granddaughter would not have to submit to a psychological examination. The records were made a part of the record on appeal, however, and were reviewed by this Court. In our review we found admissions by the granddaughter which would partially exculpate Mr. Allman. 1
Allman was tried before a jury in the Circuit Court of Wood County, West Virginia, on August 15 and 16, 1983. At the trial the granddaughter was the chief prosecution witness. Her testimony consisted of a convincing narrative detailing the six rapes. The jury found Mr. Allman guilty of six counts of sexual assault in the first degree and he was sentenced to six concurrent terms of ten years each.
Mr. Allman originally appealed to this Court in 1984, but voluntarily dismissed his appeal to take advantage of the light sentence of six concurrent terms of ten years each. The statute for first degree sexual assault, however, required a sentence of ten-to-twenty years. W.Va. Code § 61-8B-3 (1981). The probation board, therefore, would not consider the lighter sentence and instead treated him according to the statutorily prescribed sentence. After the probation board's decision, Mr. Allman petitioned this Court to have his appeal reinstated and we granted his petition. Mr. Allman, therefore, now appeals to this Court citing four assignments of error which we now address.
Mr. Allman argues that although the sentence imposed by the lower court may have been improper, the trial court waited longer than the 120 days allowed by Rule 35 of the West Virginia Rules of Criminal Procedure to correct the mistake. This issue was presented to us before in the case of Cohn v. Ketchum, 123 W.Va. 534, 17 S.E.2d 43 (1941). In Cohn the defendant received a one year sentence upon his conviction for a worthless check when the statute called for an indeterminate sentence of one-to-five years, and the court did not correct this error in the prescribed period. Nevertheless, we held that the trial court's sentence of one year had no other effect than a recommendation to the director of probation and parole and that the pertinent statute should be read into and considered a part of the sentence imposed by the trial court. The appellant's sentence of ten years by the trial court instead of the statutorily prescribed ten-to-twenty year sentence was, therefore, merely a recommendation to the board of probation, which properly applied the correct sentence.
Mr. Allman next argues that his granddaughter was a voluntary social companion. The importance of this is indicated by syllabus point 2 of State v. Wyer, --- W.Va. ----, 320 S.E.2d 92 (1984):
The legislature, by enactment of W.Va.Code, 61-8B-3(a)(1) (1976), relating to sexual assault in the first degree, created a distinction between a voluntary and a nonvoluntary social companion with regard to the elements of the crime of sexual assault in the first degree. Where the victim is a nonvoluntary social companion, the State need prove only that fact and that she was subjected to sexual intercourse by forcible compulsion. Where a voluntary social companion is involved, the State must in addition show either (1) the infliction of serious bodily injury on anyone or (2) the employment of a deadly weapon in the commission of the crime. Finally, where a voluntary social companion is involved and there is sexual intercourse by forcible compulsion but without either of the foregoing aggravating circumstances, the crime is then sexual assault in the second degree under W.Va.Code, 61-8B-4 (1976).
The granddaughter was neither seriously injured or threatened by a deadly weapon. Therefore, if we were to rule that she was the voluntary social companion of Mr. Allman, it would reduce his crime to that of sexual assault in the second degree.
We disagree, however, with Mr. Allman's contention. The evidence shows clearly in this case that the granddaughter was not the voluntary social companion of Mr. Allman within the meaning of W.Va.Code § 61-8B-3. The term was designed to cover a friendship or dating-type situation. 2 In this case, the granddaughter was not a social friend, but a ward placed in Mr. Allman's care, partially so that he could watch out for her and protect her from just the sort of incidents which the granddaughter alleged occurred. As her grandfather, he had some control over her actions. We will not allow a defendant to take advantage of the fact that he was appointed in a position of trust over a child to obtain a lesser sentence when he forcibly raped his ward. 3 We therefore conclude...
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