State v. Bull
| Decision Date | 04 December 1998 |
| Docket Number | No. 25179.,25179. |
| Citation | 204 W.Va. 255,512 S.E.2d 177 |
| Parties | STATE of West Virginia, Appellee, v. Ardyce C. BULL and Michael P. Bull, Appellants. |
| Court | West Virginia Supreme Court |
Darrell V. McGraw, Jr., Esq., Attorney General, Kristine M. Howard, Esq., Assistant Attorney General, Charleston, West Virginia, Attorneys for Appellee.
Arthur T. Ciccarello, Esq., Ciccarello, Del Giudice & LaFon, Charleston WV, Patrick A. Nichols, Esq., Parsons, West Virginia, Attorneys for Appellants.
I.
In June of 1994, the appellants Michael Bull and Ardyce Bull, who were husband and wife, were living in Parsons, West Virginia. Ardyce Bull is a physician who in June of 1994 was working at Davis Memorial Hospital. It appears that the appellants had moved to Parsons from Texas in 1993.
Ardyce Bull's father, Norman Carlson, a retired steelworker, had been living either with the appellants in Texas, or with Michael Bull's mother (Eva Bull) in Pennsylvania, since shortly after Mr. Carlson's wife passed away in 1990.
In mid-June of 1994, Mr. Carlson, who at the time was 78 years old, had been staying with the appellants in Parsons for several weeks. On Thursday, June 16, or Friday, June 17, 1994, the appellants left their home in Parsons to travel to Eva Bull's home in Pennsylvania, about a 4- or 5-hour drive. The appellants left Mr. Carlson alone at the appellants' home in Parsons.
The weather over the next several days was extremely hot. On Monday, June 20, 1994, at approximately 7:00 p.m., a neighbor went to the appellants' house to give water to the appellants' dogs. The neighbor heard a cat on the screened-in back porch. Thinking that the cat also might need water, the neighbor entered the porch. There the neighbor saw Norman Carlson, sitting on a wooden-slatted lawn chair.
Mr. Carlson was dressed in a cloth robe, underwear, and leather boots with no socks. He had defecated and he was seated in his feces. He had also urinated on himself, and the urine had run down his legs and into his boots. There were bags of garbage and trash on the porch near Mr. Carlson. There was a smelly bucket in the corner of the porch, in which Mr. Carlson had apparently urinated, with a layer of dead flies floating on the surface. Several pairs of men's underwear were also in the bucket.
There was a cushioned chair next to Mr. Carlson. When Mr. Carlson was asked why he was not seated in the more comfortable chair, Mr. Carlson replied that it was Michael Bull's chair—and that he, Mr. Carlson, was not allowed to sit in it.
The neighbor called the police. Soon two employees from Davis Memorial Hospital and a social worker arrived at the Bull residence.
A kitten was in a cage near Mr. Carlson's feet. The kitten was emaciated and there was no food or water in the cage. Mr. Carlson said that the kitten was being punished because it had bitten Michael Bull.
A physician who was a neighbor of the Bulls was called to examine Mr. Carlson. She observed him to be "pleasant, but disoriented." When asked what year it was, he replied 1985. He spoke of his late wife as if she were still alive. Mr. Carlson stated that he was not allowed in the Bulls' house because "he (Mr. Carlson) messed things up."
The physician made a preliminary diagnosis of dementia, determined that Mr. Carlson could not take care of himself, and decided to call an ambulance to take Mr. Carlson to the hospital. The physician believed that, in a medical sense, Mr. Carlson was "an incapacitated adult," because he could not care for his personal needs and lacked judgment.
Several of the persons who had come to the Bulls' house as a result of Mr. Carlson's situation looked around the house, and concluded that there was essentially no edible food in the house or on the porch. There was spoiled hamburger meat and several other unidentifiable spoiled food items in the refrigerator. There was also a box of potatoes on the floor of the kitchen and a package of unopened hamburger buns in the box.
The house was a mess, and sparsely furnished. The kitchen was in disarray. Dirty dishes and pans were piled on the counters and in the sink. There was no furniture in the front room. There were no working light bulbs in the kitchen, the dining room, or the back porch where Mr. Carlson was found.
Before the ambulance arrived, Mr. Carlson was frightened by a bolt of lightning. He arose from the chair, fell, and was unable to get up.
After the ambulance arrived and took Mr. Carlson away, a written note was left for the appellants, telling them that Mr. Carlson had been taken to the hospital. At the hospital, in an initial diagnosis, Mr. Carlson was found to be dehydrated and suffering from dementia. His body hygiene was very poor, indicating a long time since he had bathed. Insect larvae—later determined to likely be maggot larvae—were recovered from Mr. Carlson's pubic region. His toenails were ¾ to 1 inch in length and had begun to curl up under his toes. The urine that had run down his leg into his boots left his feet red, raw, irritated, and swollen. His feet emitted a strong foul smell.
It was also determined at the hospital that Mr. Carlson's dehydration was serious and had the potential of being life-threatening if it continued; he was also found to be suffering from pneumonia. There was substantial medical evidence suggesting that his dementia was of a longstanding Alzheimer's-type nature.
Mr. Carlson remained in the hospital for several weeks and was subsequently placed in a personal care home. The record suggests that there were guardianship proceedings that are not germane to the instant appeal.
Shortly after learning that her father was in the hospital, Ardyce Bull spoke with a social worker in connection with her father's hospitalization. In that conversation Ardyce Bull stated that her father's mental and physical health had been deteriorating since the death of his wife 4 years earlier, and that her father had not been left alone for much more than 48 hours in recent years.
At the appellants' trial, Norman Carlson's sister, who lived in New York State, testified that she had noticed that Mr. Carlson was mentally confused following his wife's death in 1990. At that time he had a slow and uncertain gait. Mr. Carlson's sister said that she would not leave Mr. Carlson alone for more than a few hours at a time when he briefly stayed with her in New York. She also said that she had sent Mr. Carlson on an airplane to live with Ardyce Bull in Texas wearing a button that identified Mr. Carlson as needing assistance from airline personnel, because of his physical and mental disability.
On February 14, 1995, a Tucker County grand jury jointly indicted the appellants, charging each of them with one count of violating W.Va.Code, 9-6-15(b) [1984], which is quoted completely at section III, infra.2
The appellants' indictments cited this statute and further read:
The Grand Jury Charges: That on or about the ___ day of June, 1994, in the County of Tucker, State of West Virginia, Ardyce B. Bull and Michael P. Bull committed the offense of "Neglect and abuse of an incompacitated [sic] adult" while having the actual care, custody or control of Norman Carlson, an incompacitated adult, with the intent to abuse or neglect such adult, did unlawfully, wilfully and feloniously create an emergency situation for said Norman Carlson, an incompacitated [sic] adult, against the peace and dignity of the state.
On February 9, 1996, the appellants filed a request for a Bill of Particulars, asking inter alia for details of the prosecution's proof regarding the allegations that the appellants acted with the intent to abuse or neglect Mr. Carlson. On March 4, 1996, 7 months prior to the appellants' October 1996 criminal trial, the prosecution filed a response to the Bill of Particulars, stating in summary what evidence the prosecution intended to offer to prove the offenses charged in the indictments.
Prior to the appellants' trial, the appellants moved the circuit court to dismiss the indictments, essentially raising the issues that are raised in this appeal. The circuit judge denied the motions. After the prosecution completed its case, but before the defense put on its evidence, the prosecution elected to withdraw the claim that the appellants had an intent to "abuse" Mr. Carlson. The case thus went to the jury only on instructions related to creating an emergency situation for an incapacitated adult by means of intentional "neglect." See discussion at section III, infra.
The jury found both of the appellants guilty as charged. On September 9, 1997, Michael Bull was sentenced to 2 to 10 years' imprisonment. He made a motion for probation that was denied. On October 7, 1997, Ardyce Bull was sentenced to 2 to 10 years' imprisonment. Her sentence was suspended and she was placed on probation. The sentencing judge concluded that she had a lesser degree of culpability.
II.
In the instant appeal, the appellants argue that the circuit court erred in not granting the appellants' motion to dismiss the indictments—on the grounds (1) that the statute upon which the indictments were founded is unconstitutionally vague; (2) that the indictments failed to charge a crime with sufficient specificity; and (3) that the indictments improperly used disjunctive language in charging the appellants.
The appellants also contend that the circuit court erred in failing to grant the appellants' motion for judgment of acquittal following the close of the evidence—on the grounds that the state had failed to prove the allegations in the indictments and the elements of the offense.
We identify the pertinent standards of review as we address these assignments of error.
III.
W.Va.Code, 9-6-15(b) [1984], the principal statutory provision upon which the charges against the appellants were based, stated prior to its...
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