State of West Virginia v. Robert H., 14-0889

Background

Defendant Robert H. was tried by jury and convicted on 63 counts arising from sexual assaults, sexual abuse, and attempted sexual abuse of his daughter (A.H.) and assaults/abuse of A.H.’s friend (J.B.), plus related misdemeanors; he does not contest convictions related to J.B. or provision of alcohol.
Many counts (counts 11–40 and 54–63) alleged attempted sexual abuse by a parent under W. Va. Code § 61-8D-5(a); defendant moved to dismiss these attempt counts for failing to allege an overt act.
The State provided a bill of particulars identifying the charged conduct, describing repeated “propositioning” and pleading language such as "Defendant pled with his minor daughter to have intercourse with him." The circuit court denied motions to dismiss and allowed attempt counts to go to the jury.
Trial evidence included A.H.’s testimony describing repeated propositioning and sexual acts by her father (about 30 instances) and J.B.’s testimony about assaults and persistent texting/calls; the jury convicted on all counts.
On appeal, defendant argued (1) the indictment’s attempt allegations were merely solicitation and insufficient; (2) evidence presented varied from the indictment; (3) one harassment count alleged only texts/voicemails not covered by the statute; and (4) insufficient evidence supported certain attempt counts and two counts for touching A.H.’s breasts.
The Supreme Court of Appeals affirmed most convictions but vacated eight attempt counts and two counts (first-degree sexual abuse and abuse by parent) alleging breast-touching for insufficiency of evidence, and remanded for resentencing.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Robert H.)	Held
Sufficiency of indictment for attempt counts (overt act requirement)	Indictment tracks statute and bill of particulars put defendant on notice; repeated propositioning constituted overt acts in context	"Propositioning"/solicitation are only words and cannot satisfy overt act for attempt; indictment insufficient	Affirmed — indictment sufficient; the alleged propositioning and context were adequate overt acts to support attempt counts
Variance between indictment and trial evidence (physical directing to bedroom)	Not addressed as dispositive once indictment found sufficient	Trial evidence expanded to alleged physical directing, creating fatal variance prejudicing defense	Not reached — court declined to find prejudice because indictment and bill of particulars were sufficient
Harassing telephone calls count (statutory fit for texts/voicemails)	Count adequately charged; defendant failed to raise issue below	Defendant argued statute prohibits calls with conversation, not texts/voicemails	Waived on appeal; court affirmed count as not so defective as to be invalid
Sufficiency of evidence for number of attempt convictions and two counts alleging breast-touching	Evidence (A.H.’s testimony) supported ~30 attempts and no testimony of breast-touching	Argued multiple attempt counts unsupported; no evidence of breast-touching	Partially reversed — vacated 8 attempt counts (only 30 attempts supported) and vacated 2 counts for breast-touching for lack of evidence; remaining convictions affirmed

Key Cases Cited

State v. Burd, 187 W. Va. 415, 419 S.E.2d 676 (1991) (defines attempt: requires specific intent and overt act)
State v. Starkey, 161 W. Va. 517, 244 S.E.2d 219 (1978) (confirming overt act requirement for attempt)
Ballard v. Dilworth, 230 W. Va. 449, 739 S.E.2d 643 (2013) (indictment with multiple, similar counts can be constitutionally sufficient)
State v. Miller, 197 W. Va. 588, 476 S.E.2d 535 (1996) (indictment sufficiency reviewed de novo; procedural waiver rules for indictment defects)
State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995) (standard for reviewing sufficiency of the evidence in criminal cases)
State v. Baller, 26 W. Va. 90 (1885) (common-law principle that mere solicitation alone does not constitute attempt)