State v. Pancake

Decision Date21 September 1982
Docket NumberNo. 15417,15417
Citation296 S.E.2d 37,170 W.Va. 690
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia v. Charles William PANCAKE.

Syllabus by the Court

1. A trial judge's ruling after an in camera hearing on admissibility of evidence of a rape victim's prior sexual relationship with defendant will not be disturbed on appeal unless there is a clear abuse of discretion.

2. It is error for a trial court to permit a rape defendant to testify about his prior sexual relationship with his victim and then prohibit cross-examination of the victim about such relationship.

3. "A verdict of guilty in a criminal case will not be reversed by this Court because of error committed by the trial court, unless the error is prejudicial to the accused (citation omitted)". Syllabus Point 2, State v. Blaney, 168 W.Va. 462, 284 S.E.2d 920 (1981).

4. Evidence that a defendant committed violent or turbulent acts toward a rape victim or toward others of which she is aware, is relevant to establish her fear of her attacker that is a major element of proof of first-degree sexual assault. W.Va.Code, 61-8B-1(1)(b).

5. "Although under double jeopardy principles the proper procedure is a trial of all offenses arising out of the same 'criminal transaction' jointly, separate punishments may be imposed for separate offenses arising out of a single criminal transaction." Syllabus Point 3, State ex rel. Johnson v. Hamilton, 164 W.Va. 682, 266 S.E.2d 125 (1980).

Mark D. Nigh, Philippi, for appellant.

Chauncey H. Browning, Atty. Gen., and S. Clark Woodroe, Asst. Atty. Gen., Charleston, for appellee.


Charles "Bill" Pancake appealed his Barbour County convictions for first-degree sexual assault upon his wife's sister, and burglary. The State charged Pancake with sexual intercourse by "forcible compulsion" as defined in Code, 61-8B-3, that is, by threat or intimidation causing his victim to be fearful of bodily injury.

On December 7, 1980, at about 7:00 A.M., Pancake broke the door glass of Ms. M.'s mobile home, entered, and went to her bedroom. She saw him drunkenly approaching her room through a hallway and unsuccessfully tried to convince him to leave. Then, fearing bodily harm, she submitted to his sexual advances.

During this encounter, which continued for about two hours, there were interludes during which each used her bathroom facility. She did not scream or attempt to leave, and admitted to having an orgasm. Finally, she told him she had to go to church, and he left, after helping her pick up the broken glass from her floor and apologizing for breaking it. Ms. M. went to church with her boyfriend, then visited another friend, and about 10:00 o'clock that evening reported the incident to the police.

Pancake tried to prove consent by his testimony that she did consent, and by inferences from the length of time they spent together, by her orgasm, her failure to scream or leave, the length of time between the event and her police report, and by evidence that they had enjoyed sexual intercourse with each other once before.


During M.'s testimony the court held an in camera hearing, required by Code, 61-8B-12(a), 1 on the relevancy of evidence about her prior sexual encounter with defendant. She admitted that more than a year and a half before he raped her, she and Pancake had sexual intercourse. Defense counsel strongly argued that this showed a pattern of consensual sexual behavior between the two, but the court decided this event was too remote to be relevant, and therefore evidence about it was inadmissible.

Pancake testified, and during his direct examination the court held another in camera hearing about the admissibility of evidence about his former sexual relations with M. It ruled that Pancake could testify about whether, when and where he had had any sexual relations with Ms. M. His testimony (that in the spring or summer of 1979 they had sexual relations once) paralleled M.'s "inadmissible" in camera testimony. And so the result was that Pancake was allowed to testify about that event, and did; but Ms. M. was protected from being examined about the same event.

Our rape shield law permits admission of "specific instances of the victim's prior sexual conduct with defendant ... on the issue of consent; provided that such evidence heard first out of the presence of the jury is found by the judge to be relevant." Code, 61-8B-12(a). This law survived constitutional attack on the confrontation issue in State v. Green, 163 W.Va. 681, 260 S.E.2d 257 (1979), although Green's attention was to subsection (b) about a victim's sexual conduct with persons other than defendant. See also Syllabus Point 1, State v. Persinger, 169 W.Va. 121, 286 S.E.2d 261 (1982).

We discussed the rationale for our rape shield law in Green. If evidence about a victim's other sexual activity is found to be irrelevant, it is inadmissible. Accord, Syllabus Point 1, Smith v. Edward M. Rude Carrier Corp., 151 W.Va. 322, 151 S.E.2d 738 (1966). Defendant, therefore, would have no right, constitutional or otherwise, to cross-examine about it. Accord, People v. McKenna, 196 Colo. 367, 585 P.2d 275, 1 A.L.R.4th 273 (1978); People v. Cornes, 80 Ill.App.3d 166, 35 Ill.Dec. 818, 399 N.E.2d 1346 (1980); State v. Davis, Iowa, 269 N.W.2d 434 (1978); Johnston v. State, Miss., 376 So.2d 1343 (1979); State v. Herrera, 92 N.M. 7, 582 P.2d 384, cert. denied, 91 N.M 751, 580 P.2d 972 (1978). See Fed.R.Evid. 402. See generally, Annot., Constitutionality of "rape shield" statute restricting use of evidence of victim's sexual experiences, 1 A.L.R.4th 283 (1980 and Supp.). The assessment of relevance of any evidence is a trial judge's responsibility. See State v. Wood, 167 W.Va. 700, 280 S.E.2d 309 (1981); State v. Gangwer, 168 W.Va. 190, 283 S.E.2d 839 (1981); State v. Cox, 162 W.Va. 915, 253 S.E.2d 517 (1979); Ward v. Smith, 140 W.Va. 791, 86 S.E.2d 539 (1955). Accord, State v. Howard, Utah, 544 P.2d 466, 470 (1975). See also Turley v. State, Ala.App., 356 So.2d 1238 (1978); In Interest of Nichols, 2 Kan.App.2d 431, 580 P.2d 1370 (1978); People v. Hastings, 72 Ill.App.3d 816, 28 Ill.Dec. 683, 390 N.E.2d 1273, 1277 (1979); People v. Dery, 74 Ill.App.2d 112, 219 N.E.2d 536, 540 (1966); Annot., Modern Status of Admissibility, In Forcible Rape Prosecution, of Complainant's Prior Sexual Acts, 94 A.L.R.3d 257, 284, § 9 (1979 and Supp.). But see for older cases cited therein, Annot., Propriety of Cross-Examining Witness As To Illicit Relations With Defendant in Criminal Case, 25 A.L.R.3d 537 (1969). A woman's prior consent to sexual intercourse with a man is not probative about her consent years later. Note, If She Consented Once, She Consented Again--A Legal Fallacy In Forcible Rape Cases, 10 Val.U.L.Rev. 127 (1976).

The problem here arose because the trial court permitted Pancake to testify about their former alliance, but did not permit M. to be cross-examined on it. If it were irrelevant one time, it did not acquire relevance later when introduced for the same purpose. It was not error to exclude it in the first place, and its later admission was inconsistent, but we cannot see how defendant was prejudiced or harmed. He eventually got this fact into evidence, although the court could properly have excluded it. She never denied it, so cross-examination for impeachment was unnecessary.

"A verdict of guilty in a criminal case will not be reversed by this Court because of error committed by the trial court, unless the error is prejudicial to the accused (citation omitted)," Syllabus Point 2, State v. Blaney, 168 W.Va. 462, 284 S.E.2d 920 (1981).


"Forcible compulsion" necessary to a first-degree sexual assault conviction is defined at Code, 61-8B-1(1)(a) and (b):

(a) Physical force that overcomes such earnest resistance as might reasonably be expected under the circumstances; or

(b) Threat or intimidation, expressed or implied, placing a person in fear of immediate death or bodily injury to himself or another person or in fear that he or another person will be kidnapped.

M. testified that she was afraid Pancake would hurt her. She asserted he warned her that he did not want to "have to hurt her." This he denied. To substantiate the basis for her fear, she stated:

A. Well, he had kicked the door in on my apartment that I had at the Small Mall. And he had kicked my car and tried to break the mirror off on the inside and bent the door on it and I had seen him hit my sister.

[Counsel]: Objection Your Honor.

THE COURT: Over-ruled, this is to show cause or reason why she would have fear of this Defendant--objection is over-ruled.

A. I'd seen him put a cigarette out on her face and there was a dent in the hood of my car where he hit it with a pool stick when she took it out one night.

Q. Has the Defendant ever threatened you?

A. Yes.

Pancake argued that this evidence of collateral crimes and violent behavior was inadmissible because it did not fall within any exception in State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974). Our Thomas rule permits evidence of other crimes to be admitted if it tends to establish (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme or plan, or (5) the identity of an accused. These categories are not exhaustive. Evidence of other misconduct may be admitted to prove any "relevant fact other than criminal disposition." Cleckley, Handbook on Evidence for West Virginia Lawyers, p. 253. See State v. Haverty, 165 W.Va. 164, 267 S.E.2d 727, 734 (1980). Evidence that a defendant committed violent or turbulent acts toward a rape victim or toward others about which the victim was aware, is relevant to establish the fear that is a major element of proof of first-degree sexual assault. Code, 61-8B-1(1)(b).

Admission of this evidence, discretionary with a trial court, was not error. State v. Nicholson, 162 W.Va. 750, 252 S.E.2d 894 (1979), overruled on other grounds, State ...

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