State v. Miller, 22716

• Court: Supreme Court of West Virginia
• Writing for the Court: PER CURIAM; MILLER; ALBRIGHT
• Citation: 195 W.Va. 656,466 S.E.2d 507
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Cecil M. MILLER, Defendant Below, Appellant.
• Docket Number: No. 22716,22716
• Decision Date: 13 December 1995

Page 507

466 S.E.2d 507 195 W.Va. 656 STATE of West Virginia, Plaintiff Below, Appellee,
v.
Cecil M. MILLER, Defendant Below, Appellant. No. 22716. Supreme Court of Appeals of
West Virginia. Submitted Sept. 26, 1995.
Decided Dec. 13, 1995.

Page 509

[195 W.Va. 658] Syllabus by the Court

1. "The function of an appellate court when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rationale trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt." Syllabus Point 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

2. "A criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all of the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a jury and not an appellate court. Finally, a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases are inconsistent, they are expressly overruled." Syllabus Point 3, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

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. "Subject to certain exceptions, pretrial discovery in a criminal case is within the sound discretion of the trial court." Syllabus Point 8, State v. Audia, 171 W.Va. 568, 301 S.E.2d 199, cert. denied, 464 U.S. 934, 104 S.Ct. 338, 78 L.Ed.2d 307 (1983).

5. "The traditional appellate standard for determining prejudice for discovery violation 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

Page 510

[195 W.Va. 659] Point 2, State ex rel. Rusen v. Hill, 193 W.Va. 133, 454 S.E.2d 427 (1994).

6. " 'Sentences imposed by the trial court, if within statutory limits and if not based on some [im]permissible factor, are not subject to appellate review.' Syl. pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982)." Syllabus Point 9, State v. Hays, 185 W.Va. 664, 408 S.E.2d 614 (1991).

Darrell V. McGraw, Jr., Attorney General, Dawn E. Warfield, Deputy Attorney General, Charleston, for Appellee.

Lary D. Garrett, Garrett & Garrett, William H. Bean, Bean & Bean, Moorefield, for Appellant.

PER CURIAM:

Cecil M. Miller appeals his two convictions of sexual assault in the second degree and his two convictions of sexual assault in the third degree based on a jury verdict in the Circuit Court of Pendleton County. On appeal, Mr. Miller alleges that several errors by the circuit court including the court's failure to direct a verdict of acquittal on the second degree sexual assault charges because of a lack of evidence of any coercion or intimidation of the victim and the court's imposition of consecutive sentences for the second degree sexual assault convictions. Because we find no merit in Mr. Miller's assignments of error, we affirm his convictions and his sentences.

I.

FACTS AND PROCEDURAL BACKGROUND

The victim, M.A. ¹ , testified that the defendant had sexual intercourse with her on two occasions when she was about thirteen years old. The defendant was twenty-eight or twenty-nine years old when the alleged assaults occurred. The first assault occurred in late August 1990 or 1991, when M.A. was left alone with the defendant and George Miller (the victim's stepfather and the defendant's brother) at the victim's home. George Miller told M.A. that "Cecil [the defendant] wanted to do it." Without any discussion between M.A. and the defendant, George Miller announced in front of the defendant that he would stand watch at the front door in case M.A.'s mother or siblings returned. M.A. and the defendant then went to her mother's bedroom where they disrobed and had sexual intercourse after the defendant had M.A. get on her hands and knees on the floor.

M.A. testified that she did not want to have sexual intercourse but did so "because if I didn't, he [George Miller] would beat me." M.A. said that she had been forced by George Miller into sexual intercourse with him since she was eleven years old and that she was often beaten during these encounters.

The second assault occurred when M.A., the defendant and M.A.'s mother were riding in a car along dirt road. M.A. thought the second assault occurred in the Fall because the weather "was warm and the leaves were starting to fall off the trees." M.A. thought the second assault may have occurred the same year as the first assault but was not certain. Earlier that day George Miller had told M.A. that the defendant "wanted to make love to me." After driving some distance, the defendant stopped the car, and M.A.'s mother got out and walked down the road. M.A. said the defendant turned to her and said that "he wanted to make love to me." Thereafter the defendant and M.A. had sexual intercourse in the car. M.A. said that she did not want to have relations with the defendant but was compelled because "if I didn't ... he [George Miller] would always hit me."

The defendant denied that either assault occurred. The defendant said that although his family had contact with his brother's family, including M.A., he and George Miller, his brother, did not speak and had a poor relationship. The defendant also said that in January 1989, he moved to Braxton County, in 1990 "[r]ight before school started" he

Page 511

[195 W.Va. 660] moved to Craigsville and in 1992 he and his family moved to Ohio. Except for noting that his move to Craigsville occurred in December 1990, several family members corroborated the dates of the defendant's moves.

During the March 1994 term, the grand jury of Pendleton County returned felony indictments against the defendant charging him with crimes of sexual assault in the second and third degree against M.A. The first count charged the defendant with sexual assault in the second and third degree based on a single incident that occurred on "the ____ day of ____, 1990." The second count charged the defendant with sexual assault in the second and third degree based on another single incident that occurred on "the ____ day of ____, 1991." On March 24, 1994, the circuit court denied the defendant's request to have his attorney interview M.A. On May 5, 1994, the defendant moved that the circuit court direct the State to elect which counts of the indictment it would proceed upon. At the hearing on the defendant's motion to elect, the prosecuting attorney noted that although there was some confusion about the dates, both incidents probably occurred in 1990. The State moved to amend the indictment. The circuit court also refused to amend the indictment or to dismiss the indictment because an exact date was not specified.

After a jury returned guilty verdicts on all four counts, the circuit court sentenced the defendant to serve the second degree sexual assault counts (not less that ten (10) nor more than twenty-five (25) years in the penitentiary) consecutively and to serve the third degree sexual assault counts (not less than one (1) nor more than five (5) years in the penitentiary) concurrently with each other and the second degree sexual assault sentences. In other words, the defendant must serve a minimum sentence of twenty (20) years.

II.

DISCUSSION

In his appeal, Mr. Miller raises several assignments of error: (1) whether the evidence of the victim's fear, coercion or intimidation was sufficient to support the verdict of guilty of second degree sexual assault; (2) whether the circuit court erred in failing to grant a dismissal because the State's failure to provide the defendant with the exact dates of the alleged assaults; (3) whether the circuit court erred in failing to grant the defendant's motion for the State to elect; (4) whether the circuit court erred in not granting a mistrial because improper statements made by the prosecuting attorney; (5) whether the circuit court improperly commented upon the defendant's testimony; (6) whether the circuit court erred in failing to exclude statements made to the victim by her mother or her stepfather; (7) whether the circuit court erred in failing to allow the defendant's attorney to interview the victim; (8) whether the circuit court should have allowed an undisclosed rebuttal witness for the State to testify; and (9) whether the circuit court erred in imposing consecutive sentences for the two convictions of second degree sexual assault.

A.

Sufficiency of the Evidence

The defendant alleges that no evidence was presented to show that he was aware of or responsible for any of the victim's fear, coercion or intimidation, and thus, his convictions for second degree sexual assault should be reversed. Recently in State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995), we discussed the criminal standard of review concerning the sufficiency of evidence. After reviewing the Supreme Court's holdings in Jackson v. Virginia, 443...