Filed: March 20, 1992
Teresa A. Tarr
Assistant Attorney General
Attorney for the Appellee
Zachary S. Gray
Gibbs & Craze Co., L.P.A.
Charleston, West Virginia
Attorneys for the Appellant
This Opinion was delivered PER CURIAM.
"Under ex post facto principles of the United States and
West Virginia Constitutions, a law passed after the commission of
an offense which increases the punishment, lengthens the sentence
or operates to the detriment of the accused, cannot be applied to
him." Syllabus point 1, Adkins v. Bordenkircher, 164 W.Va. 292,
262 S.E.2d 885 (1980).
This is an appeal by Michael Hensler from an order of the
Circuit Court of Brooke County sentencing him to two concurrent
terms of from one-to-five years in the State penitentiary for two
convictions of first-degree sexual abuse and for two other
concurrent terms of from one-to-five years for two additional
convictions of first-degree sexual abuse. On appeal, among other
things, the defendant claims that W.Va. Code, 61-8B-1(1)(c), was
improperly applied in his case, either as an unconstitutional ex
post facto law, or in violation of his right to due process of law.
After reviewing the record and the questions presented, this Court
agrees. The defendant's conviction is, therefore, reversed.
During the 1985-86 school year, the defendant, a
minister, operated a private school, called the Great Hope Baptist
Academy, in the basement of his home located in Brooke County, West
Virginia. Among his pupils was a fourteen-year-old boy whose
tuition had been waived in exchange for the boy agreeing to do work
in the defendant's yard. This case arises out of accusations that
the defendant, on four occasions during the 1985-86 school year,
made sexual advances to the boy while the boy was at the
On November 6, 1989, as a result of the boy's
accusations, a grand jury in Brooke County indicted the defendant
on four counts of first-degree sexual abuse in violation of W.Va.
Code, 61-8B-7. The defendant was subsequently tried on the
charges, and on February 28, 1990, a jury found him guilty on all
In the present proceeding, the defendant alleges that the
trial court allowed the jury to consider the definition of terms
contained in W.Va. Code, 61-8B-1(1)(c), in determining whether he
had violated W.Va. Code, 61-8B-7, and he claims that since W.Va.
Code, 61-8B-1(1)(c), was the law in West Virginia only after the
dates of the alleged crimes, the application of W.Va. Code, 61-8B-1(1)(c), to his case constituted the application of an ex post
facto law and that it violated his right to due process of law.
As previously indicated, the defendant was charged with
four courts of sexual abuse in the first degree in violation of
W.Va. Code, 61-8B-7. That Code section provides, in relevant part:
(a) A person is guilty of sexual abuse in the first degree when:
(1) Such person subjects another person to sexual contact without their consent, and the lack of consent results from forcible compulsion; . . .
During the 1985-86 school year, when the alleged crimes
were committed, W.Va. Code, 61-8B-1, defined "forcible compulsion"
(1) "Forcible compulsion" means:
(a) Physical force that overcomes such earnest resistance as might reasonably be expected under the circumstances; or
(b) Threat or intimidation, expressed or implied, placing a person in fear of immediate death or bodily injury to himself or another person or in fear that he or another person will be kidnapped.
In 1986, W.Va. Code, 61-8B-1, was amended to add a
subsection (c), which indicated that "forcible compulsion" also
(c) Fear by a child under sixteen years of age caused by intimidation, expressed or implied, by another person four years older than the victim.
Subsection (c) had an effective date of July 1, 1986, after the
close of the school year at the Great Hope Baptist Academy and
after the dates of the crimes charged in the indictment.
In settling the instructions in the defendant's case, the
trial court indicated that the evidence did not support an
instruction on forcible compulsion as defined in subsections (a)
and (b) of W.Va. Code, 61-8B-1. The court further said:
I think it's clear at this point in time, as Mr. Gallagher pointed out, that the only subdivision of forcible compulsion, and this is how I have it defined in the last paragraph, would be as follows: "Forcible compulsion as it relates to the indictment in this case means fear by a child under 16 years of age caused by intimidation expressed or implied by another person four years older than the victim."
The court later proceeded to instruct the jury to that effect.
On appeal, the defendant contends that the instruction
given by the court contained a definition of forcible compulsion
which was not a part of the law until W.Va. Code, 61-8B-1(c), went
into effect on July 1, 1986, that is, after the date of the alleged
events which gave rise to the indictment in this case. The
defendant argues that the application of the definition constitutes
the unconstitutional application of an ex post facto law to his
case and constituted the denial of due process of law.
Ex post facto prohibitions arise out of Article I,
Section 10, clause 1 of the United States Constitution and out of
West Virginia Constitution, Article III, section 4. The United
States Constitution states: "No State shall . . . pass any Bill of
Attainder, ex post facto law, or law impairing the Obligation of
Contracts, . . ." Similarly, the West Virginia Constitution
states: ". . . No bill of attainder, ex post facto law, or law
impairing the obligation of a contract shall be passed."
As indicated in State v. R.H., 166 W.Va. 280, 273 S.E.2d
578 (1980), these constitutional provisions, strictly read,
prohibit only enactment of retroactive legislation and do not apply
to judicial action. However, both the United States Supreme Court
and this Court have recognized that the principle on which the
prohibition against ex post facto action is based is a fundamental
concept of constitutional liberty embodied in the due process
clauses of the respective Constitutions. Marks v. United States,
430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977); State v. R.H.,
supra. As indicated in the R.H. case, due process places a
limitation on retroactive judicial application of statutory
enactments which precludes the court from effecting a result which
the legislature is barred from achieving as a result of the ex post
In the criminal context, the Court has indicated that a
law passed after the commission of an offense may not be applied to
a defendant because it places certain burdens on him. The basic
rule is set forth in syllabus point 1 of Adkins v. Bordenkircher,
164 W.Va. 292, 262 S.E.2d 885 (1980):
Under ex post facto principles of the United States and West Virginia Constitutions, a law passed after the commission of an offense which increases the punishment, lengthens the sentence or operates to the detriment of the accused, cannot be applied to him.
In the somewhat later decision in State v. R.H., supra,
the Court adopted the classic United States Supreme Court
definition of an ex post facto law as set out by Justice Samuel
Chase of the United States Supreme Court in Calder v. Bull, 3 Dall.
386, 3 U.S. 386, 1 L.Ed. 648 (1798), which indicates that an ex
post facto law is:
(1) Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action;
(2) every law that aggravates a crime, or makes it greater than it was when committed;
(3) every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed;
(4) every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the commission of the offense, in order to convict the offender.
See State v. R.H., supra at 288-89, 273 S.E.2d at 583-84, and State
v. Short, ___ W.Va. ___, 350 S.E.2d 1 (1986).
In the present case, the record rather clearly shows that
at the time of the acts charged in the indictment against the
defendant, W.Va. Code, 61-8B-1, defined "forcible compulsion" for
the purposes of W.Va. Code, 61-8B-7, as "[p]hysical force that
overcomes such earnest resistance as might reasonably be expected
under the circumstances" or "[t]hreat or intimidation, expressed or
implied, placing a person in fear of immediate death or bodily
injury to himself or another person or in fear that he or another
person will be kidnapped." It did not define "forcible compulsion"
as "[f]ear by a child under sixteen years of age caused by
intimidation, expressed or implied, by another person four years
older than the victim." The statute was only amended to include
the third definition, that is, fear by a child under sixteen, after
the close of the school year at the Great Hope Baptist Academy, and
after the time of the acts alleged in the indictment against the
In this Court's view, the addition of subsection (c), the
language defining forcible compulsion as fear by a child under
sixteen years of age under the special circumstances set forth,
altered the proof which could support a conviction for first-degree
sexual abuse under W.Va. Code, 61-8B-7. Whereas, prior to
enactment of the language an individual could be convicted only
upon a showing that he had employed physical force to subject
another to physical contact or that he had used a threat or
intimidation of death, injury, or kidnapping, after the enactment
of W.Va. Code, 61-8B-1(c), an individual could be convicted when
he, being four years older than a child under sixteen years of age,
obtained sexual contact with that child through any sort of
intimidation, regardless of whether it involved a threat of death,
injury, or kidnapping.
In this Court's view, the fact that the new language
allowed conviction of different and less testimony fundamentally
altered the proof required for the offense. Given this, the Court
believes that under the fourth element set forth in the test in
Calder v. Bull, supra, the application of the amended language in
the defendant's trial was the application of an ex post facto law.
The Court also believes that such an application was improper under
the due process clauses of the State and Federal Constitutions and
under our decision. For this reason, the Court believes that the
defendant's conviction must be reversed.
The Court notes that the record suggests that the trial
court did not feel that an instruction to the jury on subsections
(a) and (b) of W.Va. Code, 61-8B-1, was appropriate in this case.
During trial there was rather clear evidence that the alleged
sexual incidents in this case involved sexual abuse by an
individual in a superior position and involved substantial bodily
contact in closed areas controlled by the defendant. The Court
feels that it would have been appropriate for the jury to have
considered whether the alleged actions of the defendant rose to the
level of forcible compulsion defined in subsections (a) and (b) of
W.Va. Code, 61-8B-1, and that instructions could properly have been
given on those definitions.
For the reasons stated, the judgment of the Circuit Court
of Brooke County is reversed, and this case is remanded for a new
trial.See footnote 1
Footnote: 1The Court notes that the defendant makes a number of other assignments of error in this case. The defendant, for instance, claims that the prosecution unconstitutionally shifted the burden of proof to him. This claim is predicated upon the fact that the prosecutor made certain remarks to the effect that the defendant did not disprove the elements of the State's case. Since a new trial is already required in this case, and since the remarks will without doubt be different during the new trial, the Court feels that it is unnecessary to discuss this point. However, the Court notes that there is guidance in this State on appropriate prosecutorial comment. See, e.g., State v. Bennett, ___ W.Va. ___, 304 S.E.2d 35 (1989); State v. Goad, ___ W.Va. ___, 355 S.E.2d 371 (1987); and State v. Petrice, ___ W.Va. ___, 398 S.E.2d 521 (1990).
The defendant also claims that the trial court erred in failing to dismiss the indictment in the case because it failed to give specific dates on which the offenses charged were
committed. In view of the fact that there is a body of law
suggesting that omission of a date is not fatal to an indictment
unless a statute of limitations applies or unless time enters
into the essence of the offense, the Court believes that this
claim by the defendant is without merit. See State v. Chaffin,
156 W.Va. 264, 192 S.E.2d 728 (1972); State v. Lewis, 138 W.Va.
743, 77 S.E.2d 606 (1953); State v. Pennington, 41 W.Va. 599, 23
S.E. 918 (1896); and Tincher v. Boles, 364 F.2d 497 (4th Cir.
Lastly, the defendant claims that the trial court improperly allowed the State to introduce evidence of collateral crimes against him in violation of Rule 404(b) of the West Virginia Rules of Evidence. Again, since a new trial is required in this case, the Court feels that it is unnecessary to discuss this evidentiary point. However, the Court notes that there are a number of cases which discuss the admission of collateral crime evidence which should be considered in conjunction with the new trial of the defendant. See, e.g., State v. Bonham, ___ W.Va. ___, 401 S.E.2d 901 (1990); State v. Messer, 166 W.Va. 806, 277 S.E.2d 634 (1981).