State v. Carter

CourtSupreme Court of West Virginia
Writing for the CourtMILLER
Citation282 S.E.2d 277,168 W.Va. 90
PartiesSTATE of West Virginia v. Leonard G. CARTER. 14222.
Decision Date22 September 1981

Page 277

282 S.E.2d 277
168 W.Va. 90
STATE of West Virginia
v.
Leonard G. CARTER.
14222.
Supreme Court of Appeals of West Virginia.
Sept. 22, 1981.

Syllabus by the Court

1. W.Va.Code, 61-8B-1(7), defining sexual intercourse, when read in conjunction with W.Va.Code, 61-8B-3, defining sexual assault in the first degree, indicates that an act of forcible oral intercourse and an act of forcible anal intercourse are separate and distinct offenses.

2. Where a defendant commits separate acts of our statutorily defined term "sexual intercourse" in different ways, each act may be prosecuted and punished as a separate offense.

3. "The question of the competency of a child as a witness in any case is always addressed to the sound discretion of the trial judge, and if it appears that a careful and full examination as to the age, intelligence, capacity and moral accountability has been made by the judge and counsel and the trial judge has concluded that he is

Page 277

competent, the appellate court will not reverse the ruling which permits the evidence to be introduced unless it is apparent that it was flagrantly wrong." Syllabus Point 6, State v. Daggett, W.Va., 280 S.E.2d 545 (1981).

4. "In determining whether an out-of-court identification of a defendant is so tainted as to require suppression of an in-court [168 W.Va. 91] identification a court must look to the totality of the circumstances and determine whether the identification was reliable, even though the confrontation procedure was suggestive, with due regard given to such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Syllabus Point 3, State v. Casdorph, W.Va., 230 S.E.2d 476 (1976).

5. Testimony may ordinarily be admitted concerning the assertive conduct of a person if the meaning of such conduct is clear and is accompanied by circumstances which afford the conclusion that the conduct is spontaneous in nature.

6. Third party testimony regarding an out-of-court identification may in certain circumstances be admissible when the identifying witness testifies at trial because both the identifying witness and the third party are then available for cross-examination.

Page 279

Henderson & Redd, Herbert H. Henderson and William L. Redd, Huntington, for plaintiff in error.

Chauncey H. Browning, Atty. Gen., S. Clark Woodroe, Asst. Atty. Gen., Charleston, for defendant in error.

MILLER, Justice:

Appellant, Leonard G. Carter, was convicted on two counts of first degree sexual assault by a jury in the Circuit Court of Cabell County and was sentenced to two concurrent ten- to twenty-year terms in the State Penitentiary. Appellant's major assignment of error is that the two offenses for which he was convicted involve the same criminal transaction. Therefore, it is argued that the [168 W.Va. 92] principles of double jeopardy would foreclose punishment for both offenses. 1

Appellant was charged in count one with first degree sexual assault through forcible compulsion by inserting his penis into the mouth of the victim. In count two the appellant was charged with inserting his penis into the anus of the victim, again by forcible compulsion. He contends that these offenses are part of the same occurrence or transaction and that the sexual offense statute does not make these acts separate offenses. W.Va.Code, 61-8B-3(a), defines first degree sexual assault by use of the term "sexual intercourse:"

"(a) A person is guilty of sexual assault in the first degree when:

"(1) He engages in sexual intercourse with another person by forcible compulsion; and

* * *

* * *

"(ii) He employed a deadly weapon in commission of the crime; ...."

Sexual intercourse is defined in W.Va.Code, 61-8B-1(7), as any act between unmarried persons involving: "penetration ... of the female sex organ by the male sex organ or ... contact between the sex organs of one person and the mouth or anus of another person." The use of the word "or," which is a conjunction, 2 expresses the legislative intent that sexual intercourse can be committed in each of the various alternative ways,

Page 280

with each type of prohibited contact constituting a separate offense. From this, it is apparent that the Legislature chose to broadly define the term "sexual intercourse" so that it would cover a variety of sexual encounters.

[168 W.Va. 93] We conclude that W.Va.Code, 61-8B-1(7), defining sexual intercourse, when read in conjunction with W.Va.Code, 61-8B-3, defining sexual assault in the first degree, indicates that an act of forcible oral intercourse and an act of forcible anal intercourse are separate and distinct offenses. Most courts which have had occasion to construe similar sexual offense statutes have reached the same conclusion. Hamill v. Wyoming, 602 P.2d 1212 (Wyo.1979); Padilla v. State, 601 P.2d 189 (Wyo.1979); cf. State v. Hill, 104 Ariz. 238, 450 P.2d 696 (1976); State v. Ware, 53 Ohio App.2d 210, 372 N.E.2d 1367 (1977), aff'd, 63 Ohio St.2d 84, 406 N.E.2d 1112 (1980); Commonwealth v. Romanoff, 258 Pa.Super. 452, 392 A.2d 881 (1978).

This case is distinguishable from State v. Reed, W.Va., 276 S.E.2d 313 (1981), where we concluded that a defendant who had engaged in one act of sexual intercourse could not be found guilty of both sexual assault in the second degree and sexual misconduct. In explaining why double jeopardy principles precluded the two separate convictions, we said:

"Here the sexual contact demonstrated at trial was ancillary to one act of sexual intercourse. We are not confronted with two acts of sexual intercourse, nor are we confronted with an act of sexual intercourse and then an act of sexual contact separated by some period of time." 276 S.E.2d at 320.

In State ex rel. Watson v. Ferguson, W.Va., 274 S.E.2d 440 (1980), where the defendant had within a short time interval killed four occupants of a home, we declined to hold that double jeopardy principles precluded multiple punishments. We recognized that jeopardy principles are resolved "not in a mechanical solution relating to proximity in time but rather an analysis of the conduct and intent of the defendant." 274 S.E.2d at 448.

Other courts have adopted much the same approach. In People v. Perez, 153 Cal.Rptr. 40, 23 Cal.3d 545, 591 P.2d 63 (1979), the defendant contended that his conviction of forcible rape, forcible sodomy and forcible oral copulation, [168 W.Va. 94] committed on the same victim in a relatively short time span, arose out of a single intent and object, that of sexual gratification, and consequently constituted only one offense. The court, in rejecting this claim, stated:

"To accept such a broad, overriding intent and objective to preclude punishment for otherwise clearly separate offenses would violate the statute's purpose to insure that a defendant's punishment will be commensurate with his culpability. (See Neal v. State of California, supra, 55 Cal.2d (11) at p. 20, 9 Cal.Rptr. 607, 357 P.2d 839.) It would reward the defendant who has the greater criminal ambition with a lesser punishment. (See Seiterle v. Superior Court (1962) 57 Cal.2d 397, 403-406, 20 Cal.Rptr. 1, 369 P.2d 697 (con. & dis. opn. of Schauer, J.).)

"A defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act." 153 Cal.Rptr. at 45, 591 P.2d at 68. 3

See also People v. Saars, 196 Colo. 294, 584 P.2d 622 (1978); People v. Helton, 39 Ill.App.3d 672, 349 N.E.2d 508 (1976); People v. Robinson, 80 Mich.App. 559, 264 N.W.2d 58 (1978); Hamill v. Wyoming, 602 P.2d 1212 (Wyo.1979).

We, therefore, conclude that where a defendant commits separate acts of our

Page 281

statutorily defined term "sexual intercourse" in different ways, each act may be prosecuted and punished as a separate offense. 4

[168 W.Va. 95] The appellant next argues that the trial court committed error in failing to properly qualify the victim and chief prosecution witness, who was thirteen years old at the time of the trial. The record in this case reveals that the appellant requested that the trial court qualify the prosecuting witness to testify before any testimony was elicited. The trial court overruled the motion and permitted the witness to testify without prior qualification.

A reading of the testimony of this witness indicates that the witness was without doubt competent...

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28 practice notes
  • State v. Davis, No. 16433
    • United States
    • Supreme Court of West Virginia
    • 25 Marzo 1986
    ...168 W.Va. 716, 285 S.E.2d at 467 n. 10; Syl. pt. 2, State v. Morgan, 168 W.Va. 506, 284 S.E.2d 924 (1981); Syl. pt. 4, State v. Carter, 168 W.Va. 90, 282 S.E.2d 277 (1981); Syl. pt. 4, State v. Boyd, supra note 10; Syl. pt. 4, State v. Critzer, 167 W.Va. 655, 280 S.E.2d 288 (1981); Syl. pt.......
  • State v. Rollins, No. 13–0099.
    • United States
    • Supreme Court of West Virginia
    • 17 Junio 2014
    ...at trial because both the identifying witness and the third party are then available for cross-examination.” Syl. pt. 6, State v. Carter, 168 W.Va. 90, 282 S.E.2d 277 (1981). 10. “It is within a trial court's discretion to admit an out-of-court statement under Rule 803(1), the present sense......
  • State v. Rummer, No. 21095
    • United States
    • Supreme Court of West Virginia
    • 28 Mayo 1993
    ...act. 9 We have also discussed double jeopardy considerations in relation to sexual offenses in several other cases. In State v. Carter, 168 W.Va. 90, 282 S.E.2d 277 (1981), the defendant had been convicted of two counts of first degree sexual assault. The first count related to oral interco......
  • Holsten v. Massey, No. 23459
    • United States
    • Supreme Court of West Virginia
    • 16 Julio 1997
    ..."or" is "a conjunction which indicate[s] the various objects with which it is associated are to be treated separately." State v. Carter, 168 W.Va. 90, 92 n. 2, 282 S.E.2d 277, 279 n. 2 (1981) (citing Koppers Co., Inc. v. Dailey, 167 W.Va. 521, 525 n. 8, 280 S.E.2d 248, 251 n. 8 (1981)). Thu......
  • Request a trial to view additional results
28 cases
  • State v. Davis, No. 16433
    • United States
    • Supreme Court of West Virginia
    • 25 Marzo 1986
    ...168 W.Va. 716, 285 S.E.2d at 467 n. 10; Syl. pt. 2, State v. Morgan, 168 W.Va. 506, 284 S.E.2d 924 (1981); Syl. pt. 4, State v. Carter, 168 W.Va. 90, 282 S.E.2d 277 (1981); Syl. pt. 4, State v. Boyd, supra note 10; Syl. pt. 4, State v. Critzer, 167 W.Va. 655, 280 S.E.2d 288 (1981); Syl. pt.......
  • State v. Rollins, No. 13–0099.
    • United States
    • Supreme Court of West Virginia
    • 17 Junio 2014
    ...at trial because both the identifying witness and the third party are then available for cross-examination.” Syl. pt. 6, State v. Carter, 168 W.Va. 90, 282 S.E.2d 277 (1981). 10. “It is within a trial court's discretion to admit an out-of-court statement under Rule 803(1), the present sense......
  • State v. Rummer, No. 21095
    • United States
    • Supreme Court of West Virginia
    • 28 Mayo 1993
    ...act. 9 We have also discussed double jeopardy considerations in relation to sexual offenses in several other cases. In State v. Carter, 168 W.Va. 90, 282 S.E.2d 277 (1981), the defendant had been convicted of two counts of first degree sexual assault. The first count related to oral interco......
  • Holsten v. Massey, No. 23459
    • United States
    • Supreme Court of West Virginia
    • 16 Julio 1997
    ..."or" is "a conjunction which indicate[s] the various objects with which it is associated are to be treated separately." State v. Carter, 168 W.Va. 90, 92 n. 2, 282 S.E.2d 277, 279 n. 2 (1981) (citing Koppers Co., Inc. v. Dailey, 167 W.Va. 521, 525 n. 8, 280 S.E.2d 248, 251 n. 8 (1981)). Thu......
  • Request a trial to view additional results

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