State v. Dolin, No. 16736

CourtSupreme Court of West Virginia
Writing for the CourtMILLER; McHUGH
Citation176 W.Va. 688,347 S.E.2d 208
PartiesSTATE of West Virginia v. Floyd D. DOLIN.
Decision Date05 June 1986
Docket NumberNo. 16736

Page 208

347 S.E.2d 208
176 W.Va. 688
STATE of West Virginia
v.
Floyd D. DOLIN.
No. 16736.
Supreme Court of Appeals of
West Virginia.
June 5, 1986.
Dissenting Opinion July 16, 1986.

Page 210

[176 W.Va. 689] Syllabus by the Court

1. "Subject to exceptions, it is a well-established common-law rule that in a criminal prosecution, proof which shows or tends to show that the accused is guilty of the commission of other crimes and offenses at other times, even though they are of the same nature as the one charged, is incompetent and inadmissible for the purpose of showing the commission of the particular crime charged, unless such other offenses are an element of or are legally connected with the offense for which the accused is on trial." Syllabus Point 11, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

2. "The exceptions permitting evidence of collateral crimes and charges to be admissible against an accused are recognized as follows: the evidence is admissible if it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; and (5) the identity of [176 W.Va. 690] the person charged with the commission of the crime on trial." Syllabus Point 12, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

3. Before a trial court can determine that evidence of collateral crimes is admissible under one of the exceptions, an in camera hearing is necessary to allow a trial court to carefully consider the admissibility of collateral crime evidence and to properly balance the probative value of such evidence against its prejudicial effect.

4. "In the proper exercise of discretion, the trial court may exclude evidence of collateral crimes and charges if the court finds that its probative value is outweighed by the risk that its admission will create substantial danger of undue prejudice or confuse the issues or mislead the jury or unfairly surprise a party who has not had reasonable ground to anticipate that such evidence would be offered." Syllabus Point 15, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

5. A collateral crime need not be proven beyond a reasonable doubt, but must be proven by clear and convincing evidence.

6. In examining the similarities and differences between collateral crimes and the present offense charged, the collateral crimes must have occurred reasonably close in point of time to the present offense.

7. It is impermissible for collateral sexual offenses to be admitted into evidence solely to show a defendant's improper or lustful disposition toward his victim.

8. To the extent that State v. Beacraft, 126 W.Va. 895, 30 S.E.2d 541 (1944), State v. Lohm, 97 W.Va. 652, 125 S.E. 758 (1924), and State v. Driver, 88 W.Va. 479, 107 S.E. 189 (1921), allow collateral sexual offenses to be admitted into evidence to show an improper or lustful disposition toward the victim, they are overruled.

9. It is customary to give the jury a limiting instruction with regard to its consideration of a collateral crime. This instruction generally provides that the evidence of a collateral crime is not to be considered as proof of the defendant's guilt on the present charge, but may be considered in deciding whether a given issue or element relevant to the present charge has been proven. When a defendant requests this limiting instruction, it must be given.

James B. Lees, Jr., Preiser & Wilson, Charleston, for appellant.

Bethany Boyd, Asst. Atty. Gen., for appellee.

MILLER, Chief Justice:

Floyd Dolin was convicted by a jury in the Circuit Court of Kanawha County of first degree sexual assault. His main contentions are that the trial court erred in admitting evidence of collateral sexual offenses

Page 211

committed by the defendant upon the same victim and erred in its instruction to the jury on this evidence.

In the indictment returned in September, 1982, the defendant was charged with two counts of first degree sexual assault and one count of incest. The first count charged the defendant with forcing his daughter, who was then less than eleven years old, to perform oral sex on him. This count did not identify any specific dates, but merely alleged the acts had been committed within ten years prior to the date of the indictment. The second count charged the defendant with forcing his daughter to perform oral sex on him in January, 1981. The third count charged that the defendant had committed incest with his daughter under W.Va.Code, 61-8-12 (1931), within three years prior to the date of the indictment.

The trial court directed a verdict in favor of the defendant on the second count because of a variance between the facts alleged in the indictment and the evidence presented at trial. The jury acquitted the defendant on the third count, but convicted him on the first count of first degree sexual assault.

Prior to trial, the parties and the trial court agreed that the relevant time period under the first count which charged sexual intercourse with a person under the age of [176 W.Va. 691] eleven years was between August, 1976, and August, 1978. This agreement was based on the fact that the sexual assault provision, W.Va.Code, 61-8B-3 (1976), 1 did not become effective until June, 1976. Consequently, the defendant could not be charged with acts committed prior to its effective date. The outer limit of August, 1978, resulted from the fact that his daughter's eleventh birthday was August 31, 1978.

The only evidence presented against the defendant was the uncorroborated testimony of his daughter, who was sixteen years old at the time of the trial in 1984. She related to the jury her version of the sexual activity forced upon her by her father. Generally, the daughter was unable to recall specific details as far as the time and the place of the sexual encounters relevant to the first count of the indictment.

The daughter was asked by the prosecutor whether she had performed oral sex on her father at any time between August, 1976, and August, 1978. In response to this question, she stated, "Maybe once or twice every three months. I can't say just exactly, you know." She also explained that during this time period the defendant ordinarily did not force her to perform oral sex, but usually rubbed his sex organ on her. During cross-examination, the daughter was unable to recall any specific instance during the relevant time period when the defendant forced her to perform oral sex on him. 2

Page 212

The daughter testified in more detail regarding an incident that occurred in her home in January, 1981, when she was thirteen years old. She testified that before noon on that date, the defendant entered the house and forced her to join him in one of the bedrooms. The defendant penetrated her sex organ with his sex organ, rubbed his sex organ on her stomach, and ejaculated. The daughter stated this was the last time the defendant sexually assaulted her.

The defendant's former wife testified that they were divorced November 9, 1977, and that the defendant was granted the right to visit his daughter. She also verified that the defendant did take their daughter to Parkersburg on one occasion and also verified another trip where the defendant was alone with their daughter. The daughter informed her mother for the first time on April 9, 1981, of the defendant's sexual activity with her. After the former wife testified, the State rested its case.

[176 W.Va. 692] The defendant took the stand and denied each specific instance of sexual activity alleged by his daughter. He also testified that he was at work on the occasion in January, 1981, when the daughter testified he had vaginal intercourse with her. This alibi was also supported by another defense witness. Furthermore, he denied the general allegation that he had forced his daughter to perform oral sex on him between August, 1976, and August, 1978. The defendant testified that he had never made any advances of a sexual nature toward his daughter.

The defendant's chief complaint is that the trial court erred in permitting the daughter to testify about additional sexual offenses allegedly committed by the defendant on her which were collateral to the charges contained in the indictment. Once again we are presented with the difficult issue of whether evidence of collateral crimes should have been presented to the jury.

The general rule, as summarized in Syllabus Point 11 of State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974), is that subject to certain exceptions evidence of collateral crimes is inadmissible:

"Subject to exceptions, it is a well-established common-law rule that in a criminal prosecution, proof which shows or tends to show that the accused is guilty of the commission of other crimes and offenses at other times, even though they are of the same nature as the one charged, is incompetent and inadmissible for the purpose of showing the commission of the particular crime charged, unless such other offenses are an element of or are legally connected with the offense for which the accused is on trial."

In State v. Harris, 166 W.Va. 72, 76, 272 S.E.2d 471, 474 (1980), we explained some of the policy reasons behind this general rule:

"The rationale for the rule announced in Thomas is that when one is placed on trial for the commission of a particular offense, he is to be convicted, if at all, on evidence of the specific charge against him. The purpose of the rule excluding evidence in a criminal prosecution of collateral offenses is to prevent a conviction for one crime by the use of evidence tending to show that the accused engaged in other legally unconnected criminal acts, and to prevent the inference that because the accused engaged or may have engaged in other crimes previously, he was more liable to commit the crime for which he is being tried."

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139 practice notes
  • Coleman v. Sopher, No. 23943.
    • United States
    • Supreme Court of West Virginia
    • November 20, 1997
    ...its admissibility. Before admitting the evidence, the trial court should conduct an in camera hearing as stated in State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and arguments of counsel, the trial court must be satisfied by a preponderance of the evidence ......
  • Michael on Behalf of Estate of Michael v. Sabado, No. 22032
    • United States
    • Supreme Court of West Virginia
    • December 21, 1994
    ...is clearly abused." Syl. pt. 2, State v. Beacraft, 126 W.Va. 895, 30 S.E.2d 541 (1944)[, overruled on other grounds, State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986), overruled on other grounds, State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990) ].' Syllabus Point 2, State......
  • State v. Murray, No. 18017
    • United States
    • Supreme Court of West Virginia
    • November 10, 1988
    ...174 W.Va. 120, 323 S.E.2d 601 (1984); State v. Driver, 88 W.Va. 479, 107 S.E. 189 (1921), overruled on other grounds, State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). We note that the court questioned Linda extensively in camera and concluded that she was competent to testify. We have ......
  • State v. Phillips, No. 22633
    • United States
    • Supreme Court of West Virginia
    • July 21, 1995
    ...its admissibility. Before admitting the evidence, the trial court should conduct an in camera hearing as state in State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and arguments of counsel, the trial court must be satisfied by a preponderance of the evidence t......
  • Request a trial to view additional results
140 cases
  • Coleman v. Sopher, No. 23943.
    • United States
    • Supreme Court of West Virginia
    • November 20, 1997
    ...its admissibility. Before admitting the evidence, the trial court should conduct an in camera hearing as stated in State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and arguments of counsel, the trial court must be satisfied by a preponderance of the evidence ......
  • Michael on Behalf of Estate of Michael v. Sabado, No. 22032
    • United States
    • Supreme Court of West Virginia
    • December 21, 1994
    ...is clearly abused." Syl. pt. 2, State v. Beacraft, 126 W.Va. 895, 30 S.E.2d 541 (1944)[, overruled on other grounds, State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986), overruled on other grounds, State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990) ].' Syllabus Point 2, State......
  • State v. Murray, No. 18017
    • United States
    • Supreme Court of West Virginia
    • November 10, 1988
    ...174 W.Va. 120, 323 S.E.2d 601 (1984); State v. Driver, 88 W.Va. 479, 107 S.E. 189 (1921), overruled on other grounds, State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). We note that the court questioned Linda extensively in camera and concluded that she was competent to testify. We have ......
  • State v. Phillips, No. 22633
    • United States
    • Supreme Court of West Virginia
    • July 21, 1995
    ...its admissibility. Before admitting the evidence, the trial court should conduct an in camera hearing as state in State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and arguments of counsel, the trial court must be satisfied by a preponderance of the evidence t......
  • Request a trial to view additional results

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