State v. Davis, 17915

• Decision Date: 14 December 1988
• Docket Number: No. 17915,17915
• Parties: STATE of West Virginia v. Gerald W. DAVIS.
• Court: West Virginia Supreme Court

Page 563

376 S.E.2d 563

180 W.Va. 357

STATE of West Virginia v. Gerald W. DAVIS.

No. 17915.

Supreme Court of Appeals of West Virginia.

Dec. 14, 1988.

Syllabus by the Court

1. " 'Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.' Syl pt. 8, State v. Zaccagnini, 172 W.Va. 491, 308 S.E.2d 131 (1983), quoting Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)." Syllabus point 1, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983).

2. "Double jeopardy prohibits multiple punishment for the same offense, therefore under our criminal sexual conduct statute, W.Va.Code, 61-8B-1 et seq. [1976], a single sexual act cannot result in multiple criminal convictions." Syllabus point 4, State v. Reed, 166 W.Va. 558, 276 S.E.2d 313 (1981).

3. "In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done." Syllabus point 1, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978).

4. " 'Where the testimony of the victim of a sexual offense is corroborated to some degree, it is not reversible error to refuse a cautionary instruction that informs the jury that they should view such testimony with care and caution.' Syllabus point 2, State v. Ray, 171 W.Va. 383, 298 S.E.2d 921 (1982)."

5. " 'Failure to make timely and proper objection to remarks of counsel made in the presence of the jury, during the trial of a case, constitutes a waiver of the right to raise the question thereafter either in the trial court or in the appellate court.' Point 6, Syllabus, Yuncke v. Welker, 128 W.Va. 299 [36 S.E.2d 410 (1945) ]." Syllabus point 7, State v. Cirullo, 142 W.Va. 56, 93 S.E.2d 526 (1956).

David Allen Barnett, Jackson, Kelly, Holt & O'Farrell, Charleston, for appellant.

Jill L. Miles, Asst. Atty. Gen., Charleston, for appellee.

PER CURIAM:

This is an appeal from a final order of the Circuit Court of Kanawha County, entered October 17, 1986, which sentenced the appellant, Gerald W. Davis, to three consecutive terms of imprisonment in the penitentiary upon his conviction by a jury of the offenses of abduction with intent to defile, first-degree sexual abuse and second-degree sexual assault. The appellant contends that the multiple sentences violate principles of double jeopardy, that the evidence was insufficient to support the sexual assault conviction, that the trial court erred in refusing to give a defense instruction and that he was prejudiced by certain remarks of the prosecuting attorney during closing arguments. We find merit in the appellant's double jeopardy argument, and we reverse on that ground.

The charges against the appellant arose primarily from the statements of 21-year-old E.W., a long-time friend of the appellant's family. E.W. stated that at about 10:15 p.m. on the night of February 18, 1986, she had gone alone to the appellant's St. Albans home to retrieve laundry she had left there earlier in the evening. According to E.W.'s statements, the appellant had followed her to the laundry room and asked her to come to his bedroom. When she refused, the appellant grabbed her by the shoulder and pulled her backwards towards the bedroom. E.W. managed to escape and ran first to the kitchen, where she attempted unsuccessfully to open the back door, and then to the living room, where she appealed in vain to the appellant's father for help. When the appellant entered the living room, E.W. threw a glass of water at him. The appellant then grabbed E.W. by the hair and dragged her into the dining room where he struck her and began choking her. He then pulled E.W. into the bedroom and threw her on the bed. A struggle ensued, during which the appellant pulled down E.W.'s jeans and panties. The appellant announced that he intended to have anal intercourse with her. When E.W. protested, the appellant forced her to touch his penis. Then, over E.W.'s protests, the appellant had vaginal intercourse with her while his father watched.

E.W. stated that when the appellant and his father left her alone in the bedroom, she escaped and ran to the home of the appellant's next-door neighbor, JoAnna Watson. Although E.W. was visibly distressed and reported that the appellant had sexually assaulted her, Mrs. Watson and her daughter, Debby King, refused to help her. E.W. then drove her car, on which one of the rear tires had been slashed, about 1/4 of a mile to the home of a friend, Rose Shaffer. Mrs. Shaffer noted that E.W. was crying hysterically, that she had marks on her face and throat, that her clothes were in disarray and that she was wearing only one shoe and no jacket. When E.W. told her that she had been sexually assaulted by the appellant, Mrs. Shaffer called the police. Sheriff's deputies took a statement from E.W. and transported her to Charleston Area Medical Center for treatment. E.W. was found to have suffered a cut lip and abrasions to the face and vulva. Her clothes were taken by the police for analysis, and seminal fluid was found on her panties.

The following day sheriff's deputies went to the appellant's home to execute arrest and search warrants. The police found E.W.'s missing shoe and jacket in her laundry basket on the porch. They also seized sheets and towels found on the appellant's bed and articles of his clothing, all of which were subsequently found to contain seminal fluid stains.

At the May 1986 term of the Kanawha County Grand Jury, an indictment was returned charging the appellant with abduction with intent to defile, in violation of W.Va.Code § 61-2-14 (1984 Replacement Vol.); ¹ sexual abuse in the first degree, in violation of W.Va.Code § 61-8B-7 (1984 Replacement Vol.); ² and sexual assault in the second degree, in violation of W.Va.Code § 61-8B-4 (1984 Replacement Vol.). ³ At trial, conducted before a jury on July 21 and 22, 1986 in the Circuit Court of Kanawha County, the appellant admitted that E.W. was at his home on the night in question but denied that he had even touched her. The jury returned a verdict of guilty on all three charges. By order entered October 17, 1986, the court sentenced the appellant to imprisonment for not less than three nor more than ten years upon the abduction conviction, not less than one nor more than five years upon the sexual abuse conviction and not less than ten nor more than twenty years upon the sexual assault conviction. The court ordered the three sentences to run consecutively.

I.

The appellant's first contention is that the trial court erred in sentencing him upon all three convictions. He asserts that all of the charges arose out of the same act or transaction. Accordingly, he contends that the consecutive sentences amounted to multiple punishments for the same offense in violation of the double jeopardy clauses of our state and federal constitutions. W.Va. Const. art. III, § 5; U.S. Const.Amend. V.

We have recognized that the principles of double jeopardy prohibit the imposition of multiple punishments for the same offense. State v. Myers, 171 W.Va. 277, 298 S.E.2d 813 (1982); State v. Hersman, 161 W.Va. 371, 242 S.E.2d 559 (1978); Conner v. Griffith, 160 W.Va. 680, 238 S.E.2d 529 (1977). The traditional test of identity of offenses has been stated as follows:

"Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not." Syl. pt. 8, State v. Zaccagnini, 172 W.Va. 491, 308 S.E.2d 131 (1983), quoting Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

Syllabus point 1, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983).

Here, neither of the sexual offenses charged in the indictment requires proof of detention or asportation of the victim, an essential element of the offense of abduction with intent to defile. The offense of second-degree sexual assault requires proof of sexual intercourse and the crime of first-degree sexual abuse requires proof of "sexual contact", ⁴ neither of which is an essential element of the crime of abduction or of the other sexual offense. Thus, under the Blockburger analysis, we would appear to have three separate and distinct offenses for double jeopardy purposes. See State v. Trail, 174 W.Va. 656, 328 S.E.2d 671 (1985); State v. Reed, 166 W.Va. 558, 276 S.E.2d 313 (1981).

We have also recognized, however, that the Blockburger analysis is not always determinative of the issue of identity of offenses for double jeopardy purposes. In State v. Miller, 175 W.Va. 616, 336 S.E.2d 910 (1985), we noted that the offenses of kidnapping and first-degree sexual assault constituted separate offenses under the Blockburger test because each required proof of an additional fact that the other did not, namely confinement or movement of the victim, an essential element of kidnapping, and sexual intercourse, an essential element of sexual assault. We concluded, however, that where the confinement or asportation of the victim, though technically sufficient to establish the offense of kidnapping, was merely incidental or ancillary to the commission of the sexual assault, double jeopardy precluded separate convictions and punishments for both offenses. 175 W.Va. at 621, 336 S.E.2d at 915. In determining whether the...