State v. Fuller

• Decision Date: 17 May 2017
• Docket Number: No. 16-0153,16-0153
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Respondent v. Belinda Ann FULLER, Petitioner

800 S.E.2d 241

STATE of West Virginia, Respondent
v.
Belinda Ann FULLER, Petitioner

No. 16-0153

Supreme Court of Appeals of West Virginia.

Submitted: May 2, 2017
Filed: May 17, 2017

800 S.E.2d 243

Russell S. Cook, Esq., Cabell Co. Public Defender Office, Huntington, West Virginia, Counsel for the Petitioner

Patrick Morrisey, Esq., Attorney General, Shannon Frederick Kiser, Esq., Assistant Attorney General Josiah M. Kollmeyer, Rule 10 Student Attorney, Charleston, West Virginia, Counsel for the Respondent

Justice Ketchum :

Petitioner Belinda Ann Fuller ("Defendant Fuller") appeals an order of the Circuit Court of Cabell County denying her motion to dismiss an indictment charging her with a felony crime—third offense of soliciting an act of prostitution in violation of W.Va. Code § 61-8-5(b) [1943]. Under W.Va. Code § 61-8-5(b), it is a misdemeanor crime to be convicted of the first or second offense of soliciting, inducing, enticing, procuring, aiding, abetting, or participating in an act of prostitution. Additionally, W.Va. Code § 61-8-5(b) provides that the third or subsequent violation of the statute is a felony offense (hereinafter "third offense") that only applies "to the pimp, panderer, solicitor, operator or any person benefiting financially or otherwise from the earnings of a prostitute."

Defendant Fuller argued that the third offense provision of W.Va. Code § 61-8-5(b) does not apply to an alleged prostitute; rather, it is intended to apply only to "third parties who derive a financial benefit from the earnings of an alleged prostitute." The circuit court rejected this argument, finding that a prostitute who benefits financially from her own act of prostitution is included in the category of offenders who may be charged with a third offense under W.Va. Code § 61-8-5(b). Following entry of the circuit court's order, Defendant Fuller filed the instant appeal.

After thorough review, we find that the third offense provision contained in W.Va. Code § 61-8-5(b) is ambiguous. Due to this ambiguity, the rule of lenity applies, requiring this Court to strictly construe W.Va. Code § 61-8-5(b) against the State and in favor of Defendant Fuller. We echo Justice Cleckley's well-reasoned statement explaining why this Court applies the rule of lenity when faced with an ambiguous criminal statute:

We find this is a reasonable course to take when such substantial interests are at stake. The judiciary should be hesitant to impose such restrictions when it is not clear this is the Legislature's unequivocal desire .

State v. Sears , 196 W.Va. 71, 82, n.21, 468 S.E.2d 324, 335, n.21 (1996) (emphasis added).

Because the third offense provision contained in W.Va. Code § 61-8-5(b) is ambiguous, we reverse the circuit court's February 3, 2016, order denying Defendant Fuller's motion to dismiss the indictment charging her with a felony offense.¹

I.

FACTUAL AND PROCEDURAL BACKGROUND

The facts of this matter are undisputed. On February 4, 2015, Defendant Fuller got into a vehicle with an undercover police officer and agreed to perform an act of prostitution in exchange for twenty dollars. The police officer arrested Defendant Fuller. Prior to her February 2015 arrest, Defendant Fuller had twice been convicted of soliciting for prostitution.²

On May 4, 2015, a grand jury indicted Defendant Fuller on a single felony count of "3^rd Offense Solicitation of an Act of Prostitution" in violation of W.Va. Code § 61-8-5(b). The indictment provides that Defendant Fuller "unlawfully and feloniously ... offer[ed] to perform an act of prostitution [on the undercover police officer], namely oral sex for the payment of Twenty Dollars[.]"

800 S.E.2d 244

Counsel for Defendant Fuller filed a motion to dismiss the indictment, arguing that she did not fall within the category of persons who may be charged with a third offense under W.Va. Code § 61-8-5(b). Instead, counsel argued that the third offense provision "really applies to owners of houses, pimps, those people who are really deriving benefits directly from what prostitutes do." The circuit court held a hearing on this motion and rejected Defendant Fuller's argument, concluding: "I think the clear meaning of it [the third offense provision] is the benefits financially [language] would apply to the individual performing the acts for which she would have been paid, unless there is evidence that she was not financially benefiting from it."³ Following entry of the circuit court's order, Defendant Fuller filed the instant appeal.

II.

STANDARD OF REVIEW

This appeal involves an interpretation of the third offense provision contained in W.Va. Code § 61-8-5(b). Thus, our standard of review is set forth in Syllabus Point 1 of Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995) : "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." With our standard of review in mind, we turn to the parties' arguments.

III.

ANALYSIS

The issue is whether Defendant Fuller may be charged with a third offense under W.Va. Code § 61-8-5(b). Our analysis begins with an examination of W.Va. Code § 61-8-5(b). It provides:

Any person who shall engage in prostitution, lewdness, or assignation, or who shall solicit, induce, entice, or procure another to commit an act of prostitution, lewdness, or assignation; or who shall reside in, enter, or remain in any house, place, building, hotel, tourist camp, or other structure, or enter or remain in any vehicle, trailer, or other conveyance for the purpose of prostitution, lewdness, or assignation; or who shall aid, abet, or participate in the doing of any of the acts herein prohibited, shall, upon conviction for the first offense under this section, be punished by imprisonment in the county jail for a period of not less than sixty days nor more than six months, and by a fine of not less than fifty dollars and not to exceed one hundred dollars; and upon conviction for the second offense under this section, be punished by imprisonment in the county jail for a period of not less than six months nor more than one year, and by a fine of not less than one hundred dollars and not to exceed two hundred fifty dollars, and upon conviction for any subsequent offense under this section shall be punished by imprisonment in the penitentiary for not less than one year nor more than three years.

The subsequent offense provision shall apply only to the pimp, panderer, solicitor, operator or any person benefiting financially or otherwise from the earnings of a prostitute.

(Emphasis added).

In examining whether Defendant Fuller may be charged with a felony third offense under W.Va. Code § 61-8-5(b), we begin with a review of our rules of statutory construction. This Court has held that in deciding the meaning of a statutory provision, "[w]e look first to the statute's language. If the text, given its plain meaning, answers the interpretive question, the language must prevail and further inquiry is foreclosed." Appalachian Power Co. v. State Tax Dep't of West Virginia , 195 W.Va. 573, 587, 466 S.E.2d 424, 438 (1995) ; see also Syllabus Point 2, Crockett v. Andrews , 153 W.Va. 714, 172 S.E.2d 384 (1970) ("Where

800 S.E.2d 245

the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation."); and Syllabus Point 2, State v. Epperly , 135 W.Va. 877, 65 S.E.2d 488 (1951) ("A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.").

Additionally, this Court has held that "[a] statute is open to construction only where the language used requires interpretation because of ambiguity which renders it susceptible of two or more constructions or of such doubtful or obscure meaning that reasonable minds might be uncertain or disagree as to its meaning." Sizemore v. State Farm Gen. Ins. Co. , 202 W.Va. 591, 596, 505 S.E.2d 654, 659 (1998) (internal quotations and citation omitted). With these rules of statutory construction in mind, we turn to W.Va. Code § 61-8-5(b).

West Virginia Code § 61-8-5(b) sets forth three categories of offenses and corresponding penalties for those offenses. The first two offenses in W.Va. Code § 61-8-5(b) are misdemeanors. It is undisputed that a prostitute who offers to commit an act of prostitution may be charged pursuant to the first and second offenses set forth in W.Va. Code § 61-8-5(b). The first two offenses set forth in W.Va. Code § 61-8-5(b) expressly apply to:

Any person who shall engage in prostitution, lewdness, or assignation, or who shall solicit, induce, entice, or procure another to commit an act of prostitution, lewdness, or assignation; or who shall reside in, enter, or remain in any house, place, building, hotel, tourist camp, or other structure, or enter or remain in any vehicle, trailer, or other conveyance for the purpose of

...