State v. Lewis, 15–0931

• Citation: 797 S.E.2d 604
• Decision Date: 09 March 2017
• Docket Number: No. 15–0931,15–0931
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Respondent v. Leonard C. LEWIS, Defendant Below, Petitioner

797 S.E.2d 604

STATE of West Virginia, Plaintiff Below, Respondent

v.Leonard C. LEWIS, Defendant Below, Petitioner

No. 15–0931

Supreme Court of Appeals of West Virginia.

Submitted: February 28, 2017

Filed: March 9, 2017

Ben J. Crawley–Woods, Esq., Ashton & Crawley–Woods PLLC, Martinsburg, West Virginia, Counsel for the Petitioner

Christopher C., Quasebarth, Esq., Chief Deputy Prosecuting Attorney, Cheryl K. Saville, Esq., Assistant Prosecuting Attorney, Berkeley County Prosecutor's Office, Martinsburg, West Virginia, Counsel for the Respondent

Justice Ketchum :

The petitioner, Leonard C. Lewis ("Lewis"), appeals from the August 25, 2015, order in which the Circuit Court of Berkeley County sentenced him to life imprisonment, without the possibility of parole, and additional consecutive sentences. The sentences were imposed upon Lewis's convictions, following a jury trial, of (1) attempted first degree murder, (2) malicious assault, (3) kidnapping, with no recommendation of mercy, (4) domestic assault and (5) domestic battery. All of the convictions arose from the brutal stabbing and beating of Lewis's former wife, Sylvia Thomas ("Ms. Thomas"), during which, according to the State, Ms. Thomas was detained in her apartment against her will for seven hours and denied medical assistance.

Lewis presents a number of assignments of error, including alleged error in the admission of evidence under Rule 404(b) of the West Virginia Rules of Evidence and the failure of the circuit court to grant a judgment of acquittal on the kidnaping conviction. Upon review, however, we find Lewis's assignments of error without merit. Accordingly, this Court affirms Lewis's convictions and the Circuit Court of Berkeley County's August 25, 2015, sentencing order.

I. Factual Background

In 2004, Lewis moved from Washington, D.C., to Martinsburg in Berkeley County. Soon after, Lewis obtained employment at the Martinsburg Veterans Center. Ms. Thomas also worked at the Center, and she and Lewis were married in 2006. The evidence of the State revealed that, on February 15, 2011, an incident occurred in the marital residence during which Lewis, accusing Ms. Thomas of seeing another man, choked her, grabbed her by the hair, held a knife to her chest and threatened to kill her.

Ms. Thomas immediately left the residence, reported the incident to the police and obtained an apartment at another location in Martinsburg. Ms. Thomas and Lewis remained separated from that point forward. Lewis was subsequently without a permanent residence, and Ms. Thomas occasionally allowed him to sleep in the living room of her apartment and use her computer.

The events leading to Lewis's convictions occurred in the early morning hours of November 16, 2011. Shortly after midnight, Ms. Thomas returned to her apartment after working at the Veterans Center. Lewis was in the apartment and had been using the computer. Ms. Thomas went to her bedroom and, shortly thereafter, got up to use the bathroom. She testified at trial that Lewis approached her and made sexual advances which she refused. He then flew into a rage, accused her of being with another man and stated that he was going to kill her. According to Ms. Thomas, Lewis began a lengthy, brutal attack in which he repeatedly stabbed her with a knife,¹ pulled out sections of her hair and beat her in the face with the lid of a wok pan.²

Of particular significance to this appeal is the period, consisting of approximately seven hours, between the time the State maintains the attack began, shortly after midnight, and 7:35 a.m. later that morning when Lewis was taking Ms. Thomas from her apartment to get medical help. Ms. Thomas testified that, during that interim period, she was bleeding profusely, feared for her life and pleaded for Lewis to take her to the VA hospital in Martinsburg. According to Ms. Thomas, Lewis refused, stating: "No, you're going to tell somebody." Ms. Thomas testified:

Q. Okay. And to be very clear, he didn't let you go, and what was it that he said to you? You just said it a moment ago?

A. He told me, he said I had better not tell anybody. "Don't tell nobody."

Ms. Thomas testified further that, desperate for medical assistance, she suggested to Lewis that he drive her to the VA hospital in Washington, D.C. Ms. Thomas testified that, although Lewis was originally from the Washington, D.C., area, she concluded that he was less likely to be recognized there, whereas he would be "arrested right on the spot" if they went to a hospital in Martinsburg. Leaving the apartment, Lewis placed Ms. Thomas in her Dodge Durango and purchased gas for the vehicle at 7:35 a.m. in Martinsburg. Lewis then drove Ms. Thomas to the VA hospital in Washington, D.C., arriving there at approximately 10:00 a.m. According to Ms. Thomas, Lewis told hospital personnel that Ms. Thomas received her injuries from being attacked by a woman or women near a 7–Eleven store in Martinsburg.

Lewis, who testified at trial, stated that, when Ms. Thomas arrived home after the attack near the 7–Eleven, he administered first aid but could not convince her to let him take her to the VA hospital in Martinsburg. He then drove Ms. Thomas to the VA hospital in Washington, D.C.

Ms. Thomas was hospitalized for several days. Thereafter, she returned to Martinsburg and reported to the West Virginia State Police that Lewis attacked her. Ms. Thomas and Lewis are now divorced.

II. Procedural Background

On May 23, 2012, the Berkeley County grand jury returned an indictment charging Lewis with committing the following offenses against Ms. Thomas: (1) attempted first degree murder; (2) malicious assault; (3) kidnapping, after Lewis committed malicious assault; (4) second offense domestic assault; and (5) second offense domestic battery.

In August 2013, the State filed a notice of intent to use evidence at trial of a domestic violence incident Lewis committed in February 2011 against Ms. Thomas which resulted in a conviction on October 13, 2011.³ The State sought admission of the evidence pursuant to Rule 404(b) of the West Virginia Rules of Evidence. The notice stated:

The proposed 404(b) evidence shows that the Defendant was convicted of Domestic Battery on or about October 13^th 2011. This incident occurred only nine months prior to the brutal attack on Ms. Thomas. According to Trooper See's complaint, on February 15^th 2011, the Defendant accused Ms. Thomas (who was his wife at the time) of being with a boyfriend. He then attacked her in their apartment. He started strangling her and said that "he was going to kill her." At one point in the struggle he pulled out a knife and put it to her chest, and later cut her on her hand. * * *

This evidence clearly shows that the Defendant had a motive, jealousy, to commit the crime at hand. It further shows that the Defendant actually did intend to kill Ms. Thomas. Indeed, the Indictment charges the Defendant with Attempted Murder, and the State must prove that the Defendant actually intended to kill Ms. [Thomas] and not just maliciously wound

her. The Defendant's statement that "he was going to kill her" is very good evidence on that point. Lastly, it shows that the Defendant had a common scheme or plan to use a knife to kill Ms. Thomas. The Defendant used a knife in both the February and November attacks.

A pre-trial hearing was conducted on October 31, 2013, during which the State's Rule 404(b) evidence was considered. Trooper J. D. See, who investigated the February 15, 2011, incident, testified that Ms. Thomas stated that Lewis accused her of seeing another man, threatened to kill her, and pointed a knife at her chest. The circuit court determined that the evidence was admissible under Rule 404(b), finding the incident occurred and was committed by Lewis; the incident was relevant; and its probative value outweighed the prejudicial effect.

The indictment upon which Lewis was tried was a superceding indictment returned by the grand jury on May 23, 2012. The kidnapping charge therein was brought pursuant to W.Va. Code , 61–2–14a [1999]. Subsection (a) of the statute provided in part:

Any person who, by force, threat, duress, fraud or enticement take, confine, conceal, or decoy, inveigle or entice away, or transport into or out of this state or within this state, or otherwise kidnap any other person, or hold hostage any other person for the purpose or with the intent of taking, receiving, demanding or extorting from such person, or from any other person or persons, any ransom, money or other thing, or any concession or advantage of any sort, or for the purpose or with the intent of shielding or protecting himself, herself or others from bodily harm or of evading capture or arrest after he or she or they have committed a crime shall be guilty of a felony and, upon conviction, shall be punished by confinement by the division of corrections for life, and, notwithstanding the provisions of article twelve, chapter sixty-two of this code [concerning probation and parole], shall not be eligible for parole[.]

Lewis filed a motion to dismiss the kidnapping charge as incidental or intrinsic to the other charged offenses. Lewis alleged, in the alternative, that the kidnaping charge should proceed under the more recent 2012 version of W.Va. Code , 61–2–14a, effective June 8, 2012. The 2012 statute substituted a new subsection (a) as follows:

Any person who unlawfully restrains another person with the intent:

(1) To hold another person for ransom, reward, or concession;

(2) To transport another person with the intent to inflict bodily injury or to terrorize the victim or another person; or

(3) To use another person as a shield or hostage, shall be guilty of a felony and, upon conviction, shall be punished by confinement by the Division of Corrections for life, and, notwithstanding the provisions of article twelve, chapter sixty-two of this code [concerning probation and parole], shall not be eligible for parole.⁴

Emphasizing the unlawful restraint language...