State v. Rummer

Decision Date28 May 1993
Docket NumberNo. 21095,21095
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia, Plaintiff Below, Appellee, v. Ronald Dean RUMMER, Defendant Below, Appellant.
Concurring Opinion of Justice Workman May 28, 1993.

Dissenting Opinion of Justice Neely May 28, 1993.

[189 W.Va. 370] Syllabus by the Court

1. "The Double Jeopardy Clause in Article III, Section 5 of the West Virginia Constitution, provides immunity from further prosecution where a court having jurisdiction has acquitted the accused. It protects against a second prosecution for the same offense after conviction. It also prohibits multiple punishments for the same offense." Syllabus Point 1, Conner v. Griffith, 160 W.Va. 680, 238 S.E.2d 529 (1977).

2. "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, 172 W.Va. 491, 308 S.E.2d 131 (1983).

3. "A claim that double jeopardy has been violated based on multiple punishments imposed after a single trial is resolved by determining the legislative intent as to punishment." Syllabus Point 7, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).

4. "In ascertaining legislative intent, a court should look initially at the language of the involved statutes and, if necessary, legislative history to determine if the legislature has made a clear expression of its intention to aggregate sentences for related crimes. If no such clear legislative intent can be discerned, then the court should analyze the statutes under the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed 306 (1932), to determine whether each offense requires an element of proof the other does not. If there is an element of proof that is different, then the presumption is that the legislature intended to create separate offenses." Syllabus Point 8, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).

5. W.Va.Code, 61-8B-7 (1984), which defines sexual abuse in the first degree, involves "sexual contact" with another person. The term "sexual contact" is defined in W.Va.Code, 61-8B-1(6) (1986), and identifies several different acts which constitute

[189 W.Va. 371] sexual contact. Each act requires proof of a fact which the other does not. Consequently, a defendant who commits two or more of the separate acts of sexual contact on a victim may be convicted of each separate act without violation of double jeopardy principles

6. "Where a person accused of committing a crime makes a voluntary statement which is declared inadmissible in the State's case-in-chief due to a violation of the accused's prompt presentment rights pursuant to West Virginia Code § 62-1-5 [1965] and West Virginia Rule of Criminal Procedure 5(a), the statement may be admissible solely for impeachment purposes if the accused takes the stand at his trial and offers testimony inconsistent with the prior voluntary statement." Syllabus Point 3, State v. Knotts, 187 W.Va. 795, 421 S.E.2d 917 (1992).

7. " 'In determining whether an out-of-court identification of a defendant is so tainted as to require suppression of an in-court identification [or testimony as to the out-of-court identification itself] a court must look to the totality of the circumstances and determine whether the identification was reliable, even though the confrontation procedure was suggestive, with due regard given to such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.' Syllabus Point 3, as amended, State v. Casdorph, 159 W.Va. 909, 230 S.E.2d 476 (1976)." Syllabus Point 3, State v. Spence, 182 W.Va. 472, 388 S.E.2d 498 (1989).

Darrell V. McGraw, Jr., Atty. Gen., Barry Koerber, Asst. Atty. Gen., Charleston, for appellee.

William L. Jacobs, Parkersburg, for appellant.

MILLER, Justice:

This is an appeal from the final order of the Circuit Court of Wood County, entered September 13, 1991, sentencing the defendant, Ronald Dean Rummer, to two concurrent terms of imprisonment upon his conviction by a jury of two counts of sexual abuse in the first degree. The defendant contends that both sentences arose from the same transaction and that they therefore constitute unconstitutional double jeopardy. He also cites as error the trial court's admission at trial of his out-of-court statements to police and the admission of the prosecuting witness's out-of-court identification of the defendant. Because we find no error below, the judgment of the trial court is affirmed.

The charges against the defendant arose from an incident that occurred in the early morning hours of June 21, 1991. C.D., 1 a twenty-one-year-old woman, had spent the earlier part of the evening riding around Parkersburg with friends in a friend's car. At approximately 1:00 a.m., as C.D. and her friends neared C.D.'s home, C.D. informed her friends that she wanted to go home. This led to a minor argument with her friends because they desired to continue driving. Therefore, C.D. was let out of the car approximately eight blocks from her home.

After taking leave of her friends, C.D. began to walk home. As she was walking, she became aware of a vehicle following her at a very slow rate of speed. C.D. noticed that the driver of the vehicle was hunched over as he drove and appeared to be balding. Gradually, the vehicle passed C.D. and turned the corner. Shortly thereafter, C.D. became aware of a man following her on foot. She became concerned and increased her pace, but the man followed even faster. As C.D. turned towards the man again, he caught her and roughly grabbed her. C.D. yelled and told him to leave her alone. He put one hand between her legs and began rubbing roughly. He attempted to put his other hand up

[189 W.Va. 372] C.D.'s shirt, and then grabbed her breasts through her shirt. C.D. tried to escape, but fell to the ground. The man fell on top of her and again roughly fondled her breasts through her shirt with both hands. She finally pushed him off of her and got up and ran to a nearby pay phone

Upon reaching the pay phone, C.D. first dialed 9-1-1 and informed the police of the attack and her location, and a policeman was immediately dispatched to take her statement. She then phoned her mother, who lived nearby, and her mother drove to meet her.

C.D.'s mother arrived within minutes, and, as C.D. and her mother waited for the police to arrive, C.D. noticed the vehicle that had earlier followed her pass by. Shortly thereafter, a policeman, Officer Parsons, arrived. Officer Parsons asked C.D. if she wanted to file a complaint, and she agreed to do so. He asked C.D. to sit in his police cruiser and give a statement. She did so, and began telling the officer the details of the assault. She told him that the man who assaulted her was wearing white pants and a white shirt with red or pink stripes.

While she was sitting in the police car giving her statement to Officer Parsons, C.D. noticed the car that had earlier followed her again pass by. When she told this to Officer Parsons, he gave chase to the car. After pursuing it for several blocks, he was able to stop the car. He then asked C.D. to advise him if the driver, the lone occupant of the car, was the man who attacked her. After approaching the car, C.D. identified the man as her attacker.

After the defendant was identified by C.D., Officer Parsons obtained his name and address and allowed him to leave the scene. The following day, a Detective Kenneth Miller telephoned the defendant and asked him to come by the police station and make a statement. Prior to the defendant's arrival, Detective Miller obtained a warrant for the defendant's arrest. Upon his arrival at the police station, the defendant was read his Miranda rights, 2 and he waived them. He then gave a tape recorded statement during which he denied any knowledge of the incident. He also denied knowing C.D. in any way. Thereafter, the defendant was arrested by Detective Miller, and was presented to a magistrate. The record does not reveal how much time elapsed between the defendant's arrival at the police station and his presentment before the magistrate.

At trial, the defendant testified that he had, in fact, followed C.D. in his car and later approached her on foot and asked her to go out with him. Although he admitted putting his arm around her waist, the defendant denied touching her breasts or sex organ. He asserted that he left her upon her request that he do so. He contended that he was familiar with C.D., whom he suggested was a prostitute. He also asserted that he had "picked up" C.D. several weeks before the incident, and that they had had sexual intercourse at that time.

C.D. testified in rebuttal that she did not know the defendant and had never seen the defendant socially. She testified that the only time she may have seen the defendant was several years before the incident when she worked in a drive-through store. The State also called Detective Miller to testify regarding the defendant's statement given at the police station in which he denied knowing C.D. The defendant's earlier objection to the use of this statement was heard at an in camera hearing, and the objection was denied.

At the conclusion of the trial, the defendant was found guilty by the jury of two counts of sexual abuse in the first degree. By order entered September 13, 1991, the trial court sentenced the defendant to two concurrent sentences of not less than one year nor more than five years imprisonment in the...

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