State v. Miller, No. 16583

CourtSupreme Court of West Virginia
Writing for the CourtMILLER
Citation175 W.Va. 616,336 S.E.2d 910
PartiesSTATE of West Virginia v. Matthew Junior MILLER.
Docket NumberNo. 16583
Decision Date08 November 1985

Page 910

336 S.E.2d 910
175 W.Va. 616
STATE of West Virginia
v.
Matthew Junior MILLER.
No. 16583.
Supreme Court of Appeals of
West Virginia.
Nov. 8, 1985.

Page 911

[175 W.Va. 617] Syllabus by the Court

1. "Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not." Syllabus Point 8, State v. Zaccagnini, --- W.Va. ----, 308 S.E.2d 131 (1983).

2. In interpreting and applying a generally worded kidnapping statute, such as W.Va.Code, 61-2-14a, in a situation where another offense was committed, some reasonable limitations on the broad scope of kidnapping must be developed. The general rule is that a kidnapping has not been committed when it is incidental to another crime. In deciding whether the acts that technically constitute kidnapping were incidental to another crime, courts examine the length of time the victim was held or moved, the distance the victim was forced to move, the location and environment of the place the victim was detained, and the exposure of the victim to an increased risk of harm.

3. "Where the victim is a nonvoluntary social companion, the State need prove only that fact and that she was subjected to sexual intercourse by forcible compulsion." Syllabus Point 2, in part, State v. Wyer, --- W.Va. ----, 320 S.E.2d 92 (1984).

4. In determining whether the victim of a sexual assault exercised "earnest resistance" as defined in W.Va.Code, 61-8B-1(1) (1976), the following factors should be considered: the age and mental and physical conditions of the complainant as well as those of the defendant, together with the circumstances leading up to and surrounding the assault.

5. Courts have generally held that a putative defendant and his counsel have no constitutional right to be present at and participate in grand jury proceedings.

6. "An indictment for a statutory offense is sufficient if, in charging the offense, it substantially follows the language of the statute, fully informs the accused of the particular offense with which he is charged and enables the court to determine the statute on which the charge is based." Syllabus Point 3, State v. Hall, --- W.Va. ----, 304 S.E.2d 43 (1983).

7. " 'Rulings on the admissibility of evidence are largely within a trial court's sound discretion and should not be disturbed unless there has been an abuse of discretion.' State v. Louk, W.Va., 301 S.E.2d 596, 599 (1983)." Syllabus Point 2, State v. Peyatt, --- W.Va. ----, 315 S.E.2d 574 (1983).

Terry D. Reed, Vicki H. Cowman, Hymes and Coontz, Buckhannon, for appellant.

State of W.Va. Atty. Gen. Office, Charleston, for appellee.

MILLER, Chief Justice:

Matthew Junior Miller was convicted by a jury in the Circuit Court of Upshur County of kidnapping and first degree sexual assault. He was sentenced to life with mercy for the kidnapping and to ten to twenty years for the sexual assault, with the sentences to be served concurrently. In his appeal, the defendant argues that it was a violation of double jeopardy principles for him to be convicted of both kidnapping and first degree sexual assault. He

Page 912

also contends, along with several other assignments of error, that the evidence was insufficient to support a conviction of first [175 W.Va. 618] degree sexual assault. We find that there was no reversible error and affirm his convictions.

The State's principal witnesses were the victim, who was eleven years old at the time of the incident, and her fifteen-year-old cousin. Both girls testified that on May 15, 1981, while walking in the town of Buckhannon, West Virginia, the defendant, who was thirty years old at the time, came up to them and asked if they would help him find his dog. The two girls agreed to help although neither one of them knew him. They got into his car and sat in the front seat. They were driven to several different locations and stopped on several occasions to search for the dog.

Subsequently, the defendant stopped at his house and asked the girls to enter and meet his son, but they refused. The defendant then attempted to tie a cord around the older girl's wrists purportedly to see if she could break it, but she managed to prevent him from doing this. He then tried to tie the cord around the victim's wrists, but she would not let him.

The older girl testified that following this incident, she and the victim got back into the car because the defendant indicated that he was going to take them home. Eventually, the defendant parked beside a baseball field, where the older girl left the car and refused to ride anymore with the defendant.

At this point, the defendant pulled out a steak knife, pointed it at the victim's stomach, and threatened to harm the victim if the older girl did not reenter the car. After the older girl refused, the defendant slammed the passenger door shut and drove off. As he drove, he ordered the victim to lie down in the front seat. The older girl ran to her grandmother's house, where the police were notified.

After traveling for some ten to fifteen minutes out of the town and onto a private road, the defendant and the victim got out of the car so that he could unlock the gate to a private camp where he sometimes worked. Once the car passed through the gate, the defendant locked the gate. Subsequently, the defendant drove the victim down the road until they were near a house located on the property.

The defendant then stepped out of the car, threw the knife away, and ordered the victim to disrobe while he disrobed as well. The victim testified that she was scared and complied with the defendant's demand. He then reentered the car and sexually assaulted the victim. When the assault was completed, the defendant drove the victim back into the town of Buckhannon and released her.

Following her release, the victim ran to her grandmother's house. After telling her grandmother what had transpired, she was taken to Saint Joseph's Hospital. The examining physician testified that he discovered some evidence of physical trauma inside the victim's genitalia.

At trial, the defendant presented an alibi defense and testified that he had never met the victim nor her cousin and denied any involvement in the crimes charged.

I.

The defendant contends that under double jeopardy principles, he could not be convicted and punished for kidnapping and first degree sexual assault. He argues that since the kidnapping was necessarily a part of or incidental to the sexual assault, his convictions for both crimes constitute multiple punishments for the same offense in violation of the Fifth Amendment to the United States Constitution and Article III, Section 5 of the West Virginia Constitution. We disagree.

We have recently addressed this double jeopardy question in the context of a case that is factually similar to the present one. In State v. Trail, --- W.Va. ---, 328 S.E.2d 671 (1985), the defendant met two teenagers in the woods and helped them make a fire. After disabling one of the teenagers, the defendant forced the other teenager to walk approximately three miles to another

Page 913

section of the woods where he sexually assaulted her. He was convicted of abduction, W.Va.Code, 61-2-14, and second[175 W.Va. 619] degree sexual assault, W.Va.Code, 61-8B-4.

In concluding that there was no double jeopardy violation, we applied the test enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), which is summarized in Syllabus Point 8 of State v. Zaccagnini, --- W.Va. ---, 308 S.E.2d 131 (1983):

"Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not."

Thus, from a purely double jeopardy standpoint, where two statutes are involved, the Blockburger test provides the analytical framework. In Syllabus Point 2 of Gilkerson v. Lilly, --- W.Va. ---, 288 S.E.2d 164 (1982), we made it clear that we had abandoned the same transaction test as articulated in State ex rel. Dowdy v. Robinson, 163 W.Va. 154, 257 S.E.2d 167 (1979), overruled on other grounds, State v. Adkins, --- W.Va. ---, 289 S.E.2d 720 (1982), for double jeopardy purposes and that it existed only as a procedural joinder rule: "The same transaction test for double jeopardy purposes is a procedural rule that is not mandated by either the State or federal constitutions but is in furtherance of the general policy enunciated in the double jeopardy clauses." See also State ex rel. Watson v. Ferguson, --- W.Va. ---, 274 S.E.2d 440 (1980).

A strict application of the Blockburger test in the present case is not entirely helpful because of the broad language used in our kidnapping statute. A cursory reading of our kidnapping statute, W.Va.Code, 61-2-14a, 1 which does not require proof of sexual intercourse, and our first degree sexual assault statute, W.Va.Code, 61-8B-3 (1976), 2 which does not require proof of confinement or movement, suggests that these are two distinct offenses for double jeopardy purposes. Each requires proof of an element that is not common to both crimes.

However, it is conceivable that situations may arise where the kidnapping is a part of or incidental to the commission of another crime. The defendant cites People v. Levy, 15 N.Y.2d 159, 164, 204 N.E.2d 842, 844, 256 N.Y.S.2d 793, 796, cert. denied, 381 U.S. 938, 85 S.Ct. 1770, 14 L.Ed.2d 701 (1965), where New York's highest court, in interpreting a similar broadly worded kidnapping statute, identified the problem in these terms:

"This definition [of kidnapping] could literally overrun several other crimes, notably robbery and rape, and in some circumstances assault, since detention and sometimes...

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46 practice notes
  • State ex rel. Doe v. Troisi, No. 22817
    • United States
    • Supreme Court of West Virginia
    • May 18, 1995
    ...does not have the right to have counsel present, unlike a defendant's constitutional right to counsel after indictment. State v. Miller, 175 W.Va. 616, 336 S.E.2d 910 (1985). Additionally, witnesses may be compelled to testify before a grand jury. Although various evidentiary restrictions a......
  • State v. Johnson, No. 22954
    • United States
    • Supreme Court of West Virginia
    • May 21, 1996
    ...with a multiple prosecution double jeopardy question the "same evidence" test is the only test which applies. See State v. Miller, 175 W.Va. 616, 619, 336 S.E.2d 910, 913 (1985) (In Gilkerson "we made it clear that we had abandoned the same transaction test as articulated in [Dowdy ] ... fo......
  • State v. Salmons, No. 24967.
    • United States
    • Supreme Court of West Virginia
    • November 4, 1998
    ...v. Watson, 173 W.Va. 553, 558, 318 S.E.2d 603, 608 (1984). See Kerns, 187 W.Va. at 627 n. 9, 420 S.E.2d at 898 n. 9; State v. Miller, 175 W.Va. 616, 626, 336 S.E.2d 910, 920 (1985). Federal courts interpreting Rule 26.2(f) of the federal rules of criminal procedure have clearly held that, a......
  • Estate of Jones v. City of Martinsburg (In re Estate of Jones), No. 18-0927
    • United States
    • Supreme Court of West Virginia
    • October 30, 2020
    ...and his counsel have no constitutional right to be present at and participate in grand jury proceedings." Syl. pt. 5, State v. Miller, 175 W. Va. 616, 336 S.E.2d 910 (1985). However, there is no impediment to a grand jury calling a target of its investigation to testify. See, e.g., U.S. v. ......
  • Request a trial to view additional results
46 cases
  • State ex rel. Doe v. Troisi, No. 22817
    • United States
    • Supreme Court of West Virginia
    • May 18, 1995
    ...does not have the right to have counsel present, unlike a defendant's constitutional right to counsel after indictment. State v. Miller, 175 W.Va. 616, 336 S.E.2d 910 (1985). Additionally, witnesses may be compelled to testify before a grand jury. Although various evidentiary restrictions a......
  • State v. Johnson, No. 22954
    • United States
    • Supreme Court of West Virginia
    • May 21, 1996
    ...with a multiple prosecution double jeopardy question the "same evidence" test is the only test which applies. See State v. Miller, 175 W.Va. 616, 619, 336 S.E.2d 910, 913 (1985) (In Gilkerson "we made it clear that we had abandoned the same transaction test as articulated in [Dowdy ] ... fo......
  • State v. Salmons, No. 24967.
    • United States
    • Supreme Court of West Virginia
    • November 4, 1998
    ...v. Watson, 173 W.Va. 553, 558, 318 S.E.2d 603, 608 (1984). See Kerns, 187 W.Va. at 627 n. 9, 420 S.E.2d at 898 n. 9; State v. Miller, 175 W.Va. 616, 626, 336 S.E.2d 910, 920 (1985). Federal courts interpreting Rule 26.2(f) of the federal rules of criminal procedure have clearly held that, a......
  • Estate of Jones v. City of Martinsburg (In re Estate of Jones), No. 18-0927
    • United States
    • Supreme Court of West Virginia
    • October 30, 2020
    ...and his counsel have no constitutional right to be present at and participate in grand jury proceedings." Syl. pt. 5, State v. Miller, 175 W. Va. 616, 336 S.E.2d 910 (1985). However, there is no impediment to a grand jury calling a target of its investigation to testify. See, e.g., U.S. v. ......
  • Request a trial to view additional results

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