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State v. Hoyle

Supreme Court of Appeals of West Virginia

November 22, 2019

STATE OF WEST VIRGINIA, Plaintiff Below, Respondent
v.
JOHN HENRY HOYLE, Defendant Below, Petitioner

          Submitted: October 2, 2019

          Appeal from the Circuit Court of Randolph County The Honorable David H. Wilmoth Case No. 14-F-99.

          Jeremy B. Cooper, Esq. Blackwater Law PLLC Kingwood, West Virginia and James E. Hawkins, Jr., Esq. Buckhannon, West Virginia Counsel for Petitioner.

          Patrick Morrisey, Esq. Attorney General Holly M. Flanigan, Esq. Assistant Attorney General Charleston, West Virginia Counsel for Respondent.

          JUSTICE ARMSTEAD and JUSTICE JENKINS concur in part and dissent in part and reserve the right to file separate opinions.

         SYLLABUS BY THE COURT

         1. "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." Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138');">194 W.Va. 138, 459 S.E.2d 415 (1995).

         2. "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).

         3. "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 i which the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases are inconsistent, they are expressly overruled." Syllabus Point 3, State v. Guthrie, 194 W.Va. 657');">194 W.Va. 657, 461 S.E.2d 163 (1995).

         4. "'In considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches. Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question. Courts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond a reasonable doubt.' Syllabus Point 1, State ex rel. Appalachian Power Co. v. Gainer, 149 W.Va. 740');">149 W.Va. 740, 143 S.E.2d 351 (1965)." Syllabus Point 1, MacDonald v. City Hosp., Inc., 227 W.Va. 707');">227 W.Va. 707, 715 S.E.2d 405 (2011).

         5. "As a general rule, the refusal to give a requested jury instruction is reviewed for an abuse of discretion. By contrast, the question of whether a jury was properly instructed is a question of law, and the review is de novo." Syllabus Point 1, State v. Hinkle, 200 W.Va. 280');">200 W.Va. 280, 489 S.E.2d 257 (1996).

         6. "A variance in the pleading and the proof with regard to the time of the commission of a crime does not constitute prejudicial error where time is not of the ii essence of the crime charged." Syllabus Point 4, State v. Chaffin, 156 W.Va. 264');">156 W.Va. 264, 192 S.E.2d 728 (1972).

         7. "The variance between the indictment and the proof is considered material where the variance misleads the defendant in presenting his defense to the charge and exposes him to the danger of being put in jeopardy again for the same offense." Syllabus Point 7, State v. Fairchild, 171 W.Va. 137');">171 W.Va. 137, 298 S.E.2d 110 (1982).

         8. "The Supreme Court of Appeals reviews sentencing orders, including orders of restitution made in connection with a defendant's sentencing, under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands." Syllabus Point 1, State v. Lucas, 201 W.Va. 271');">201 W.Va. 271, 496 S.E.2d 221 (1997).

         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." Syllabus Point 4, State v. Goodnight, 169 W.Va. 366');">169 W.Va. 366, 287 S.E.2d 504 (1982).

         10. "While our constitutional proportionality standards theoretically can apply to any criminal sentence, they are basically applicable to those sentences where there is either no fixed maximum set by statute or where there is a life recidivist sentence." Syllabus Point 4, Wanstreet v. Bordenkircher, 166 W.Va. 523');">166 W.Va. 523, 276 S.E.2d 205 (1981).

         11. "The appropriateness of a life recidivist sentence under our constitutional proportionality provision found in Article III, Section 5, will be analyzed as iii follows: We give initial emphasis to the nature of the final offense which triggers the recidivist life sentence, although consideration is also given to the other underlying convictions. The primary analysis of these offenses is to determine if they involve actual or threatened violence to the person since crimes of this nature have traditionally carried the more serious penalties and therefore justify application of the statute." Syllabus Point 7, State v. Beck, 167 W.Va. 830, 286 S.E.2d 234 (1981).

         12. For purposes of a life recidivist conviction under West Virginia Code § 61-11-18(c), two of the three felony convictions considered must have involved either (1) actual violence, (2) a threat of violence, or (3) substantial impact upon the victim such that harm results. If this threshold is not met, a life recidivist conviction is an unconstitutionally disproportionate punishment under Article III, Section 5 of the West Virginia Constitution.

          OPINION

          Walker, Chief Justice.

         When John Henry Hoyle was convicted of second offense failure to register as a sex offender in 2015, he was sentenced to ten to twenty-five years in prison for that offense and, because of his prior felony convictions, he received a recidivist life sentence under West Virginia Code § 61-11-18(c). On appeal, Mr. Hoyle challenges his conviction under the West Virginia Sex Offender Registration Act (Act)[1] on the grounds that the State failed to prove that he violated the statutory registration requirements and that the trial court incorrectly instructed the jury that time was not of the essence of the alleged offense. He also claims that his ten- to twenty-five-year sentence for second offense failure to register and his recidivist life sentence are unconstitutionally disproportionate. While we affirm the circuit court's denial of Mr. Hoyle's motions for acquittal based on the sufficiency of the evidence and the contested jury instruction and his challenge to the ten-to twenty-five-year sentence, we reverse the circuit court's imposition of a recidivist life sentence.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         In 1987, Mr. Hoyle was charged with two felonies arising from the same transaction: (1) Sexual Assault in the Second Degree in Barbour County, West Virginia, [2] and (2) kidnapping in Upshur County, West Virginia.[3] Eventually, Mr. Hoyle pleaded guilty to both charges in a single plea agreement. He was sentenced to incarceration for ten to twenty years for sexual assault and thirty years for kidnapping. These sentences were ordered to run concurrently. After serving fifteen and one-half years, Mr. Hoyle was released in 2002. As a result of the sexual assault conviction, Mr. Hoyle was required to register as a sexual offender for life.[4]

         In 2008, Mr. Hoyle pleaded guilty in the Circuit Court of Randolph County to first offense failure to register as a sexual offender under West Virginia Code § 15-12-8(c). The circuit court sentenced Mr. Hoyle to one to five years' incarceration.[5]This time, upon his release, Mr. Hoyle properly registered as a sex offender. Importantly, Mr. Hoyle listed only one telephone number in the registry, a cell phone registered as (304) 6**-5***.

         For a time, Mr. Hoyle fulfilled his registry requirements and submitted to annual reviews. But on October 27, 2014, Mr. Hoyle was indicted by a Randolph County grand jury for two counts of second offense failure to register as a sex offender or provide notice of registration changes under West Virginia Code § 15-12-8(c). The indictment charged that Mr. Hoyle

on or about September 23, 2014, [. . .] did unlawfully and feloniously and knowingly refuse to provide accurate information when so required by the terms of this article, or did knowingly fail to register, or did knowingly fail to provide a change in required information, as a person required to register for life pursuant to this article[.]

         At the trial for these charges on September 16, 2015, the testimony of State Police Deputy David VanMeter and State Police Trooper James Cornelius established the following facts.

         On July 22, 2014, Deputy VanMeter attempted to contact Mr. Hoyle by calling his phone number as listed in the sex offender registry database, but received an automated voice message informing him that the phone number was no longer in service.[6]Deputy VanMeter then visited Mr. Hoyle's home to attempt contact, but Mr. Hoyle was not there. Later in the day, a neighbor informed Mr. Hoyle that the State Police had been at his home, so Mr. Hoyle visited the State Police detachment in Elkins, West Virginia, to follow up. After Deputy VanMeter inquired about the out-of-service phone, Mr. Hoyle stated that he had not used that phone for months[7] and that, instead, he used his wife's phone. Mr. Hoyle gave his wife's phone number to Deputy VanMeter, and when Deputy VanMeter later called that number, Mr. Hoyle answered. Deputy VanMeter did not investigate the discrepancies in Mr. Hoyle's registry because he lacked jurisdiction to do so. However, after completing an unrelated investigation, Deputy VanMeter sent a letter to Trooper Cornelius on September 22, 2014, stating that Mr. Hoyle's registry information appeared to be incorrect.

         Trooper Cornelius, unlike Deputy VanMeter, had authority to investigate sex offender registry matters. He testified that, after receiving Deputy VanMeter's letter, he opened an investigation into whether Mr. Hoyle had, in fact, failed to update his sex offender registry information. Trooper Cornelius testified that this investigation uncovered that Mr. Hoyle had failed to update his registry information because he neither removed the out-of-service phone number nor added the phone number that he told Deputy VanMeter he was currently using. As a result of Trooper Cornelius's investigation, a grand jury indicted Mr. Hoyle on two counts of failing to update his sex offender registry information for (1) failing to remove a phone number that was no longer in service, and (2) failing to register a phone number (his wife's) that he had used.

         After the presentation of evidence at trial, Mr. Hoyle objected to the inclusion of one of the proposed jury instructions related to a variance between the date on which the indictment alleged the crime occurred and the evidence presented at trial. The circuit court determined the instruction was proper and delivered it over Mr. Hoyle's objection. The jury deliberated briefly and returned a guilty verdict on both charges.

         Before sentencing, the State filed a recidivist information noting its intention to pursue a recidivist life sentence under West Virginia Code § 61-11-18(c) because the 2015 failure-to-update conviction was Mr. Hoyle's third felony conviction. In response to this filing, Mr. Hoyle filed motions in the circuit courts of Barbour, Upshur, and Randolph Counties to retract his prior guilty pleas. With regard to the 1988 convictions, Mr. Hoyle argued that he would not have pled guilty had the Act been enacted at the time. With regard to the 2008 conviction, he argued that, because the Act did not exist for purposes of his prior convictions, he should not have been required to register at all, thus rendering his 2008 conviction void. Mr. Hoyle's motions to retract the 1988 and 2008 guilty pleas were denied, so the State pursued the recidivist sentence in addition to the second offense failure-to-update sentence.

         On May 22, 2017, the Circuit Court of Randolph County sentenced Mr. Hoyle to the statutory term of ten to twenty-five years for second offense failure to register. The circuit court also determined that Mr. Hoyle had been convicted of the following three felonies for purposes of the recidivism statute: (1) kidnapping and sexual assault in the second degree, (2) first offense failure to register, and (3) second offense failure to register. Having made that determination, the circuit court sentenced Mr. Hoyle to incarceration for life under the recidivist statute, [8] with that sentence to run consecutive to the ten to twenty- five years for failure to update. It is from these convictions that Mr. Hoyle appeals to this Court.

         II. STANDARD OF REVIEW

         Because Mr. Hoyle alleges multiple errors to which we apply different standards of review, we set out the particular standard of review of each issue, or group of similar issues, in connection with our discussion of them.

         III. DISCUSSION

         Mr. Hoyle raises several alleged errors on appeal. First, as to his conviction for second offense failure to update, he contends that the trial court erred in denying his motions for acquittal because: (1) there is an ambiguity in the phrase "has or uses" in West Virginia Code § 15-12-2(d)(9); and (2) even if there is no ambiguity, the State failed to meet its burden of proof with regard to his alleged violations. Second, he asserts that the trial court erred in instructing the jury that time was not of the essence with regard to a variance in the date alleged in his criminal indictment and the evidence presented at trial. Third, he asserts that his ten- to twenty-five-year sentence under West Virginia Code § 15-12-8(c) is unconstitutionally disproportionate. Finally, he asserts that his life sentence under the recidivist statute, West Virginia Code § 61-11-18(c), is unconstitutionally disproportionate. We address each of these arguments in turn.

         A. Denial of the Motions for Acquittal

         Mr. Hoyle alleges that the trial court erred in denying his motions for acquittal based on statutory ambiguity and, in the alternative, insufficiency of the evidence. We have held that "[w]here 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."[9] This Court also applies a de novo standard of review to the denial of a motion for judgment of acquittal based on sufficiency of the evidence.[10] With regard to sufficiency of the evidence challenges, we have explained that

[t]he 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.[11]
And noting the heavy burden that applies to such challenges, we have held that
[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.[12]

         We begin with Mr. Hoyle's contention that there is ambiguity in the phrase "has or uses" in West Virginia Code § 15-12-2(d)(9). That statutory provision states:

(d) A person required to register under the provisions of this article shall register in person at the West Virginia State Police detachment responsible for covering the county of his or her residence, and in doing so, provide or cooperate in providing, at a minimum, the following when registering: . . .
(9) Information related to any telephone or electronic paging device numbers that the registrant has or uses, including, but not limited to, residential, work, and mobile telephone numbers.[13]

         According to Mr. Hoyle, the phrase "has or uses" is ambiguous because those words can have varying interpretations and are too broad for use in a statute carrying criminal penalties. He asserts that the term "has" implies physical possession and that the term "uses" implies ongoing use. He further contends by way of multiple hypotheticals[14] that if we were to interpret the statute to include single ...


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