State v. Davis

• Court: West Virginia Supreme Court
• Writing for the Court: MILLER
• Citation: State v. Davis, 182 W.Va. 482, 388 S.E.2d 508 (W. Va. 1989)
• Decision Date: 20 December 1989
• Docket Number: No. 18871,18871
• Parties: STATE of West Virginia, v. Dewey C. DAVIS.

Page 508

388 S.E.2d 508

182 W.Va. 482

STATE of West Virginia, v. Dewey C. DAVIS.

No. 18871.

Supreme Court of Appeals of West Virginia.

Dec. 20, 1989.

Syllabus by the Court

1. "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).

2. "A person who is the absolute perpetrator of a crime is a principal in the first degree, and a person who is present, aiding and abetting the fact to be done, is a principal in the second degree." Syllabus Point 5, State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989).

3. " 'An accessory before the fact is a person who being absent at the time and place of the crime, procures, counsels, commands, incites, assists or abets another person to commit the crime, and absence at the time and place of the crime is an essential element of the status of an accessory before the fact.' Syllabus Point 2, State ex rel. Brown v. Thompson, 149 W.Va. 649, 142 S.E.2d 711, cert. denied, 382 U.S. 940, 15 L.Ed.2d 350, 86 S.Ct. 392 (1965)." Syllabus Point 6, State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989).

4. " ' "Merely witnessing a crime, without intervention, does not make a person a party to its commission unless his interference was a duty, and his non-interference was one of the conditions of the commission of the crime; or unless his non-interference was designed by him and operated as an encouragement to or protection of the perpetrator." Syllabus, State v. Patterson, 109 W.Va. 588 [155 S.E. 661 (1930) ].' Syllabus Point 3, State v. Haines, 156 W.Va. 281, 192 S.E.2d 879 (1972)." Syllabus Point 9, State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989).

5. "Proof that the defendant was present at the time and place the crime was committed is a factor to be considered by the jury in determining guilt, along with other circumstances, such as the defendant's association with or relation to the perpetrator and his conduct before and after the commission of the crime." Syllabus Point 10, State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989).

6. "Under the concerted action principle, a defendant who is present at the scene of a crime and, by acting with another, contributes to the criminal act, is criminally liable for such offense as if he were the sole perpetrator." Syllabus Point 11, State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989).

7. In order to uphold the validity of a warrant which is challenged because of the lack of the affiant's signature on the affidavit, it must be shown that the affiant was sufficiently identified in the affidavit itself. Additionally, it must be shown that the affiant was sworn before and known to the issuing magistrate and attested that the affidavit facts were true.

8. The decision to declare a mistrial, discharge the jury, and order a new trial in a criminal case is a matter within the sound discretion of the trial court.

William M. Lester, III, Charleston, for Dewey C. Davis.

Roger W. Thompkins, Atty. Gen., Richard M. Riffe, Sr. Asst. Atty. Gen., Charleston, for state of W.Va MILLER, Justice:

The principal issue in this appeal is whether there was sufficient evidence to sustain the conviction of the defendant, Dewey Davis, for the offense of second-degree sexual assault. The defendant was also convicted of abduction and first-degree sexual abuse. The State acknowledges that since the defendant aided and abetted Gerald Davis, his son, in these crimes, it is bound by our holding in State v. Davis, 180 W.Va. 357, 376 S.E.2d 563 (1988). In that decision, we held that the abduction and first-degree sexual abuse convictions were invalid. ¹

The State's position is that while the abduction and sexual abuse convictions must be set aside, the conviction of second-degree sexual assault is valid. The defendant asserts that because of his lack of involvement, he should not be convicted at all. Our traditional rule for appellate review of a guilty verdict is contained in Syllabus Point 1 of State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978):

"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."

The salient facts are that on February 18, 1986, the victim, who was a close friend of the Davis family, went to the defendant's mobile home to pick up her laundry. While she was in the defendant's home, the defendant's son, Gerald Davis, followed her to the laundry room and asked her to go with him to his bedroom. She refused and Gerald tried to force her to come with him to the bedroom. In an attempt to get away from Gerald, she ran to the living room and pleaded with the defendant to help her. The defendant, who had been drinking, told her he could not help her. She tried to keep the defendant between Gerald and herself, but the defendant moved out of the way. Gerald then dragged her down the hall and into the bedroom. The defendant followed his son and the victim into the bedroom and lay next to them on the bed while Gerald raped her. Although she pleaded with the defendant to help her, the defendant merely patted her hand and told her not to worry.

I.

We reject the defendant's contention that under the foregoing facts, he was not chargeable with the sexual assault committed by his son. We recently discussed, at some length, the sufficiency of the evidence to convict a person who is not the principal perpetrator in State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989). We outlined in Fortner the traditional roles of parties to a crime. We also indicated that, based on State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980), and W.Va.Code, 61-11-6 (1923), ² a conviction could be obtained so long as the evidence showed that the defendant fit any one of these roles. We defined these categories in Syllabus Points 5 and 6 of Fortner:

"5. A person who is the absolute perpetrator of a crime is a principal in the first degree, and a person who is present, aiding and abetting the fact to be done, is a principal in the second degree.

"6. 'An accessory before the fact is a person who being absent at the time and place of the crime, procures, counsels, commands, incites, assists or abets another person to commit the crime, and absence at the time and place of the crime is an essential element of the status of an accessory before the fact.' Syllabus Point 2, State ex rel. Brown v. Thompson, 149 W.Va. 649, 142 S.E.2d 711, cert. denied, 382 U.S. 940, 15 L.Ed.2d 350, 86 S.Ct. 392 (1965)."

Additionally, in Fortner, we dealt with the types of conduct that bear upon criminal culpability. These were summarized in Syllabus Points 9, 10, and 11:

"9. ' "Merely witnessing a crime, without intervention, does not make a person a party to its commission unless his interference was a duty, and his noninterference was one of the conditions of the commission of the crime; or unless his noninterference was designed by him and operated as an encouragement to or protection of the perpetrator." Syllabus, State v. Patterson, 109 W.Va. 588 [155 S.E. 661 (1930) ].' Syllabus Point 3, State v. Haines, 156 W.Va. 281, 192 S.E.2d 879 (1972).

"10. Proof that the defendant was present at the time and place the crime was committed is a factor to be considered by the jury in determining guilt, along with other circumstances, such as the defendant's association with or relation to the perpetrator and his conduct before and after the commission of the crime."

"11. Under the concerted action principle, a defendant who is present at the scene of a crime and, by acting with another, contributes to the criminal act, is criminally liable for such offense as if he were the sole perpetrator."

Syllabus Point 9 of Fortner holds that merely witnessing a crime without interference is not culpable. Here, however, the defendant was not merely an unconnected passive bystander. The assault occurred in his home, and his son was the perpetrator. Furthermore, the victim looked upon the defendant as a family member because of her long association with him and referred to him as "Uncle Dewey."

The victim initially tried to get the defendant to intervene by pleading with him to help her and positioning herself behind him and away from his son. Yet, the defendant responded that he could not help her and moved out of Gerald's way. When she was dragged into the bedroom by Gerald, the defendant followed. He lay on the bed next to them watching Gerald rape her and patted her hand while advising her not to worry. These actions were sufficient to make him culpable.

Other jurisdictions have come to the same conclusion on similar facts. In both State v. Goodwin, 118 N.H. 862, 395 A.2d 1234 (1978), and Commonwealth v. Henderson, 249 Pa.Super. 472, 378 A.2d 393 (1977), neither of the defendants actually participated in the sexual assaults of the victims, but had sat by passively while their companions sexually assaulted the victims. ³ The courts, in both cases, concluded that the evidence was sufficient to support the jury's findings that the defendant's presence facilitated and encouraged the perpetrator's...