State v. Cunningham

Decision Date03 November 1981
Docket NumberNo. 14691,14691
Citation170 W.Va. 119,290 S.E.2d 256
PartiesSTATE of West Virginia v. Nelson Eugene CUNNINGHAM.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. "The granting of a continuance is a matter within the sound discretion of the trial court, though subject to review, and the refusal thereof is not ground for reversal unless it is made to appear that the Court abused its discretion, and that its refusal has worked injury and prejudice to the rights of the party in whose behalf the motion was made." Syllabus Point 1, State v. Jones, 84 W.Va. 85, 99 S.E. 271 (1919).

2. "A defendant shall be charged in the same indictment, in a separate count for each offense, if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character, or are based on the same act or transaction, or are two or more acts or transactions connected together or constituting parts of a common scheme or plan." Syllabus Point 1, State ex rel. Watson v. Ferguson, 166 W.Va. 337, 274 S.E.2d 440 (1980).

3. A person who (1) confronts a store clerk in the store's cooler (2) strikes her, (3) disrobes her, (4) commits a sexual assault against her and (5) warns her against following him out of the cooler, commits a robbery by violence (or armed robbery in common parlance) under W.Va.Code, 61-2-12 [1961], when he then goes directly to the cash register and takes money therefrom.

Lantz & Rudolph and David G. Palmer, Parkersburg, for appellant.

Chauncey H. Browning, Atty. Gen., Richard S. Glaser, Jr., Asst. Atty. Gen. and John Ernest Shank, Law Clerk, Charleston, for the State.

NEELY, Justice:

Appellant, Nelson Eugene Cunningham, appeals his conviction of armed robbery and first-degree sexual assault after a jury trial before the Circuit Court of Wood County.

In the early morning hours of 4 April 1978 the appellant loitered in the Kom Pack store in Parkersburg. When the store's clerk, a nineteen-year-old female college student, walked into the store's cooler at approximately 5:00 a. m., the appellant followed her in. After hitting her several times and taking off her clothes the appellant forced her to perform oral sex with him. Appellant then left the clerk in the cooler and emptied the cash register on his way out of the store.

After being treated in the hospital, the victim was being taken to the police station when she saw the appellant on the street. The police quickly apprehended the appellant. After the arrest the appellant's clothes were sent to the Criminal Investigation Bureau. Examinations found seminal stains around the zipper of the appellant's jeans.

Before the trial appellant's counsel made a discovery motion which was granted by the court. The State answered the motion in a timely manner and later filed several amendments to its answer. However, the State was unable to notify the appellant's counsel that the appellant's jeans had seminal stains on them until the afternoon before the trial. The trial court denied the appellant's subsequent motion for a continuance.

The appellant has assigned three errors to the proceedings below: (1) the court should have granted the motion for a continuance; (2) the counts of armed robbery and first-degree sexual assault should have been tried separately; and (3) the facts alleged by the State do not constitute the offense of robbery. Finding these assignments to be without merit we affirm.

I

The question of whether a continuance should have been given in a particular trial has confronted this Court many times. Yet our standard of review has not changed since State v. Jones, 84 W.Va. 85, 99 S.E. 271 (1919), in which we stated in syllabus point 1:

The granting of a continuance is a matter within the sound discretion of the trial court ... and the refusal thereof is not ground for reversal unless it is made to appear that the Court abused its discretion, and that its refusal has worked injury and prejudice to the rights of the party in whose behalf the motion was made.

In this case the appellant admits that he had sufficient time between the indictment and the trial to prepare. However, appellant contends that he did not have adequate time to prepare a defense to the information concerning the stains on the jeans. In West Virginia, the late production of court-ordered discovery without a showing of particular harm to the defendant's preparation of the case, will not constitute error. See State v. Trail, 163 W.Va. 352, 255 S.E.2d 900 (1979); Wilhelm v. Whyte, 163 W.Va. 67, 239 S.E.2d 735 (1977). Hence, in this case we must determine whether the appellant was prejudiced in some way by the late disclosure.

It is clear from the record that the appellant knew that the State was conducting examinations of his jeans long before he was actually notified of the results. It is also clear that the appellant had the right to perform his own examination of the jeans before the trial but chose not to assert that right. Therefore we disagree with the appellant's claim that he was "ambushed." Moreover, we find that the nature of the evidence was not prejudicial to his case. Rather, it reinforced his alibi defense that he had been with another woman that night. Appellant's counsel pointed out that there was no indication of how old the stains were. Appellant's counsel was also able to demonstrate that the victim had no idea of whether her assailant had ejaculated during the attack. This further reduced the probative value of the evidence.

Therefore, in light of the facts that the appellant knew that the jeans were being examined, that the evidence was consistent with his alibi, and that the evidence was corroborative and not the primary evidence against appellant, we find that the appellant was not prejudiced by the late production of the evidence and that the trial court did not err in refusing to grant the motion for a continuance.

II

There was no need for the State to elect a count on which it would rely for a conviction. The trial court followed the holdings of several recent cases in ruling that both counts of the indictment could be decided at the same trial. In State ex rel. Watson v. Ferguson, 166 W.Va. 337, 274 S.E.2d 440 (1980), we stated in syllabus point 1:

A defendant shall be charged in the same indictment, in a separate count for each offense, if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character, or are based on the same act or transaction, or are two or more acts or transactions connected together or constituting parts of a common scheme or plan.

This is not to say that a defendant faced with multiple counts may not move...

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9 cases
  • State v. Davis, 16433
    • United States
    • Supreme Court of West Virginia
    • March 25, 1986
    ......676, 301 S.E.2d 765 (1983); Syl. pt. 2, State ex rel. Shorter v. Hey, 170 W.Va. 249, 294 S.E.2d 51 (1981); Syl. pt. 1, State v. Cunningham, 170 W.Va. 119, 290 S.E.2d 256 (1981); Syl. pt. 2, State v. Bush, 163 W.Va. 168, 255 S.E.2d 539 (1979); Syl. pt. 4, State v. Milam, 159 W.Va. 691, ......
  • State v. McFarland, 16011
    • United States
    • Supreme Court of West Virginia
    • June 18, 1985
    .......         See State v. Cunningham, 170 W.Va. 119, 290 S.E.2d 256, 259 (1981); State v. Mitter, 168 W.Va. 531, 285 S.E.2d 376 (1981). .         We stated in State v. Mitter, ......
  • State Of West Va. v. Rash, 34708.
    • United States
    • Supreme Court of West Virginia
    • June 7, 2010
    ...by a separate count in a single prosecution cannot be subsequently prosecuted unless waived by the defendant.In State v. Cunningham, 170 W.Va. 119, 290 S.E.2d 256 (1981), this Court held that:A defendant shall be charged in the same indictment, in a separate count for each offense, if the o......
  • State v. Simmons, 15859
    • United States
    • Supreme Court of West Virginia
    • November 14, 1983
    ...... E.g., State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1982); State v. Cunningham, 170 W.Va. 119, 290 S.E.2d 256 (1981); State v. Ward, 168 W.Va. 385, 284 S.E.2d 881 (1981); State v. Grimm, supra; Wilhelm v. Whyte, 161 W.Va. 67, ......
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