          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                    January 2017 Term
                                    _______________                           FILED
                                                                            May 17, 2017
                                      No. 16-0153                             released at 3:00 p.m.
                                                                            RORY L. PERRY II, CLERK
                                    _______________                       SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA

                           STATE OF WEST VIRGINIA,
                                  Respondent

                                           v.

                             BELINDA ANN FULLER,
                                   Petitioner

       ____________________________________________________________

                   Appeal from the Circuit Court of Cabell County

                       The Honorable Paul T. Farrell, Judge

                            Criminal Case No. 15-F-206


                                      REVERSED


       ____________________________________________________________

                               Submitted: May 2, 2017
                                Filed: May 17, 2017

Russell S. Cook, Esq.                           Patrick Morrisey, Esq.
Cabell Co. Public Defender Office               Attorney General
Huntington, West Virginia                       Shannon Frederick Kiser, Esq.
Counsel for the Petitioner                      Assistant Attorney General
                                                Josiah M. Kollmeyer,
                                                Rule 10 Student Attorney
                                                Charleston, West Virginia
                                                Counsel for the Respondent
JUSTICE KETCHUM delivered the Opinion of the Court.

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

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

                              SYLLABUS BY THE COURT


              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.
Justice Ketchum:


               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

                                              1

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.




       1
         The first iteration of this statute, W.Va. Code § 61-8-5(b), was enacted in 1882.
It was last amended in 1943. This Court would welcome direction from the Legislature
clarifying the third offense provision contained in W.Va. Code § 61-8-5(b).



                                             2

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.




       2
           These prior convictions occurred on October 20, 2012, and January 17, 2013.
       3
        After the circuit court’s denial of the motion to dismiss, Defendant Fuller entered
a conditional guilty plea to the charge contained in the indictment. The circuit court
                                                                           (continued . . .)

                                              3

                                      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 examination of W.Va. Code

§ 61-8-5(b). It provides:

                    Any person who shall engage in prostitution, lewdness,
             or assignation, or who shall solicit, induce, entice, or procure
             another to commit an act of prostitution, lewdness, or
             assignation; or who shall reside in, enter, or remain in any
             house, place, building, hotel, tourist camp, or other structure,
             or enter or remain in any vehicle, trailer, or other conveyance
             for the purpose of prostitution, lewdness, or assignation; or
             who shall aid, abet, or participate in the doing of any of the



accepted the conditional guilty plea and sentenced Defendant Fuller to a term of
imprisonment of one to three years. However, the circuit court suspended execution of
this sentence to permit Defendant Fuller to file the instant appeal.



                                            4

              acts herein prohibited, shall, upon conviction for the first
              offense under this section, be punished by imprisonment in
              the county jail for a period of not less than sixty days nor
              more than six months, and by a fine of not less than fifty
              dollars and not to exceed one hundred dollars; and upon
              conviction for the second offense under this section, be
              punished by imprisonment in the county jail for a period of
              not less than six months nor more than one year, and by a fine
              of not less than one hundred dollars and not to exceed two
              hundred fifty dollars, and upon conviction for any
              subsequent offense under this section shall be punished by
              imprisonment in the penitentiary for not less than one
              year nor more than three years.

                     The subsequent offense provision shall apply only
              to the pimp, panderer, solicitor, operator or any person
              benefiting financially or otherwise from the earnings of a
              prostitute.

(Emphasis added).

              In examining whether Defendant Fuller may be charged with a felony third

offense under W.Va. Code § 61-8-5(b), we begin with a review of our rules of statutory

construction. This Court has held that in deciding the meaning of a statutory provision,

“[w]e look first to the statute’s language. If the text, given its plain meaning, answers the

interpretive question, the language must prevail and further inquiry is foreclosed.”

Appalachian Power Co. v. State Tax Dep’t of West Virginia, 195 W.Va. 573, 587, 466

S.E.2d 424, 438 (1995); see also Syllabus Point 2, Crockett v. Andrews, 153 W.Va. 714,

172 S.E.2d 384 (1970) (“Where the language of a statute is free from ambiguity, its plain

meaning is to be accepted and applied without resort to interpretation.”); and Syllabus

Point 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951) (“A statutory provision



                                             5

which is clear and unambiguous and plainly expresses the legislative intent will not be

interpreted by the courts but will be given full force and effect.”).

              Additionally, this Court has held that “[a] statute is open to construction

only where the language used requires interpretation because of ambiguity which renders

it susceptible of two or more constructions or of such doubtful or obscure meaning that

reasonable minds might be uncertain or disagree as to its meaning.” Sizemore v. State

Farm Gen. Ins. Co., 202 W.Va. 591, 596, 505 S.E.2d 654, 659 (1998) (internal

quotations and citation omitted). With these rules of statutory construction in mind, we

turn to W.Va. Code § 61-8-5(b).

              West Virginia Code § 61-8-5(b) sets forth three categories of offenses and

corresponding penalties for those offenses. The first two offenses in W.Va. Code § 61-8­

5(b) are misdemeanors. It is undisputed that a prostitute who offers to commit an act of

prostitution may be charged pursuant to the first and second offenses set forth in W.Va.

Code § 61-8-5(b). The first two offenses set forth in W.Va. Code § 61-8-5(b) expressly

apply to:

              Any person who shall engage in prostitution, lewdness, or
              assignation, or who shall solicit, induce, entice, or procure
              another to commit an act of prostitution, lewdness, or
              assignation; or who shall reside in, enter, or remain in any
              house, place, building, hotel, tourist camp, or other structure,
              or enter or remain in any vehicle, trailer, or other conveyance
              for the purpose of prostitution, lewdness, or assignation; or
              who shall aid, abet, or participate in the doing of any of the
              acts herein prohibited[.]




                                              6

Clearly, the language “any person who shall engage in prostitution . . . or participate in

the doing of any of the acts herein prohibited” applies to a prostitute.

              By contrast, the third offense provision of W.Va. Code § 61-8-5(b) is a

felony offense. The third offense provides that it “shall only apply to the pimp, panderer,

solicitor, operator or any person benefiting financially or otherwise from the earnings of a

prostitute.” (Emphasis added).

              Defendant Fuller argues that the third offense provision does not apply to

an alleged prostitute; rather, it only applies to “third parties who derive a financial benefit

from the earnings of an alleged prostitute.” Defendant Fuller asserts that unlike the first

two offenses contained in the statute that clearly and unequivocally apply to a prostitute,

the third offense provision does not contain any language stating that it expressly applies

to a prostitute. Instead, the third offense provision only applies to those third parties

(pimps, panderers, solicitors, and operators) who benefit from the earnings of a prostitute.

Had the Legislature intended a prostitute to be subject to the third offense provision,

counsel for Defendant Fuller argues, it could have added three words to the end of the

statute “. . . including a prostitute.” Finally, Defendant Fuller asserts that the first two

offenses set forth in the statute demonstrate that when the Legislature intended to subject

a prostitute to liability under this statute, it did so expressly, i.e. “any person who shall

engage in prostitution.”

              The State asserts that the third offense provision “states that any person

receiving a financial benefit from a prostitute’s earnings may be sentenced under the


                                              7

subsequent offense provision.”      According to the State, “any person” who benefits

financially from the earnings of a prostitute means just that—any person. Thus, the State

argues that the third offense provision is not ambiguous and that a prostitute who

financially benefits from her own act of prostitution may be charged pursuant to the third

offense provision.

              We find that the third offense provision in W.Va. Code § 61-8-5(b) is

reasonably susceptible to differing constructions and that “reasonable minds might be

uncertain or disagree as to its intended meaning.” Sizemore, 202 W.Va. at 596, 505

S.E.2d at 659. Therefore, we find that the third offense provision contained in W.Va.

Code § 61-8-5(b) is ambiguous.

               When faced with an ambiguous statute, this Court has observed “[a] statute

that is ambiguous must be construed before it can be applied.” Syllabus Point 1, Farley v.

Buckalew, 186 W.Va. 693, 414 S.E.2d 454 (1992). “The primary object in construing a

statute is to ascertain and give effect to the intent of the Legislature.” Syllabus Point 1,

Smith v. State Workmen’s Comp. Comm’r, 159 W.Va. 108, 219 S.E.2d 361 (1975). “A

statute is ambiguous when the statute’s language connotes doubtfulness, doubleness of

meaning or indistinctness or uncertainty of an expression[.]” United Services Auto Ass’n

v. Lucas, 233 W.Va. 68, 73, 754 S.E.2d 754, 759 (2014) (internal citation and quotation

omitted). Similarly, this Court has held that “the initial step in such interpretative inquiry

[of a statute] is to ascertain legislative intent.” Syllabus Point 1, in part, Ohio County

Comm’n v. Manchin, 171 W.Va. 552, 301 S.E.2d 183 (1983). Also, “[w]hen a statute’s


                                              8

language is ambiguous, a court often must venture into extratextual territory in order to

distill an appropriate construction. Absent explicatory legislative history for an

ambiguous statute . . . this Court is obligated to consider the . . . overarching design of the

statute.” State ex rel. McGraw v. Scott Runyan Pontiac–Buick, Inc., 194 W.Va. 770, 777,

461 S.E.2d 516, 523 (1995).

              Moreover, “[i]n 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). The rule of lenity “serves to ensure both that there is fair

warning of the boundaries of criminal conduct and that legislatures, not courts, define

criminal liability.” Crandon v. United States, 494 U.S. 152, 158, (1990). In Syllabus

Point 1 of State v. Flinn, 158 W.Va. 111, 208 S.E.2d 538 (1974), we held that “[a]

criminal statute must be set out with sufficient definiteness to give a person of ordinary

intelligence fair notice that his contemplated conduct is prohibited by statute and to

provide adequate standards for adjudication.”

               In ascertaining the legislative intent behind W.Va. Code § 61-8-5(b), we

find that the legislative history of the statute’s adoption in 1943 does not address the

specific meaning or purpose of the third offense provision. Prior to 1943, W.Va. Code §

61-8-5 did not expressly punish a woman for engaging in prostitution. Under the version

of the statute that existed prior to 1943, a woman could be prosecuted for prostitution




                                              9

only if she engaged in prostitution in a “house of ill fame.” This can be seen in the case

of State v. Pyles, 86 W.Va. 636, 104 S.E. 100 (1920).

              The defendant in Pyles appealed following her conviction of “guilt of

keeping and maintaining a certain house of ill fame.” Id. On appeal, the defendant

argued that although the evidence demonstrated that she may have engaged in

prostitution, her conviction was invalid because she did not engage in prostitution in a

house of ill fame as required by the statute. The Court in Pyles summarized the evidence

as follows:

              The accused permanently resided in the house alone, but,
              according to the evidence, men singly there visited her so
              often, in such number, and under such circumstances as,
              aided by her own conduct, tended very strongly to prove that
              she there indulged in acts of prostitution with them. But there
              is no proof, nor sufficiently probative evidence, that any other
              woman resorted to the house for purposes of prostitution.

Pyles, 86 W.Va. at 636-37, 104 S.E. at 100. The Court held that the evidence was

insufficient to sustain the conviction. The following rationale was provided:

                      Our statute does not define a house of ill fame,
              wherefore it is necessary to go to the common law for its
              definition. Under the common law, a house kept by one
              woman, who there indulges in prostitution with numerous
              men, and not resorted to by any other lewd woman for the
              like purpose, is not a house of ill fame. . . . [T]he reason for
              the holding is that the house must possess an element of
              danger to the public peace, and it does not exist unless there is
              a tendency to bring together crowds or assemblages of
              dissolute, debauched, and quarrelsome persons. The common-
              law penalty had, for its principal purpose, preservation of the
              peace, not maintenance of morality. Morality was encouraged
              and vindicated by the spiritual tribunals, and the common law


                                             10
              ordinarily left an unmixed question of morality or offense

              against morality within their cognizance.

              * * *

                     As the evidence wholly fails to make out a case, in
              view of this legal proposition, the judgment will have to be
              reversed[.]

86 W.Va. at 637-38, 104 S.E. at 100 (international citations omitted).

              The Court’s decision in Pyles demonstrates that prior to 1943 the

Legislature did not seek to punish a woman for engaging in prostitution per se. Instead,

the Legislature sought to punish engaging in prostitution in a house of ill fame. This

historical background on the statute as it existed prior to 1943 may explain the ambiguity

in the fact that W.Va. Code § 61-8-5(b) only imposes misdemeanor, rather than felony,

offenses against a person engaging in prostitution.

              Compounding the ambiguity of W.Va. Code § 61-8-5(b) is the fact that the

Legislature enacted separate statutes for punishing panderers and pimps. The pandering

offense is set forth in W.Va. Code § 61-8-7 [1986]. It provides, in part:

                     Any person who shall procure an inmate for a house of
              prostitution, or who, by promises, threats, violence, or by any
              device or scheme, shall cause, induce, persuade or encourage
              a person to become an inmate of a house of prostitution, or
              shall procure a place as inmate in a house of prostitution for a
              person . . . shall be guilty of pandering, and, upon a first
              conviction for an offense under this section, shall be punished
              by imprisonment in the county jail for a period of not less
              than six months nor more than one year . . ., and upon
              conviction for any subsequent offense . . . shall be punished
              by imprisonment in the penitentiary for a period of not less
              than one nor more than five years.




                                            11

              The pimping offense is set forth in W.Va. Code § 61-8-8 [1986].           It

provides, in part:

                     Any person who, knowing another person to be a
              prostitute, shall live or derive support or maintenance, in
              whole or in part, from the earnings or proceeds of the
              prostitution of such prostitute . . . shall be guilty of pimping,
              and, upon the first conviction for such offense, shall be
              punished by imprisonment in the county jail for a period of
              not less than six months nor more than one year, and by a fine
              of not less than one hundred nor more than five hundred
              dollars; and, upon a conviction for any subsequent offense
              hereunder, shall be punished by imprisonment in the
              penitentiary for a period of not less than one nor more than
              three years.

              Even though the Legislature enacted these separate statutes for panderers

and pimps, under W.Va. Code § 61-8-5(b) panderers and pimps can also be punished

when a prostitute engages in prostitution after a second conviction. This discrepancy

does not make sense, but that is the effect of a literal application of W.Va. Code § 61-8­

5(b), W.Va. Code § 61-8-7, and W.Va. Code § 61-8-8.

              We next examine the overarching design of W.Va. Code § 61-8-5(b). The

statute contains three offenses and corresponding penalties for those offenses. The first

two offenses in the statute are misdemeanors which are expressly applicable to a

prostitute. West Virginia Code § 61-8-5(b) makes it abundantly clear that “any person

who shall engage in prostitution” may be charged pursuant to these first two

misdemeanor offenses. The third offense provision in W.Va. Code § 61-8-5(b) is a

felony offense and is restricted “only to the pimp, panderer, solicitor, operator or any



                                             12

person benefiting financially or otherwise from the earnings of a prostitute.” (Emphasis

added).

              Reading the second half of the third offense provision in isolation (“or any

person benefiting financially or otherwise from the earnings of a prostitute”) supports the

State’s argument that the phrase “any person” includes a prostitute financially benefiting

from her own act of prostitution. However, unlike the first two misdemeanor offenses

contained in the statute, the third offense provision does not state that it applies to “any

person who shall engage in prostitution.” Instead, the clear focus of the third offense

provision is “only” on those third parties who financially benefit from the earnings of a

prostitute, including a pimp, panderer, solicitor, and operator. Defendant Fuller makes a

compelling argument that the Legislature clearly and unequivocally included a prostitute

under the first two misdemeanor offenses contained in the statute, but did not explicitly

include a prostitute under the felony third offense provision. Because the Legislature did

not clearly and unequivocally include a prostitute under the felony third offense

provision, Defendant Fuller asserts that W.Va. Code § 61-8-5(b) does not “set out with

sufficient definiteness to give a person of ordinary intelligence fair notice that [her]

contemplated conduct is prohibited by statute[.]” Flinn, 158 W.Va. 111, 208 S.E.2d 538.

              Based on our review, we conclude that the third offense provision is

susceptible to differing constructions and that reasonable minds might disagree as to its

intended meaning. In light of this conclusion, we apply the rule of lenity which requires

that penal statutes must be strictly construed against the State and in favor of the


                                            13

defendant. Syllabus Point 5, State ex rel. Morgan v. Trent, 195 W.Va. 257, 465 S.E.2d

257. Construing the statute in favor of Defendant Fuller, we find that the first two

misdemeanor offenses set forth in W.Va. Code § 61-8-5(b) expressly apply to a

prostitute. However, the felony third offense provision does not expressly apply to a

prostitute; rather, it expressly applies to third parties benefiting financially from the

earnings of a prostitute, i.e. a pimp, panderer, solicitor, or operator. Thus, we find that

the third offense provision of W.Va. Code § 61-8-5(b) contains an ambiguity and

pursuant to the rule of lenity, we resolve this ambiguity in Defendant Fuller’s favor.

              Based on the foregoing, we hold that under the first and second offenses

contained in W.Va. Code § 61-8-5(b), it is a misdemeanor crime for any person to engage

in an act of prostitution. The third or subsequent felony offense provision contained in

W.Va. Code § 61-8-5(b) 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. Applying this holding to the present case, we find that Defendant Fuller’s

alleged conduct does not subject her to culpability pursuant to the third offense provision

of W.Va. Code § 61-8-5(b). Thus, the circuit court erred by denying her motion to

dismiss the indictment.




                                             14

                                        IV.

                                    CONCLUSION


              The circuit court’s February 3, 2016, order is reversed. We remand this

case to the circuit court for entry of an order dismissing the indictment against Defendant

Fuller.



                                                                Reversed and Remanded.




                                            15

