State v. Stephens

• Decision Date: 03 December 1999
• Docket Number: No. 25893.,25893.
• Citation: 206 W.Va. 420,525 S.E.2d 301
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff below, Appellee, v. James Robert STEPHENS, Defendant below, Appellant.

525 S.E.2d 301

206 W.Va. 420

STATE of West Virginia, Plaintiff below, Appellee, v. James Robert STEPHENS, Defendant below, Appellant.

No. 25893.

Supreme Court of Appeals of West Virginia.

Submitted November 2, 1999.

Decided December 3, 1999.

Dissenting Opinion of Justice Maynard December 15, 1999.

Darrell V. McGraw, Jr., Esq., Attorney General, Barbara H. Allen, Esq., Managing Deputy Attorney General, Charleston, West Virginia, Attorneys for Appellee. Harry E. Stollings, Esq., Summersville, West Virginia, Attorney for Appellant.

STARCHER, Chief Justice:

In the instant case, the appellant, James Stephens, was convicted by a jury on two charges: first degree sexual assault, W.Va. Code, 61-8B-3 [1991], and sexual abuse by a custodian, W.Va.Code, 61-8D-5 [1998].¹

The appellant assigns several errors in his appeal; in light of our resolution of the instant case, we address only two of the assigned errors. We find that a babysitter may be a custodian under W.Va.Code, 61-8D-5 [1998]. We also find that the circuit court's failure to grant a mistrial, because of the prosecutor's argument to the jury that the appellant's counsel did not dispute the appellant's guilt, was reversible error.

I. Facts and Background

The facts underlying the offenses that were charged against the appellant—touching and kissing the penis of a 4-year-old child—were reported by the 4-year-old to his mother and repeated to the authorities. The child's veracity was challenged on the basis that he used inappropriate sexual terms. There was no corroborating physical evidence against the appellant. The appellant is a retarded young man, who gave a confession to a police officer. However, the appellant denied committing the offense (and giving the confession) on the witness stand. The defense offered expert testimony to the effect that the defendant was highly suggestible, and might have confessed as a result of that suggestibility. The evidentiary case against the appellant was certainly sufficient to sustain a conviction. We present such further facts as are necessary in our discussion of the issues.

II. Standard of Review

The circuit court's ruling on the custodian issue was a purely legal determination that we review de novo. We review the circuit court's refusal to grant a mistrial based on improper prosecutorial argument under an abuse of discretion standard.

III. Discussion

A. Is a Babysitter a Custodian?

There was evidence at trial from which the jury could conclude that the appellant was left in charge of three small children for about a half an hour, while the children's mother took her father-in-law and the appellant's mother to visit a doctor—and that during this time, the appellant sexually molested one of the children.

The appellant argues that the court erred in failing to direct a verdict of acquittal on the charge of sexual abuse by a custodian, a violation of W.Va.Code, 61-8D-5 [1998],² at the close of the State's case in chief, and erred in submitting to the jury any instructions on that charge.

W.Va.Code, 61-8D-1(4) [1988] defines a "custodian," for purposes of W.Va.Code, 61-8D-5 [1998], as:

... a person over the age of fourteen years who has or shares actual physical possession or care and custody of a child on a full-time or temporary basis, regardless of whether such person has been granted custody of the child by any contract, agreement or legal proceeding. "Custodian" shall also include, but not be limited to, the spouse of a parent, guardian or custodian, or a person cohabiting with a parent, guardian or custodian in the relationship of husband and wife, where such spouse or other person shares actual physical possession or care and custody of a child with the parent, guardian or custodian.

(Emphasis added.)

The appellant reminds us that penal statutes must be strictly construed against the state, and that terms of art appearing in statutes must be interpreted in accordance with their technical meanings. The appellant notes that the Legislature has distinguished a babysitter from a "custodian" in W.Va. Code, 49-1-3(e)(1) [1999], when it defined examples of "imminent danger to the physical well-being of the child" in the context of an abuse or neglect case: "(1) Nonaccidental trauma inflicted by a parent, guardian, custodian, sibling, or a babysitter or other caretaker." (Emphasis added.)

The State responds by saying that "custodian" means one thing in the abuse and neglect statute—there generally implying a court order or other formal grant of legal custody, such as in a divorce case—and means another thing in the criminal context. The State argues that given the ordinary dictionary meanings of the words "custody" (immediate charge and control) and "temporary" (lasting for a limited time) (Merriam Webster's New Collegiate Dictionary 1979)— a babysitter is included within the definition of a custodian, absent legislative direction to the contrary.

In People v. Madril, 746 P.2d 1329 (Co. 1987), the Colorado Supreme Court analyzed an issue that is close to the issue in the instant case: whether a babysitter is one in a "position of trust" within the meaning of that state's sexual assault statutes.

In Madril, the appellant was convicted of sexually assaulting a 9-year-old overnight guest of his two children. The court noted that:

The statutory definition of one "in the position of trust" includes a person who is a parent ... or a person at the time of the unlawful act is charged with any duty or responsibility regarding the child's ... welfare, or supervision, no matter how brief the supervision might be. These statutory categories are obviously broad enough to include ... those who assume responsibility for the temporary care of a child in the parent's absence, such as a babysitter.

Madril, 746 P.2d at 1333-34 (citations omitted, emphasis added). Applying the statute to the facts, the court concluded that "[w]hether the defendant's relationship to the child is more appropriately characterized as a `babysitter' or as a temporary custodian of the victim, the critical consideration in this case is that the statutory definition of `position of trust' is broad enough to include a person such as the defendant...." Id.,746 P.2d at 1336.

In State v. Mills, 52 Or.App. 777, 629 P.2d 861 (1981), the defendant was charged with three counts of child neglect. On motion, the trial judge dismissed the charges on the ground that the charging statute was unconstitutionally vague in certain particulars not relevant to this case. Reversing, the Court of Appeals of Oregon noted in dictum that "[t]he term `custody or control of a child' extends the reach of the [statutory] section beyond the child's parents or guardian; it includes the temporary custodian, e.g., babysitter, relative, teacher." Mills, 52 Or.App. at 780 n. 1, 629 P.2d at 862 n. 1 (emphasis added).

We find the State's argument to be persuasive, and we therefore hold that a babysitter may be a custodian under the provisions of W.Va.Code, 61-8D-5 [1998], and whether a babysitter is in fact a custodian is a question for the jury. The circuit court did not err in allowing the challenged charge and instructions relating thereto to go to the jury.

B. Prosecutorial Argument

The prosecutor, in the rebuttal portion of his closing argument, told the jury:

The first thing which I find interesting is that never one time during [defense counsel's] opening statement did he deny his client did this.

Think back. Did he just deny it? Did he just try to draw inconsistencies with the evidence? Did he question some of the evidence?

Has he [defense counsel] ever, since we've been in this courtroom, denied that his client did it? [emphasis added].

Defense counsel immediately objected to this argument, at which point the circuit judge stated: "I'll sustain the objection. What [defense counsel] thinks has nothing to do with this case...." (Emphasis added.)

Defense counsel then objected to the court's statement, whereupon the court continued:

Ladies and gentlemen of the jury, what I mean to tell you is: You are to decide the facts from the evidence in this case.

What [defense counsel] says or [the prosecutor] says is not evidence in this case. You heard the evidence, and you make a decision based solely on the evidence.

What [the prosecutor] thinks and what [defense counsel] thinks, those are their interpretations of the evidence as presented, but it's your interpretation that matters; and that's all you have to consider.

Following argument, the circuit court gave an additional instruction to the jury, sua sponte, before sending them out to deliberate:

Ladies and gentlemen, I want to give you one more instruction before I leave. The fact that [the prosecutor] said that [defense counsel] had made no mention of that, [defense counsel] is not permitted by the rules of this Court or by the law to express his personal view of whether his client is guilty [or] is not; and that is why he evidently didn't say it, because the personal opinion of either counsel is not evidence and should not be considered by you as evidence.

A motion for mistrial was made by appellant's counsel after the jury was excused to begin its deliberations:

Your Honor, we would move for a mistrial.

The comment of [the prosecutor] to challenge my personal state or my failure to deny, during my opening statement—or during my closing statement—that my client is guilty goes beyond harmless error.

That is plainly beyond any realm of appropriate argument to the jury. It's grounds for a mistrial, and we would ask that a mistrial be awarded at this time.

(Emphasis added.)

The circuit court did not grant the requested mistrial.

The appellant argues that the prosecuting attorney's argument, pointing out that the appellant's counsel had at no time during the trial denied that his client had committed the charged offenses, was both effective and prejudicial.

The prosecuting attorney, of course, wanted the jury...