Jack L. Hickok, Esq.
Darrell V. McGraw, Jr. Esq.
Paul R. Stone, Esq.
Attorney General
West Virginia Public Defender Services Silas B. Taylor, Esq.
Charleston, West Virginia
Senior Deputy Attorney General
Attorneys for Appellant
Heather D. Foster, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for Appellee
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE STARCHER and JUSTICES MAYNARD and ALBRIGHT concur and
reserve the right to file concurring opinions.
1. “Except for willful, intentional fraud the law of this State does not permit the court to go behind an indictment to inquire into the evidence considered by the grand jury, either to determine its legality or its sufficiency.” Syllabus, Barker v. Fox, 160 W.Va. 749, 238 S.E.2d 235 (1977).
2. “Generally, the sufficiency of an indictment is reviewed de novo. An
indictment need only meet minimal constitutional standards, and the sufficiency of an
indictment is determined by practical rather than technical considerations.” Syllabus Point
2, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996).
3. “An indictment for a statutory offense is sufficient if, in charging the
offense, it substantially follows the language of the statute, fully informs the accused of the
particular offense with which he is charged and enables the court to determine the statute on
which the charge is based.” Syllabus Point 3, State v. Hall, 172 W.Va. 138, 304 S.E.2d 43
(1983).
4. “'This Court is constitutionally obligated to give plenary, independent,
and de novo review to the ultimate question of whether a particular confession is voluntary
and whether the lower court applied the correct legal standard in making its determination.
The holdings of prior West Virginia cases suggesting deference in this area continue, but that
deference is limited to factual findings as opposed to legal conclusions.' Syl. pt. 2, State v.
Farley, 192 W.Va. 247, 452 S.E.2d 50 (1994).” Syllabus Point 1, State v. Boxley, 201 W.Va.
292, 496 S.E.2d 242 (1997).
5. “The challenging party bears the burden of persuading the trial court that
the juror is partial and subject to being excused for caus[e]. An appellate court only should
interfere with a trial court's discretionary ruling on a juror's qualification to serve because of
bias only when it is left with a clear and definite impression that a prospective juror would
be unable faithfully and impartially to apply the law.” Syllabus Point 6, State v. Miller, 197
W.Va. 588, 476 S.E.2d 535 (1996).
6. “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).
7. “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).
8. “'A conviction for any sexual offense may be obtained on the
uncorroborated testimony of the victim, unless such testimony is inherently incredible, the
credibility is a question for the jury.' Syllabus Point 5, State v. Beck, 167 W.Va. 830, 286
S.E.2d 234 (1981).” Syllabus Point 12, State v. George W.H., 190 W.Va. 558, 439 S.E.2d
423 (1993).
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. “A criminal sentence may be so long as to violate the proportionality
principle implicit in the cruel and unusual punishment clause of the Eighth Amendment to
the United States Constitution.” Syllabus Point 7, State v. Vance, 164 W.Va. 216, 262 S.E.2d
423 (1980).
Per Curiam:
This case is before this Court
upon appeal of a final order of the Circuit Court of Jackson County entered
on December 15, 2000. Pursuant to that order, the appellant and defendant
below, David D. W.,
(See footnote 1) was sentenced to imprisonment in the penitentiary
for a period of 1,140 to 2,660 years for his convictions of 38 counts of first
degree sexual assault; 38 counts of incest; 38 counts of sexual abuse by a
parent, guardian, or custodian; and 38 counts of first degree sexual abuse.
In this appeal, the appellant presents several assignments of error. Specifically,
he contends that: (1) his case was improperly presented to the grand jury;
(2) the indictment was insufficient; (3) the statement he gave to the police
was involuntary and should have been suppressed; (4) a prospective juror should
have been excused for cause; (5) the evidence was insufficient and did not
support 152 convictions; and (6) his sentences are disproportionate to the
offenses charged and constitute cruel and unusual punishment.
This Court has before it the petition for appeal, the entire record, and the briefs and argument of counsel. For the reasons set forth below, the final order is affirmed, in part, and reversed, in part, and this case is remanded to the circuit court for resentencing.
The appellant was charged
with first degree sexual assault, incest, sexual abuse by a parent, guardian,
or custodian, and first degree sexual abuse in a 206-count indictment returned
by a grand jury in Jackson County, West Virginia, in June 2000. The offenses
allegedly occurred between January 1998 and January 2000, and involved the
appellant's daughter and youngest son.
(See footnote 2) The appellant moved to Jackson County with
his two sons in November 1997.
(See footnote 3) He had previously lived in Alaska where
his wife and daughter remained. Sometime in 1998, the appellant's wife and
daughter came to West Virginia. After a two- week stay, the appellant's wife
returned to Alaska. The appellant's daughter stayed with him. Subsequently,
the appellant divorced his wife. He was granted legal custody of his children.
The state police began investigating the appellant in February 2000, after his
babysitter reported that she suspected he was sexually abusing his children. On February 9, 2000, the appellant went to the Ripley, West Virginia detachment of the state
police and gave an inculpatory and incriminating statement.
(See footnote 4) After
further investigation, the State sought and obtained the indictment. The investigating
officer, Trooper Bowles, was the only witness to appear before the grand jury.
The appellant was tried before a jury on November 28, 29, and 30, 2000. He
was convicted of 38 counts of first degree sexual assault for which he received consecutive
sentences of 15 to 35 years for each count; 38 counts of incest for which he received
consecutive sentences of 5 to 15 years for each count; 38 counts of sexual abuse by a parent,
guardian, or custodian, for which he received consecutive sentences of 10 to 20 years for
each count; and 38 counts of first degree sexual abuse for which he received consecutive
sentences of 1 to 5 years for each count. The court ordered that the sentences for first degree
sexual assault, incest, and sexual abuse by a parent, guardian or custodian be served
consecutively while the sentences for first degree sexual abuse be served concurrently with
the sentences for sexual abuse by a parent, guardian, or custodian. In sum, the appellant was
sentenced to a total of 1,140 years to 2,660 years in the penitentiary. The final order was
entered on December 15, 2000, and this appeal followed.
This Court has long since held that “[e]xcept for willful, intentional fraud the
law of this State does not permit the court to go behind an indictment to inquire into the
evidence considered by the grand jury, either to determine its legality or its sufficiency.”
Syllabus, Barker v. Fox, 160 W.Va. 749, 238 S.E.2d 235 (1977).
'Generally speaking, the finding by the grand jury that
the evidence is sufficient is not subject to judicial review.' I
Franklin D. Cleckley, Handbook on West Virginia Criminal
Procedure Grand Jury and Indictments I-651 (2d ed. 1993).
Cases are legion supporting the proposition that a defendant may
not challenge a facially valid indictment returned by a legally
constituted grand jury on the basis that the evidence presented
to the grand jury was legally insufficient. See United States v.
Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974);
Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed.
397 (1956).
This Court reviews indictments only for constitutional
error and prosecutorial misconduct.
State v. Adams, 193 W.Va. 277, 284, 456 S.E.2d 4, 11 (1995). Since the appellant has not
alleged any constitutional error or prosecutorial misconduct, we find no merit to this
assignment of error.
“Generally, the sufficiency of an indictment is reviewed de novo. An
indictment need only meet minimal constitutional standards, and the sufficiency of an
indictment is determined by practical rather than technical considerations.” Syllabus Point
2, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996). This Court has held that, “An
indictment for a statutory offense is sufficient if, in charging the offense, it substantially
follows the language of the statute, fully informs the accused of the particular offense with
which he is charged and enables the court to determine the statute on which the charge is
based.” Syllabus Point 3, State v. Hall, 172 W.Va. 138, 304 S.E.2d 43 (1983). In this case,
the indictment substantially followed the language of the statutes under which the appellant
was charged. Thus, the appellant was informed of the nature of the offenses he allegedly
committed, the statutes he allegedly violated, and the manner in which he allegedly violated
said statutes.
The appellant acknowledges that he was informed of the statutes he allegedly
violated, but claims he simply could not defend himself against the sheer number of charges
without any particulars. He complains about the lack of specificity concerning when the
alleged offenses occurred. He also asserts that it would be impossible for him to plead his
convictions as a bar to a later prosecution, since the State could draft a new indictment
alleging that the same offenses occurred on one of the days of the month not alleged in the
previous indictment. We disagree.
W.Va. Code § 62-2-10 (1923) provides that, “No indictment or other
accusation shall be quashed or deemed invalid . . . for omitting to state, or stating
imperfectly, the time at which the offense was committed, when time is not of the essence
of the offense[.]” Clearly, time is not an element of the offenses with which the appellant
was charged. See State ex rel. State v. Reed, 204 W.Va. 520, 523, 514 S.E.2d 171, 174
(1999). Thus, there was no requirement that the indictment in this case specify exactly when
the alleged offenses occurred. Moreover, this Court has explained that “[a] conviction under
an indictment charged, though the proof was at variance regarding immaterial dates,
precludes a subsequent indictment on the exact same material facts contained in the original
indictment.” Id., 204 W.Va. at 524, 514 S.E.2d at 175. Accordingly, we find no merit to this
assignment of error.
In recent years, this Court has clarified the standard of review applicable to
a trial court's decision regarding the voluntariness of a confession. In Syllabus Point 1 of
State v. Boxley, 201 W.Va. 292, 496 S.E.2d 242 (1997), we explained that:
“This Court is constitutionally obligated to give plenary,
independent, and de novo review to the ultimate question of
whether a particular confession is voluntary and whether the
lower court applied the correct legal standard in making its
determination. The holdings of prior West Virginia cases
suggesting deference in this area continue, but that deference is
limited to factual findings as opposed to legal conclusions.”
Syl. pt. 2, State v. Farley, 192 W.Va. 247, 452 S.E.2d 50
(1994).
The record in this case shows that the trial court held a suppression hearing on November 15,
2000, during which Trooper Bowles testified about the circumstances surrounding the
recording of the appellant's statement. At the end of the hearing, the trial court determined
that the appellant's statement was given freely and voluntarily and, therefore, would be
admissible at trial.
Having reviewed the transcript
of the suppression hearing and other relevant parts of the record including
the statement at issue, we also find that the appellant's statement was given
voluntarily. The appellant was fully informed of his Miranda
(See footnote 6)
rights, and he signed the Miranda rights form indicating that he understood
and waived each of his rights. The appellant knew that he was free to end the
interview and leave at any time, yet he chose to complete his statement. There
is no evidence in the record indicating that the appellant was coerced into
giving a statement or was promised leniency for his cooperation. Furthermore,
there is no evidence that the appellant was under the influence of drugs or
alcohol when he gave his statement. Accordingly, we find that the appellant's
statement was voluntary. Therefore, the circuit court did not err by refusing
to suppress the appellant's statement.
(See footnote 7)
The appellant next contends
that the circuit court erred by not excusing one prospective juror for cause
despite his objection while excusing for cause another prospective juror at
the State's request. During voir dire of the jury panel, one prospective
juror, Patsy Morris, revealed that her son-in-law is a state trooper in Wood
County, West Virginia. More significantly, Ms. Morris stated that Trooper
Bowles, the State's primary witness in this case, performed the background
check for her son-in-law's admission to the state police academy. She further
indicated that she believed her son-in-law and Trooper Bowles are friends.
The appellant claims that Ms. Morris' answers during voir dire showed
that she had a favorable opinion of Trooper Bowles, and therefore, she should
have been excused for cause from the jury panel.
(See footnote 8)
The appellant further contends that another prospective juror, Victoria Babik,
should not have been removed from the panel. Ms. Babik disclosed that her husband had
entered a guilty plea to a federal charge. She stated that she believed that her husband was
“railroaded” by law enforcement, and consequently, she was excused for cause from the jury
panel upon the State's motion. The appellant claims that the circuit court abused its
discretion in ruling upon the motions to dismiss these prospective jurors from the jury panel.
In State v. Miller, supra, 197 W.Va. at 600-01, 476 S.E.2d at 547-48, this
Court explained that:
In reviewing the qualifications of a jury to serve in a criminal
case, we follow a three-step process. Our review is plenary as
to legal questions such as the statutory qualifications for jurors;
clearly erroneous as to whether the facts support the grounds
relied upon for disqualification; and an abuse of discretion as to
the reasonableness of the procedure employed and the ruling on
disqualification by the trial court.
In Syllabus Point 6 of Miller, this Court held that:
The challenging party bears the burden of persuading the trial
court that the juror is partial and subject to being excused for
caus[e]. An appellate court only should interfere with a trial
court's discretionary ruling on a juror's qualification to serve
because of bias only when it is left with a clear and definite
impression that a prospective juror would be unable faithfully
and impartially to apply the law.
“The relevant test for determining whether a juror is biased is 'whether the
juror[ ] . . . had such fixed opinion that [he or she] could not judge impartially the guilt of
the defendant.'” Id., 197 W.Va. at 605, 476 S.E.2d at 552, quoting Patton v. Yount, 467 U.S.
1025, 1035, 104 S.Ct. 2885, 2891, 81 L.E.2d 847, 856 (1984). In other words, “our concern
is whether the juror holds a particular belief or opinion that prevents or substantially impairs
the performance of his or her duties as a juror in accordance with the instructions of the trial
court and the jurors oath.” Id., 197 W.Va. at 605, 476 S.E.2d at 552. Since the trial court
is able to observe the demeanor of prospective jurors and assess their credibility, it is in the
best position to make the determination of whether a potential juror is biased.
Having reviewed the voir dire of these prospective jury members, we are
unable to find that the circuit court abused its discretion in determining whether these jurors
were qualified to serve on the jury. Ms. Morris indicated that her judgment with regard to
Trooper Bowles' credibility would not be affected by the fact he had helped a member of her
family gain admission to the police academy. She simply did not express any bias that
warranted her removal from the jury panel. By contrast, it is evident that Ms. Babik would
not have been impartial had she been allowed to serve on the jury. Ms. Babik essentially
stated that she did not believe that sworn testimony by itself was sufficient evidence upon
which to base a conviction. Thus, the record supports the trial court's rulings, and we find
no merit to this assignment of error.
In Syllabus Point 3 of State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995),
this Court stated that:
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.
This Court also explained in Syllabus Point 1 of Guthrie that:
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.
As set forth above, the
appellant essentially argues that the evidence was insufficient to support
his convictions for two reasons. First, he claims that there was no evidence
that sexual intercourse, sexual intrusion, or sexual contact occurred, and
thus, the State did not prove all of the elements of the offenses with which
he was charged. Although there was no medical evidence establishing that the
victim had been sexually assaulted,
(See footnote 9) the victim did testify that sexual intercourse,
sexual intrusion, and sexual contact occurred. This Court has held that, “'A
conviction for any sexual offense may be obtained on the uncorroborated testimony
of the victim, unless such testimony is inherently incredible, the credibility
is a question for the jury.' Syllabus Point 5, State v. Beck, 167 W.Va.
830, 286 S.E.2d 234 (1981).” Syllabus Point 12, State v. George W.H.,
190 W.Va. 558, 439 S.E.2d 423 (1993). Obviously, the jury found the victim's
testimony in this case to be credible.
Also, it is likely that the jury found that the appellant's recorded statement corroborated the
victim's testimony. Thus, we find no merit to the appellant's contention that the State failed
to prove that sexual intercourse, sexual intrusion, and sexual contact occurred.
We also find no merit to the appellant's contention that the evidence with
regard to how often the offenses occurred was speculative. The State alleged that each of
the offenses occurred twice a month for a period of 25 months. At trial, the victim testified
that the offenses began when she moved to West Virginia and occurred “almost every day.”
In his recorded statement which was presented to the jury, the appellant told the police that
“sometimes it[']s once a month, sometime twice, sometimes we go, sometimes two months
and nothing[.]” Also, the appellant indicated that the last offense occurred a week and half
before he gave his statement to the police.
It is apparent that the jury believed the victim's testimony and concluded that
the offenses happened more often than the appellant admitted. While actual dates and times
were never established, as we explained above, such evidence is not required. Moreover, in
this type of case, the victim's testimony is frequently the only evidence available concerning
when the alleged offense occurred. Therefore, having reviewed the testimony, we do not
believe that the evidence with respect to how often the offenses occurred was insufficient.
Rather, we find that when the evidence is considered in the light most favorable to the
prosecution, any rational trier of fact could have found the elements of the offenses with
which the appellant was charged proven beyond a reasonable doubt.
In Syllabus Point 8 of State v. Vance, 164 W.Va. 216, 262 S.E.2d 423 (1980),
this Court observed that, “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.'” This Court also
recognized that, “A criminal sentence may be so long as to violate the proportionality
principle implicit in the cruel and unusual punishment clause of the Eighth Amendment to
the United States Constitution.” Syllabus Point 7, Vance.
Historically, this Court has declined to intervene in cases where judicially
imposed sentences are within legislatively prescribed limits. State v. Cooper, 172 W.Va.
266, 271, 304 S.E.2d 851, 855 (1983). In fact, this Court has held that “[w]hile our
constitutional proportionality standards theoretically can apply to any criminal sentence, they
are basically applicable to those sentences where there is either no fixed maximum set by
statute or where there is a life recidivist sentence.” Syllabus Point 4, Wanstreet v.
Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981). Yet, this Court has also stated that
“when our sensibilities are affronted and proportional principles ignored, there is an abuse
of discretion that must be corrected.” Cooper, 172 W.Va. at 271, 304 S.E.2d at 856.
In determining whether a sentence violates the proportionality principle found
in Article III, Section 5 of the West Virginia Constitution, two tests are employed.
The first is subjective and asks whether the sentence for the
particular crime shocks the conscience of the court and society.
If a sentence is so offensive that it cannot pass a societal and
judicial sense of justice, the inquiry need not proceed further.
When it cannot be said that a sentence shocks the conscience, a
disproportionality challenge is guided by the objective test[.]
Id., 172 W.Va. at 272, 304 S.E.2d at 857. The objective test was set forth in Syllabus Point
5 of Wanstreet:
In determining whether a given sentence violates the
proportionality principle found in Article III, Section 5 of the
West Virginia Constitution, consideration is given to the nature
of the offense, the legislative purpose behind the punishment, a
comparison of the punishment with what would be inflicted in
other jurisdictions, and a comparison with other offenses within
the same jurisdiction.
In this instance, we do not need to look beyond the first test. We find the
sentences imposed upon the appellant in this case so offensive that they shock the conscience
of this Court. By ordering the appellant to serve the majority of his sentences consecutively,
the trial court effectively imposed multiple life sentences upon him. Although the offenses
committed by the appellant are heinous and repulsive, the trial court's sentencing order
cannot be upheld.
This Court is certainly mindful of the fact that the sentences imposed by the
trial court were within the statutory limits. Furthermore, the trial court's decision to make
the sentences consecutive as opposed to concurrent was authorized by statute. See W.Va.
Code § 61-11-21 (1923). Nonetheless, excessive penalties, even if authorized by statute,
cannot transgress the proportionality principle of Article III, Section 5 of the West Virginia
Constitution. By imposing a total sentence of 1,140 years to 2,660 years in prison upon the
appellant in this case, the trial court violated the proportionality principle and abused its
discretion. Therefore, we remand this case to the trial court for resentencing within its
discretion.
Affirmed, in part, reversed, in part, and remanded.