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State v. Fuller

Supreme Court of West Virginia

May 17, 2017

STATE OF WEST VIRGINIA, Respondent
v.
BELINDA ANN FULLER, Petitioner

          Submitted: May 2, 2017

         Appeal from the Circuit Court of Cabell County The Honorable Paul T. Farrell, Judge Criminal Case No. 15-F-206

          Russell S. Cook, Esq. Cabell Co. Public Defender Office Huntington, West Virginia Counsel for the Petitioner

          Patrick Morrisey, Esq. Attorney General Shannon Frederick Kiser, Esq. Assistant Attorney General Josiah M. Kollmeyer, Rule 10 Student Attorney Charleston, West Virginia Counsel for the Respondent

          JUSTICE WALKER dissents and reserves the right to file a dissenting Opinion.

         SYLLABUS

         1. "In construing an ambiguous criminal statute, the rule of lenity applies which requires that penal statutes must be strictly construed against the State and in favor of the defendant." Syllabus Point 5, State ex rel. Morgan v. Trent, 195 W.Va. 257, 465 S.E.2d 257 (1995).

         2. Under the first and second offenses contained in W.Va. Code § 61-8-5(b) [1943], it is a misdemeanor crime for any person to engage in an act of prostitution.

         3. The third or subsequent felony offense provision contained in W.Va. Code § 61-8-5(b) [1943] does not apply to a person who engages in an act of prostitution. Instead, the third or subsequent felony offense provision only applies to third parties who financially benefit from the earnings of a prostitute, such as a pimp, panderer, solicitor, or operator.

          OPINION

          KETCHUM JUSTICE.

         Petitioner Belinda Ann Fuller ("Defendant Fuller") appeals an order of the Circuit Court of Cabell County denying her motion to dismiss an indictment charging her with a felony crime-third offense of soliciting an act of prostitution in violation of W.Va. Code § 61-8-5(b) [1943]. Under W.Va. Code § 61-8-5(b), it is a misdemeanor crime to be convicted of the first or second offense of soliciting, inducing, enticing, procuring, aiding, abetting, or participating in an act of prostitution. Additionally, W.Va. Code § 61-8-5(b) provides that the third or subsequent violation of the statute is a felony offense (hereinafter "third offense") that only applies "to the pimp, panderer, solicitor, operator or any person benefiting financially or otherwise from the earnings of a prostitute."

         Defendant Fuller argued that the third offense provision of W.Va. Code § 61-8-5(b) does not apply to an alleged prostitute; rather, it is intended to apply only to "third parties who derive a financial benefit from the earnings of an alleged prostitute." The circuit court rejected this argument, finding that a prostitute who benefits financially from her own act of prostitution is included in the category of offenders who may be charged with a third offense under W.Va. Code § 61-8-5(b). Following entry of the circuit court's order, Defendant Fuller filed the instant appeal.

         After thorough review, we find that the third offense provision contained in W.Va. Code § 61-8-5(b) is ambiguous. Due to this ambiguity, the rule of lenity applies, requiring this Court to strictly construe W.Va. Code § 61-8-5(b) against the State and in favor of Defendant Fuller. We echo Justice Cleckley's well-reasoned statement explaining why this Court applies the rule of lenity when faced with an ambiguous criminal statute:

We find this is a reasonable course to take when such substantial interests are at stake. The judiciary should be hesitant to impose such restrictions when it is not clear this is the Legislature's unequivocal desire.

State v. Sears, 196 W.Va. 71, 82, n.21, 468 S.E.2d 324, 335, n.21 (1996) (emphasis added).

         Because the third offense provision contained in W.Va. Code § 61-8-5(b) is ambiguous, we reverse the circuit court's February 3, 2016, order denying Defendant Fuller's motion to dismiss the indictment charging her with a felony offense.[1]

         I.

         FACTUAL AND PROCEDURAL BACKGROUND

         The facts of this matter are undisputed. On February 4, 2015, Defendant Fuller got into a vehicle with an undercover police officer and agreed to perform an act of prostitution in exchange for twenty dollars. The police officer arrested Defendant Fuller. Prior to her February 2015 arrest, Defendant Fuller had twice been convicted of soliciting for prostitution. [2]

         On May 4, 2015, a grand jury indicted Defendant Fuller on a single felony count of "3rd Offense Solicitation of an Act of Prostitution" in violation of W.Va. Code § 61-8-5(b). The indictment provides that Defendant Fuller "unlawfully and feloniously . . . offer[ed] to perform an act of prostitution [on the undercover police officer], namely oral sex for the payment of Twenty Dollars[.]"

         Counsel for Defendant Fuller filed a motion to dismiss the indictment, arguing that she did not fall within the category of persons who may be charged with a third offense under W.Va. Code § 61-8-5(b). Instead, counsel argued that the third offense provision "really applies to owners of houses, pimps, those people who are really deriving benefits directly from what prostitutes do." The circuit court held a hearing on this motion and rejected Defendant Fuller's argument, concluding: "I think the clear meaning of it [the third offense provision] is the benefits financially [language] would apply to the individual performing the acts for which she would have been paid, unless there is evidence that she was not financially benefiting from it."[3] Following entry of the circuit court's order, Defendant Fuller filed the instant appeal.

         II.

         STANDARD OF REVIEW

         This appeal involves an interpretation of the third offense provision contained in W.Va. Code § 61-8-5(b). Thus, our standard of review is set forth in Syllabus Point 1 of Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995): "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." With our standard of review in mind, we turn to the parties' arguments.

         III.

         ANALYSIS

         The issue is whether Defendant Fuller may be charged with a third offense under W.Va. Code § 61-8-5(b). Our analysis begins with an ...


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