State v. Hays, 19783

• Decision Date: 12 July 1991
• Docket Number: No. 19783,19783
• Citation: 185 W.Va. 664,408 S.E.2d 614
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Raymond HAYS, Defendant Below, Appellant.

Page 614

408 S.E.2d 614

185 W.Va. 664

STATE of West Virginia, Plaintiff Below, Appellee, v. Raymond HAYS, Defendant Below, Appellant.

No. 19783.

Supreme Court of Appeals of

West Virginia.

Submitted May 8, 1991.

Decided July 12, 1991.

[185 W.Va. 666] 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, 158 W.Va. 111, 208 S.E.2d 538 (1974).

2. W.Va.Code, 61-3-39 [1977] and W.Va.Code, 61-3-39a [1977] are not unconstitutionally vague in violation of U.S. Const. amend. XIV, § 1, or W.Va. Const. art. III, § 10.

3. "The test of determining whether a particular offense is a lesser included offense is that the lesser offense must be such that it is impossible to commit the greater offense without first having committed the lesser offense. An offense is not a lesser included offense if it requires the inclusion of an element not required in the greater offense." Syl. pt. 1, State v. Louk, 169 W.Va. 24, 285 S.E.2d 432 (1981).

4. "Where there is no evidentiary dispute or insufficiency on the elements of the greater offense which are different from the elements of the lesser included offense, then the defendant is not entitled to a lesser included offense instruction." Syl. pt. 2, State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982).

5. A violation of W.Va.Code, 61-3-39a [1977] is not a lesser included offense of W.Va.Code, 61-3-39 [1977]. Consequently, a defendant who is accused of violating W.Va.Code, 61-3-39 [1977] is not entitled to a "lesser included offense" instruction reflecting the elements of W.Va.Code, 61-3-39a [1977].

6. "A primary test to determine whether a plea bargain should be accepted or rejected is in light of the entire criminal event and given the defendant's prior criminal record whether the plea bargain enables the court to dispose of the case in a manner commensurate with the seriousness of the criminal charges and the character and background of the defendant." Syl. pt. 6, Myers v. Frazier, 173 W.Va. 658, 319 S.E.2d 782 (1984).

7. "Great latitude is allowed counsel in argument of cases, but counsel must keep within the evidence, not make statements calculated to inflame, prejudice or mislead the jury, nor permit or encourage witnesses to make remarks which would have a tendency to inflame, prejudice or mislead the jury." Syl. pt. 2, State v. Kennedy, 162 W.Va. 244, 249 S.E.2d 188 (1978).

8. "A judgment of conviction will not be reversed because of improper remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused or result in manifest injustice." Syl. pt. 5, State v. Ocheltree, 170 W.Va. 68, 289 S.E.2d 742 (1982).

9. "Sentences imposed by the trial court, if within statutory limits and if not based on some [im]permissible factor, are not subject to appellate review." Syl. pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).

John Earl Williams, Jr. Princeton, for appellant.

Joanna I. Tabit Deputy Atty. Gen., Appellate Div., Charleston, for appellee.

McHUGH, Justice:

This case is before this Court upon the appeal of Raymond Hays from the final judgment of the Circuit Court of Mercer County. The appellee is the State of West Virginia.

The appellant was convicted of violating W.Va.Code, 61-3-39 [1977], which relates to the issuing of a worthless check in exchange for "property or [a] thing of value[,]" and sentenced to one to ten years. In another count under the same indictment, the appellant was convicted of violating W.Va.Code, 61-3-39a [1977], which relates to the issuing of a worthless check for a preexisting debt, but that count was dismissed after the appellant paid the amount he owed for which the check was given. That count is not the primary issue in this appeal. ¹

I FACTS

The appellant was the owner of a business, namely, Computer World, Inc. On January 4, 1989, the appellant presented a check in the amount of $450.00 to Mr. Riaz Darr as a security deposit for a commercial lease. The appellant testified that he had told Darr that insufficient funds were in the account at the time, and that he (the appellant) asked Darr to hold the checks (the other being for the first month's rent) until a deposit could be made, and then the appellant would notify Darr when sufficient funds were in the account to cover Darr attempted to deposit the check, but it was returned due to insufficient funds in the appellant's account. Darr testified that he did not remember if the appellant had told him that there were insufficient funds in the account. However, Darr did testify that, evidently, the appellant did not tell Darr this or else Darr would not have attempted to deposit the check.

[185 W.Va. 668] the checks. The appellant testified that Darr agreed to this arrangement.

Between January and September, 1989, the appellant fell behind in making rent payments to Darr. Darr brought an action against the appellant to recover the rent due. On September 25, 1989, the appellant presented a check to Darr in the amount of $3200, which represented the security deposit and the rent for several previous months.

The appellant raises several assignments of error before this Court.

II VAGUENESS

The primary issue raised by the appellant is the constitutionality of W.Va.Code, 61-3-39 [1977] and W.Va.Code, 61-3-39a [1977]. ²

The appellant contends that these two statutory provisions are unconstitutionally vague and should be declared void pursuant to section one of the fourteenth amendment to the United States Constitution, and article III, section 10 of the West Virginia Constitution. ³

The appellant claims that he may not be charged under W.Va.Code, 61-3-39 [1977] because his crime is defined under W.Va.Code, 61-3-39a [1977]. In so contending, the appellant points out that W.Va.Code, 61-3-39 [1977] requires the obtainment of tangible goods, such as money, services, goods, or other property. W.Va.Code, 61- 3-39a Because the check at issue in this case was for a security deposit, the appellant, in support of his argument, relies upon the definition of the word "security," as that word is used in the term "security deposit." "Security" has been defined as protection, assurance, or indemnification. Black's Law Dictionary 1355 (6th ed. 1990). The appellant contends that such "security" is not "tangible," and, therefore, he did not receive anything tangible for the check. ⁴

[1977], on the other hand, is merely for issuing a check which represents the payment of money.

The State, on the other hand, emphasizes the phrase "property or thing of value," contained in W.Va.Code, 61-3-39 [1977]. The State maintains that because the appellant obtained the commercial lease by issuing a worthless check, then clearly he obtained "property" or a "thing of value" in violation of W.Va.Code, 61-3-39 [1977]. In support of this contention, the State points to the definition of "value," which is the worth of an object, or any consideration sufficient to support a simple contract. Black's Law Dictionary 1551 (6th ed.1990).

In deciding whether a criminal statute should be declared void for vagueness, this Court follows the teaching of syllabus point 1 of State v. Flinn, 158 W.Va. 111, 208 S.E.2d 538 (1974): "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." This "vagueness standard is well settled[.]" State v. Less, 170 W.Va. 259, 263, 294 S.E.2d 62, 66 (1981). See syl. pt. 2, Less; syl. pt. 1, State v. Reed, 166 W.Va. 558, 276 S.E.2d 313 (1981); State ex rel. Whitman v. Fox, 160 W.Va. 633, 638-39, 236 S.E.2d 565, 569 (1977); State ex rel. Cogar v. Kidd, 160 W.Va. 371, 376-77, 234 S.E.2d 899, 902 (1977); Anderson v. George, 160 W.Va. 76, 84, 233 S.E.2d 407, 411 (1977) (Miller, J., concurring); State v. Grinstead, 157 W.Va. 1001, 1009, 206 S.E.2d 912, 918 (1974).

In State v. Griffith, 168 W.Va. 718, 285 S.E.2d 469 (1981), we were presented with a constitutional challenge to W.Va.Code, 61-3-39a to 61-3-39g, as amended, all of which deal with violations involving worthless checks. There, the defendant contended that W.Va.Code, 61-3-39a [1977] was unconstitutionally vague. We pointed out, though, that because the defendant was convicted of violating W.Va.Code, 61-3-39 [1977], and not W.Va.Code, 61-3-39a [1977], then this Court "will not decide constitutional challenges to a statute unless that question is necessary to a decision in the case." Id., syl. pt. 2. ⁵

However, in Griffith, we discussed the differences between W.Va.Code, 61-3-39 [1977] and W.Va.Code, 61-3-39a [1977]:

Code, 61-3-39 relates to the knowing issuance of a worthless check in order to obtain any money, services or things of value. It is akin to obtaining property or labor by false pretenses, a Code[,] 61-3-24 crime, including similar provisions delineating felonies from misdemeanors based on the value of 'property' taken.

[185 W.Va. 670] Code, 61-3-39a, a different crime, makes it a simple misdemeanor to issue a worthless check for a preexisting debt.

168 W.Va. at 723-24, 285 S.E.2d at 472-73 (emphasis supplied).

Under this Court's test for vagueness, set forth in Flinn, we do not believe that W.Va.Code, 61-3-39 [1977], nor W.Va.Code, 61-3-39a [1977] are constitutionally deficient. ⁶

Rather, both statutes are very clear in their use of terms, especially, as applied to the facts of this case. The appellant herein, by issuing a worthless check for a security deposit, obtained an interest in a commercial lease for his business. Clearly, this lease represented "property or [a] thing of value" as that phrase is used in W.Va.Code, 61-3-39 [1977].

W.Va.Code, 61-3-39a [1977], on the other hand, does not...