State v. Fortner

• Decision Date: 14 December 1989
• Docket Number: No. 18941,18941
• Parties: STATE of West Virginia v. Winston C. FORTNER, Jr.
• Court: West Virginia Supreme Court

Page 812

387 S.E.2d 812

182 W.Va. 345

STATE of West Virginia v. Winston C. FORTNER, Jr.

No. 18941.

Supreme Court of Appeals of

West Virginia.

Dec. 14, 1989.

Syllabus by the Court

1. " 'The delay in taking a defendant to a magistrate may be a critical factor [in the totality of circumstances making a confession involuntary and hence inadmissible] where it appears that the primary purpose of the delay was to obtain a confession from the defendant.' Syllabus Point 6, State v. Persinger, W.Va. , 286 S.E.2d 261 (1982), as amended." Syllabus Point 1, State v. Guthrie, --- W.Va. ---, 315 S.E.2d 397 (1984).

2. " 'Ordinarily the delay in taking an accused who is under arrest to a magistrate after a confession has been obtained from him does not vitiate the confession under our prompt presentment rule.' Syllabus Point 4, State v. Humphrey, 177 W.Va. 264, 351 S.E.2d 613 (1986)." Syllabus Point 8, State v. Worley, 179 W.Va. 403, 369 S.E.2d 706, cert. denied, 488 U.S. 895, 109 S.Ct. 236, 102 L.Ed.2d 226 (1988).

3. " 'A trial court's decision regarding the voluntariness of a confession will not be disturbed unless it is plainly wrong or clearly against the weight of the evidence.' Syl. Pt. 3, State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978)." Syllabus Point 1, State v. Haller, 178 W.Va. 642, 363 S.E.2d 719 (1987).

4. "A prosecution that withholds evidence which if made available would tend to exculpate an accused by creating a reasonable doubt as to his guilt violates due process of law under Article III, Section 14 of the West Virginia Constitution." Syllabus Point 4, State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982).

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).

7. The chief difference between a principal in the second degree and an accessory before the fact is that the former is actually or constructively present at the time and place of the commission of the offense, while the latter is absent.

8. Where a defendant is convicted of a particular substantive offense, the test of the sufficiency of the evidence to support the conviction necessarily involves consideration of the traditional distinctions between parties to offenses. Thus, a person may be convicted of a crime so long as the evidence demonstrates that he acted as an accessory before the fact, as a principal in the second degree, or as a principal in the first degree in the commission of such offense.

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 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, ." 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.

12. For a criminal defendant to claim that he withdrew from a criminal venture so as to avoid criminal responsibility, he must show that he disavowed the criminal purpose sufficiently in advance of the act to give his confederates a reasonable opportunity to withdraw, if they so desired, and did so in such a manner as to communicate to them his disapproval of or opposition to the criminal act.

13. The crimes of abduction with intent to defile, W.Va.Code, 61-2-14 (1984), and kidnapping with intent to avoid arrest, W.Va.Code, 61-2-14a (1965), are separate offenses.

14. "In interpreting and applying a generally worded kidnapping statute, such as W.Va.Code, 61-2-14a, in a situation where another offense was committed, some reasonable limitations on the broad scope of kidnapping must be developed. The general rule is that a kidnapping has not been committed when it is incidental to another crime. In deciding whether the acts that technically constitute kidnapping were incidental to another crime, courts examine the length of time the victim was held or moved, the distance the victim was forced to move, the location and environment of the place the victim was detained, and the exposure of the victim to an increased risk of harm." Syllabus Point 2, State v. Miller, 175 W.Va. 616, 336 S.E.2d 910 (1985).

15. "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." Syllabus Point 2, State v. Carter, 168 W.Va. 90, 282 S.E.2d 277 (1981).

16. "While our constitutional proportionality standards theoretically can apply to any criminal sentence, they are basically applicable to those sentences where there is either no fixed maximum set by statute or where there is a life recidivist sentence." Syllabus Point 4, Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981).

17. " 'As a general rule, proceedings of trial courts are presumed to be regular, unless the contrary affirmatively appears upon the record, and errors assigned for the first time in an appellate court will not be regarded in any matter of which the trial court had jurisdiction or which might have been remedied in the trial court if objected to there.' Syl. pt. 17, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974)." Syllabus Point 4, State v. Nicastro, 181 W.Va. 556, 383 S.E.2d 521 (1989).

Michael E. Froble, Public Defender Corp., Tenth Judicial Circuit, Beckley, for Winston C. Fortner, Jr.

Brenda Craig Ellis, Asst. Atty. Gen., Charleston, for State of W.Va.

MILLER, Justice:

This is an appeal by the defendant below, Winston C. Fortner, Jr., from his conviction in the Circuit Court of Cabell County of the crimes of abduction with intent to defile, kidnapping, sexual assault in the second degree, and sexual abuse in the first degree. The defendant contends (1) that his inculpatory statement should have been suppressed; (2) that the State withheld exculpatory evidence; (3) that there was insufficient evidence to support his convictions as an accomplice; (4) that the multiple convictions violate double jeopardy principles; and (5) that his sentence constitutes cruel and unusual punishment. We find no error warranting reversal of the convictions, and we affirm the judgment of the circuit court.

The State's evidence shows that the defendant spent the evening of July 2, 1985, in Raleigh County in the company of his cousin, Randy Fortner, and three acquaintances, Joseph Michael Redden and brothers Samuel and Richard Ellison. At approximately 10:00 p.m., after having visited several bars, the five men were driving around Beckley when they spotted a twenty-three-year-old woman using an outdoor pay phone at an abandoned convenience store. Richard Ellison grabbed the woman, told her he had a gun, and forced her into the car. Samuel Ellison then drove the group three or four miles to a wooded area at the end of a dirt road. Over the next two hours, the five men forced the woman to engage in multiple acts of sexual intercourse.

Despite her pleas to be released, the woman was then forced back into the car and driven around Beckley while her assailants discussed what to do with her. Eventually, the group drove to a tavern in Daniels, where Richard Ellison led the woman over a nearby hill to a creek bank, sexually assaulted her, and attempted to choke her. After about an hour, however, the woman managed to convince Ellison to take her home. When they arrived at her apartment between 3:00 and 3:30 a.m. and found her husband waiting, Ellison fled.

In the following days, all five men were arrested. A Raleigh County grand jury subsequently returned an indictment charging the defendant with ten counts of second-degree sexual assault, ten counts of first-degree sexual abuse, two counts of conspiracy, and one count each of kidnapping and abduction with intent to defile. Due to adverse publicity in Raleigh County, a change of venue was granted, and trial commenced in the Circuit Court of Cabell County on October 21, 1986.

At trial, the defendant admitted engaging in two separate acts of intercourse with the victim in the wooded area, but asserted that he had participated only because he feared what his companions might do or say if he intervened on her behalf or refused to go along. The defendant denied having encouraged or assisted the others in committing offenses against the victim. This testimony was directly contradicted by the victim, who testified that the defendant actively participated in all aspects of her ordeal.

On October 23, 1986, the jury found the defendant guilty of all charges except conspiracy. The circuit court denied the defendant's motion for a new trial and imposed consecutive and concurrent sentences approximating a term of not less than thirty-six nor more than eighty-five years in prison. This appeal ensued.

I

The defendant first contends that the...