State v. Hensler, 20210

• Court: Supreme Court of West Virginia
• Writing for the Court: PER CURIAM
• Citation: 415 S.E.2d 885,187 W.Va. 81
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Michael HENSLER, Defendant Below, Appellant.
• Docket Number: No. 20210,20210
• Decision Date: 20 March 1992

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415 S.E.2d 885 187 W.Va. 81 STATE of West Virginia, Plaintiff Below, Appellee,
v.
Michael HENSLER, Defendant Below, Appellant. No. 20210. Supreme Court of Appeals of
West Virginia. Submitted Jan. 15, 1992.
Decided March 20, 1992. Syllabus by the Court

"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).

Teresa A. Tarr, Asst. Atty. Gen., Charleston, for appellee.

David Gibbs, Zachary S. Gray, Gibbs & Craze Co., L.P.A., Coneaut, Ohio, Gregory Campbell, Charleston, for appellant.

PER CURIAM:

This is an appeal by Michael Hensler from an order of the Circuit Court of Brooke County sentencing him to two concurrent terms of from one-to-five years in the State penitentiary for two convictions of first-degree sexual abuse and for two other concurrent terms of from one-to-five years for two additional convictions of first-degree sexual abuse. On appeal, among other things, the defendant claims that W.Va.Code, 61-8B-1(1)(c), was improperly applied in his case, either as an unconstitutional ex post facto law, or in violation of his right to due process of law. After reviewing the record and the questions presented, this Court agrees. The defendant's conviction is, therefore, reversed.

During the 1985-86 school year, the defendant, a minister, operated a private school, called the Great Hope Baptist Academy, in the basement of his home located in Brooke County, West Virginia. Among his pupils was a fourteen-year-old boy whose tuition had been waived in exchange for the boy agreeing to do work in the defendant's yard. This case arises out of accusations that the defendant, on four occasions during the 1985-86 school year, made

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[187 W.Va. 82] sexual advances to the boy while the boy was at the defendant's home.

On November 6, 1989, as a result of the boy's accusations, a grand jury in Brooke County indicted the defendant on four counts of first-degree sexual abuse in violation of W.Va.Code, 61-8B-7. The defendant was subsequently tried on the charges, and on February 28, 1990, a jury found him guilty on all counts.

In the present proceeding, the defendant alleges that the trial court allowed the jury to consider the definition of terms contained in W.Va.Code, 61-8B-1(1)(c), in determining whether he had violated W.Va.Code, 61-8B-7, and he claims that since W.Va.Code, 61-8B-1(1)(c), was the law in West Virginia only after the dates of the alleged crimes, the application of W.Va.Code, 61-8B-1(1)(c), to his case constituted the application of an ex post facto law and that it violated his right to due process of law.

As previously indicated, the defendant was charged with four courts of sexual abuse in the first degree in violation of W.Va.Code, 61-8B-7. That Code section provides, in relevant part:

(a) A person is guilty of sexual abuse in the first degree when:

(1) Such person subjects another person to sexual contact without their consent, and the lack of consent results from forcible compulsion; ...

During the 1985-86 school year, when the alleged crimes were committed, W.Va.Code, 61-8B-1, defined "forcible compulsion" as follows:

(1) "Forcible compulsion" means:

(a) Physical force that overcomes such earnest resistance as might reasonably be expected under the circumstances; or

(b) Threat or intimidation, expressed or implied, placing a person in fear of immediate death or bodily injury to himself or another person or in fear that he or another person will be kidnapped.

In 1986, W.Va.Code, 61-8B-1, was amended to add a subsection (c), which indicated that "forcible compulsion" also meant:

(c) Fear by a child under sixteen years of age caused by intimidation, expressed or implied, by another person four years older than the victim.

Subsection (c) had an effective date of July 1, 1986, after the close of the school year at the Great Hope Baptist Academy and after the dates of the crimes charged in the indictment.

In settling the instructions in the defendant's case, the trial court indicated that the evidence did not support an instruction on forcible compulsion as defined in subsections (a) and (b) of W.Va.Code, 61-8B-1. The court further said:

I think it's clear at this point in time, as Mr. Gallagher pointed out, that the only subdivision of forcible compulsion, and this is how I have it defined in the last paragraph, would be as follows: "Forcible compulsion as it relates to the indictment in this case means fear by a child under 16 years of age caused by intimidation expressed or implied by another person four years older than the victim."

The court later proceeded to instruct the jury to that effect.

On appeal, the defendant contends that the instruction given by the court...