State v. Knight

• Decision Date: 18 December 1981
• Docket Number: No. 15081,15081
• Citation: 168 W.Va. 615,285 S.E.2d 401
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Timothy KNIGHT.

Page 401

285 S.E.2d 401

168 W.Va. 615

STATE of West Virginia v. Timothy KNIGHT.

No. 15081.

Supreme Court of Appeals of West Virginia.

Dec. 18, 1981.

Syllabus by the Court

1. The language contained in W.Va.Code § 61-8B-10 (1977 Replacement Vol.) and adjacent statutes is plain and unambiguous on its face and sufficient to put the community and the defendant on notice as to the criminal nature of his acts; in the case of the crime of indecent exposure, the defendant must be informed (1) that the victim did not consent to the act; (2) that the act consisted of the intentional exposure of sex organs or anus; and (3) that the act is done under circumstances which the perpetrator knows is likely to cause affront or alarm.

2. The State's failure to provide in the indictment sufficient information from which the defendant could determine the statute he was being charged with violating and to state each element involved in the crime did not give the defendant adequate notice from which he could prepare a defense and is grounds for reversal of the conviction obtained thereunder.

3. In order to secure a conviction the State must prove each and every element of the crime charged beyond a reasonable doubt.

4. Under circumstances where it can reasonably be inferred that the prosecuting attorney has an interest in the outcome of a criminal prosecution beyond ordinary dedication to his duty to see that justice is done, the prosecuting attorney should be disqualified from prosecuting the case. Thus, where the defendant in a criminal prosecution has been convicted previously of a crime committed against the prosecuting attorney, has failed to make court-ordered restitution to the prosecutor, and has been accused of the crime by the prosecuting attorney's secretary, who was the sole witness to the alleged criminal act, the prosecuting attorney should disqualify himself.

H. John Rogers, New Martinsville, Richard Paul Cohen, Hundred, for appellant.

Chauncey H. Browning, Jr., Atty. Gen., Charles G. Brown, III, Deputy Atty. Gen., Charleston, George S. Taylor and David J. Hardy, Legal Interns, for appellee.

McGRAW, Justice:

The appellant, Timothy Knight, appeals from the final order of the Circuit Court of Wetzel County which adjudged him guilty, upon a jury verdict, of the crime of indecent exposure in violation of W.Va.Code § 61-8B-10 (1977 Replacement Vol.), and sentenced him to imprisonment in the Wetzel County Correctional Center for a period of ninety (90) days and ordered him to pay a fine of $250 plus the cost of the prosecution.

The defendant, appellant here, initially complained by petition, which this Court granted, that W.Va.Code § 61-8B-10 is unconstitutionally vague; that the statute is unconstitutional as applied to the facts of this case; that the evidence adduced at trial is insufficient to support a conviction under the statute; that the trial court erred in giving two of the State's instructions to the jury; and that the trial court erred in denying the defendant's motion to disqualify the prosecuting attorney. Subsequently, by brief, appellant argued his assignments of error alleging unconstitutionality, insufficiency of the evidence, and failure to disqualify the prosecutor, but he abandoned the assignments enumerated three and four in his petition relating to the State's instructions.

Prior to trial of this matter, counsel for the defendant submitted a motion to recuse the prosecuting attorney and his staff due to the prosecutor's previous involvement with the appellant. The appellant had been convicted of stealing materials from the prosecutor's houseboat and had been placed on probation upon the condition that he make full restitution to the prosecutor. At the time of the trial the appellant had not yet made restitution. The disqualification motion was denied at a hearing held on July 19, 1979, at which the defendant, his attorney, and the prosecuting attorney all were present.

The action proceeded to trial by jury on July 26, 1979, at which Ms. Mary Shepherd was the State's only direct witness. Ms. Shepherd, the Wetzel County Prosecuting Attorney's secretary, testified that on January 16, 1979, at approximately 11:00 p. m., she went to a New Martinsville bar known as the Dry Dock Pub. She remained in the pub for approximately three and one-half hours without consuming any alcoholic beverages because she was on a diet. After the band had ceased playing, at approximately 2:30 a. m., she left the club alone.

She entered her car, started the engine, and sat for a brief period waiting for it to warm up. She testified that while she sat in the car a young man walked toward her "fondling his private parts." She testified that she was frightened as he came closer. She locked the door. The man, she said, put his penis up to her car window and shook it. The testimony shows that her vision was not affected by the fact that she was wearing contact lenses; that the windows were not steamed; and that the street light over her car made it easy to see the facial features of the man, who wore dark trousers and a brown leather jacket. She testified that she pressed the horn of her automobile and screamed. She agreed at trial that his actions caused her "affront and alarm."

Ms. Shepherd identified the young man as Timothy Knight, saying that she had gone to school with his brother and that she had seen him in court. She explained that she did not call the police immediately because she thought it would be embarrassing. After thinking about it for twelve days or so, she decided to file a complaint against the defendant. An indictment was returned on May 8, 1979.

The appellant's sole defense theory at trial was alibi. He and his mother testified that he was home in bed that evening.

I.

The appellant's first assignment of error is that the statute under which he was convicted was unconstitutionally vague. The crime of indecent exposure is defined in W.Va.Code § 61-8B-10 (1977 Replacement Vol.) as follows: "A person is guilty of indecent exposure when he intentionally exposes his sex organs or anus under circumstances in which he knows this conduct is likely to cause affront or alarm."

Basically, the appellant argues that the words of the statute do not serve to precisely advise the citizenry as to what conduct is lawful and what is unlawful. The question which this Court must answer is: is the "statute ... couched in such language so as to notify a potential offender of a criminal provision as to what he should avoid doing in order to not be guilty of the offense." State ex rel. Myers v. Wood, 154 W.Va. 431, 436, 175 S.E.2d 637, 641 (1970). See also United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954); State v. Reed, W.Va., 276 S.E.2d 313 (1981); State v. Flinn, W.Va., 208 S.E.2d 538 (1974).

By the words of the statute, and others in the section on sexual offenses, the defendant is informed of all the essential requirements of the offense: (1) that the victim did not consent to the act; (2) that the act consists of the intentional exposure of sex organs or anus; and (3) that the act is done under circumstances which the perpetrator knows is likely to cause affront or alarm. ¹ This statute puts the community and the defendant on notice of acts which are considered to be criminally reprehensible.

The Court finds this assignment of error to be without merit as the words contained in this statute are both plain and unambiguous on their face and sufficient to put the community and the defendant on notice as to the criminal nature of the defendant's acts.

II.

Appellant's second assignment of error is that the statute in question, if not unconstitutionally vague, was unconstitutional as applied to the facts of this particular case. He asserts that the statute is vague as applied since it does not give sufficient notice to the appellant that his alleged conduct would be criminal.

One of the basic requirements in a criminal prosecution is that the defendant be fully informed, from the time he is first brought into court, of the charge against him. State v. Grimmer, W.Va., 251 S.E.2d 780 (1979). The defendant must be brought before the court on an indictment which fully and plainly informs him of the character and cause of the accusation. W.Va. Constitution, art. 3, § 4 and § 14: State v Furner, W.Va., 245 S.E.2d 618, 619 (1978); Hubbard v. Spillers, 157 W.Va. 522, 202 S.E.2d 180 (1974); State v. LaManca, 142 W.Va. 549, 96 S.E.2d 667 (1957); State v. McGraw, 140 W.Va. 547, 85 S.E.2d 849 (1955); State v. Johnson, 134 W.Va. 357, 59 S.E.2d 485 (1954). If the indictment here charges the crime for which the defendant was convicted, then there are no constitutional problems; if it in some way fails to charge the crime, then the conviction must be reversed.

Before examining the indictment, it should be noted that there is no bar to this Court's dealing with this issue on appeal. First, the issue was raised at the trial court when counsel for the defendant filed a motion to quash the indictment "for other reasons apparent on the face of the indictment." Secondly, the defendant, to the degree he failed to raise objections to the indictment at the trial court, "does not thereby waive primary defects therein, that is, he does not waive the objection that the facts stated do not constitute an offense." State v. Loveless, 139 W.Va. 454, 457, 80 S.E.2d 442, 444 (1954). See also U. S. v. Thomas, 444 F.2d 919 (D.C.Cir.1971); Thomas v. State, 522 P.2d 528 (Alaska 1974).

In pertinent part the indictment in this action reads:

Timothy Knight on the __ day of January, 1979, in the county aforesaid within one year before the finding of this indictment, did unlawfully and intentionally expose his sexual organs, to-wit, penis, to Mary Shepherd under circumstances which caused Mary Shepherd affront and alarm, against the peace and dignity of the state.

This indictment is insufficient in that it fails to...