State v. Robert H.

State of West Virginia, Plaintiff Below, Respondent, v. Robert H., Defendant Below, Petitioner.

No. 14-0889

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

November 10, 2016

(Gilmer County 12-F-26)

MEMORANDUM DECISION

Petitioner Robert H.,¹ by counsel, Matthew Brummond, appeals from the August 4, 2014, order entered by the Circuit Court of Gilmer County, West Virginia, denying his motions to dismiss forty-three counts of a sixty-three count indictment and to grant him a new trial, and sentencing petitioner to an effective sentence of 112 to 145 years in prison. The sentence is based upon petitioner's jury conviction on sixty-three counts² relating to sexual assault, sexual abuse, sexual abuse by a parent, guardian, custodian or person in a position of trust, and attempted sexual abuse by a parent, guardian, custodian or person in aposition of trust of both petitioner's daughter, A.H., and her friend, J.B.³ Respondent, by counsel J. Zak Ritchie and Thomas M. Johnson, Jr., filed a response to which petitioner replied.⁴ We note at the outset that petitioner does not challenge any of his convictions for sexually assaulting J.B. and A.H., sexually abusing J.B. and A.H., or providing alcohol to J.B.⁵

Petitioner raises the following assignments of error: 1) the indictment alleged a bare solicitation in support of the attempted sexual abuse by a parent counts and, therefore, he was deprived of the constitutionally required notice because a solicitation is an insufficient overt act to support an attempt charge; 2) the proof at trial offered by respondent went beyond the bare solicitation noticed in the indictment to include the allegation that petitioner tried to physically direct A.H. to the bedroom, thereby creating a fatal variance to the indictment which prejudiced petitioner; 3) the indictment charged petitioner with "Making Harassing Telephone Calls During which Conversation Ensues," West Virginia Code § 61-8-16(a)(4), but alleged as a factual predicate that he only left text and voicemail messages, conduct that the statute does not prohibit;⁶ and 4) the evidence introduced at trial was insufficient toconvict petitioner of ten of the counts alleging attempted sexual abuse by a parent and two counts involving first degree sexual abuse and sexual abuse by a parent for petitioner allegedly touching his daughter's breasts.

Upon review of the parties' briefs and oral arguments, the appendix record including supplements thereto, and the pertinent authorities, we affirm the circuit court, in part, and reverse, in part, on the grounds that there was insufficient evidence to convict petitioner for eight⁷ of the counts charging attempted sexual abuse by a parent, as well as two counts involving first degree sexual abuse and sexual abuse by a parent based upon allegations that petitioner touched his daughter's breasts. This case is remanded so that the circuit court can resentence petitioner consistent with this memorandum decision.

This case does not present a new or significant question of law, and, therefore, it is properly disposed of through this memorandum decision. For the errors upon which we reverse, the "limited circumstance" requirement of Rule 21(d) of the Rules of Appellate Procedure is satisfied. As for the remaining assigned errors upon which we affirm, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21.

I. Indictment/Motions to Dismiss

In the instant appeal petitioner challenges counts 11 through 40 and 54 through 63⁸ contained within the indictment returned against him on November 9, 2012.⁹ Each of these counts charged petitioner with attempted sexual abuse of a child by a parent under West Virginia Code § 61-8D-5(a). Petitioner argued below and now before this Court that there was nothing alleged about an overt act in these counts charging attempted sexual abuse, which is a necessary element for any attempt count, making the indictment insufficient. See Syl. Pt. 1, State v. Burd, 187 W. Va. 415, 419 S.E.2d 676 (1991) ("In order to constitute the crime of attempt, two requirements must be met: (1) a specific intent to commit the underlying substantive crime; and (2) an overt act toward the commission of that crime, which falls short of completing the underlying crime." Syl. Pt. 2, State v. Starkey, 161 W. Va. 517, 244 S.E.2d 219 (1978).").

Petitioner moved to dismiss the indictment as being insufficient due to the numerous similar, but separate, counts of sexual abuse committed over a period of several months.¹⁰ Subsequent to this motion being filed below, this Court issued Ballard v. Dilworth, 230 W. Va. 449, 739 S.E.2d 643 (2013). In Dilworth, we found that an indictment containing ten identically worded and factually indistinguishable counts of sex abuse by a guardian to beconstitutionally sufficient. Id. at 458-59, 739 S.E.2d at 652-53. Consequently, the circuit court determined, based upon Dilworth, that no counts in the indictment should be dismissed.

Thereafter, petitioner moved for a bill of particulars, requesting respondent to identify the specific acts committed by him that supported counts in the indictment. Respondent filed a bill of particulars, wherein a copy of each count in the indictment was provided with certain additional language italicized. In pertinent part, for counts 12 through 40, respondent provided a copy of each respective count from the indictment and then added the following language: "Defendant pled with his minor daughter to have intercourse with him." Concerning counts 55 through 63, the respondent produced copies of each count as they appeared in the indictment and then added the language: "Defendant relentlessly, continually and insistently pursue[d] sexual intercourse by verbal proposition to his daughter."

Petitioner filed a second motion to dismiss the indictment on June 21, 2013. In this motion, petitioner argued, in relevant part, that counts 12 through 40 and 55 through 63 should be dismissed because "the description of events does not meet the elements of the offense charged in that the allegations is [sic] that the Defendant requested the contact verbally but took no action to attempt the contact." The circuit court denied the motion, finding that: 1) the indictment set forth the statutory language and was sufficient to apprise petitioner of the crimes charged; and 2) the issues regarding the attempt counts were best addressed at the close of respondent's evidence. The court stated: "[T]he statute says attempt and i[t] becomes a question of fact for the jury, if the jury believes that, in fact, he proposition[ed] the victims . . . and whether or not that is an attempt within the statute. The jury will be adequately instructed. The [c]ourt will consider that argument once I hear the evidence."¹¹

II. Facts

The evidence offered during petitioner's two-day jury trial was that on the evening June 30, 2012, J.B., who was a friend of petitioner's daughter, A.H., spent the night with A.H. in petitioner's home where A.H. also lived. There was no electricity in the house that evening because of a recent storm.¹² Also, J.B. testified that she had no cell service because of the storm. According to J.B.'s testimony, petitioner provided alcohol to both girls and theybecame very intoxicated. Eventually A.H. went to her bedroom for the night and J.B. slept on the couch in the living room.

J.B. testified that around 1:00 a.m. petitioner came into the living room and "rolled . . . [J.B.] over and said seductive things" to her. J.B. said that she told petitioner no "several times and he said he wouldn't take no as an answer." Petitioner eventually started touching J.B., including in her "privates," which J.B. said meant her vagina. J.B. testified that petitioner began taking her shorts off and "then he inserted his finger in me." This encounter occurred over a ten minute period. Petitioner left the living room.

J.B. kept checking her cell phone for service so that she could call home, but her phone continued to be without service. Around 3:00 a.m., J.B. testified that petitioner came back into the living room. J.B. stated that she was awakened to petitioner taking off her shorts again. "I told him to go back to bed where his wife was and to leave me alone and I told him to stop[.]" J.B. stated that he penetrated her digitally again and placed her hand on his penis, despite her repeatedly telling him "no."

Petitioner again left the room only to return a third time. J.B. begged him to leave her alone. This time petitioner forced J.B. to kiss him by forcing himself on her.

The next day, J.B. testified that she was scared and did not know "who to tell or how to explain it because I was embarrassed, so I didn't tell anybody." A.H., not knowing the events J.B. experienced the night before, "begged" J.B. to stay with her again. This second night, the two girls went to A.H.'s room and locked the doors. J.B. testified that she felt that something was wrong with A.H. J.B. also testified that A.H. "seemed scared." According to J.B., A.H. had not told her anything about her father's actions towards A.H. at that point.

J.B. testified that petitioner did not physically abuse her again. She stated, however, that he pursued her by sending her text messages and calling her on her cell phone and leaving her voicemail messages. The evidence introduced at trial showed that petitioner sent J.B. about 111 text messages and left twelve voicemail messages. J.B. testified that she responded to one of petitioner's text messages and told him that if he sent her another message, she would tell her father. Petitioner continued sending text messages to J.B.

J.B. testified that on July 5, 2012, petitioner, who had been stalking her, came into the weight room at her high school where she was lifting weights. He came into the room three times, asking her to leave with him and she would...