State v. Hatfield

• Decision Date: 21 December 1988
• Docket Number: No. 17519,17519
• Citation: 380 S.E.2d 670,181 W.Va. 106
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Robert Ray HATFIELD.

Page 670

380 S.E.2d 670

181 W.Va. 106

STATE of West Virginia v. Robert Ray HATFIELD.

No. 17519.

Supreme Court of Appeals of West Virginia.

Dec. 21, 1988.

Opinion of Justice Brotherton

June 29, 1989.

Syllabus by the Court

1. " 'A criminal statute must be set out with sufficient definiteness to give a person of ordinary intelligence fair notice that his contemplated conduct is prohibited by statute and to provide adequate standards for adjudication.' Syl. pt. 1, State v. Flinn, , 208 S.E.2d 538 (1974)." Syllabus point 1, State v. Reed, 166 W.Va. 558, 276 S.E.2d 313 (1981).

2. " 'A trial court may in its discretion order two or more indictments, or informations, or both, to be tried together if the offenses could have been joined in a single indictment or information, that is, the offenses are of the same or similar character or are based on the same act or transaction, or on two or more acts or transactions connected together or constituting a common scheme or plan.' Syl. pt. 5, State v. Mitter, 168 W.Va. 531, 285 S.E.2d 376 (1981)." Syllabus, State v. Eye, 177 W.Va. 671, 355 S.E.2d 921 (1987).

3. Even where joinder or consolidation of offenses is proper under the West Virginia Rules of Criminal Procedure, the trial court may order separate trials pursuant to Rule 14(a) on the ground that such joinder or consolidation is prejudicial. The decision to grant a motion for severance pursuant to W.Va.R.Crim.P. 14(a) is a matter within the sound discretion of the trial court.

Silas B. Taylor, Deputy State Atty. Gen., for State.

Jack Thompson, for Hatfield.

McGRAW, Justice:

This is an appeal by the appellant, Robert Ray Hatfield, from a final order of the Circuit Court of Raleigh County sentencing him to a term of life imprisonment as an habitual criminal following his convictions of the crime of abduction with intent to defile. The appellant contends that the abduction statute is unconstitutionally vague and that the trial court erred in denying his motion for separate trials on the underlying offenses. We find merit in the latter assertion, and we reverse the judgment of the circuit court on that ground.

The evidence at trial showed that on June 25, 1985, the appellant lured D., a 16-year-old black male, into his vehicle in Beckley by falsely identifying himself as a relative of a teacher known to D. and offering to assist the teen-ager in obtaining employment. On the pretext of visiting his sister, the appellant drove D. to a church parking lot and offered him $300.00 to "treat him right." When D. became suspicious, the appellant drew a knife from his pocket, held it to D.'s throat and ordered D. to remove his trousers. The appellant then laid the knife on the dashboard and began unzipping his own pants. D. grabbed the knife and escaped after a struggle. The appellant was arrested on July 2, 1985, but was released on bond.

On August 5, 1985, the appellant approached M., a 20-year-old white female, at a tavern in the same general area that he first met D. The appellant identified himself as an out-of-state truckdriver and offered M. $1,000.00 to "show him a good time" at a local motel. M. refused and attempted to avoid the appellant by going to a laundry next door and then to a nearby apartment complex. However, the appellant followed M., forced his way into her car by holding a knife to her throat and drove her across town. When the appellant began making advances towards her, M. wrestled the knife from him and threw it from the car. She was subsequently able to attract the attention of a police officer who arrested the appellant.

In September 1985, the appellant was charged by separate indictments with two counts of abduction with intent to defile in violation of W.Va.Code § 61-2-14(a) (1984 Replacement Vol.). ¹ The indictments were subsequently consolidated for trial in the Circuit Court of Raleigh County.

At a pretrial conference conducted on December 17, 1985, the appellant moved for severance of the charges and a separate trial on each indictment. The appellant also moved to dismiss the indictments on the ground that W.Va.Code § 61-2-14(a) was unconstitutionally vague. The trial court denied the motions, and trial on both charges commenced on December 30, 1985.

On January 2, 1986, the jury found the appellant guilty on both charges. The appellant's motion to set aside the verdict was denied, and the State filed an information charging the appellant with being an habitual criminal. Following a jury trial, the appellant was found guilty of the recidivist charge and, in March 1985, was sentenced to an enhanced term of life imprisonment in the state penitentiary.

I.

The appellant's first contention on appeal is that W.Va.Code § 61-2-14(a), setting forth the offense of abduction with intent to defile, is unconstitutionally vague because it does not define the word "defile". In syllabus point 1 of State v. Reed, 166 W.Va. 558, 276 S.E.2d 313 (1981), we stated: " 'A criminal statute must be set out with sufficient definiteness to give a person of ordinary intelligence fair notice that his contemplated conduct is prohibited by statute and to provide adequate standards for adjudication.' Syl. pt. 1, State v. Flinn, , 208 S.E.2d 538 (1974)."

The term "defile" has been defined as follows:

To corrupt purity or perfection of; to debase; to make ceremonially unclean; to pollute; to sully; to dishonor. State v. Kasnett, 30 Ohio App.2d 77, 283 N.E.2d 636, 638. To debauch, deflower, or corrupt the chastity of a woman. The term does not necessarily imply force or ravishment, nor does it connote previous immaculateness.

Black's Law Dictionary 380 (5th ed. 1979). A sexual purpose or motivation is commonly understood to be an essential element of the offense of abduction with intent to defile. State v. Miller, 175 W.Va. 616, 336 S.E.2d 910, n. 3 (1985). See also People v. Moore, 196 Cal.App.2d 91, 16 Cal.Rptr. 294 (1961); State v. Montgomery, 79 Iowa 737, 45 N.W. 292 (1890); State v. Selby, 183 N.J.Super. 273, 443 A.2d 1076 (1981); People v. LoVerde, 7 N.Y.2d 114, 195 N.Y.S.2d 835, 164 N.E.2d 102 (1959); State v. Botha, 27 Utah 289, 75 P. 731 (1904); Fitzgerald v. Commonwealth, 223 Va. 615, 292 S.E.2d 798 (1982), cert. denied, 459 U.S. 1228, 103 S.Ct. 1235, 75 L.Ed.2d 469 (1983). Although we had not spoken directly to the issue at the time of the offenses charged here, it is evident that the meaning of the term "defile" in this context was settled long ago. See also 4 S. Stephen, Commentaries on the Laws of England (16th ed. 1914). Moreover, the record in this case shows that the defense was well aware of the meaning of the term at trial. Accordingly, we cannot say that the abduction statute was not sufficiently definite to give a person of ordinary intelligence fair notice of the prohibited conduct. See Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975); People v. Loignon, 160 Cal.App.2d 412, 325 P.2d 541 (1958); State v. Holstead, 354 So.2d 493 (La.1977).

II.

The appellant's principal assignment of error, however, is that the trial court erred in ordering the two indictments tried together. Rule 13 of the West Virginia Rules of Criminal Procedure permits joint trial of offenses charged in separate indictments if such offenses could have been joined in a single indictment. ² The test for consolidation of indictments is the same test utilized for joinder of offenses under W.Va.R.Crim.P. 8(a):

Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character. All offenses based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan shall be charged in the same indictment or information in a separate count for each offense, whether felonies or misdemeanors or both.

See State v. Eye, 177 W.Va. 671, 355 S.E.2d 921 (1987); State v. Mitter, 168 W.Va. 531, 285 S.E.2d 376 (1981). Courts interpreting the equivalent provision of the Federal Rules of Criminal Procedure ³ have held that Rule 8(a) is to be liberally construed in favor of joinder. United States v. Montes-Cardenas, 746 F.2d 771 (11th Cir.1984); United States v. Wirsing, 719 F.2d 859 (6th Cir.1983); United States v. Armstrong, 621 F.2d 951 (9th Cir.1980); United States v. McGrath, 558 F.2d 1102 (2d Cir.1977), cert. denied, 434 U.S. 1064, 98 S.Ct. 1239, 55 L.Ed.2d 765 (1978). See 1 C. Wright, Federal Practice and Procedure: Criminal § 141 (2d ed. 1982).

Here, it is contended that the two indictments were properly consolidated for trial because the offenses were "of the same or similar character." ⁴ A number of jurisdictions have held that the offenses need not be related to each other to be "of the same or similar character" within the meaning of the Rules. "[R]ule 8(a) permits joinder against one defendant of offenses 'of the same or similar character', even where those offenses arise out of wholly separate, unconnected transactions...." United States v. Satterfield, 548 F.2d 1341, 1344 (9th Cir.1977), cert. denied, 439 U.S. 840, 99 S.Ct. 128, 58 L.Ed.2d 138 (1978), citing United States v. Roselli, 432 F.2d 879, 898 (9th Cir.1970), cert. denied, 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828 (1971) and 1 C. Wright & A. Miller, Federal Practice and Procedure § 144 (1969 & Supp.1976). See United States v. Bibby, 752 F.2d 1116 (6th Cir.1985), cert. denied, 472 U.S. 1010, 106 S.Ct. 1183, 89 L.Ed.2d 300 (1986); Cupo v. United States, 123 U.S.App.D.C. 324, 359 F.2d 990 (1966), cert. denied, 385 U.S. 1013, 87 S.Ct. 723, 17 L.Ed.2d 549 (1967); Kivette v. United States, 230 F.2d 749 (5th Cir.1956), cert. denied, 355 U.S. 935, 78 S.Ct. 419, 2 L.Ed.2d 418 (1958). ⁵ Neither must the offenses be identical in nature.

Rule 8(a) is not limited to crimes of the "same" character but also covers those of "similar" character, which...