Darrell V. McGraw, Jr.
Stephen R. Van Camp
Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellee
Terry D. Reed, Esq.
David L. Orndorff, Esq.
Hymes & Coonts
Buckhannon, West Virginia
Attorneys for the Appellant
This Opinion was delivered PER CURIAM.
1. "It is a well-established rule of appellate review
in this state that a trial court has wide discretion in regard to
the admissibility of confessions and ordinarily this discretion
will not be disturbed on review." Syllabus point 2, State v.
Vance, 162 W. Va. 467, 250 S.E.2d 146 (1978).
2. "'The State must prove, at least by a preponderance
of the evidence, that confessions or statements of an accused which
amount to admissions of all or a part of an offense were voluntary
before such may be admitted into the evidence of a criminal case.'
Syl. pt. 5, State v. Starr, 158 W. Va. 905, 216 S.E.2d 242 (1975)."
Syllabus point 1, State v. Vance, 162 W. Va. 467, 250 S.E.2d 146
3. "A trial court's decision regarding the
voluntariness of a confession will not be disturbed unless it is
plainly wrong or clearly against the weight of the evidence."
Syllabus point 3, State v. Vance, 162 W. Va. 467, 250 S.E.2d 146
4. "'Exclusion of a confession obtained as a result of
an illegal arrest without a warrant is mandated unless the causal
connection between the arrest and the confession has been clearly
broken.' Syl. pt. 3, State v. Canby, 162 W. Va. 666, 252 S.E.2d
164. Syl. pt. 3, State v. Sprouse, 171 W. Va. 58, 297 S.E.2d 833
(1982)." Syllabus point 4, State v. Mullins, 177 W. Va. 531, 355
S.E.2d 24 (1987).
5. "In a criminal case, a verdict of guilt will not be
set aside on the ground that it is contrary to the evidence, where
the state's evidence is sufficient to convince impartial minds of
the guilt of the defendant beyond a reasonable doubt. The evidence
is to be viewed in the light most favorable to the prosecution. To
warrant interference with a verdict of guilt on the ground of
insufficiency of evidence, the court must be convinced that the
evidence was manifestly inadequate and that consequent injustice
has been done." Syllabus point 1, State v. Starkey, 161 W. Va.
517, 244 S.E.2d 219 (1978).
6. "'There exists in the trial of an accused the presumption of sanity. However, should the accused offer evidence that he was insane, the presumption of sanity disappears and the burden is on the prosecution to prove beyond a reasonable doubt that the defendant was sane at the time of the offense.' Syl. pt. 2, State v. Daggett, 167 W.Va. 411, 280 S.E.2d 545 (1981)." Syllabus point 4, State v. Parsons, 181 W. Va. 131, 381 S.E.2d 246 (1989).
7. "'When a defendant in a criminal case raises the
issue of insanity, the test of his responsibility for his act is
whether, at the time of the commission of the act, it was the
result of a mental disease or defect causing the accused to lack
the capacity either to appreciate the wrongfulness of his act or to
conform his act to the requirements of the law...' Syl. pt. 2, in
part, State v. Myers, 159 W.Va. 411, 280 S.E.2d 545 (1981)."
Syllabus point 3, State v. Parsons, 181 W. Va. 131, 381 S.E.2d 246
8. "Under 405(b) of the West Virginia Rules of Evidence
, a defendant in a criminal case who relies on self-defense
or provocation may introduce specific acts of violence or threats
made against him by the victim, and if the defendant has knowledge
of specific acts of violence against third parties by the victim,
the defendant may offer such evidence." Syllabus point 3, State v.
Woodson, 181 W. Va. 325, 382 S.E.2d 519 (1978).
9. "'Sentences imposed by the trial court, if within statutory limits and if not based on some [im]permissible factor, are not subject to appellate review.' Syl. pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982)." Syllabus point 9, State v. Hays, 185 W. Va. 664, 408 S.E.2d 614 (1991).
Carol Lee Koon appeals from an 11 June 1992 conviction of
eight counts of sexual assault in the third degree in the Circuit
Court of Randolph County. On 23 June 1992 the court denied Mrs.
Koon's motions for judgment of acquittal or a new trial following
a hearing. On 27 August 1992 Mrs. Koon was sentenced to two
consecutive one to five year terms in the Pruntytown Correctional
Center in Grafton. On 6 April 1993 we granted Mrs. Koon's petition
In fall 1989, Mrs. Koon, a thirty-nine year old mother of
four children, was a sixth grade science teacher at Buckannon-
Upshur Middle School. Jeremy Burr, a thirteen year old sixth
grader, was one of her students. When Jeremy received a low mark
in her class in November 1989, Jeremy's mother, Judy Burr, and
Jeremy's grandmother, Wilma Levere, asked Mrs. Koon to tutor
Jeremy. The tutoring sessions occurred in the living room of Mrs.
Levere's home where Jeremy was living with his mother. Although
the tutoring lasted only three to four weeks, Mrs. Koon continued
to come to Mrs. Levere's house to visit Jeremy several days a week
from 4:15 P.M. to 11:15 P.M. until April or May 1991.
In November 1990, Mrs. Koon picked up Jeremy Burr in her Ford Van and drove to the Buckannon-Upshur High School Park where Mrs. Koon and Jeremy Burr engaged in oral and vaginal intercourse.
Mrs. Koon and Jeremy Burr subsequently engaged on other occasions
in oral and vaginal intercourse in the van on a Buckannon street,
at a boat ramp near West Virginia Wesleyan College, at Buckannon
City Park and in Mrs. Koon's home.
In late December 1990, Mrs. Koon admitted to her friend
Molly Straight that she was sexually involved with a student.
After consulting with a child abuse hotline, Mrs. Straight wrote a
letter to Mrs. Koon stating that because the affair was extremely
deviant, Mrs. Straight had a moral and legal obligation to turn her
in. Although Mrs. Koon insisted that the relationship was with a
college student, Mrs. Straight eventually grew convinced that the
affair was with Jeremy Burr.
On 7 June 1991, Mrs. Straight reported her suspicions to
Ms. Paula Hinzeman of the Child Abuse Hotline of the West Virginia
Department of Health and Human Resources. Ms. Hinzeman then
contacted the Upshur County Prosecuting Attorney's office. On 13
June 1991, the prosecutor's office initiated an investigation into
Mrs. Straight's allegations. The investigation was conducted by
Trooper Holley of the West Virginia State Police and Upshur County
Assistant Prosecutor William Thurman.
Trooper Holley and Prosecutor Thurman interviewed Mrs.
Straight who told them she believed Mrs. Koon was sexually involved
with Jeremy Burr. The officers then spoke with Steven Payne,
principal of the Buckannon-Upshur Middle School. Mr. Payne
admitted having received several complaints from other teachers
concerning inappropriate actions by Mrs. Koon toward her students.
The officers then met with Jeremy Burr. Jeremy detailed the
approximate dates, times and locations at which he and Mrs. Koon
had engaged in sexual intercourse.
At about 11:45 P.M. on the evening of 13 June 1991, Mr. Thurman and Trooper Holley arrived at Mrs. Koon's residence. Trooper Holley apprised Mrs. Koon of the serious allegations of sexual misconduct involving Jeremy Burr. Trooper Holley informed Mrs. Koon that they were investigating those allegations and that, if she was willing, to obtain a statement from her concerning the allegations. Mrs. Koon agreed to make such a statement.
Before giving her statement, Mrs. Koon read and signed a
DPS Form 79, in which she acknowledged that she understood her
Miranda rights and chose to give up those rights. Mrs. Koon then
stated that she was in love with Jeremy Burr and described their
various sexual encounters.
After obtaining Mrs. Koon's statement, the officers
placed her under arrest. Mrs. Koon was subsequently indicted by an
Upshur County Grand Jury on nine separate counts of sexual assault
in the third degree pursuant to West Virginia Code 61-8B-5(a)(2)
.See footnote 1
On 10 April 1992 a suppression hearing was conducted by
the Upshur County Circuit Court regarding the admissibility of Mrs.
Koon's statements on 14 June 1991. The court found that Mrs. Koon
knowingly, voluntarily and intelligently waived her right to
counsel and her right to refrain from making self-incriminating
statements. Accordingly, the court refused to suppress the
Mrs. Koon was found guilty of eight counts of sexual
assault in the third degree, all felonies. On 23 June 1993 the
court imposed a total sentence of not less than two, nor more than
ten years confinement in the penitentiary.
On appeal Mrs. Koon assigns numerous errors which we
shall address seriatim.
Mrs. Koon argues that the trial court erred by failing to suppress her statement given on 14 June 1991.
"It is a well-established rule of appellate review in this state that a trial court has wide discretion in regard to the admissibility of confessions and ordinarily this discretion will not be disturbed on review." Syllabus point 5, State v. Starr, 158 W. Va. 905, 216 S.E.2d 242 (1975). In accord Syllabus point 2, State v. Vance, 162 W. Va. 467, 250 S.E.2d 146 (1978). The general rule in West Virginia with regard to the admissibility of confessions is that "[t]he state must prove, at least by a preponderance of the evidence, that confessions or statements of an accused which amount to admissions of all or a part of an offense were voluntary before such may be admitted into the evidence of a criminal case." Syllabus point 5, State v. Starr, 158 W. Va. 905, 216 S.E.2d 242 (1975). In accord Syllabus point 1, Vance, supra; Syllabus point 2, State v. McDonough, 178 W. Va. 1, 4, 357 S.E.2d 34, 37 (1987).
In determining the voluntariness of an inculpatory
statement, the trial court must hold a hearing on the matter. See,
State v. Fortner, 150 W. Va. 571, 148 S.E.2d 669, 674 (1966),
overruled on other grounds, State ex rel. White v. Mohn, 168 W. Va.
211, 283 S.E.2d 914 (1981). On review, a trial court's decision
regarding the voluntariness of a confession will not be disturbed
unless it is plainly wrong or clearly against the weight of the
evidence. Syllabus point 3, Vance, supra.
Evidence presented at the 10 April 1992 suppression
hearing established the following undisputed facts: before giving
her inculpatory statement, Trooper Holley informed Mrs. Koon of the
allegations of sexual misconduct made by Jeremy Burr. Trooper
Holley also informed Mrs. Koon that she was not under arrest and
was free to leave at any time. When Trooper Holley asked Mrs. Koon
for a response to the allegations, Mrs. Koon voluntarily agreed to
make a statement. Mrs. Koon then read and signed a DPS Form 79 in
which she stated that she understood her Miranda rights and chose
to give up those rights. Following the interview, Mrs. Koon
reviewed and signed a written account of her statement attesting to
its accuracy. Mrs. Koon also signed a disclaimer in which she
averred that the statement she had given was not obtained through
the use of any threats, inducements or coercion on the part of
Trooper Holley or Prosecutor Thurman.
Both Trooper Holley and Prosecutor Thurman testified that
on the night in question Mrs. Koon was a well-educated woman who
understood that Trooper Holley was a state policeman. Both men
testified that there was no evidence that Mrs. Koon was intoxicated
when she gave the statement. According to Trooper Holley, during
the two hours they spent with Mrs. Koon she carried on a normal
conversation and did not appear sluggish or jittery. Following her
arrest that night, Mrs. Koon informed the police that she was not
under the influence of any drug. Furthermore, the court noted that
Mrs. Koon's testimony revealed that her memory of the night in
question was vivid because she remembered details of the
Based on this evidence, it is plain that Mrs. Koon
knowingly, voluntarily and intelligently waived her right to
counsel and her right against self-incrimination. The trial court
did not abuse his discretion when he admitted Mrs. Koon's 14 June
1991 statement into evidence.
Mrs. Koon further maintains that because she was arrested
in her home, without a warrant and without exigent circumstances,
the arrest was unlawful. Under Mrs. Koon's theory, because the
arrest was unlawful, her statement must be suppressed as the fruit
of an illegal warrantless arrest.
"[E]xclusion of a confession obtained as a result of an illegal arrest without a warrant is mandated unless the causal connection between the arrest and the confession has been clearly broken." Syllabus point 3, State v. Canby, 162 W. Va. 666, 252 S.E.2d 164 (1979). In accord Syllabus point 3, State v. Sprouse, 171 W. Va. 58, 297 S.E.2d 833 (1982); Syllabus point 4, State v. Mullins, 177 W. Va. 531, 355 S.E.2d 24 (1987). The facts in this
case clearly show that Mrs. Koon's statement was procured before
her arrest and thus was not obtained as a result of the arrest.
Far from exploiting an illegal arrest to obtain a statement from
Mrs. Koon, the police used the statement to make the arrest.
Because there is no causal connection, the statement is not tainted
by the arrest and suppression is not mandated under Canby. Thus,
the trial court did not err by admitting Mrs. Koon's statement.
Mrs. Koon's second assignment of error is that the trial
court erred in denying her motions for judgment of acquittal or for
a new trial. According to Mrs. Koon, the prosecution failed to
meet its burden of proving beyond a reasonable doubt that she was
criminally responsible at the time of the offense. We have
reviewed the record and disagree.
The standard on appeal to be applied in determining
whether sufficient evidence was presented at trial to warrant a
conviction is as follows:
In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence if that evidence, when viewed in a light most favorable to the State, would be sufficient to convince impartial minds of the guilt of a defendant beyond a reasonable doubt. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the evidence presented by the prosecution at trial must be manifestly inadequate to support the conviction.
Syllabus point 1, State v. Starkey, 161 W. Va. 517, 244 S.E.2d 219 (1978). In accord Syllabus point 7, State v. Knotts, 187 W. Va. 795, 421 S.E.2d 917 (1992).
Under W. Va. Code 61-8B-5 , "[a] person is guilty
of sexual assault in the third degree when . . . (2) [s]uch person,
being sixteen years old or more, engages in sexual intercourse or
sexual intrusion with another person who is less than sixteen years
old and who is at least four years younger than the defendant."
The uncontradicted testimony of Jeremy Burr established that Mrs.
Koon had engaged in acts of oral and vaginal sex with him. Mrs.
Koon herself admitted to having sex with Jeremy Burr. Mrs. Koon
was forty and Jeremy Burr was thirteen when the various sexual acts
took place. This evidence thus established all elements required
for a conviction of third degree assault under W. Va. Code 61-8B-5
Mrs. Koon maintains that notwithstanding the satisfaction
of elements required for conviction under W. Va. Code 61-8B-5
, the State failed to prove that she was sane beyond a
reasonable doubt when she engaged in sexual relations with Jeremy
Burr; thus, the trial court committed reversible error by refusing
to set aside the verdict. We disagree.
In syllabus point 2 of State v. Daggett, 167 W. Va. 411,
280 S.E.2d 545 (1981), we state that although "there exists In the
trial of an accused the presumption of sanity[,] ... if the accused
offers evidence that he was insane, the presumption of sanity
disappears and the burden is then shifted to the prosecution to
prove beyond a reasonable doubt that the accused was sane at the
time of the offense." In accord Syllabus point 4, State v.
Parsons, 181 W. Va. 131, 381 S.E.2d 246 (1989). The insanity
standard in West Virginia provides that "[a] person is not
responsible for criminal conduct if at the time of such conduct, as
a result of mental disease or defect, he lacks substantial capacity
to appreciate the wrongfulness of his conduct or to conform his
conduct to the requirements of the law. Syllabus point 2, in part,
State v. Myers, 159 W. Va. 411, 280 S.E.2d 545 (1981). In accord
Syllabus point 3, Parsons, supra.
This Court has not fashioned a general rule which
specifies the nature and quantity of evidence that the prosecution
must produce to prove sanity beyond a reasonable doubt. We stated
in State v. Kinney, 169 W. Va. 217, 221, 286 S.E.2d 398, 401 (1982)
that this issue must be resolved according to the facts and
circumstances of each case:
... [t]he State's burden of proving sanity beyond a reasonable doubt does not mean that the sanity evidence must be entirely without contradictions. It is factual contradiction which a jury is called upon to resolve[.] [W]here there is factual contradiction on the question of sanity ... the question is one for the jury.
In support of her insanity defense, Mrs. Koon presented
the expert testimony of two psychiatrists, Dr. Neilan and Dr.
Haynes. Both testified that, in their opinion, Mrs. Koon suffered
from depression or, alternatively, a bipolar condition. The
psychiatrists further testified that these conditions created a
passive, accommodating and easily manipulated personality in Mrs.
Koon. Notably, neither expert witness addressed the threshold
question of whether Mrs. Koon had appreciated the wrongfulness of
her actions or could conform her actions to law when the acts were
The State in response offered the expert testimony of Dr.
William J. Fremouw, a psychologist. Based on his interviews with
Mrs. Koon and the tests administered to Mrs. Koon, Dr. Fremouw
concluded that although Mrs. Koon suffered from personality
problems, she showed no signs that she had been unable to discern
right from wrong or to conform her actions to the mandates of the
law while engaging in the sexual encounters with Jeremy Burr.
Mrs. Koon contends that Dr. Fremouw's testimony was
inadequate to meet the State's burden of proof on the issue of her
criminal responsibility because under W. Va. Code 27-6A-1 ,
only a psychiatrist-- not a psychologist-- can render an opinion as
to the criminal responsibility of a defendant. However, W. Va.
Code 27-6A-1  is limited to court-ordered competency hearings
and has no relevance to the issue of what evidence is competent and
may be considered by a jury in deciding a person's criminal
To meet its burden of proving a defendant's sanity beyond
a reasonable doubt, the State is not required to put on expert
testimony. State v. Rowe, 168 W. Va. 678, 681, 285 S.E.2d 445, 447
(1981). The burden of proving sanity may be shouldered not only by
psychiatric testimony, but also by evidence presented about the
facts and circumstances surrounding the crime. Id.; State v.
Wilmer, 168 W. Va. 417, 428, 284 S.E.2d 890, 896 (1981). Thus,
expert testimony is not conclusive in a jury's determination of
Moreover, under W.V.R.E. Rule 702 , "a witness
qualified as an expert by knowledge, skill, experience, training or
education" may testify at trial if scientific or other specialized
knowledge will assist the trier of fact to determine a fact in
issue. In this context, a trial court has broad discretion in
deciding whether to admit expert testimony into evidence. Morris
v. Boppana, 182 W. Va. 248, 387 S.E.2d 302 (1989).
Dr. Fremouw is a licensed clinical psychologist
practicing in Morgantown. He is a full professor in the psychology
department at West Virginia University and is a member of both the
American Psychological Association and the West Virginia
Psychological Association. As stipulated by Mrs. Koon's counsel,
Dr. Fremouw is an expert in the field of clinical psychology.
Because a determination of Mrs. Koon's criminal responsibility
involved her mental capacity, Dr. Fremouw was qualified to render
an opinion on it. Once Dr. Fremouw had testified on that issue, it
was the jury's function to evaluate his testimony, credentials,
background and qualifications and weigh those factors in addressing
Mrs. Koon's criminal responsibility.
In view of Dr. Fremouw's competence to testify on the
issue of Mrs. Koon's sanity, we find there was sufficient evidence
for the jury to have concluded that Mrs. Koon was sane at the time
the acts alleged were committed. The circuit court properly denied
Ms. Koon's motions for a new trial and for judgment of acquittal.
Mrs. Koon further maintains that the circuit court erred
in failing to dismiss Counts II, V, and VII of the indictment and
in submitting them to the jury as individual separate counts.
Counts II, V and VII of the indictment alleged that Mrs. Koon
performed acts of oral sex on Jeremy Burr on various dates in
November and December 1990 and January 1991. Counts IV, VII and
VII charged that Mrs. Koon and Jeremy Burr had engaged in vaginal
intercourse on the same dates. According to Mrs. Koon, the acts of
oral sex were merely ancillary to the later vaginal sex and should
not have been separately prosecuted.
In West Virginia, if a defendant commits separate acts of the statutorily-defined term "sexual intercourse" in different ways, each act may be prosecuted and punished as a separate offense. See State v. Lola Mae C., 185 W. Va. 452, 408 S.E.2d 31 (1991); State v. Fortner, 182 W. Va. 345, 387 S.E.2d 812 (1989).
W. Va. Code 61-8B-1(7)  defines "sexual intercourse" as "any act between persons not married to each other involving penetration... of the female sex organ by the male sex organ or involving contact between the sex organs of one person and the mouth... of another person."
In interpreting W. Va. Code 61-8B-1(7) , we stated
in State v. Carter, 168 W. Va. 90, 282 S.E.2d 277 (1981) that the
use of the word "or" in the definition of sexual intercourse
"expresses the legislative intent that sexual intercourse can be
committed in each of the various alternative ways, with each type
of prohibited contact constituting a separate offense." Where,
however, the sexual contact immediately preceding sexual
intercourse is preparatory to and ancillary to one act of sexual
intercourse, only "one continuing sexual offense" has occurred.
State v. Reed, 166 W. Va. 558, 276 S.E.2d 313 (1981).
Reed is distinguishable from this case. Although the
defendant in Reed engaged in only one act of sexual intercourse as
defined by statute, the court convicted him for two separate
crimes, sexual abuse in the first degree and sexual misconduct. We
held in Reed that double jeopardy clearly bars conviction for two
separate crimes as the result of a single criminal transaction.
Reed, 166 W. Va. at 565-66, 276 S.E.2d at 319 (1981). In this
case, in contrast, Mrs. Koon engaged in two separate acts of sexual
intercourse as those terms are statutorily understood under W. Va.
Code 61-8B-1(7) . Thus, the circuit court was correct in its
refusal to dismiss Counts II, V and VII because they represented
separate offenses for which Mrs. Koon could be held accountable.
At the conclusion of trial, the jury was instructed as to
Count IX that if it believed beyond a reasonable doubt that Mrs.
Koon engaged in sexual intercourse on one occasion with Jeremy Burr
in Upshur County, it could find her guilty. The jury returned with
a verdict of guilty on Count IX. Mrs. Koon argues that evidence on
the location of her residence was insufficient to uphold the
verdict of guilt on Count IX because her farm is located in
Barbour, not Upshur County.
A jury is the ultimate trier of fact and the sole judge
of the weight of the evidence and the credibility of witnesses
presented at trial. State v. Knotts, 156 W. Va. 748, 197 S.E.2d 93
(1973). As we stated in the second section of this opinion, this
Court must be convinced that the evidence presented by the
prosecution was manifestly inadequate to support the conviction to
warrant interference with a jury's verdict of guilt on the ground
of insufficiency of evidence. See Syllabus point 1, Starkey,
supra; Syllabus point 7, Knotts, supra. On review, the evidence
must be viewed in a light most favorable to the prosecution. See
Syllabus point 1, Starkey, supra; Syllabus point 3, Knotts, supra.
At trial, two witnesses addressed this issue. Trooper
Holley, who based his opinion on over seven years of working as a
trooper in the area, testified that while part of Mrs. Koon's farm
was located in Upshur County and part in Barbour County, he judged
Mrs. Koon's house to be situated in Upshur County. Mike Koon, Mrs.
Koon's husband, testified that although he had never had a survey
conducted on his property to determine the exact location of his
residence, the deed of conveyance to the farm indicated it was
located in Upshur County with a small portion extending into
When viewed in a light most favorable to the prosecution,
we find this evidence manifestly adequate to justify a finding that
the acts alleged in Count IX occurred in Upshur County. The trial
court properly refused to dismiss Count IX.
Mrs. Koon next asserts that the circuit court erred in
refusing to allow Melissa White, a juvenile with whom Jeremy Burr
attended school, to testify concerning Jeremy Burr's prior sexual
conduct with her. On cross-examination, Mrs. Koon's counsel asked
Jeremy Burr if he had ever physically attacked Ms. White. Jeremy
Burr denied such conduct. Mrs. Koon's counsel then brought Ms.
White to the stand and sought to elicit testimony concerning an
attempt by Jeremy Burr to remove her shirt. The trial court
sustained the prosecution's objection to such testimony.
Rule 405(b), W.V.R.E.  provides that proof may be
made of specific instances of a person's conduct in cases in which
character or a trait of character of a person is an essential
element of a defense. In syllabus point 3 of State v. Woodson, 181
W. Va. 325, 382 S.E.2d 519 (1989), we held that under Rule 405(b),
W.V.R.E. , "a defendant in a criminal case who relies on
self-defense or provocation may introduce specific acts of violence
or threats made against him by the victim, and if the defendant has
knowledge of specific acts of violence against third parties by the
victim, the defendant may offer such evidence." For a discussion
of Woodson, see Dietz v. Legursky, __ W. Va. __, 425 S.E.2d 202
In Woodson, the defendant was convicted of unlawful
assault. We ruled in that case that evidence of the victim's two
prior convictions on burglary charges was not relevant to establish
his alleged violent nature because the elements of that crime did
not involve violence to the person. Woodson, 181 W. Va. at 330,
325 S.E.2d at 524 (1989). In this case, Mrs. Koon relied inter
alia on the defense that Jeremy Burr extorted sex from her by
threatening to accuse her of having sex with him if she refused to
actually do so. Thus, in contrast to Woodson, testimony by Ms.
White that Jeremy Burr had sexually accosted Ms. White was directly
relevant to establish Jeremy Burr's aggressive nature and was
essential to Mrs. Koon's defense that Mrs. Koon engaged in sexual
intercourse with Jeremy Burr under duress and in self-defense.
Accordingly, the trial court improperly excluded Ms. White's
testimony. However, given the overall state of the record, we find
the error harmless.See footnote 2
Finally, Mrs. Koon maintains that the trial court erred
by imposing an unconstitutionally harsh sentence on her. It is
well-settled in this Court that a trial court's discretion when
imposing a sentence is broad, and as long as that sentence is
within statutory limits and is not based on some impermissible
factor, it is not subject to appellate review. Syllabus point 4,
State v. Goodnight, 169 W. Va. 366, 287 S.E.2d 504 (1982). In
accord Syllabus point 9, State v. Hays, 185 W. Va. 664, 408 S.E.2d
W. Va. Code 61-8B-5(b)  imposes a maximum sentence
of not less than one nor more than five years confinement in the
state penitentiary for each conviction of sexual assault in the
third degree. The trial court imposed individual sentences of one
to five years each for the first four counts and the last four
counts to run concurrently. The sentences imposed on the last four
counts were to run consecutively with the sentences imposed on the
first four counts, resulting in a total sentence of not less than
two, nor more than ten years confinement in prison. Thus, the
court sentenced Mrs. Koon within the statutory limits for the
Before imposing sentence, a trial court must: (1) assure
that the defendant and her counsel have had the opportunity to read
and discuss the presentence report; (2) afford defense counsel an
opportunity to speak on behalf of the defendant; and (3) address
the defendant personally and ask her if she wishes to make a
statement in her own behalf and to present any information in
mitigation of punishment. W.Va.R.Crim.P. Rule 32(a)(1) .
Once these formal requirements have been met, the trial court, in
determining the character and extent of a defendant's punishment,
may consider "the facts of the [crime] and may search anywhere,
within reasonable bounds, for other facts which tend to aggravate
or mitigate the offense." State v. Houston, 166 W. Va. 202, 208,
273 S.E.2d 375, 378 (1980).
In this case, Mrs. Koon and her counsel reviewed the
presentence report and acknowledged its overall accuracy. On Mrs.
Koon's request, the trial court agreed to exclude a statement made
by Trooper Holley concerning Mrs. Koon's opportunity to enter into
plea agreements with the prosecution. Mrs. Koon was afforded the
opportunity to elicit testimony from her husband concerning the
impact of her incarceration on him and their children. Mrs. Koon's
counsel then was allowed to address the court on behalf of Mrs.
Koon. Mrs. Koon declined to speak on her own behalf.
In deciding the sentence to be imposed on Mrs. Koon, the
court indicated that it had considered several factors including
the issues raised by Mrs. Koon's counsel and the testimony of Mrs.
Koon's husband; the presentence report; the recommendations of the
Prosecuting Attorney and the probation officer; community
sentiment; and the retributive, rehabilitative and deterrent effect
which the sentence would serve.
Because the trial court's sentence was within statutory
limits and was not based on impermissible factors, the trial court
did not abuse its discretion.
For the foregoing reasons, this Court is of the opinion
that there is no error in this case. We affirm the circuit court.
Footnote: 1W. Va. Code 61-8B-5  provides in pertinent part:
(a) A person is guilty of sexual assault in the third degree when:
(2) Such person, being sixteen years old or more, engages in sexual intercourse or sexual intrusion with another person who is less than sixteen years old and who is at least four years younger than the defendant.
(b) Any person who violates the provisions of this section shall be guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than one year nor more than five years, or fined not more than ten thousand dollars and imprisoned in the penitentiary not less than one year and not more than five years.
Footnote: 2See Torrance v. Kusminsky, 185 W. Va. 725, 408 S.E.2d 684 (1991) (nonconstitutional error harmless if it is "highly improbable that the error did not affect the judgement.").