State v. Sulick

• Decision Date: 23 February 2012
• Docket Number: No. 11–0043.,11–0043.
• Citation: 232 W.Va. 717,753 S.E.2d 875
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Respondent v. Kendra SULICK, Defendant Below, Petitioner.

232 W.Va. 717

753 S.E.2d 875

STATE of West Virginia, Plaintiff Below, Respondent

v.Kendra SULICK, Defendant Below, Petitioner.

No. 11–0043.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 24, 2012.

Decided Feb. 23, 2012.

Syllabus by the Court

1. “The Supreme Court of Appeals reviews sentencing orders ... under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands.” Syllabus point 1, in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).

2. “ ‘Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.’ Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).” Syllabus point 1, State v. Paynter, 206 W.Va. 521, 526 S.E.2d 43 (1999).

3. “ ‘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.’ Syllabus Point 1, State v. Flinn, 158 W.Va. 111, 208 S.E.2d 538 (1974).” Syllabus point 1, State v. Bull, 204 W.Va. 255, 512 S.E.2d 177 (1998).

4. “When the constitutionality of a statute is questioned every reasonable constructionof the statute must be resorted to by a court in order to sustain constitutionality, and any doubt must be resolved in favor of the constitutionality of the legislative enactment.” Syllabus point 3, Willis v. O'Brien, 151 W.Va. 628, 153 S.E.2d 178 (1967).

5. “The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.” Syllabus point 1, Smith v. State Workmen's Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975).

6. “In the absence of any definition of the intended meaning of words or terms used in a legislative enactment, they will, in the interpretation of the act, be given their common, ordinary and accepted meaning in the connection in which they are used.” Syllabus point 1, Miners in General Group v. Hix, 123 W.Va. 637, 17 S.E.2d 810 (1941), overruled, in part, on other grounds by Lee–Norse Co. v. Rutledge, 170 W.Va. 162, 291 S.E.2d 477 (1982).

7. W. Va.Code § 61–6–21(b) (1987) (Repl.Vol.2010) is not unconstitutionally vague and does not violate the United States Constitution Amendment XIV, Section 1, or the West Virginia Constitution Article III, Section 10.

8. “Sentences imposed by the trial court, if within statutory limits and if not based on some [im]permissible factor, are not subject to appellate review.” Syllabus point 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).

9. “Article III, Section 5 of the West Virginia Constitution, which contains the cruel and unusual punishment counterpart to the Eighth Amendment of the United States Constitution, has an express statement of the proportionality principle: ‘Penalties shall be proportioned to the character and degree of the offence.’ ” Syllabus point 8, State v. Vance, 164 W.Va. 216, 262 S.E.2d 423 (1980).

10. “The function of an appellate court when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.” Syllabus point 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

11. “A criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a jury and not an appellate court. Finally, a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases are inconsistent, they are expressly overruled.” Syllabus point 3, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

12. “ ‘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 transaction, or are two or more acts or transactions connected together or constituting parts of a common scheme or plan.’ Syl. Pt. 1, State ex rel. Watson v. Ferguson, 166 W.Va. 337, 274 S.E.2d 440 (1980) [ ( superseded by rule on other grounds ) ].” Syllabus point 8, State ex rel. Games–Neely v. Sanders, 211 W.Va. 297, 565 S.E.2d 419 (2002).

Christopher J. Prezioso, Esq., Luttrell & Prezioso, PLLC, Martinsburg, WV, for the Petitioner.

Christopher C. Quasebarth, Esq., Chief Deputy Prosecuting Attorney, Martinsburg, WV, for the Respondent.

DAVIS, Justice:

The petitioner herein and defendant below, Kendra Sulick (hereinafter “Ms. Sulick”), was convicted by a jury on three counts of criminal civil rights violations pursuant to W. Va.Code § 61–6–21(b) (1987) (Repl.Vol.2010).¹ A sentencing order was entered December 16, 2010, by the Circuit Court of Berkeley County, wherein Ms. Sulick was sentenced to consecutive terms of two years each for her three convictions. Ms. Sulick's six-year sentence was suspended. After affording credit for time served, she received a five-year period of probation. Before this Court, Ms. Sulick appeals the circuit court's denial of her post-trial motions. In her argument, Ms. Sulick raises several arguments that essentially challenge the constitutionality of W. Va.Code § 61–6–21(b) on vagueness and proportionality grounds. Because we find the statute to be constitutional, and based upon the parties' written briefs and oral arguments, the record designated for our consideration, and the pertinent authorities, we affirm the underlying rulings by the circuit court.

I.FACTUAL AND PROCEDURAL HISTORY

Ms. Sulick was indicted by the Berkeley County Grand Jury in February 2010 for nine counts of criminal civil rights violations pursuant to W. Va.Code § 61–6–21(b), and for three counts of conspiracy to commit a criminal civil rights violation pursuant to W. Va.Code § 61–10–31 (1971) (Repl.Vol.2010).² The factual history leading to the indictments shows an account of agonistic neighbors.

Ms. Sulick lived with Bruce Poole and their two minor children (hereinafter the “Poole–Sulick family”) about eighty feet from Brian Smith, Betty Ann Obiri, and their two minor children (hereinafter the “Smith–Obiri family”). The Poole–Sulick family is an all-Caucasian household, while the Smith–Obiri family are all African–Americans. It is undisputed that the families lived in close proximity to each other from July 2005 until December 2007 without significant incident. However, the neighborly relationship changed drastically in 2007 when Bruce Poole shot the Smith–Obiri family's two dogs,³ alleging that the dogs were attacking the Poole–Sulick family's dogs. The parties characterize this shooting incident as a shifting point in their relationship with both families alleging subsequent name-calling, harassment, and other bad behavior. A more detailed factual account will be revealed in the Discussion portion of this opinion.

Ms. Sulick and Bruce Poole were indicted in February 2010 on multiple counts of criminal civil rights violations against the Smith–Obiri family.⁴ Petitioner, Ms. Sulick, was indicted on twelve counts, three of which were dismissed prior to trial.⁵ Ms. Sulick went to trial on June 8, 2010, for the remaining nine counts, all of which alleged violations of W. Va.Code § 61–6–21(b). Two days later, a jury found Ms. Sulick not guilty of six counts, but found her guilty on the remaining three counts.⁶ Thereafter, Ms. Sulick filed a motion for arrest of judgment, a motion for a new trial, and a renewed motion for judgment of acquittal. At a hearing held August 9, 2010, the circuit court denied the motions. Ms. Sulick's case proceeded to sentencing on November 29, 2010, wherein she was sentenced to a determinate term of two years in the state penitentiary for each of her three convictions. The sentences were ordered to be served consecutively, but were suspended for a period of five years of supervised probation,⁷ with credit for time served. Additionally, Ms. Sulick's sentence included anger management counseling, drug and alcohol counseling, two hundred hours of community service, restitution and court costs, as well as the restriction that she not be within one hundred yards of the Smith–Obiri family. Ms. Sulick appeals to this Court and asserts numerous assignments of error that will be discussed herein.

II.STANDARD OF REVIEW

This case comes before this Court on appeal from a sentencing order. We previously have explained our standard of reviewing sentencing orders as follows: “The Supreme Court of Appeals reviews sentencing orders ... under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands.” Syllabus pt. 1, in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997). In particular to the current case, in which Ms. Sulick challenges a statute based on alleged constitutional infirmities, we have explained that,

[i]n considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers...