State of WV v. Hottinger
Annotate this Case
January 1995 Term
___________
No. 22580
___________
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
v.
DEE HOTTINGER,
Defendant Below, Appellant
___________________________________________________
Appeal from the Circuit Court of Pendleton County
Honorable Donald H. Cookman, Judge
Criminal Action No. 94-F-4
AFFIRMED
___________________________________________________
Submitted: May 16, 1995
Filed: July 14, 1995
John G. Ours
Petersburg, West Virginia
Attorney for the Appellant
Darrell V. McGraw, Jr.
Attorney General
Dawn E. Warfield
Deputy Attorney General
Charleston, West Virginia
Attorneys for the Appellee
This Opinion was delivered PER CURIAM.
JUSTICE BROTHERTON AND JUSTICE RECHT did not participate.
JUDGE FOX and RETIRED JUSTICE MILLER sitting by temporary
assignment.
JUSTICE CLECKLEY concurs, in part, and dissents, in part, and
reserves the right to file a separate opinion.
SYLLABUS BY THE COURT
1. "'The prosecuting attorney occupies a quasi-judicial
position in the trial of a criminal case. In keeping with his
position, he is required to avoid the role of a partisan, eager to
convict, and must deal fairly with the accused as well as the other
participants in the trial. It is the prosecutor's duty to set a
tone of fairness and impartiality, and while he may and should
vigorously pursue the State's case, in so doing he must not abandon
the quasi-judicial role with which he is cloaked under the law.'
Syl. pt. 3, State v. Boyd, 160 W. Va. 234, 233 S.E.2d 710 (1977)."
Syl. pt. 1, State v. Critzer, 167 W. Va. 655, 280 S.E.2d 288
(1981).
2. "'An attorney for the state may prosecute vigorously
as long as he deals fairly with the accused; but he should not
become a partisan, intent only on conviction. And, it is a
flagrant abuse of his position to refer, in his argument to the
jury, to material facts outside the record, or not fairly deducible
therefrom.' Syllabus, State v. Moose, 110 W. Va. 476, 158 S.E. 715
(1931)." Syl. pt. 2, State v. Critzer, 167 W. Va. 655, 280 S.E.2d 288 (1981).
3. "A judgment of conviction will not be reversed
because of improper remarks made by a prosecuting attorney in his
opening statement to a jury which do not clearly prejudice the
accused or result in manifest injustice." Syl. pt. 1, State v.
Dunn, 162 W. Va. 63, 246 S.E.2d 245 (1978).
4. "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." Syl. pt. 1, State v. Starkey, 161 W. Va. 517, 244 S.E.2d 219 (1978).
5. "'The test of determining whether a particular
offense is a lesser included offense is that the lesser offense
must be such that it is impossible to commit the greater offense
without first having committed the lesser offense. An offense is
not a lesser included offense if it requires the inclusion of an
element not required in the greater offense.' Syllabus Point 1,
State v. Louk, 169 W. Va. 24, 285 S.E.2d 432 (1981)." Syl. pt. 1,
State v. Neider, 170 W. Va. 662, 295 S.E.2d 902 (1982).
Per Curiam:
The appellant, Dee Hottinger, appeals his jury conviction
in the Circuit Court of Pendleton County of sexual assault in the
second degree and sexual assault in the third degree. The
appellant was sentenced to serve not less than ten nor more than
twenty-five years in prison and fined $1000.00 for his conviction
of sexual assault in the second degree. The appellant was also
sentenced to serve not less than one nor more than five years in
prison and fined $1000.00 for his conviction of sexual assault in
the third degree, with both sentences running concurrently.
The appellant raises four assignments of error which are
as follows: (1) error was committed in the prosecutor's opening
statement and closing argument; (2) the evidence was insufficient
to support a jury finding of forcible compulsion pursuant to W. Va.
Code, 61-8B-4 [1991], which outlines the elements of second degree
sexual assault; (3) the evidence was insufficient to support a
third degree sexual assault conviction pursuant to W. Va. Code, 61-
8B-5 [1984]; and (4) the jury should have been instructed on the
elements of the offense of fornication because it is a lesser
included offense of second or third degree sexual assault. For the
reasons set forth below, we affirm the appellant's conviction.
I
There was conflicting evidence presented at trial. The
victim, M.A.,See footnote 1 was fifteen years old when the sexual assault occurred. According to M.A., in the late summer of 1993 the
appellant, who was then forty-nine years old, came by her family's
house one evening and asked to have sex with M.A.'s mother. After
the appellant left the house, M.A.'s mother informed her boyfriend,
George Miller, that she would not comply. Miller then told M.A.
that she would, instead, have to have sex with the appellant for
money. M.A. asserts that she told Miller that she did not want to
have sex with the appellant. However, M.A. states that because she
feared being physically harmed by Miller, she got into the car with
Miller and went to the appellant's house.
When Miller and M.A. arrived at the appellant's house,
the appellant came outside to the car. Miller asked the appellant
if he wanted sex for some beer money. The appellant said yes.
Thus, while Miller remained in the car, M.A. went into the house
and into the bedroom where she began disrobing. According to M.A.,
the appellant became rough and ripped off her bra, thereafter
engaging in sexual intercourse with her.
The appellant admits to having sexual intercourse with
M.A., but denies being rough with her. The appellant also denies
that he went to M.A.'s family home and asked to have sex with
M.A.'s mother. The appellant states that Miller and M.A. just
showed up outside his house and asked whether or not he wanted to
have sex with M.A. for beer money. Moreover, the appellant states that he thought M.A. was about eighteen-years old. The appellant
also asserts that he did not know that Miller was forcing M.A. to
have sex with him.
II
The appellant argues that the prosecutor's remarks during
the opening statement and closing argument constituted error. We
are mindful that
'[t]he prosecuting attorney occupies a
quasi-judicial position in the trial of a
criminal case. In keeping with this position,
he is required to avoid the role of a
partisan, eager to convict, and must deal
fairly with the accused as well as the other
participants in the trial. It is the
prosecutor's duty to set a tone of fairness
and impartiality, and while he may and should
vigorously pursue the State's case, in so
doing he must not abandon the quasi-judicial
role with which he is cloaked under the law.'
Syl. pt. 3, State v. Boyd, 160 W. Va. 234, 233 S.E.2d 710 (1977).
Syl. pt. 1, State v. Critzer, 167 W. Va. 655, 280 S.E.2d 288
(1981).
The appellant specifically complains about two statements
made by the prosecutor during his opening statement. The first
statement made by the prosecutor was that
[t]he evidence in this case against [the
appellant] will show that George Miller made
it well known that people could have sexual
intercourse with [M.A.]; as a matter of fact,
he would brag; he would say things like this
girl has a figure that she has because of me.
He would also say to people--and one of the
selling points to people to get her to have
sexual intercourse, and one of the things he
would tell his buddies and these guys who were
paying her or whatever, was that she's only
fifteen; that was a selling point for George
Miller.
Although the appellant does not explain in his brief why the above
statement was error, at the June 10, 1994 hearing on his motion for
a new trial, the appellant argued that the above statement was
objectionable because it referred to other defendants and to facts
not in evidence.
We acknowledge that in syllabus point 2 of Critzer,
supra, this Court held the following in reference to a prosecutor's
statements in closing argument:
'An attorney for the state may prosecute
vigorously as long as he deals fairly with the
accused; but he should not become a partisan,
intent only on conviction. And, it is a
flagrant abuse of his position to refer, in
his argument to the jury, to material facts
outside the record, or not fairly deducible
therefrom.' Syllabus, State v. Moose, 110 W.
Va. 476, 158 S.E.2d 715 (1931).
However, this Court has held that "[a] judgment of conviction will
not be reversed because of improper remarks made by a prosecuting
attorney in his opening statement to a jury which do not clearly
prejudice the accused or result in manifest injustice." Syl. pt.
1, State v. Dunn, 162 W. Va. 63, 246 S.E.2d 245 (1978) (This Court
also stated that improper remarks made by a prosecutor in a closing
argument would not warrant reversal if the defendant was not
prejudiced and if manifest injustice did not occur). See also
State v. Stewart, 187 W. Va. 422, 426-28, 419 S.E.2d 683, 687-89
(1992) (This Court applied the above test set forth in Dunn, supra,
to comments made by a prosecutor during closing argument).
The prosecutor explained in the record that he thought
that evidence would be introduced at trial to support the above statements and was surprised when M.A.'s testimony revealed that
Miller had not made those comments to the appellant in her
presence. Although the prosecutor should not refer to material
facts which will not be introduced at trial during an opening
statement, it is less likely to warrant reversal than if the
prosecutor argues facts which he knows have not been introduced
into evidence during closing argument.
Moreover, as the above statement by the prosecuting
attorney reveals, he prefaced his remark with the following: "The
evidence in this case [against the appellant] will show . . . ."
Additionally, at the beginning of his opening statement, the
prosecutor informed the jury that
as the Judge indicates, what I will tell you
is not evidence in this case. The evidence in
the case will come from the witness stand,
because I'm not under oath . . . . The
purpose of an opening statement is simply to
tell you what we believe the evidence will
show in this case.
Thus, while it is clear that the prosecutor misstated what evidence
would be introduced at trial, the appellant has failed to show that
it clearly prejudiced him or resulted in manifest injustice given
the fact that the prosecutor expressly informed the jury that his
opening statement was not evidence. Cf. State v. Barker, 168 W.
Va. 1, 281 S.E.2d 142 (1981) (Statements by prosecuting attorney
during closing were deplorable and may have been improper because
they were not based on evidence; however, they did not warrant
reversal because they did not clearly prejudice the accused or
result in manifest injustice).
The appellant also complains about the following
statement made by the prosecutor during his opening statement after
he had described the two charges against the appellant: "That's
the two offenses that this man is guilty of." The appellant
asserts that the prosecutor impermissibly gave his opinion on
appellant's guilt.
Indeed, this Court in syllabus point 3 of Critzer, supra,
has stated that "[i]t is improper for a prosecutor in this State to
'[a]ssert his personal opinion as to the . . . guilt or innocence
of the accused[.]'" (citation omitted). However, as the State
points out, the prosecutor went on to say that
[t]he Judge instructed you that it's the
burden upon the State to prove this matter
beyond a reasonable doubt. Ladies and
gentlemen of the jury, when you hear this
evidence, you will find proof beyond a
reasonable doubt that this man committed both
of the offenses for which he's charged.
Thus, although we do not condone the prosecutor's
statement that he had described the two offenses the appellant was
guilty of, the statement which followed clearly informed the jury
that it was their duty to determine whether or not the appellant
was guilty of the two offenses he was charged with committing.
Therefore, the appellant has failed to show that the prosecutor's
statement clearly prejudiced him or resulted in manifest
injustice.See footnote 2 See State v. Buck, 170 W. Va. 428, 294 S.E.2d 281 (1982) (Prosecutor's remark that it was his personal belief that
the defendant was trying to kill the victim, while not condoned,
was not reversible error since it did not clearly prejudice the
accused or result in manifest injustice). Compare Critzer, supra
(Prosecuting attorney's statements during closing argument injected
his personal opinion as to the guilt of the defendant, as to the
credibility of witnesses and argued facts not in evidence, thereby
requiring reversal because prejudicial to defendant and denied him
a fair trial).
The appellant also complains about several remarks made
by the prosecutor during his closing argument. However, we will
address only two remarks because the appellant failed to object
below to any of the other remarks which he now complains of on
appeal: "In order to take advantage of remarks made during an
opening statement or closing argument which are considered improper
an objection must be made and counsel must request the court to
instruct the jury to disregard them." State v. Coulter, 169 W. Va. 526, 530, 288 S.E.2d 819, 821 (1982) (citing State v. Lewis, 133 W.
Va. 584, 57 S.E.2d 513 (1949)).See footnote 3
The first objection from the appellant came after the
prosecuting attorney started talking about money being exchanged
for the sexual activity between M.A. and the appellant. The
appellant pointed out that prostitution had not been charged. The
trial judge, after the appellant's objection, made the following
statement to the jury:
The jury will remember that you will base
your decision on the evidence that you've
heard, not on the argument of counsel;
however, each of the attorneys are permitted
to argue the law and the evidence and any
reasonable inferences therefrom, but it is not
evidence, and you would base your decision
only on the evidence.
On the second occasion the appellant objected to the
following statement: "I'm confident on behalf of the State of West Virginia that the kids in this community are going to be protected
from incidents like this in the future, and that you will find [the
appellant] guilty[.]" The trial judge instructed the jury to
disregard the above remark by the State.
In light of the trial judge's actions regarding the above
two remarks made by the prosecutor during his closing argument, the
appellant has failed to show how the remarks clearly prejudiced him
or resulted in manifest injustice. Accordingly, we hold the
remarks by the prosecutor during his opening statement and closing
argument do not require reversal.
III
The appellant asserts that the evidence was insufficient
to support a jury finding of forcible compulsion pursuant to W. Va.
Code, 61-8B-4 [1991], which outlines the elements of second degree
sexual assault.
W. Va. Code, 61-8B-4(a)(1) [1991] states, in relevant
part: "A person is guilty of sexual assault in the second degree
when: (1) Such person engages in sexual intercourse or sexual
intrusion with another person without the person's consent, and the
lack of consent results from forcible compulsion[.]" Furthermore,
W. Va. Code, 61-8B-1(1)(c) [1986] defines "forcible compulsion" as,
inter alia, "[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."
In the case before us, the State stipulated that the
appellant did not forcibly compel M.A. to have sexual intercourse. Instead, the State indicated, without objection from the appellant,
that the forcible compulsion came from Miller and that the
appellant was aware that Miller, who was four years older than
M.A., intimidated M.A., who was younger than sixteen years old,
into having sexual relations with the appellant against her will.See footnote 4 The appellant argues that the evidence does not support a jury
finding that the appellant knew M.A. was being forced or
intimidated by Miller into having sexual relations with him.
We are mindful of the following:
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.
Syl. pt. 1, State v. Starkey, 161 W. Va. 517, 244 S.E.2d 219
(1978). See also syl. pt. 10, State v. Gill, 187 W. Va. 136, 416 S.E.2d 253 (1992).
When examining the evidence in the light most favorable
to the prosecution, the evidence indicates that the jury could find
that the appellant knew that M.A. was being forced by Miller into
having sexual relations with him. M.A. testified that her mother
started living with Miller when M.A. was two years old. The
appellant asserts that he first met M.A. approximately two years
previously when she would have been thirteen years old. However, M.A. testified that the appellant had been to her house
approximately twice a month over a three- or four-year period at
which time M.A. would have been approximately eleven to fifteen
years old. Moreover, the appellant testified that he had known
Miller off and on over a ten-year period. Thus, the jury could
logically infer that the appellant knew M.A., knew how old she was
and knew that Miller was like a stepfather to her.
Additionally, as we previously stated, M.A. testified
that before Miller took her to the appellant's house, the appellant
had stopped by her house and asked Miller if he could have sex with
M.A.'s mother. After the appellant left the house, M.A.'s mother
informed Miller that she would not comply, and Miller informed M.A.
that she, instead, would have to have sexual relations with the
appellant. M.A. concedes that the appellant was not at her house
when Miller demanded that she have sexual relations with the
appellant. However, the appellant obviously knew something was
amiss because he testified that he found it strange that Miller and
M.A. showed up at his house and asked him if he wanted sex for some
beer money.
When viewing the evidence in the light most favorable to
the prosecution, it is clear that the jury could reasonably infer
that the appellant knew that a girl who is younger than sixteen
years old would not willingly allow someone who is like a
stepfather to pander her sexual services in exchange for beer
money. Thus, in that the jury could infer that the appellant knew
that M.A., a child less than sixteen years of age, was being intimidated by Miller, who was four years older than M.A., into
having sexual relations with him, it is clear that the jury could
have found that there was sufficient evidence of forcible
compulsion to support a finding of guilt of sexual assault in the
second degree pursuant to W. Va. Code, 61-8B-4(a)(1)[1991] and 61-
8B-1(1)(c) [1986].
Accordingly, when viewing the evidence in the light most
favorable to the State the appellant has failed to convince us that
the evidence was "manifestly inadequate and that consequent
injustice has been done." Syl. pt. 1, Starkey, supra.See footnote 5
IV
The appellant argues that the evidence was insufficient
to support a conviction of third degree sexual assault. W. Va.
Code, 61-8B-5(a)(2) [1984] outlines the elements of sexual assault
in the third degree: "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."
The evidence at trial reveals that the appellant was
forty-nine years old and M.A. was fifteen years old when the sexual
assault occurred. The appellant asserts that he has an affirmative
defense pursuant to W. Va. Code, 61-8B-12(a) [1984] since he did
not know M.A.'s age when the incident occurred nor was he reckless
in failing to discover that information.See footnote 6 The appellant bases his
argument on M.A.'s appearance and on the fact that he had heard
that M.A. was getting married.
The jury was instructed on the affirmative defense
pursuant to W. Va. Code, 61-8B-12(a) [1984], and the jury saw M.A.
in person along with a picture taken of her around the time M.A.
and the appellant engaged in sexual intercourse. Therefore, the
jury could rationally find that the appellant, who was more than
four years older than M.A. knew that M.A. was younger than sixteen
years old. Thus, pursuant to Starkey, supra, when viewing the evidence in a light most favorable to the prosecution, the
appellant has failed to demonstrate that "the evidence was
manifestly inadequate and that consequent injustice has been
done."See footnote 7
V
The appellant asserts that the jury should have been
instructed on the elements of the offense of fornication because it
is a lesser included offense of second or third degree sexual
assault. In syllabus point 1 of State v. Neider, 170 W. Va. 662,
295 S.E.2d 902 (1982) this Court held:
'The test of determining whether a
particular offense is a lesser included
offense is that the lesser offense must be
such that it is impossible to commit the
greater offense without first having committed
the lesser offense. An offense is not a
lesser included offense if it requires the
inclusion of an element not required in the
greater offense.' Syllabus Point 1, State v.
Louk, 169 W. Va. 24, 285 S.E.2d 432 (1981).
The offense of fornication is not defined in W. Va. Code, 61-8-3
[1923] which makes it a crime. According to the State, the
appellant offered the following definition of fornication in his
instruction which was refused: "[Fornication is the] unlawful
sexual intercourse between two unmarried persons."
Clearly, based upon the above definition, fornication is
not a lesser included offense of second degree or third degree
sexual assault. Second degree sexual assault involves forcible
compulsion whereas fornication does not. The portion of the third
degree sexual assault statute which is applicable to the appellant
mandates that the victim must be less than sixteen years old,
whereas fornication does not have to involve a victim who is less
than sixteen years old. Accordingly, this issue is without merit.
VI
In that the appellant raises no assignment of error
requiring reversal, we affirm his conviction of second and third
degree sexual assault.
Affirmed.
Footnote: 1
Since this case involves sensitive matters, we follow
our traditional practice and use only the last initial of the
juvenile involved in this case. See State v. Michael S., 188 W.
Va. 229, 230 n. 1, 423 S.E.2d 632, 633 n. 1 (1992) (citation
omitted).Footnote: 2
We point out that the appellant did not properly
preserve this error below. After the prosecutor made the
statement above, the appellant's trial attorney told the trial
judge that he would like to place an objection on the record.
The trial judge asked the appellant's trial attorney whether he
wanted to place the objection on the record at that time;
however, the appellant's trial counsel declined to do so stating
that he preferred to give his opening statement. Our review of
the record discloses that the appellant's trial attorney did not
later place an objection on the record regarding the above
statement. Moreover, in that we find that the above statement by
the prosecutor was not an error requiring reversal, the plain
error doctrine is not implicated. See syl. pt. 7, State v.
Miller, No. 22571, ___ W. Va. ___, ___ S.E.2d ___ (May 18, 1995).Footnote: 3
We recognize that we could address the appellant's
contentions pursuant to the plain error doctrine even though the
appellant failed to object to the comments when they were made.
In syllabus point 7 of State v. Miller, No. 22571, ___ W. Va.
___, ___ S.E.2d ___ (May 18, 1995) this Court held that in order
"[t]o trigger application of the 'plain error' doctrine, there
must be (1) an error; (2) that is plain; (3) that affects
substantial rights; and (4) seriously affects the fairness,
integrity, or public reputation of the judicial proceedings."
See also syl. pt. 4, in relevant part, State v. England, 180 W.
Va. 342, 376 S.E.2d 548 (1988) (The plain error "doctrine is to
be used sparingly and only in those circumstances where
substantial rights are affected, or the truth-finding process is
substantially impaired, or a miscarriage of justice would
otherwise result.")
However, in that our review of the prosecutor's closing
argument fails to disclose that the comments seriously affected
the fairness, integrity, or public reputation of the judicial
proceeding, the plain error doctrine is not implicated. See
Miller, supra. Footnote: 4
The appellant did not object to the following
instruction given by the trial judge:
Forcible compulsion is defined as fear
by a child under 16 years of age caused by
intimidation, expressed or implied, by
another person four years older than the
victim and of which the Defendant had
knowledge.
Before [the appellant] can be convicted
of Sexual Assault in the Second Degree, the
State must over come the presumption that he
is innocent and prove to the satisfaction of
the jury beyond a reasonable doubt
UNDER COUNT ONE OF THE INDICTMENT THAT:
1. The [appellant]
2. in Pendleton County, West Virginia
3. did engage in sexual intercourse
4. with [M.A.]
5. without her consent
6. and the lack of consent was the
result of forcible compulsion known
to the Defendant.
Furthermore, the appellant does not assert in this appeal that
forcible compulsion cannot be found to arise from one other than
the one committing the sexual assault pursuant to W. Va. Code,
61-8B-4 [1991]. Therefore, we will not address whether or not
the forcible compulsion necessary for conviction of second degree
sexual assault pursuant to W. Va. Code, 61-8B-4(a)(1) [1991] must
be proven to have come from the appellant. See syl. pt. 3,
Higginbotham v. City of Charleston, 157 W. Va. 724, 204 S.E.2d 1
(1974), overruled on other grounds, O'Neil v. City of
Parkersburg, 160 W. Va. 694, 237 S.E.2d 504 (1977) ("Assignments
of error that are not argued in the appellant's brief may be
deemed by this Court to be waived.")
We note, however, that at least one court has
recognized that a defendant may be guilty of rape even if the
victim submits because of fear from one other than the defendant
if the defendant has knowledge that the victim is submitting
because of such fear. See State v. Pierson, 610 S.W.2d 86 (Mo.
Ct. App. 1980) and State v. Gray, 497 S.W.2d 545 (Mo. Ct. App.
1973).Footnote: 5
We acknowledge that Justice Cleckley has criticized
the use of Starkey, supra, as "the appellate standard for
reviewing an insufficiency of the evidence assignment of error."
State v. Phalen, ___ W. Va. ___, 452 S.E.2d 70, 74 (1994)
(Cleckley, J., concurring). Justice Cleckley states that the
manifest injustice standard is too high of an evidentiary
standard and should be replaced by the following: "[O]n appeal
of a criminal conviction, this Court must consider the evidence
in the light most favorable to the prosecution and ask whether
any rational finder of fact could have found the essential
elements of the crime beyond a reasonable doubt." Id. at ___,
452 S.E.2d at 75.
If we were to apply the standard of review suggested by
Justice Cleckley, we would reach the same result in the case
before us. When viewing the evidence in a light most favorable
to the prosecution, a rational finder of fact could have found,
beyond a reasonable doubt, that the appellant committed second
degree sexual assault.Footnote: 6
W. Va. Code, 61-8B-12(a) [1984] states, in relevant
part:
In any prosecution under this article in which the victim's lack of consent is based solely on the incapacity to consent because such victim was below a critical age, . . . it is an affirmative defense that the defendant, at the time he or she engaged in the conduct constituting the offense, did not know of the facts or conditions responsible for such incapacity to consent, unless the defendant is reckless in failing to know such facts or conditions.Footnote: 7 As we indicated in n. 4, supra, Justice Cleckley criticizes the use of Starkey, supra as the standard of review in a sufficiency of the evidence assignment of error. However, even if we were to apply the standard of review recommended by Justice Cleckley, we would reach the same result in the case before us: When viewing the evidence in a light most favorable to the prosecution, a rational finder of fact could have found, beyond a reasonable doubt, that the appellant committed third degree sexual assault. See n. 4, supra.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.