State v. Reed
| Decision Date | 17 March 1981 |
| Docket Number | No. 14271,14271 |
| Citation | 166 W.Va. 558,276 S.E.2d 313 |
| Parties | STATE of West Virginia v. Ricky REED. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. "A criminal statute must be set out with sufficient definiteness to give a person of ordinary intelligence fair notice that his contemplated conduct is prohibited by statute and to provide adequate standards for adjudication." Syl. pt. 1, State v. Flinn, W.Va., 208 S.E.2d 538 (1974).
2. "When the constitutionality of a statute is challenged, every reasonable construction must be resorted to by the courts to sustain its validity and any reasonable doubt must be resolved in favor of the constitutionality of the legislative act in question." Syl. pt. 1, State ex rel. West Virginia Housing Development Fund v. Waterhouse, W.Va., 212 S.E.2d 724 (1974).
3. To be admissible, photographs must be offered for some relevant purpose and must have probative value which outweighs any prejudicial effect; however, admission of a photograph is a matter largely within the discretion of a trial court and will not be reversed absent a clear showing of abuse of that discretion.
4. Double jeopardy prohibits multiple punishment for the same offense, therefore under our criminal sexual conduct statute, W.Va.Code, 61-8B-1 et seq. (1976), a single sexual act cannot result in multiple criminal convictions.
Frankovitch & Anetakis and Carl N. Frankovitch, Weirton, for plaintiff in error.
Chauncey H. Browning, Atty. Gen., S. Clark Woodroe, Asst. Atty. Gen., Charleston, for defendant in error.
In 1977 the defendant was indicted in Brooke County on one count of sexual assault in the second degree and two counts of sexual abuse in the first degree. After trial in the circuit court, the jury found the defendant not guilty of sexual assault in the second degree under the first count, but guilty of the lesser offense of sexual misconduct; guilty of sexual abuse in the first degree under the second count; and, not guilty of sexual abuse in the first degree under the third count. The defendant was sentenced to an indeterminate term of one to five years in the penitentiary for sexual abuse in the first degree and sentenced to one year in the Brooke County jail for sexual misconduct, the two sentences to run concurrently.
There is one event which is the gravamen of both convictions. On 26 November 1976 the victim, D. T., along with two friends, met at the victim's house at approximately 9:00 p. m. and then went to several clubs in the vicinity of Weirton. The victim first met the defendant at approximately 10:00 p. m. at the Starlite Club in Weirton. The defendant and the original trio then voluntarily spent the night until early in the morning in each other's company and after everyone had consumed substantial alcohol all voluntarily retired to the defendant's apartment sometime after 3:00 a. m. on the morning of 27 November.
Approximately half an hour after arrival at the defendant's apartment the victim asked the defendant to show her where the bathroom was. The bathroom was located off the bedroom and the defendant led the way to the bathroom. The victim's testimony was to the effect that when she came out of the bathroom the defendant was in the bedroom and grabbed her arm and initially asked her to stay in the bedroom to talk for awhile. When she declined the defendant threw her on the bed, forcibly removed her clothes, and had sexual intercourse with her.
The victim testified that she lost consciousness or "fainted" while she was in the bedroom and that when she awoke she had blood on her. Upon gaining consciousness she called for her companion, Debbie Sweat, who came into the bedroom, helped her dress, and then took her to the Weirton General Hospital. She was admitted to the hospital and was confined for approximately two weeks for a traumatic hematoma. The medical testimony confirms that the victim suffered a large hematoma to the outer vulva which was traumatic in origin.
The defendant assigns numerous errors which we shall address seriatim. First, the defendant asserts that the statutory offense of sexual abuse is void for vagueness. W.Va.Code, 61-8B-1 (1976) defines the term "sexual contact" as follows:
... any touching of the anus or any part of the sex organs of another person, or the breasts of a female eleven years old or older, where the victim is not married to the actor and the touching is done for the purpose of gratifying the sexual desire of either party.
The defendant asserts that the language "done for the purpose of gratifying the sexual desire of either party" is unconstitutionally vague because there is no definition of "sexual gratification" or "sexual desire". The Court finds this assignment of error entirely without merit since the terms "sexual gratification" and "sexual desire" are both plain and unambiguous on their face. We believe the words give any person of ordinary intelligence fair notice that his contemplated conduct is forbidden by statute. United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954); State v. Flinn, W.Va., 208 S.E.2d 538 (1974). 1
The defendant's second assignment of error is that the offenses of sexual assault in the second degree and sexual misconduct are indistinguishable since both require the same elements of proof. We must concede that the distinguishing element, namely the level of resistance, is tenuous at best; however, since there is a difference which a jury can understand under proper instruction we do not find the statute constitutionally infirm on that ground. W.Va.Code, 61-8B-9 (1976), defines "sexual misconduct," a misdemeanor, as follows:
A person is guilty of sexual misconduct when he engages in sexual intercourse with another person without the latter's consent ...
The statute Code, 61-8B-4 (1976), defines the crime of sexual assault in second degree, a felony, in part as follows:
(a) A person is guilty of sexual assault in the second degree when: (1) He engages in sexual intercourse with another person by forcible compulsion.
The defendant asserts that the definition of "lack of consent" as applied to sexual misconduct is provided by Code, 61-8B-2 (1976) which says:
(b) Lack of consent results from:
(1) Forcible compulsion; or
(2) Incapacity to consent; or
(3) If the offense charged is sexual abuse, any circumstances in addition to the forcible compulsion or incapacity to consent in which the victim does not expressly or impliedly acquiesce in the actor's conduct.
(c) A person is deemed incapable of consent when he is:
(1) Less than sixteen years old; or
(2) Mentally defective; or
(3) Mentally incapacitated; or
(4) Physically helpless.
and that in the case before us there could have been no lack of consent without the use of force since the victim was over age, mentally competent, and fully conscious, at least at the outset. While the Court finds that the sexual offenses statute, Code, 61-8B-1 et seq. (1976) is not exactly a triumph of draftmanship, nonetheless, there is sufficient distinction between sexual assault in the second degree and sexual misconduct that they do, indeed, constitute separate offenses, although sexual misconduct can be a lesser included offense of sexual assault in the second degree.
Sexual misconduct excludes the possibility of forcible compulsion, but it does require a lack of consent. In this regard it is important to read W.Va.Code, 61-8B-1 (1976) which defines "forcible compulsion" as:
(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.
For the purposes of this definition "resistance" includes physical resistance or any clear communication of the victim's lack of consent.
The defendant asserts that the guilty verdict of sexual misconduct was inconsistent with the not guilty verdict of sexual assault in the second degree since the acquittal on the second degree sexual assault count constituted a finding that there was no forcible compulsion. However, the jury's finding can be interpreted as a determination that on the night of the incident the victim did not consent to have intercourse hence the verdict of "guilty of sexual misconduct," but did not resist strenuously enough to have been a victim of forcible compulsion hence not guilty of sexual assault in second degree and assault and battery.
It was apparently the intention of the Legislature to provide a statutory scheme by which a jury will have an opportunity to assess differing levels of culpability in the highly subjective area of sexual offenses, and punish each accordingly. Thus it created two separate crimes, the first, sexual assault in the second degree where the victim uses all reasonable means available to her to discourage her assailant, and second, sexual misconduct, where the victim does not, in fact, consent, but fails to avail herself of all the resources available to her to overcome the attack. While it may appear to the Court that this is a distinction without a difference, nonetheless, we are compelled to exhaust every reasonable interpretation of the statute before concluding that the statute is unconstitutional. State ex rel. Kanawha County v. Paterno, W.Va., 233 S.E.2d 332 (1977); Herold v. McQueen, 71 W.Va. 43, 75 S.E. 313 (1912).
In fact, all the Legislature has done, albeit inartfully, is to recognize the historic reluctance on the part of juries to acquiesce in convictions involving very long prison terms for sexual offenses committed in the course of voluntary companionship. The lesser included offense of sexual misconduct almost constitutes a finding of sexual assault with something akin to a recommendation of mercy. While it can be argued that this scheme...
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