State v. Larry A.H.

Citation230 W.Va. 709,742 S.E.2d 125
Decision Date11 April 2013
Docket NumberNo. 11–1357.,11–1357.
PartiesSTATE of West Virginia, Respondent v. LARRY A.H., Petitioner.
CourtSupreme Court of West Virginia

OPINION TEXT STARTS HERE

Syllabus by the Court

1. “An indictment may be amended by the circuit court, provided the amendment is not substantial, is sufficiently definite and certain, does not take the defendant by surprise, and any evidence the defendant had before the amendment is equally available after the amendment.” Syllabus point 2, in part, State v. Adams, 193 W.Va. 277, 456 S.E.2d 4 (1995).

2. “A variance in the pleading and the proof with regard to the time of the commission of a crime does not constitute prejudicial error where time is not of the essence of the crime charged.” Syllabus point 4, State v. Chaffin, 156 W.Va. 264, 192 S.E.2d 728 (1972).

3. “The traditional appellate standard for determining prejudice for discovery violations under Rule 16 of the West Virginia Rules of Criminal Procedure involves a two-pronged analysis: (1) did the non-disclosure surprise the defendant on a material fact, and (2) did it hamper the preparation and presentation of the defendant's case.” Syllabus point 2, State ex rel. Rusen v. Hill, 193 W.Va. 133, 454 S.E.2d 427 (1994).

Duane C. Rosenlieb, Jr., Richard H. Lorensen, Public Defender Services, Charleston, WV, for Petitioner.

Patrick Morrissey, Attorney General, Laura Young, Assistant Attorney General, Charleston, WV, for Respondent.

PER CURIAM:

This is an appeal by Larry A.H. (Mr. H.) 1 from an order of the Circuit Court of Mercer County resentencing him 2 after his convictions for felony and misdemeanor sexual offenses.3 Mr. H. contends the trial court committed error by (1) allowing the indictment to be amended; (2) allowing the State to call a witness that was not named on the witness list; and (3) allowing the State to recall a witness. After a careful review of the briefs, the record submitted on appeal, and listening to the arguments of the parties, we affirm.4

I.FACTUAL AND PROCEDURAL BACKGROUND

On October 16, 2003, a Mercer County grand jury indicted Mr. H.5 on thirty counts of sexual assault offenses.6 The victim of the offenses was Mr. H.'s daughter. The offenses covered a period from 2001 to 2003. The case went to trial on August 31, 2004.

During the trial, the State called four witnesses: Dr. William Elliott, Dr. Charles B. Yeargan, play therapist Phyllis Hasty, and the victim. Dr. Elliott was a physician who examined the victim on April 15, 2003, at the request of the Department of Health and Human Resources (“DHHR”). Dr. Elliott testified that, although the victim did not have any physical signs of sexual assault, the victim did tell him that Mr. H. placed his penis on her breasts and touched her genital area. Dr. Yeargan, a psychologist, evaluated the victim pursuant to a court order. Dr. Yeargan described the victim as “an eight-year-old child intellectually in the body of an adult.” 7 Ms. Hasty testified that the victim informed her that Mr. H. sexually assaulted her on many occasions. Ms. Hasty stated that because the victim was moderately mentally impaired, 8 and behaved like a child of five to six years of age, she did not have the ability to say no to Mr. H. The victim testified that when she was sixteen years old, Mr. H. began sexually assaulting her. The victim testified in graphic details that Mr. H. engaged in oral, anal and vaginal sex with her on a frequent basis.9

Mr. H. did not testify at the trial. However, he did call three witnesses during his case-in-chief. The first witness called by Mr. H. was Cynthia Snuffer, a DHHR Child Protective Services worker. Ms. Snuffer was called primarily to give testimony which indicatedthat, when she conducted an in-home interview of the victim, the victim stated forty-three times that Mr. H. did not sexually assault her. The next two witnesses called by Mr. H. were two of the victim's younger siblings. Neither sibling was asked whether they ever saw Mr. H. engage in improper conduct with the victim. However, one sibling was asked if Mr. H. ever touched the sibling's breast, as alleged by the victim, but the sibling denied being touched on her breast by Mr. H.

At the close of Mr. H.'s case-in-chief, the trial court instructed the jury on the law and provided the jury with a verdict form that contained only seventeen of the thirty counts in the indictment.10 On September 1, 2004, the jury returned a verdict finding Mr. H. guilty of all seventeen counts listed on the verdict form. For reasons that are not disclosed in the appendix record, an appeal was not filed until after Mr. H. was resentenced in August 2011.

II.DISCUSSION 11

On appeal to this Court, Mr. H. argues that the trial court erred by (1) allowing the indictment to be amended; (2) allowing the State to call a witness that was not named on the witness list; and (3) allowing the state to recall a witness. We will consider each of these assigned errors in turn.

A. Amending the Indictment

The first issue raised by Mr. H. is that the trial court committed reversible error in allowing the indictment to be amended.12 We have recognized that a trial court's decision to allow an amendment to an indictment is reviewed for an abuse of discretion. State v. Adams, 193 W.Va. 277, 283, 456 S.E.2d 4, 10 (1995). See also Blane v. Commonwealth, 364 S.W.3d 140, 150 (Ky.2012) ([W]e review the trial court's decision to permit amendment of the indictment for abuse of discretion.”); State v. Profit, 591 N.W.2d 451, 466 (Minn.1999) (We review amendments at trial of an indictment for an abuse of discretion[.]); State v. Beach, 148 Ohio App.3d 181, 772 N.E.2d 677, 682 (2002) (We review a trial court's decision to permit the amendment of an indictment under an abuse-of-discretion standard.”). To constitute reversible error, Mr. H. must show not only that the trial court abused its discretion, but also that the amendment prejudiced his defense. See Adams, 193 W.Va. at 283, 456 S.E.2d at 10 (“Unless a defendant can demonstrate prejudice, a circuit court may amend an indictment in a manner that does not strike any substantive portion of the charging paragraph and does not change the offense charged.”).

The amendment to the indictment in this case involved replacing the indictment's use of the phrase “on or about” with the word “between.” This occurred when the court held a hearing on jury instructions. During the hearing, Mr. H. contended that the phrase “on or about” should be interpreted as meaning each offense occurred on specific dates set out in the indictment. For example, count two of the indictment charged that sexual assault occurred “on or about” February 24, 2001, and February 23, 2002. Mr. H.'s position was that the State had to prove that the offense occurred on both of those two dates. The State argued that the phrase should be interpreted as meaning that one offense occurred “between” the two dates listed. The trial court agreed with the State and found that the use of the word “between” more accurately reflected the evidence.13 Consequently, the court granted the State's motion to amend the indictment to replace the phrase “on or about” with the word “between.” Mr. H. now states that he was prejudiced by this amendment. We disagree.

Syllabus point 2, in part, of Adams, held that:

An indictment may be amended by the circuit court, provided the amendment is not substantial, is sufficiently definite and certain, does not take the defendant by surprise, and any evidence the defendant had before the amendment is equally available after the amendment.

193 W.Va. 277, 456 S.E.2d 4. The amendment in this case was not “substantial.” It merely clarified the time period in which the offenses occurred. SeeW. Va.Code § 62–2–10 (1923) (2010 Repl.Vol.) (“No indictment ... shall be ... deemed invalid for ... stating imperfectly[ ] the time at which the offense was committed, when time is not of the essence of the offense”). We have made clear that [a] variance in the pleading and the proof with regard to the time of the commission of a crime does not constitute prejudicial error where time is not of the essence of the crime charged.” Syl. pt. 4, State v. Chaffin, 156 W.Va. 264, 192 S.E.2d 728 (1972). Specifically, we have explained that [b]ecause time is not an element of the crime of sexual assault, the alleged variances concerning when the assaults occurred [do] not alter the substance of the charges against the defendant.” State v. Miller, 195 W.Va. 656, 663, 466 S.E.2d 507, 514 (1995).

Although Mr. H. has set out in his brief that he was prejudiced by the amendment, he has failed to articulate how he was prejudiced. The circuit court's amendment did not involve an element of an offense charged. The amendment involved a mere clarification of when the sexual assault offenses occurred. See State v. St. Pierre, 693 A.2d 1137, 1141 (Me.1997) (“Time is not an element of unlawful sexual contact; thus, the State was under no obligation to prove that the sexual contact occurred on the specific dates listed in the indictment.”); Jordan v. State, 80 So.3d 817, 827 (Miss.Ct.App.2010) (“Time is not an essential element of the crimes of sexual battery, gratification of lust, and child abuse. Therefore, the amendment was one of form; thus, it was allowable.”); State v. Brim, 789 N.W.2d 80, 84 (S.D.2010) (“Although an indictment should be as specific as possible, time is not a material element of crimes involving sexual abuse of minors. Therefore, the fact [that] a crime was committed on a date different from the one alleged in the indictment is not fatal to the charge.”). Most importantly, Mr. H.'s defense was simply that he did not commit the crimes. This defense could have been presented regardless of what dates were alleged in the indictment. See Jackson v. Commonwealth, No. 2011–SC–000008–MR, 2012 WL 3637159, at *3 (Ky. Aug. 23, 2012) ([W]hen a defendant testifies that sexual abuse...

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