State v. Hottinger

• Decision Date: 19 July 1995
• Docket Number: No. 22580,22580
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Dee HOTTINGER, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

Page 462

461 S.E.2d 462

194 W.Va. 716

STATE of West Virginia, Plaintiff Below, Appellee, v. Dee HOTTINGER, Defendant Below, Appellant.

No. 22580.

Supreme Court of

Appeals of West Virginia.

Submitted May 16, 1995.

Decided July 14, 1995.

Concurring and Dissenting Opinion of

Justice Cleckley July 19, 1995.

Syllabus by the Court

1. " 'The prosecuting attorney occupies a quasi-judicial position in the trial of a criminal case. In keeping with his position, he is required to avoid the role of a partisan, eager to convict, and must deal fairly with the accused as well as the other participants in the trial. It is the prosecutor's duty to set a tone of fairness and impartiality, and while he may and should vigorously pursue the State's case, in so doing he must not abandon the quasi-judicial role with which he is cloaked under the law.' Syl. pt. 3, State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977)." Syl. pt. 1, State v. Critzer, 167 W.Va. 655, 280 S.E.2d 288 (1981).

2. " 'An attorney for the state may prosecute vigorously as long as he deals fairly with the accused; but he should not become a partisan, intent only on conviction. And, it is a flagrant abuse of his position to refer, in his argument to the jury, to material facts outside the record, or not fairly deducible therefrom.' Syllabus, State v. Moose, 110 W.Va. 476, 158 S.E. 715 (1931)." Syl. pt. 2, State v. Critzer, 167 W.Va. 655, 280 S.E.2d 288 (1981).

3. "A judgment of conviction will not be reversed because of improper remarks made by a prosecuting attorney in his opening statement to a jury which do not clearly prejudice the accused or result in manifest injustice." Syl. pt. 1, State v. Dunn, 162 W.Va. 63, 246 S.E.2d 245 (1978).

4. "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." Syl. pt. 1, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978).

5. " '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.' Syllabus Point 1, State v. Louk, 169 W.Va. 24, 285 S.E.2d 432 (1981)." Syl. pt. 1, State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982).

John G. Ours, Petersburg, for appellant.

Darrell V. McGraw, Jr., Atty. Gen., Dawn E. Warfield, Deputy Atty. Gen., Charleston, for appellee.

PER CURIAM:

The appellant, Dee Hottinger, appeals his jury conviction in the Circuit Court of Pendleton County of sexual assault in the second degree and sexual assault in the third degree. The appellant was sentenced to serve not less than ten nor more than twenty-five years in prison and fined $1000.00 for his conviction of sexual assault in the second degree. The appellant was also sentenced to serve not less than one nor more than five years in prison and fined $1000.00 for his conviction of sexual assault in the third degree, with both sentences running concurrently.

The appellant raises four assignments of error which are as follows: (1) error was committed in the prosecutor's opening statement and closing argument; (2) the evidence was insufficient to support a jury finding of forcible compulsion pursuant to W.Va.Code, 61-8B-4 [1991], which outlines the elements of second degree sexual assault; (3) the evidence was insufficient to support a third degree sexual assault conviction pursuant to W.Va.Code, 61-8B-5 [1984]; and (4) the jury should have been instructed on the elements of the offense of fornication because it is a lesser included offense of second or third degree sexual assault. For the reasons set forth below, we affirm the appellant's conviction.

I

There was conflicting evidence presented at trial. The victim, M.A., ¹ was fifteen years old when the sexual assault occurred. According to M.A., in the late summer of 1993 the appellant, who was then forty-nine years old, came by her family's house one evening and asked to have sex with M.A.'s mother. After the appellant left the house, M.A.'s mother informed her boyfriend, George Miller, that she would not comply. Miller then told M.A. that she would, instead, have to have sex with the appellant for money. M.A. asserts that she told Miller that she did not want to have sex with the appellant. However, M.A. states that because she feared being physically harmed by Miller, she got into the car with Miller and went to the appellant's house.

When Miller and M.A. arrived at the appellant's house, the appellant came outside to the car. Miller asked the appellant if he wanted sex for some beer money. The appellant said yes. Thus, while Miller remained in the car, M.A. went into the house and into the bedroom where she began disrobing. According to M.A., the appellant became rough and ripped off her bra, thereafter engaging in sexual intercourse with her.

The appellant admits to having sexual intercourse with M.A., but denies being rough with her. The appellant also denies that he went to M.A.'s family home and asked to have sex with M.A.'s mother. The appellant states that Miller and M.A. just showed up outside his house and asked whether or not he wanted to have sex with M.A. for beer money. Moreover, the appellant states that he thought M.A. was about eighteen years old. The appellant also asserts that he did not know that Miller was forcing M.A. to have sex with him.

II

The appellant argues that the prosecutor's remarks during the opening statement and closing argument constituted error. We are mindful that

'[t]he prosecuting attorney occupies a quasi-judicial position in the trial of a criminal case. In keeping with this position, he is required to avoid the role of a partisan, eager to convict, and must deal fairly with the accused as well as the other participants in the trial. It is the prosecutor's duty to set a tone of fairness and impartiality, and while he may and should vigorously pursue the State's case, in so doing he must not abandon the quasi-judicial role with which he is cloaked under the law.' Syl. pt. 3, State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977).

Syl. pt. 1, State v. Critzer, 167 W.Va. 655, 280 S.E.2d 288 (1981).

The appellant specifically complains about two statements made by the prosecutor during his opening statement. The first statement made by the prosecutor was that

[t]he evidence in this case against [the appellant] will show that George Miller made it well known that people could have sexual intercourse with [M.A.]; as a matter of fact, he would brag; he would say things like this girl has a figure that she has because of me. He would also say to people--and one of the selling points to people to get her to have sexual intercourse, and one of the things he would tell his buddies and these guys who were paying her or whatever, was that she's only fifteen; that was a selling point for George Miller.

Although the appellant does not explain in his brief why the above statement was error, at the June 10, 1994 hearing on his motion for a new trial, the appellant argued that the above statement was objectionable because it referred to other defendants and to facts not in evidence.

We acknowledge that in syllabus point 2 of Critzer, supra, this Court held the following in reference to a prosecutor's statements in closing argument:

'An attorney for the state may prosecute vigorously as long as he deals fairly with the accused; but he should not become a partisan, intent only on conviction. And, it is a flagrant abuse of his position to refer, in his argument to the jury, to material facts outside the record, or not fairly deducible therefrom.' Syllabus, State v. Moose, 110 W.Va. 476, 158 S.E. 715 (1931).

However, this Court has held that "[a] judgment of conviction will not be reversed because of improper remarks made by a prosecuting attorney in his opening statement to a jury which do not clearly prejudice the accused or result in manifest injustice." Syl. pt. 1, State v. Dunn, 162 W.Va. 63, 246 S.E.2d 245 (1978) (This Court also stated that improper remarks made by a prosecutor in a closing argument would not warrant reversal if the defendant was not prejudiced and if manifest injustice did not occur). See also State v. Stewart, 187 W.Va. 422, 426-28, 419 S.E.2d 683, 687-89 (1992) (This Court applied the above test set forth in Dunn, supra, to comments made by a prosecutor during closing argument).

The prosecutor explained in the record that he thought that evidence would be introduced at trial to support the above statements and was surprised when M.A.'s testimony revealed that Miller had not made those comments to the appellant in her presence. Although the prosecutor should not refer to material facts which will not be introduced at trial during an opening statement, it is less likely to warrant reversal than if the prosecutor argues facts which he knows have not been introduced into evidence during closing argument.

Moreover, as the above statement by the prosecuting attorney reveals, he prefaced his remark with the following: "The evidence in this case [against the appellant] will show...." Additionally, at the beginning of his opening statement, the prosecutor informed the jury that

as the Judge indicates, what I will tell you is not evidence in this case. The evidence in the case will come from the witness stand, because I'm not under oath.... The purpose of an opening statement is simply to...