State v. George W.H., 21658

• Court: Supreme Court of West Virginia
• Writing for the Court: MILLER
• Citation: 439 S.E.2d 423,190 W.Va. 558
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. GEORGE W.H., Defendant Below, Appellant.
• Docket Number: No. 21658,21658
• Decision Date: 13 December 1993

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439 S.E.2d 423 190 W.Va. 558 STATE of West Virginia, Plaintiff Below, Appellee,
v.
GEORGE W.H., Defendant Below, Appellant. No. 21658. Supreme Court of Appeals of West Virginia. Submitted Sept. 21, 1993.
Decided Dec. 13, 1993.

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[190 W.Va. 560] Syllabus by the Court

1. "Under ex post facto principles of the United States and West Virginia Constitutions, a law passed after the commission of an offense which increases the punishment, lengthens the sentence or operates to the detriment of the accused, cannot be applied to him." Syllabus Point 1, Adkins v. Bordenkircher, 164 W.Va. 292, 262 S.E.2d 885 (1980).

2. "The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution consists of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." Syllabus Point 1, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).

3. " 'The Double Jeopardy Clause in Article III, Section 5 of the West Virginia

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[190 W.Va. 561] Constitution, provides immunity from further prosecution where a court having jurisdiction has acquitted the accused. It protects against a second prosecution for the same offense after conviction. It also prohibits multiple punishments for the same offense.' Syllabus Point 1, Conner v. Griffith, 160 W.Va. 680, 238 S.E.2d 529 (1977)." Syllabus Point 2, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).

4. "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." Syllabus Point 8, State v. Zaccagnini, 172 W.Va. 491, 308 S.E.2d 131 (1983).

5. "A claim that double jeopardy has been violated based on multiple punishments imposed after a single trial is resolved by determining the legislative intent as to punishment." Syllabus Point 7, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).

6. "In ascertaining legislative intent, a court should look initially at the language of the involved statutes and, if necessary, the legislative history to determine if the legislature has made a clear expression of its intention to aggregate sentences for related crimes. If no such clear legislative intent can be discerned, then the court should analyze the statutes under the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to determine whether each offense requires an element of proof the other does not. If there is an element of proof that is different, then the presumption is that the legislature intended to create separate offenses." Syllabus Point 8, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).

7. "W.Va.Code, 61-8D-5(a) (1988), states, in part: 'In addition to any other offenses set forth in this code, the Legislature hereby declares a separate and distinct offense under this subsection[.]' Thus, the legislature has clearly and unequivocally declared its intention that sexual abuse involving parents, custodians, or guardians, W.Va.Code, 61-8D-5, is a separate and distinct crime from general sexual offenses, W.Va.Code, 61-8B-1, et seq., for purposes of punishment." Syllabus Point 9, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).

8. " '[Under Article III, Section 14 of the West Virginia Constitution,] [a]n indictment is sufficient when it clearly states the nature and cause of the accusation against a defendant, enabling him to prepare his defense and plead his conviction as a bar to later prosecution for the same offense.' Syllabus Point 1, State v. Furner, 161 W.Va. 680, 245 S.E.2d 618 (1978)." Syllabus Point 1, State v. Childers, 187 W.Va. 54, 415 S.E.2d 460 (1992).

9. " 'An indictment for a statutory offense is sufficient if, in charging the offense, it substantially follows the language of the statute, fully informs the accused of the particular offense with which he is charged and enables the court to determine the statute on which the charge is based.' Syllabus Point 3, State v. Hall, 172 W.Va. 138, 304 S.E.2d 43 (1983)." Syllabus Point 2, State v. Childers, 187 W.Va. 54, 415 S.E.2d 460 (1992).

10. "Rule 402 and Rule 403 of the West Virginia Rules of Evidence [1985] direct the trial judge to admit relevant evidence, but to exclude evidence whose probative value is substantially outweighed by the danger of unfair prejudice to the defendant." Syllabus Point 4, Gable v. Kroger Co., 186 W.Va. 62, 410 S.E.2d 701 (1991).

11. " 'Rulings on the admissibility of evidence are largely within a trial court's sound discretion and should not be disturbed unless there has been an abuse of discretion.' State v. Louk, 171 W.Va. 639, [643,] 301 S.E.2d 596, 599 (1983)." Syllabus Point 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983).

12. "A conviction for any sexual offense may be obtained on the uncorroborated testimony of the victim, unless such testimony is inherently incredible, the credibility is a question for the jury." Syllabus Point 5, State v. Beck, 167 W.Va. 830, 286 S.E.2d 234 (1981).

13. " '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

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[190 W.Va. 562] 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)." Syllabus Point 10, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).

14. "Where the record of a criminal trial shows that the cumulative effect of numerous errors committed during the trial prevented the defendant from receiving a fair trial, his conviction should be set aside, even though any one of such errors standing alone would be harmless error." Syllabus Point 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972).

Darrell V. McGraw, Jr., Atty. Gen., Teresa L. Sage, Asst. Atty. Gen., Charleston, for appellee.

Philip A. LaCaria, LaCaria & Hassan, Rudolph J. Murensky, II, Welch, for appellant.

MILLER, Justice:

The defendant, George W.H., ¹ appeals from a final order of the Circuit Court of McDowell County, entered August 3, 1992, sentencing him to six consecutive sentences for committing sexually-related crimes against his daughter, Rita G.H. The offenses were committed on two separate occasions. The first incident occurred in either 1984 or 1985, and the second incident occurred in May of 1990.

The defendant was indicted for committing the same three offenses on both occasions. Counts one through three of the indictment relate to the first incident, while counts four through six relate to the second one. The indictment charges the defendant in counts one and four with incest in violation of W.Va.Code, 61-8-12 ²; in counts two and five with sexual assault in the second degree in violation of W.Va.Code, 61-8B-4 (1984) ³; and in counts three and six with "sexual abuse by a

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[190 W.Va. 563] custodian" ⁴ in violation of W.Va.Code, 61-8D-5(a) (1988). ⁵ The defendant was convicted by a jury on all six counts.

On appeal, the defendant makes the following assignments of error: (1) that his convictions for the 1984 or 1985 incident of sexual abuse by a custodian, W.Va.Code, 61-8D-5(a), and sexual assault in the second degree, W.Va.Code, 61-8B-4, violate the prohibition against ex post facto laws found in Section 10 of Article I of the United States Constitution and Section 4 of Article III of the West Virginia Constitution; (2) that his convictions for incest, W.Va.Code, 61-8-12, and sexual abuse by a custodian, W.Va.Code, 61-8D-5(a), violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Section 5 of Article III of the West Virginia Constitution; and (3) that his convictions for both counts of sexual assault in the second degree, W.Va.Code, 61-8B-4, violate the Sixth Amendment to the United States Constitution and Sections 4 and 14 of Article III of the West Virginia Constitution because the indictment fails to allege an essential element of the offense. The defendant also argues that his convictions should be reversed because certain evidence should have been excluded under Rule 403 of the West Virginia Rules of Evidence, and because the verdicts were based on insufficient evidence and cumulative error. ⁶

I.

FACTS

The essential facts are as follows. Rita G.H. lived with her natural mother and father and her two younger brothers in McDowell County. On May 11, 1990, Rita told school officials that her father was having sexual intercourse with her. School officials contacted the police and Rita gave a statement to Trooper J.R. Pauley on that same day.

At the time, Rita was fifteen years old. She told Trooper Pauley that her father had touched and felt her for as long as she could remember, the earliest recollection of which was at about age five. Rita described several incidents of sexual abuse and sexual assault committed by her father. One of the events involved the defendant penetrating her with his penis when she was ten or eleven years old. Rita said it happened when she was riding with her father in a red truck and he pulled off the road into a dip where no one could see them. She recalled

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[190 W.Va. 564] that her father tied her hands behind her back, pulled up her dress, took off her panties, and inserted his penis in her vagina. After he finished, she stated that her father told her that if she...