State v. Gill

• Decision Date: 24 March 1992
• Docket Number: No. 20155,20155
• Citation: 416 S.E.2d 253,187 W.Va. 136
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Terry A. GILL, Defendant Below, Appellant.

Page 253

416 S.E.2d 253

187 W.Va. 136

STATE of West Virginia, Plaintiff Below, Appellee, v. Terry A. GILL, Defendant Below, Appellant.

No. 20155.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 15, 1992.

Decided March 24, 1992.

[187 W.Va. 138] Syllabus by the Court

1. 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.

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

3. In Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), the United States Supreme Court held that the Fifth Amendment constitutional guarantee against double jeopardy was binding on the states through the Fourteenth Amendment to the United States Constitution.

4. "[W]here 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 a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932).

5. The test of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), is a rule of statutory construction. The rule is not controlling where there is a clear indication of contrary legislative intent.

6. "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).

7. 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.

8. 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.

9. 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.

10. "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).

Michele L. Rusen, Asst. Pros. Atty., Parkersburg, for appellee.

Joseph P. Albright, Jr., Albright, Bradley & Ellison, Parkersburg, for appellant.

MILLER, Justice:

The defendant, Terry A. Gill, appeals a final order of the Circuit Court of Wood County, dated June 21, 1990, upholding a jury verdict convicting him of fourteen sex-related crimes. The defendant was convicted of three counts of first-degree sexual assault for violating W.Va.Code, 61-8B-3(a)(2) (1984), ¹ and three counts of first-degree sexual abuse under W.Va.Code, 61-8B-7(a)(3) (1984). ² These same acts were charged and convictions were obtained under W.Va.Code, 61-8D-5 (1988), ³ which relates to sexual abuse by a parent, custodian, or guardian. Two additional convictions were obtained under W.Va.Code, 61-8D-5, arising from the defendant forcing the victim to urinate in his mouth on two separate occasions. These acts were not charged under the general sexual offense statute. The trial court sentenced the defendant to a term of not less than eighty-eight years or more than one hundred seventy years in the West Virginia State Penitentiary.

On appeal, the defendant's primary assignment of error is that his convictions and multiple punishments for the same acts under our sexual offenses statute, W.Va.Code, 61-8B-1, et seq., and our sexual abuse by parent, guardians, or custodians statute, W.Va.Code, 61-8D-5, violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Article III, Section 5 of the West Virginia Constitution.

I. FACTS

On June 10, 1989, Laura L., age eleven, flew from Anchorage, Alaska, to Parkersburg, West Virginia, to visit her mother. Laura had lived the previous year with an aunt and uncle and had attended fifth grade in Alaska. As soon as the school year was over, Laura returned to Parkersburg where she was to resume living with her mother. Shortly after her plane arrived in Parkersburg, Laura's mother told her that she would be spending the night in the home of a former neighbor, the defendant. ⁴ When they arrived at the defendant's home, the defendant's roommate, Paul Faulkenberry, girlfriend, Jean Fulton, and six-year-old daughter, Terry Lynn, were present.

During the evening of June 10, 1989, the defendant sexually assaulted the victim. Specifically, the defendant was charged with licking the victim's vagina through her underwear, licking her vagina after he had removed her panties, sticking his finger in her anus, and touching her vagina with his hand. These four acts resulted in two convictions under W.Va.Code, 61-8B-3(a)(2), two convictions under W.Va.Code, 61-8B-7(a)(3), and four convictions under W.Va.Code, 61-8D-5. ⁵ The defendant was also convicted of another count under W.Va.Code, 61-8D-5, for forcing the victim to urinate into his mouth.

On the morning of June 11, 1989, the defendant assaulted the victim again. The defendant was charged with performing cunnilingus on the victim and touching the victim's vagina with his hand. For these two acts, the defendant was convicted of one count under W.Va.Code, 61-8B-3(a)(2), one count under W.Va.Code, 61-8B-7(a)(3), and two counts under W.Va.Code, 61-8D-5. The defendant's final conviction under W.Va.Code, 61-8D-5, was for a second occurrence in which he made the victim urinate into his mouth.

At trial, the State presented several witnesses who substantiated the victim's allegations. For example, Jean Fulton, the defendant's girlfriend, testified that she put the children to bed around 9:00 p.m. on June 10. Shortly thereafter, the defendant went upstairs, and Ms. Fulton overheard Laura yelling "Leave me alone." When Ms. Fulton went upstairs to see what was wrong, she observed the defendant holding the victim's wrists as the victim was crouched in the corner of the bedroom. Laura then told Ms. Fulton, "Terry said--if he didn't lick my pussy, he would kill my mom." The defendant told Ms. Fulton to go back downstairs, and then slapped Laura across the mouth.

Both Ms. Fulton and Paul Faulkenberry testified that shortly after Ms. Fulton came back downstairs, Laura ran down the steps and tried to leave the house. The defendant followed the victim and told Mr. Faulkenberry to grab her. Mr. Faulkenberry did, and the defendant took the victim back upstairs. Shortly thereafter, Ms. Fulton left the premises. Mr. Faulkenberry also stated that the defendant was alone with the victim for thirty to forty minutes the following morning.

The victim's mother testified that when she picked Laura up the following morning, Laura accused the defendant of sexually assaulting her. Moreover, the victim's mother observed that Laura had bruises on her legs.

Finally, Dr. Liela Hocking Keltner, a physician with the Child Abuse Response and Evaluation Service, testified that she examined Laura approximately three months after the incident. She testified that the physical exam corroborated Laura's accusation.

II. MULTIPLE PUNISHMENTS

This is the first occasion we have had to address whether multiple punishments imposed after a single trial which resulted in convictions for the same acts under our sexual offenses statute, W.Va.Code, 61-8B-1, et seq., and our sexual abuse statute relating to parents, custodians, or guardians, W.Va.Code, 61-8D-5, violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution or Article III, Section 5 of the West Virginia Constitution.

The Double Jeopardy Clause of the Fifth Amendment provides that no person shall be "subject for the same offense to be twice put in jeopardy of life or limb[.]" This clause affords three separate constitutional protections for the criminal defendant. These protections were first outlined by the United States...