State of West Virginia v. Wayne Dubuque
239 W. Va. 660
| W. Va. | 2017Background
- Wayne Dubuque pleaded guilty to second-degree sexual assault and to five counts (counts 5–9) of possession of child pornography based on five VHS tapes found in a sealed box at his home.
- The plea preserved Dubuque’s right to appeal the circuit court’s ruling on multiplicity of counts 5–9.
- The State treated each VHS tape as a separate violation; the circuit court imposed consecutive sentences, producing an aggregate sentence of 25–75 years.
- Dubuque challenged multiple counts under the double jeopardy protection against multiple punishments, arguing the child-pornography statute permits aggregation of images into a single possession offense.
- The controlling statute, W.Va. Code § 61-8C-3 (2014), creates a graduated penalty scheme based on the total number of images (with a rule in subsection (e) for converting video length to image counts).
- The Supreme Court of Appeals reversed the circuit court, holding the amended statute requires aggregation of images/videos possessed at the same time and place into a single offense for sentencing purposes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether possession of multiple physical media (five VHS tapes) supports multiple counts under W.Va. Code § 61-8C-3 | Dubuque: multiple tapes should be aggregated into one possession offense; multiple counts violate double jeopardy | State: each physical media device may be charged as a separate violation | Held: Aggregation required; possession at same time/place constitutes one violation; multiple punishments reversed |
| What is the unit of prosecution under § 61-8C-3 after the 2014 amendment | Dubuque: unit is aggregated material/images possessed at same time/place | State: unit could vary by medium (still images vs. separate storage devices) | Held: Unit is the aggregate number of images/videos possessed at same time/place; statute’s subsections (b)-(e) demonstrate aggregation intent |
| Whether the 2014 statute changed prior-case law treating each image as a separate offense | Dubuque: 2014 amendments supersede prior cases that allowed separate counts per image | State: prior interpretations might persist or allow device-based counts | Held: 2014 amendments create a graduated aggregate scheme; prior rulings (pre-2014) do not control the amended statute’s unit of prosecution |
| Remedy for sentencing that imposed multiple punishments | Dubuque: remand and resentencing as single § 61-8C-3(d) conviction | State: argued for affirmance of multiple counts | Held: Reverse and remand for entry of new sentencing reflecting a single conviction for aggregated material under § 61-8C-3(d) |
Key Cases Cited
- State v. Gill, 187 W. Va. 136, 416 S.E.2d 253 (1992) (explains the three protections of double jeopardy, including protection against multiple punishments)
- Conner v. Griffith, 160 W. Va. 680, 238 S.E.2d 529 (1977) (state double jeopardy protects against multiple punishments)
- State v. Goins, 231 W. Va. 617, 748 S.E.2d 813 (2013) (unit-of-prosecution test looks to legislative intent)
- Appalachian Power Co. v. State Tax Dep't of W. Va., 196 W. Va. 573, 466 S.E.2d 424 (1995) (statutory construction: plain language governs if unambiguous)
- State v. Shingleton, 237 W. Va. 669, 790 S.E.2d 505 (2016) (interpreting pre-2014 § 61-8C-3 and upholding multiple convictions based on separate images)
- State v. Riggleman, 238 W. Va. 720, 798 S.E.2d 846 (2017) (child pornography characterized as an act of violence tied to serious punishment)