State v. Mitter

• Decision Date: 15 December 1981
• Docket Number: No. 14986,14986
• Citation: 168 W.Va. 531,285 S.E.2d 376
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Delbert Clinton MITTER.

Page 376

285 S.E.2d 376

168 W.Va. 531

STATE of West Virginia v. Delbert Clinton MITTER.

No. 14986.

Supreme Court of Appeals of West Virginia.

Dec. 15, 1981.

Syllabus by the Court

1. "Opinion evidence of competent experts may be properly called for when the questions presented are of such a nature that persons generally would not be as competent to pass judgment thereon as such experts." Syllabus Point 5, Norfolk & Western Railway Co. v. Christian, 83 W.Va. 701, 99 S.E. 13 (1919).

2. "Expert opinion evidence concerning a matter as to which the jury are as competent to form an accurate opinion as the witness, is inadmissible." Syllabus Point 7, Lawrence's Adm'r v. Hyde, 77 W.Va. 639, 88 S.E. 45 (1916).

3. The general rule is that expert opinion cannot be offered as to the subjective intent of an individual.

4. "A defendant shall be charged in the same indictment, in a separate count for each offense, if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character, or are based on the same act or transactions, or are two or more acts or transactions connected together or constituting parts of a common scheme or plan." Syllabus Point 1, State ex rel. Watson v. Ferguson, W.Va., 274 S.E.2d 440 (1980).

5. A trial court may in its discretion order two or more indictments, or informations, or both, to be tried together if the offenses could have been joined in a single indictment or information, that is, the offenses are of the same or similar character or are based on the same act or transaction, or on two or more acts or transactions connected together or constituting a common scheme or plan.

6. The joinder of related offenses to meet possible variance in the evidence is not ordinarily subject to a severance motion. In those other situations where there has been either a joinder of separate offenses in the same indictment or the consolidation of separate indictments for the purpose of holding a single trial, the question of whether to grant a motion for severance rests in the sound discretion of the trial court.

Neil A. Reed, Kingwood, for appellant.

Chauncey H. Browning, Atty. Gen., Richard T. Rodgers, Asst. Atty. Gen., Charleston, for appellee.

MILLER, Justice:

Delbert C. Mitter appeals his felony convictions of sexual abuse in the first degree and misdemeanor convictions of sexual abuse in the third degree which were entered in the Circuit Court of Preston County. His primary assignment of error is that the trial court permitted an expert witness to testify that the acts committed by Mitter were done for sexual gratification which is one of the key elements in a sexual abuse charge. ¹ Other errors alleged are the trial court's failure to grant a severance and the insufficiency of the State's proof in the felony cases because of the failure to prove Mitter's age as alleged in the indictment.

I.

Mitter was accused of ordering his five stepdaughters to disrobe and rubbing a corncob on which an astringent liniment had been applied between their legs and on their genital areas. Prior to this incident, he had whipped the girls for disobeying him and it was the bruises on the backs of their legs that prompted school authorities to contact a social worker. This action ultimately led to Mitter's arrest on the sexual abuse charges. At trial, he and his wife denied that the incident ever occurred.

It is clear from the trial record that the testimony of the State's expert witness was elicited primarily so that he might give his opinion that the defendant's actions were a form of sexual gratification. The expert, a psychologist, had not interviewed any of the parties to the incident, but gave his opinion based on a hypothetical question which covered the facts surrounding the rubbing incident. ² The psychologist testified that the motivation "would be most likely to be both sexual and sadistic in content..."

The general theory which permits an expert witness to give an opinion is that the questions presented are of such a technical nature that persons of ordinary intelligence would not possess the expertise to competently pass judgment thereon. Consequently, it is permissible for experts to assist the jury in these situations as we stated in Syllabus Point 5, Norfolk & Western Railway Co. v. Christian, 83 W.Va. 701, 99 S.E. 13 (1919):

"Opinion evidence of competent experts may be properly called for when the questions presented are of such a nature that persons generally would not be as competent to pass judgment thereon as such experts."

See also, State v. Noe, W.Va., 230 S.E.2d 826, 830 (1976); Moore v. Shannondale, Inc., 152 W.Va. 549, 165 S.E.2d 113 (1968).

When, however, the subjects being inquired into are within the common knowledge of the jury, expert opinion is ordinarily not admissible. We have expressed this rule in Syllabus Point 7 of Lawrence's Adm'r v. Hyde, 77 W.Va. 639, 88 S.E. 45 (1916):

"Expert opinion evidence concerning a matter as to which the jury are as competent to form an accurate opinion as the witness, is inadmissible."

See also, Syllabus Point 2, Thrasher v. Amere Gas Utilities Co., 138 W.Va. 166, 75

S.E.2d 376 (1953), dismissed, 347 U.S. 910, 74 S.Ct. 478, 98 L.Ed. 1067 (1954); 31 Am.Jur.2d Expert and Opinion Evidence § 21 (1967). This rule is based on the general premise that to permit such testimony invades the province of the jury which is the ultimate fact finder.

Related to the "common knowledge" prohibition against expert testimony is the rule that an expert should not give an opinion on an ultimate issue in the case as it is thought this also invades the province of the jury. 31 Am.Jur.2d Expert and Opinion Evidence § 22 (1967); Annot., 38 A.L.R.2d 50 (1950). The precise contours of this rule are often difficult to define and some jurisdictions have retreated from the "ultimate issue" rule. ³ E.g., State v. Ellis, 89 N.M. 194, 548 P.2d 1212 (1976); State v. Breen, 250 Or. 474, 443 P.2d 624 (1968); State v. Spry, 87 S.D. 318, 207 N.W.2d 504 (1973), overruled on other grounds, 90 S.D. 198, 240 N.W.2d 84 (1976); McCormick on Evidence § 12 (1972 ed.).

As in many matters concerning the rules of evidence, if the inquiry is narrowed to particular evidentiary facts, a more general harmony emerges from what initially appeared to be a variance in opinion. Here, we deal with evidence which was introduced to prove a subjective fact which is an element of intent--whether the defendant's act was done "for the purpose of gratifying [his] sexual desire." W.Va.Code, 61-8B-1(6). ⁴ Our examination of cases in this area indicates that the general rule is that expert opinion cannot be offered as to the subjective intent of an individual.

In State v. Hull, 45 W.Va. 767, 32 S.E. 240 (1899), we held it was error for a physician who had examined a rape victim to give his opinion regarding whether she voluntarily submitted at the time of the incident. ⁵ A more analogous case is Koester v. Commonwealth, 449 S.W.2d 213 (Ky.1969), where it was held that it was proper to exclude a psychiatrist's opinion in a rape case that the defendant did not have any specific intent to have carnal knowledge. Similar results have been reached in other situations involving the offer of psychiatrists' opinion testimony concerning a defendant's mental state with the exception of the issue of insanity. ⁶ E.g., State v. Griffith, 101 Idaho 163, 610 P.2d 522 (1980), expert precluded from testifying defendant was in fear at time of shooting; State v. Matthews, 301 Minn. 133, 221 N.W.2d 563 (1974), expert precluded from giving opinion that defendant was in fear at time he killed victim; Waye v. Commonwealth, 219 Va. 683, 251 S.E.2d 202 (1979), cert. denied, 442 U.S. 924, 99 S.Ct. 2850, 61 L.Ed.2d 292, expert could not testify that defendant lacked requisite malice and premeditation to kill. See also, State v. Zimmer, 198 Kan 479, 426 P.2d 267 (1967), expert could not offer opinion as to whether defendant had done killing; Commonwealth v. O'Searo, 466 Pa. 224, 352 A.2d 30 (1976), psychiatrist could not give an opinion that defendant was testifying truthfully; Coppola v. Commonwealth, 220 Va. 243, 257 S.E.2d 797 (1979), cert. denied, 444 U.S. 1103, 100 S.Ct. 1069, 62 L.Ed.2d 788 (1980), psychiatrist could not testify that testimony of State's witness could not be believed. ⁷

One of the difficult problems that arises from permitting an expert to testify about the intent of the defendant independent of the insanity issue is that criminal intent is an indispensable element of almost every area of our criminal law. As we have previously noted in this case, the term "sexual gratification," which is a required element of sexual abuse, is a subjective state of mind similar to the criminal intent required in other crimes. To permit experts to give opinion testimony, based on hypothetical questions, or based on their examination of the party, on the ultimate issue of criminal intent would, in our view, only serve to unduly confuse and complicate the trial of criminal cases. ⁸ Each side would have the right to offer opinion testimony on the intent or mental state of a defendant. Moreover, in cases where the crime relates in some manner to the mental state of the victim, this will also be the subject of opinion testimony. ⁹ Because these intent issues are subjective in nature, it can be expected that the experts will disagree. The consequence will be that the subjective area of intent will no longer be tested by the objective actions and circumstances surrounding the conduct of the party but will be overlayed by varying opinions of experts.

In the final analysis, we believe that such issues are matters which the average juror can understand from the facts surrounding the defendant's conduct at the time the crime was committed based on his own common sense view of human affairs. Much the same point was made in Collins v. Dravo Contracting Co., 114 W.Va. 229, 235, 171 S.E. 757,...