STATE of West Virginia, Plaintiff Below, Appellee v. Donald Lee LONGERBEAM, Defendant Below, Appellant.
No. 35472.
Supreme Court of Appeals of West Virginia.
Decided Nov. 18, 2010.
703 S.E.2d 307
Submitted Oct. 12, 2010. Dissenting Opinion of Justice Benjamin Nov. 19, 2010. Dissenting Opinion of Justice Workman Nov. 22, 2010.
A recognized corollary to the principle that a guilty plea must be shown to have been intelligently and voluntarily entered is the rule that if the plea is based on a plea bargain which is not fulfilled or is unfulfillable, then the guilty plea cannot stand.
Syllabus Point 1, State ex rel. Morris v. Mohn, 165 W.Va. 145, 267 S.E.2d 443 (1980). In other words, “a guilty plea entered as part of a plea agreement that provides for an illegal sentence is invalid and must be vacated.” State ex rel. Gessler v. Mazzone, 212 W.Va. 368, 372, 572 S.E.2d 891, 895 (2002).
Because the appellant‘s sentence for his recidivist conviction is inconsistent with the applicable provision of the sentencing statute and, therefore, is unfulfillable, his plea of guilty induced by the plea bargain must be set aside and his five year sentence imposed pursuant to
“[N]o sound public policy supports allowing the parties to bargain for an illegal sentence, and we cannot uphold a plea bargain that has as its object an illegal sentence.” Chae [v. People], 780 P.2d [481,] at 487 [(Colo. 1989)]; see also State v. Nemeth, 214 N.J.Super. 324, 519 A.2d 367, 368 (A.D.1986) (“there can be no plea bargain to an illegal sentence“); Agoney v. Feinberg, 132 A.D.2d 829, 517 N.Y.S.2d 834, 837 (1987) (illegal sentence “is not validated by a plea bargain“).
Gessler, 212 W.Va. at 374 n. 4, 572 S.E.2d at 897 n. 4.
Finally, it is noted that the State may proceed on the recidivist charge in light of our decision to set aside the appellant‘s guilty plea to the recidivist conviction and void his five-year sentence. As this Court explained in Gessler, “a plea agreement which cannot be fulfilled based upon legal impossibility must be vacated in its entirety, and the parties must be placed, as nearly as possible, in the positions they occupied prior to the entry of the plea agreement.” 212 W.Va. at 374, 572 S.E.2d at 897. See also Spencer, 167 W.Va. at 778, 280 S.E.2d at 595 (“[T]he plea of guilty induced by this illegal plea bargain agreement must be set aside and the sentence based upon the guilty plea voided. This action does not, however, preclude the State from proceeding on the underlying criminal charges.“).
IV.
CONCLUSION
Based upon the foregoing, the final order of the Circuit Court Braxton County entered on February 13, 2009, is affirmed, in part, and reversed, in part, and this case is remanded to the circuit court for further proceedings consistent with this opinion.
Affirmed, in part, Reversed, in part, and Remanded.
Brandon C.H. Sims, Stephanie F. Grove, Prosecuting Attorney‘s Office, Charles Town, West Virginia, for the Appellee.
PER CURIAM:
Appellant Donald L. Longerbeam seeks a reversal of his conviction on one count of sexual abuse by a parent, guardian, custodian, or person in a position of trust with regard to a child.1 As grounds for the reversal, Appellant maintains that he does not meet the definition of any of the specified classes of individuals that
I. Factual and Procedural Background
On June 8, 2007, Appellant and his wife, Cindy Longerbeam, were shopping at Wal-Mart when Mrs. Longerbeam received a cellular telephone call from the youngest of her sister‘s three daughters, Taylor G.,2 asking for help to catch a loose hamster.3 By the time Appellant and his wife arrived at Mrs. Longerbeam‘s sister‘s residence it was mid-morning and the hamster had already been secured. This fact was determined when Mrs. Longerbeam yelled upstairs upon her arrival. Mrs. Longerbeam asked her nieces Taylor G. and Marissa G. to come downstairs. After a short while, Mrs. Longerbeam went upstairs with Taylor G. apparently to check on the hamster. When Mrs. Longerbeam left the first floor living room area, Appellant was seated somewhere between the middle and the right side of the couch and the twelve-year-old victim, Marissa G., was seated on the left side of the couch. During the time when they were the only two people in the living area, Marissa G. testified that Appellant moved closer to her on the couch, put his arm around her shoulders, and touched her breast through her clothing.4
Soon after the alleged touching occurred, Kassandra M. or “Kacy,” the sixteen-year-old sister of Taylor G. and Marissa G., came into the living area and encountered the situation. There was testimony that Appellant quickly moved away from Marissa G. and/or that his leg twitched5 upon Kacy‘s entry into the living room.6 Kacy headed up the stairs to the second floor and Marissa G. followed her. When both Kacy and Marissa were on the second floor, Marissa G. informed her older sister in response to Kacy‘s questioning, that Appellant “ha[d] been touching her.” Kacy then went downstairs in search of her aunt and uncle and found Mrs. Longerbeam outside on the front porch. Kacy asked her aunt where Appellant was and was told by Mrs. Longerbeam that he had walked down the street. Kacy told Mrs. Longerbeam in no uncertain terms: “[Y]ou need to get him and you need to leave.” The record indicates that Mrs. Longerbeam put up no protest and promptly complied with Kacy‘s directive.
Kacy called the police to report the alleged sexual assault of Marissa G. by Appellant. Officer Patrick Norris initially responded to the call and he contacted Detective Tracy Lynn Edwards to aid in the investigation of the complaint.7 According to the criminal complaint prepared by Detective Edwards, Kacy informed her that as she walked into the living room on her way to the bathroom she witnessed her uncle on the couch with “his arm underneath” Marissa. The criminal complaint relates that Kacy witnessed Appellant “move[] quickly on the couch” after she entered the room. Through the complaint, Appellant was initially charged with two counts of sexual assault in the third degree8 in connection with this incident. When the grand jury returned its indictment, Appellant was charged with five counts of sexual abuse by a guardian under
At the conclusion of the two-day trial that began on March 3, 2009, Appellant was convicted on one count of touching Marissa G.‘s breast in violation of
II. Standard of Review
As we recognized in syllabus point one of State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995):
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.
With this standard in mind, we proceed to determine whether there was sufficient evidence introduced to convict Appellant of sexual abuse by a parent, guardian, custodian, or person in a position of trust with regard to a child under
III. Discussion
To convict Appellant under
A. Custodian
Because Appellant was neither the parent or the guardian14 of the victim in this case, our focus is on whether he qualified as either a “custodian” or a “person in a position of trust” with regard to Marissa G. A “custodian” is statutorily defined as
a person over the age of fourteen years who has or shares actual physical possession or care and custody of a child on a full-time or temporary basis, regardless of whether such person has been granted custody of the child by any contract, agreement or legal proceeding. “Custodian” shall also include, but not be limited to, the spouse of a parent, guardian or custodian, or a person cohabiting with a parent, guardian or custodian in the relationship of husband and wife, where such spouse or other person shares actual physical posses-
sion or care and custody of a child with the parent, guardian or custodian.
The record of this case makes clear that Appellant did not have “actual physical possession” of Marissa G. on a “full-time or temporary basis.” Consequently, to come within the statutory definition of “custodian,” the State was required to prove that Appellant had “care and custody” of the victim on a “full-time or temporary basis.”
The State argued that the “Longerbeams voluntarily became the custodians of Marissa and her sisters when they arrived at the house to respond to the children‘s request for help” with the escaped hamster. Upon entry into the residence, the State posits that Appellant and his wife became responsible for the “care and custody” of all three girls. As evidence of this assumed duty, the State cites to the fact that the Longerbeams entered the house without knocking and then Mrs. Longerbeam acted in a custodial fashion by telling Marissa G. and Taylor G. to come downstairs. The State contends that Appellant assumed a custodial role with regard to the victim based on the fact that he was the only adult in the room with her at the time of the alleged incident.
In response to these arguments, Appellant points out that Kacy was the person charged by her mother with the responsibility of car-
ing for her two younger sisters, Marissa G. and Taylor G., while their mother was working. The fact that Appellant and his wife came onto the premises upon the invitation of Taylor G. to help locate the hamster did not, according to Appellant, cloak them with any custody-based responsibility towards the three children inside that house. To support his contention that Kacy‘s status as the child‘s caregiver was not negated by the presence of her aunt and uncle, Appellant observes that not only did Kacy order the Longerbeams to leave the property upon learning of the alleged abuse, but, as the record indicates, they immediately complied with her request.
The State seeks to sidestep Kacy‘s position as the intended babysitter or custodian15 of her sisters by suggesting “that it is possible for an individual to voluntarily become the custodian of the child even when other legal custodians are present.” As support for this contention, the State relies upon our determination in State v. Collins, 221 W.Va. 229, 654 S.E.2d 115 (2007), that an adult who took a minor child four-wheeling with the permission of the child‘s mother was a custodian of that child for purposes of
Seeking to dispel the position of responsibility that Kacy occupied with regard to her two younger sisters, the State framed the following argument to the jury in closing:
I am going to ask you who is in charge when there is an adult and a 12-year-old in the room? The adult. Who is in charge when a 16-year-old is asleep in a bedroom, a 16-year-old who is asleep? Is it the aunt and uncle who are awake in the house? You know the answer[;] it is the adult who is there who is in charge. In fact, [Mrs.] Cindy Longerbeam testified today that she was in charge when the kids were there. Then when Mr. Wrye [Appellant‘s counsel] asked a few more questions, well, Marissa would ask Kacy. But ask yourselves was the 16-year-old sister in charge or was the adult aunt and adult uncle who are there in charge? I think you know the answer [is] it is clearly the adult.
While the State sought to emphasize the fact that Kacy was sleeping during the alleged touching incident, Kacy testified that “if they [Marissa G. and Taylor G.] needed something
they came to me and they knew to stay in the house and not to go anywhere and if they needed something [to] come get me.”
The fact that Appellant and his wife were older than Kacy did not vitiate her mother‘s charge of being the caregiver of her sisters. Similarly, the fact of Kacy being asleep did not in itself abrogate her responsibilities. While it certainly is not ideal for a caregiver to be asleep, the testimony offered by Kacy made clear that her sisters knew the rule of staying in the house and that they were to wake her if they “needed something.”16 Contrary to the picture the State sought to paint for the jury, Kacy remained in charge of her sisters despite the presence of Appellant and his wife. This was demonstrated by the fact that upon learning what had just happened to Marissa G., Kacy immediately confronted her aunt after discovering that her uncle was no longer in the household and demanded that they both leave the premises. The fact that Mrs. Longerbeam complied with Kacy‘s directive further proves that Kacy was the person in charge of her two younger sisters. Not only did Kacy take control of the situation upon discovering the alleged abuse but she continued to act in a clear-thinking, adult fashion by promptly contacting the police to report the alleged sexual assault.
When the facts of this case are applied to the applicable portion of the statutory definition of “custodian” that requires “care and custody” on at least a part-time basis, we simply cannot conclude that Appellant was a custodian of Marissa G. at the time of the alleged assault in question. The record makes clear that she was not under his care and custody at the time of the incident for which Appellant was convicted.17 Accordingly, Appellant was not a “custodian” of Marissa G. within the meaning of
B. Person in Position of Trust
The only remaining class of individuals encompassed within
any person who is acting in the place of a parent and charged with any of a parent‘s rights, duties or responsibilities concerning a child or someone responsible for the general supervision of a child‘s welfare, or any person who by virtue of their occupation or position is charged with any duty or responsibility for the health, education, welfare, or supervision of the child.
The State proposes that Appellant occupied a “position of trust” with regard to Marissa G. based on his familial relationship of being an uncle by marriage. Citing extra-jurisdictional case law, the State argues that “it is the position of ‘trust, authority or supervision’ which often provides a heightened opportunity for . . . sexual assault to occur.” People v. Kaminski, 246 Ill.App.3d 77, 186 Ill.Dec. 4, 615 N.E.2d 808, 811 (1993). Following that observation, however, the court in Kaminski proceeded to determine whether the alleged abuser held a position of supervision with regard to the victim on the night of the alleged abuse. 186 Ill.Dec. 4, 615 N.E.2d at 811–12. After reviewing the evidence that included the victim‘s parents expressly giving her permission to stay with Appellant, her brother-in-law, and his wife, following a group meeting that had taken place at the victim‘s parents’ home, the trial court had no difficulty concluding that “both defendant and Roberta [his wife] were responsible for looking after the welfare of the
victim on the night in question.” 186 Ill.Dec. 4, 615 N.E.2d at 812. These facts contrast severely to the evidence in this case. Marissa G. did not leave the premises of her own home on the day in question and she was not under the supervision, or to be statutorily-specific “care, custody or control,” of Appellant when she was subject to the alleged abuse.
While we do not mean to minimize the criminal significance of adults who prey upon their victims based on a familial or any other relationship that typically implies a sense of security to the child, the relationship must still play a part of the actual incident of abuse to come within the meaning of
The State argues that the evidence makes clear that Appellant occupied a position of trust in relation to Marissa G. on June 8, 2007, the date of the alleged abuse for which Appellant was convicted. Yet, the only evidence that the State relies upon as proof that Appellant occupied the temporally relevant status of a “person in position of trust” with regard to the victim on the date in question is prior instances of supervision of Marissa G. that took place at the residence of Appellant and his wife.18 While those previous instances could be relied upon to establish that there were occasions when Appellant
that the State could prove the elements of the offense by virtue of Appellant‘s failure to disprove prior instances of presumed trust is not only sophistic, but possibly unconstitutional.
Based on the foregoing conclusion that there was insufficient evidence to convict Appellant for committing an offense under
Reversed.
Justices BENJAMIN and WORKMAN dissent and reserve the right to file dissenting opinions.
BENJAMIN, Justice, dissenting:
I respectfully dissent to the majority opinion because I believe that sufficient evidence
tim—only that the State failed to meet its burden of demonstrating that the abuse properly fell under the provisions of
was adduced at trial to support the appellant‘s conviction.
As set forth in the majority opinion:
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). Viewing the evidence in the light most favorable to the prosecution, there is sufficient evidence that the appellant and his wife were viewed by the children as persons in positions of trust who were in control of the children at the time the appellant committed the offense for which he was convicted.
The evidence indicates that the appellant was the victim‘s uncle by marriage, and the appellant had access to the victim due to this fact. Further, the appellant‘s access to the victim presupposed an assumption of control and supervision in that the children called the appellant and his wife for help in catching a loose hamster instead of waking their older sister. Stated another way, the appellant‘s role as uncle and his presence in the home in order to assist the children created the control which permitted the sexual assault to occur. In addition, the victim testified that during the sexual assault, she did not move away from the appellant until her older sister entered the room because she did not think that she could leave. Thus, the victim‘s perception of the appellant‘s control
Significantly, Kacy, the older sister, did not exert her control over her younger siblings until after the appellant committed the alleged offense. While it is true that Kacy confronted Mrs. Longerbeam and demanded that she and the appellant leave the premises, this occurred subsequently to the appellant‘s crime. Thus, the fact that Kacy ultimately exercised her control over the household does not mitigate the fact that the children perceived the appellant and Mrs. Longerbeam to be in control prior to that time.
In sum, I believe that a review of all of the evidence in the light most favorable to the prosecution, compels the conclusion that a rational trier of fact could have found the essential elements of the appellant‘s crime proved beyond a reasonable doubt. For this reason, I would affirm the appellant‘s conviction. Accordingly, I respectfully dissent to the majority opinion.
WORKMAN, Justice, dissenting:
The Appellant was the victim‘s fifty-five-year-old uncle who, along with his wife, was called to the home where their three underage nieces were alone. When the adults arrived, they entered the victim‘s home without knocking. The Appellant‘s wife asked the children to come downstairs and the children complied with her directive. Moreover, the sixteen-year-old sister who the majority characterizes as being “in charge” of the victim was actually sleeping at the time the Appellant arrived and, therefore, was not actively watching her sisters.
The Appellant was convicted of one count of sexual abuse by a parent, guardian, custodian, or person in a position of trust to a child in violation of
If any parent, guardian or custodian of or other person in a position of trust in relation to a child under his or her care, custody or control, shall engage in or attempt to engage in sexual exploitation of, or in sexual intercourse, sexual intrusion or sexual contact with, a child under his or her care, custody or control, notwithstanding the fact that the child may have willingly participated in such conduct or the fact that the child may have consented to such conduct or the fact that the child may have suffered no apparent physical injury or mental or emotional injury as a result of such conduct, then such parent, guardian, custodian or person in a position of trust shall be guilty of a felony. . . .
Id. (emphasis added). A custodian is further defined in
Id.
Very recently, in State v. Edmonds, 226 W.Va. 464, 702 S.E.2d 408, 2010 WL 4272851 (2010), a decision not even mentioned in the majority opinion, this Court was confronted
The Court first examined whether the evidence was sufficient for a jury to find that the defendant was a “person in a position of trust.” In upholding the jury‘s verdict on this issue, the Court noted that it has repeatedly found that whether a person falls within one of the four classes of individuals set forth in the provisions of
In the instant case, however, the majority usurps the jury‘s role. First, the majority concludes that because the sixteen-year-old sister of the victim was “babysitting” the victim at the time of the incident, the Appellant could not be the custodian. To reach such a conclusion, the majority rejects the State‘s evidence that the Appellant and his wife, the victim‘s aunt, were called to the victim‘s home on the day of the incident for help in catching a hamster that had gotten loose.
The majority, likewise, rejects the jury‘s determination that the Appellant was a person in a position of trust in relation to a child. Again, the majority hinges its determination on its conclusion that the victim‘s sister was “the individual who was charged with and retained that supervisory responsibility.” Once again, in reaching its conclusion, the majority rejects the State‘s evidence that the Appellant was the victim‘s uncle by marriage. The Appellant‘s wife also testified that the victim and her sisters had spent the night at their aunt and uncle‘s home on several occasions and there was evidence that the Appellant had supervised the victim on several prior occasions.
Regarding the majority‘s conclusion that the Appellant was not a person in a position of trust in relation to the victim, the majority does not reconcile its decision with that reached by the Court in Edmonds. By way of analogy, there were others (even adults) “in charge” of the victim at the school she attended on some of the occasions that the defendant in the Edmonds case molested her. Yet this Court made clear that the issue of whether the defendant in that case occupied a “position of trust” under the statute was a jury issue. In Edmonds, the same issue was before the Court concerning whether the jury had been presented with sufficient evidence to find that defendant was “a person in a position of trust” as the phrase is defined in the statute.
The jury heard testimony from multiple witnesses that the defendant maintained a consistent presence at the school and church. The defendant performed maintenance around the school/church building on multiple occasions. Angel testified that the defendant assisted her with her school work.... There was also testimony that the defendant played an active role in the church. He led the church in prayer and
W.Va. at 467, 702 S.E.2d at 411, 2010 WL 4272851 at *3.
was twice listed as an “Associate Youth Pastor” in the church bulletin.
Edmonds, 226 W.Va. at 469, 702 S.E.2d at 413, 2010 WL 4272851 at *5. All of the foregoing evidence which this Court found sufficient to sustain the jury‘s verdict of conviction in Edmonds involved “prior” instances of supervision between the defendant and victim. Yet, in the instant case, when similar type evidence was introduced by the State to prove that the Appellant was a person of trust, it is rebuked by the majority. Specifically, the majority states that
the only evidence that the State relies upon as proof that Appellant occupied the temporally relevant status of a “person in position of trust” with regard to the victim on the date in question is prior instances of supervision of . . . [the victim] that took place at the residence of Appellant and his wife. While those previous instances could be relied upon to establish that there were occasions when Appellant was responsible for the “general supervision” of the victim‘s “welfare,” those instances do not establish that he was acting in that capacity—as a “person in a position of trust“—on the date in question.
(footnote omitted).
Additionally, the majority reaches the conclusion in a summary fashion that the victim in the instant case was not under the “care, custody or control” of the Appellant at the time she was subject to the alleged abuse, thus substituting the majority‘s own judgment for the factual findings of a properly instructed jury. See
The terms care, custody and control are not statutorily defined. Absent a statutory definition of these terms, we will necessarily defer to the “common, ordinary, and accepted meanings of the terms in the connection in which they are used.” In re Clifford K., 217 W.Va. 625, 640, 619 S.E.2d 138, 153 (2005). The word “care” is defined as “[s]erious attention; heed.” Black‘s Law Dictionary 240 (9th ed.2009). “Custody” is defined as “[t]he care and control of a thing or person for inspection,
preservation, or security.” Id. at 441. “Control” means “[t]o exercise power or influence over.” Id. at 378.
Edmonds, 226 W.Va. at 469, 702 S.E.2d at 413, 2010 WL 4272851 at *6.
The Court, in Edmonds, then focused on the encounters between the defendant and victim. The Court found that the defendant exercised control over the victim by instructing her on where to lie down, where to sit and not to tell anyone. Id. In the instant case, the State offered evidence that the victim was scared and froze most of the time. Thus, there was evidence for the jury to conclude that the Appellant‘s exercise of power and influence over the victim caused such fear in her that she could not avoid or get away from the abuse inflicted upon her by her uncle.
While the majority correctly sets forth the standard of review applicable to sufficiency of the evidence, they do not set forth another part of the equation in their review. In syllabus point three of State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).
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.
The majority ignores the Appellant‘s heavy burden and sets aside the jury verdict where the State did present evidence from which the jury properly convicted the Appellant of the crime charged. Id.
In so doing, the majority has taken a statute,
“A cardinal rule of statutory construction is that significance and effect must, if possible, be given to every section, clause, word or part of the statute.” Syllabus Point 3, Meadows v. Wal-Mart Stores, Inc., 207 W.Va. 203, 530 S.E.2d 676 (1999). It is presumed that each word in a statute has a definite meaning and purpose. State ex rel. Johnson v. Robinson, 162 W.Va. 579, 582, 251 S.E.2d 505, 508 (1979). “It is always presumed that the legislature will not enact a meaningless or useless statute.” Syllabus Point 3, United Steelworkers of America, AFL-CIO, CLC v. Tri-State Greyhound Park, 178 W.Va. 729, 364 S.E.2d 257 (1987) (citing Syllabus Point 4, State ex rel. Hardesty v. Aracoma-Chief Logan No. 4523, V.F.W., 147 W.Va. 645, 129 S.E.2d 921 (1963)). Courts should favor the plain and obvious meaning of a statute as opposed to a narrow or strained construction. Thompson v. Chesapeake & O. Ry. Co., 76 F.Supp. 304, 307-308 (S.D.W.Va.1948).
T. Weston, Inc. v. Mineral County, 219 W.Va. 564, 568, 638 S.E.2d 167, 171 (2006). The majority has construed this statute in such a narrow manner that the victim‘s uncle who sexually assaulted his twelve-year-old niece does not, as a matter of law, fall within the statutory purview of “a parent, guardian, custodian, or person in a position of trust to a child,” notwithstanding ample evidence to support the jury‘s factual conclusion that he was a custodian and “person in a position of trust” to his niece.
The majority‘s decision that, as a matter of law, the Appellant does not fall within one of the four statutory classes of individuals effectively renders the well-established role of the jury in this decision as meaningless. For the foregoing reasons, I respectfully dissent.