          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA



                                 January 2013 Term
                                   ____________                  FILED
                                                            February 22, 2013
                                    No. 11-1456                released at 3:00 p.m.
                                   ____________                RORY L. PERRY II, CLERK
                                                             SUPREME COURT OF APPEALS
                                                                 OF WEST VIRGINIA



                          DAVID BALLARD, WARDEN,

                           Respondent Below, Petitioner


                                         v.

                             STEVE LEE DILWORTH

                            Petitioner Below, Respondent



             ________________________________________________

                   Appeal from the Circuit Court of Gilmer County

                            Honorable Jack Alsop, Judge

                             Civil Action No. 10-C-11


                                 REVERSED

             ________________________________________________

                            Submitted: January 16, 2013

                             Filed: February 22, 2013




Gerald B. Hough, Esq.                                Ray M. Shepard, Esq.
Prosecuting Attorney for Gilmer County               Smith, Gildea & Schmidt LLC
Glenville, West Virginia                             Towson, Maryland
Counsel for the Petitioner                           Counsel for the Respondent


The Opinion of the Court was delivered PER CURIAM.
                              SYLLABUS BY THE COURT


              1. “In reviewing challenges to the findings and conclusions of the circuit court

in a habeas corpus action, we apply a three-prong standard of review. We review the final

order and the ultimate disposition under an abuse of discretion standard; the underlying

factual findings under a clearly erroneous standard; and questions of law are subject to a de

novo review.” Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).



              2. “Generally, the sufficiency of an indictment is reviewed de novo. An

indictment need only meet minimal constitutional standards, and the sufficiency of an

indictment is determined by practical rather than technical considerations.” Syl. Pt. 2, State

v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996).



              3. “‘An indictment for a statutory offense is sufficient if, in charging the

offense, it substantially follows the language of the statute, fully informs the accused of the

particular offense with which he is charged and enables the court to determine the statute on

which the charge is based.’ Syl. Pt. 3, State v. Hall, 172 W.Va. 138, 304 S.E.2d 43 (1983).”

Syl. Pt. 1, State v. Mullins, 181 W.Va. 415, 383 S.E.2d 47 (1989).




                                              -i­
              4. “‘An indictment is sufficient under Article III, § 14 of the West Virginia

Constitution and W.Va. R.Crim. P. 7(c)(1) if it (1) states the elements of the offense charged;

(2) puts a defendant on fair notice of the charge against which he or she must defend; and (3)

enables a defendant to assert an acquittal or conviction in order to prevent being placed twice

in jeopardy.’ Syl. Pt. 6, State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999).” Syl. Pt. 5,

State v. Haines, 221 W.Va. 235, 654 S.E.2d 359 (2007).




                                             -ii­
Per Curiam:

              Petitioner David Ballard, Warden of the Mount Olive Correctional Complex

(hereinafter “Warden Ballard”),1 appeals from the September 21, 2011, order of the Circuit

Court of Gilmer County setting aside the conviction and sentence of the respondent herein

and petitioner below, Steve Lee Dilworth (hereinafter “Mr. Dilworth”), on nine of ten counts

of sexual abuse by a guardian. In granting relief to Mr. Dilworth on his habeas corpus

petition, the circuit court found that the indictment was constitutionally deficient because it

did not provide adequate notice of each of the charges and potentially subjected him to

double jeopardy.2 The circuit court did not disturb Mr. Dilworth’s conviction and sentence

on Count One finding that the indictment provided him with adequate notice to defend as to

one count of sexual abuse by a guardian. Warden Ballard seeks to reverse the circuit court’s

ruling and argues that the indictment was constitutionally sufficient. Having fully considered

       1
       Pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure, this Court
has substituted the petitioner’s name with David Ballard, who is the current Warden at the
Mount Olive Correctional Complex.
       2
        The parties represent and the circuit court’s habeas order reflects that on November
12, 2008, Mr. Dilworth filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2254 in the United States District Court for the Northern District of West Virginia. In the
federal magistrate judge’s “Report and Recommendation,” it was recommended that Mr.
Dilworth be denied relief on five of the six grounds asserted, but that relief be granted on
ground four challenging the constitutional sufficiency of his indictment. Dilworth v. Markle,
2009 WL 5874321 (N.D.W.Va.). Thereafter, the federal district court judge entered a habeas
order (1) adopting the magistrate judge’s recommendation that relief on five of the six
grounds be denied; (2) holding in abeyance a ruling on ground four to allow Mr. Dilworth
an opportunity to present his unexhausted federal claim in state court (which he has done in
the case sub judice); and (3) staying Mr. Dilworth’s federal habeas corpus proceeding for this
purpose.

                                              1

the appendix record in this matter in conjunction with the parties’ briefs and the arguments

presented, this Court reverses the circuit court’s order granting habeas relief and orders that

Mr. Dilworth remain imprisoned under the sentencing order entered in the underlying

criminal proceeding.



                         I. Factual and Procedural Background

              On July 6, 2006, Mr. Dilworth was indicted on ten counts of sexual abuse by

a guardian. Each count of the indictment involved Mr. Dilworth’s stepdaughter, D. H.

(hereinafter “the victim”),3 who was seventeen years old when she reported the abuse to her

mother, Christine Dilworth. Mrs. Dilworth confronted Mr. Dilworth and later contacted law

enforcement. Mr. Dilworth was taken into custody on May 24, 2006. While in police

custody, Mr. Dilworth confessed to sexually abusing the victim throughout a period of

several years, although he could not identify specific dates and times.




       3
        Because the victim was a child at the time of the commission of the crimes, this Court
follows its customary practice with sensitive matters involving minors and refers to the
victim by her initials. See In re Cesar L., 221 W.Va. 249, 352 n.1, 654 S.E.2d 373, 376 n.1
(2007).

                                              2

                Each count4 of Mr. Dilworth’s indictment charged an offense under West

Virginia Code § 61-8D-5(a) (2005), which provides, in pertinent part, as follows:

                If any parent, guardian or custodian of or other person in a
                position of trust in relation to a child under his or her care,
                custody or control, shall engage in or attempt to engage in
                sexual exploitation of, or in sexual intercourse, sexual intrusion
                or sexual contact with, a child under his or her care, custody or
                control, notwithstanding the fact that the child may have
                willingly participated in such conduct, or the fact that the child
                may have consented to such conduct or the fact that the child
                may have suffered no apparent physical injury or mental or
                emotional injury as a result of such conduct, then such parent,
                guardian, custodian or person in a position of trust shall be
                guilty of a felony . . . .




      4
          Each count of Mr. Dilworth’s indictment stated, as follows:

             That on or about the ___ day of ___, 2001, in Gilmer County, West
      Virginia, STEVE LEE DILWORTH committed the felony offense of
      SEXUAL ABUSE BY PARENT OR GUARDIAN in that he, the said
      STEVE LEE DILWORTH, did then and there willfully, intentionally,
      unlawfully, knowingly, and feloniously engage in or attempt to engage in
      sexual exploitation of, or in sexual intercourse, sexual intrusion or sexual
      contact with a child under his care, custody or control, and he was then the
      parent or guardian of the said child, to-wit: STEVE LEE DILWORTH did,
      on or about the ___ day of ___, 2001, in Gilmer County, West Virginia,
      willfully, intentionally, unlawfully, knowingly, and feloniously engage in or
      attempt to engage in sexual exploitation of, or in sexual intercourse, sexual
      intrusion or sexual contact with, [the victim], a child under his care, custody
      or control, and he was then the guardian of the said [the victim], against the
      peace and dignity of the State of West Virginia in violation of West Virginia
      Code §61-8D-5(a).

                                                3

              At trial, held on January 30 and 31, 2007, the victim testified to sexual conduct

that began when she was eight years old while the family was living in Maryland. As to the

acts of sexual abuse that occurred in 2001, in West Virginia, the victim testified, as follows:

              Q:     And tell us about the year 2001 and any activities of
                     sexual abuse by [Mr. Dilworth] upon you.
              A:     [Mr. Dilworth] would come into my bedroom in Coxs
                     Mill, and it was usually always in the early morning . . .
                     he would lay behind me and just start to, like, rub my
                     back and stuff underneath of my shirt or pajamas, and
                     that would turn to, like, breast fondling, and he would
                     rub his penis on my butt area, and then sometimes he
                     would lick or suck on my breasts, and he’d pull down my
                     pants sometimes and, like, just, you know, spread my
                     legs and look in my vaginal area . . .
                                             •••
              Q:     Can you say exactly how many times he [Mr. Dilworth]
                     came in your room in 2001?
              A:     No, I can’t.
              Q:     Would you be able to truthfully tell this jury it was more
                     than once?
              A:     (Nodded.) Yes.
              Q:     Was it as many as ten times?
              A:     (Nodded.) Yes.
              Q:     Was it at least ten times?
              A:     Yes. (Crying.)
                                             •••
              Q:     So between January 1, 2001, when you’re 12 and your
                     last clearly recollected . . . out of the ten is in November
                     2001. Between January 2001 and November 2001, did
                     that defendant early in the morning come into your
                     bedroom and touch you sexually?
              A:     Yes.
              Q:     More than once?
              A:     Yes.
              Q:     At least ten times?
              A:     Yes. (Crying.)


                                              4

              Q.	    Can you recollect the exact date? Did you mark
                     them on a calendar?
              A.	    (Shook head.) No.
              Q.	    Was it the routine in the household for . . . your
                     stepdad, to come in and help you get started for
                     school, to get dressed, or to get ready?
              A.	    He would wake me up.
                                            •••
              Q.	    In the year 2001, did that defendant (indicated)
                     wake you up ten times sexually?
              A.	    Yes.



              Although Mr. Dilworth did not testify at trial, his incriminating statement5

given to West Virginia State Trooper Robert Smith on May 24, 2006, was read into evidence

at trial by Trooper Smith. In this statement, Mr. Dilworth stated, in part, as follows:

              Q:	    Where did you touch her [the victim]?
              A:	    I touch [sic] her a**, and I then touch [sic] her
                     boobs about five years ago. It started by
                     cuddling, then I touched her boobs, I knew I was
                     wrong. (Emphasis added).
                                            •••
              Q:	    Approximately, how many time [sic] would you
                     say you touch [sic] her breast or butt?
              A:	    I do not known [sic].
              Q:	    Where would this take place in the house?
              A:	    Usually in her room.
              Q:	    How would it started [sic]?




       5
        The trial transcript reflects that Trooper Smith’s interview of Mr. Dilworth took place
in the Trooper’s cruiser and that the in-cruiser video equipment recorded the interview.
Although Mr. Dilworth could not be seen in this recording, both he and Trooper Smith could
be heard. This recording was played for the jury and admitted into evidence at trial.

                                              5

              A:     It didn’t start out sexually. I wasn’t trying to get fu**ed,
                     it was loving. I fu**ed up years ago . . . You can’t take
                     back what you did.
                                              •••
              Q:     When you touched her breast, how would you
                     touch them?
              A:     Just rub them.
              Q:     How about her butt?
              A:     Just rub on it.
              Q:     Did you become sexually arouse [sic]?
              A:     Yes.
                                              •••
              Q:     Can you recall the first incident?
              A:     No.
              Q:     Do you know the year?
              A:     No.
              Q:     How about the season?
              A:     No.
                                              •••
              Q:     Would you say you touched her breast or butt
                     more than ten times [sic]?
              A:     Yes
              Q:     How about twenty time [sic]?
              A:     I don’t know. Once is bad enough.
              Q:     Did the touching happen often?
              A:     I don’t remember.
              Q:     Over how many years did this occurr [sic]?
              A:     Many year [sic]. I do not remember individivul [sic]
                     times, if I could I could count them.



              At the close of the State’s case and, again, after the defense rested, Mr.

Dilworth moved for a judgment of acquittal pursuant to Rule 29 of the West Virginia Rules

of Criminal Procedure. Mr. Dilworth argued that the State’s evidence failed to prove that he

was the victim’s “guardian” as charged in the indictment. The trial court denied both of these


                                              6

motions. On January 31, 2007, the jury returned its verdict finding Mr. Dilworth guilty on

all ten counts of the indictment. By order entered on April 19, 2007, the circuit court

sentenced Mr. Dilworth to ten to twenty years of incarceration on each of the ten counts,

running the sentences imposed on Counts One, Two, and Three consecutively, suspending

the sentences imposed on Counts Three through Ten, and imposing a probationary period of

five years upon Mr. Dilworth’s release from incarceration.



                   On January 10, 2008, Mr. Dilworth’s direct appeal to this Court was refused

unanimously.6 On July 20, 2010, following the stay of his federal habeas proceeding,7 Mr.

Dilworth filed a petition for a writ of habeas corpus and a supporting memorandum of law

in the circuit court setting forth six grounds for relief.8




         6
        Under this Court’s appellate rules in effect at the time of Mr. Dilworth’s direct
criminal appeal, his petition was refused without a written decision by this Court. Also, while
Mr. Dilworth arguably raised the issue currently before this Court in his direct criminal
appeal, which he couched in terms of a denial of his right to a unanimous verdict, this
Court’s refusal of his direct criminal appeal does not preclude its review of this issue in a
subsequent habeas. See Syl., Smith v. Hedrick, 181 W.Va. 394, 382 S.E.2d 588 (1989)
(“This Court’s rejection of a petition for appeal is not a decision on the merits precluding all
future consideration of the issues raised therein, unless . . . such petition is rejected because
the lower court’s judgment or order is plainly right, in which case no other petition for appeal
shall be permitted.”).
         7
             See note 2, supra.
         8
             These were the same grounds raised in Mr. Dilworth’s habeas petition filed in federal
court.

                                                  7

              On September 21, 2011, the circuit court entered an order denying habeas relief

on all but one of the grounds propounded by Mr. Dilworth on the basis that he was estopped

under West Virginia Code § 53-4A-1(b)9 from asserting claims previously adjudicated by the

district court in his federal habeas proceeding.10 The circuit court addressed Mr. Dilworth’s

challenge to the constitutional sufficiency of his indictment based on the identical wording

of the counts. Relying upon Russell v. United States, 369 U.S. 749 (1962), and Valentine v.

Konteh, 395 F.3d 626 (6th Cir. 2005), the circuit court found that the subject indictment

conflicted with constitutional due process requirements by failing to apprise Mr. Dilworth

of the charges against him for purposes of preparing a defense. The circuit court further

found that the indictment exposed Mr. Dilworth to double jeopardy based on the possibility

that the same evidence would be used to convict him on multiple, identical counts. The

circuit court ordered that Mr. Dilworth’s conviction and sentence on nine of the ten counts

be vacated and set aside, but allowed his conviction and sentence on the sole remaining count

to stand. On January 24, 2012, the circuit court entered an order that denied Warden

Ballard’s motion to reconsider the circuit court’s grant of habeas. Through this appeal,




       9
        West Virginia Code § 53-4A-1(b) provides, in pertinent part, that “a contention or
contentions and the grounds in fact or law relied upon in support thereof shall be deemed to
have been previously and finally adjudicated only when . . . there was a decision on the
merits thereof after a full and fair hearing thereon . . . .”
       10
         We note that in the case sub judice, Mr. Dilworth does not cross-assign as error the
circuit court’s ruling in this regard.

                                             8

Warden Ballard seeks to reverse the circuit court’s decision to grant habeas relief to Mr.

Dilworth.



                                   II. Standard of Review

              As this Court stated in syllabus point one of Mathena v. Haines, 219 W.Va.

417, 633 S.E.2d 771 (2006), our review of the circuit court’s habeas ruling is governed by

the following standard:

                      In reviewing challenges to the findings and conclusions
              of the circuit court in a habeas corpus action, we apply a three-
              prong standard of review. We review the final order and the
              ultimate disposition under an abuse of discretion standard; the
              underlying factual findings under a clearly erroneous standard;
              and questions of law are subject to a de novo review.

Because the circuit court concluded that Mr. Dilworth’s indictment was constitutionally

deficient, this Court also relies upon standards for reviewing the sufficiency of an indictment.

In syllabus point two, in part, of State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996), this

Court explained that “[g]enerally, the sufficiency of an indictment is reviewed de novo.” Our

prior law provides guidance for this de novo review:

              “An indictment for a statutory offense is sufficient if, in
              charging the offense, it substantially follows the language of the
              statute, fully informs the accused of the particular offense with
              which he is charged and enables the court to determine the
              statute on which the charge is based.” Syl. Pt. 3, State v. Hall,
              172 W.Va. 138, 304 S.E.2d 43 (1983).

Syl. Pt. 1, State v. Mullins, 181 W.Va. 415, 383 S.E.2d 47 (1989).


                                               9

              Consistent with the holding in Mullins, this Court further explained in syllabus

point two of Miller, 197 W.Va. at 593, 476 S.E.2d at 540, that “[a]n indictment need only

meet minimal constitutional standards, and the sufficiency of an indictment is determined by

practical rather than technical considerations.” See also U.S. v. Law, 2006 WL 2380655, at

*3 (N.D. W.Va., Aug. 15, 2006) (“Ordinarily, an indictment that tracks the statutory language

is sufficient.”). With these standards in mind, this Court proceeds to determine whether the

circuit court’s grant of habeas corpus was in error.



                                       III. Discussion

              In this appeal, Warden Ballard asserts that the circuit court improperly granted

Mr. Dilworth habeas relief for alleged constitutional infirmities related to the indictment. As

an initial and dispositive argument, Warden Ballard asserts that under Miller, Mr. Dilworth

waived any challenge to his indictment by failing to timely raise the issue before the trial

court. Alternatively, the Warden argues that under West Virginia Code § 62-2-10 (2010)11

and State v. David D. W., 214 W.Va. 167, 588 S.E.2d 156 (2003), the absence of specific

dates in the indictment does not invalidate the charging document because time is not of the

essence with regard to the crimes charged. As the Warden observes, Mr. Dilworth’s



       11
         West Virginia Code § 62-2-10 provides in relevant part that “no indictment or other
accusation shall be quashed or deemed invalid . . . for omitting to state, or stating
imperfectly, the time at which the offense was committed, when time is not the essence of
the offense[.]”

                                              10

confession and the victim’s statements to law enforcement and trial testimony reflect that the

crimes occurred during January through November of 2001. Warden Ballard emphasizes that

under West Virginia Code § 62-2-11 (2010),12 a conviction is not to be reversed based upon

a challenge to the indictment if the “offense be charged therein with sufficient certainty for

judgment to be given thereon . . . .” The Warden further argues that the circuit court’s ruling

vastly expands the Supreme Court’s ruling in Russell and fails to explain how Valentine, a

decision of the United States Court of Appeals for the Sixth Circuit, trumps our controlling

state law in David D. W.



              In contrast, Mr. Dilworth asserts that the circuit court correctly relied upon both

Valentine and Russell in granting him habeas relief because his indictment violated his

constitutional right to due process by failing to provide him with proper notice of the charges

against him and also by failing to protect him from the issues of double jeopardy. Mr.

Dilworth maintains that the circuit court correctly determined that David D. W. is not

controlling because not only was it decided prior to Valentine, but it did not address

identically-worded counts in an indictment in the context of due process. Mr. Dilworth

further argues that while the circuit court considered the absence of specific dates in the



       12
         As the Court explained in State v. Casdorph,159 W.Va. 909, 912, 230 S.E.2d 476,
479 (1976), “W.Va. Code, 62-2-11 (1923) [footnote omitted], cures any technical defect in
an indictment when the indictment sufficiently apprises the accused of the charge which he
must face.”

                                              11

indictment in its analysis, it ultimately ruled that the indictment was constitutionally deficient

because the counts were worded identically and lacked factual information to differentiate

one count from another. Lastly, relying upon Miller, Mr. Dilworth contends that his failure

to object to the indictment prior to trial is not an absolute bar to this Court’s review of the

sufficiency of the indictment.



               Having reviewed the parties’ arguments on appeal, each of the bases of

constitutional infirmity will be discussed. We begin our analysis by addressing Russell, the

controlling case on federal due process13 and double jeopardy14 and one of the two cases

primarily relied upon by the circuit court in granting habeas relief to Mr. Dilworth. In

Russell, the United States Supreme Court set forth the criteria for measuring the

constitutional sufficiency of an indictment, as follows:

               [F]irst, whether the indictment “contains the elements of the
               offense intended to be charged, ‘and sufficiently apprised the

       13
        Under the Sixth Amendment to the U.S. Constitution, an accused “shall . . . be
informed of the nature and cause of the accusation.” Article III, section 14 of the West
Virginia Constitution provides, in pertinent part, that “the accused shall be fully and plainly
informed of the character and cause of the accusation.”
       14
          The Fifth Amendment to the U.S. Constitution provides that no person “shall . . . be
subject for the same offense to be twice put in jeopardy of life or limb[,]” which is applied
to the states through the Fourteenth Amendment. See State v. McGilton, 229 W.Va. 554, ___
n.8, 729 S.E.2d 876, 882 n.8 (2012) (“The Double Jeopardy Clause of the Fifth Amendment
of the Constitution of the United States is applied to the states by the Fourteenth
Amendment.”). Parallel language is found in article III, section 5 of the West Virginia
Constitution, which states that no person in any criminal case shall “be twice put in jeopardy
of life or liberty for the same offense.”

                                               12

              defendant of what he must be prepared to meet,’” and, secondly,
              “‘in case any other proceedings are taken against him for a
              similar offence, whether the record shows with accuracy to what
              extent he may plead a former acquittal or conviction.’ Cochran
              and Sayre v. United States, 157 U.S. 286, 290; Rose v. United
              States, 161 U.S. 29, 34.” Hagner v. United States, 285 U.S. 427,
              431.

Russell, 369 U.S. at 763-64. In Stroud v. Polk, 466 F.3d 291 (4th Cir. 2006), the United

States Court of Appeals for the Fourth Circuit addressed the manner in which the sufficiency

of an indictment of a state prisoner in a habeas proceeding should be evaluated and, citing

Russell, stated as follows:

              In Hartman, we affirmed that “[e]lementary principles of due
              process require that an accused be informed of the specific
              charge against him,” 283 F.3d at 194 (citing Cole v. Arkansas,
              333 U.S. 196, 201, 68 S.Ct. 514, 92 L.Ed. 644 (1948)), and that
              “ ‘[a] person’s right to reasonable notice of a charge against him
              . . . [is] basic in our system of jurisprudence,’ ” id. (quoting In
              re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 92 L.Ed. 682
              (1948)). Reasonable notice “sufficiently apprises the defendant
              of what he must be prepared to meet.” Russell v. United States,
              369 U.S. 749, 763, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962)
              (internal quotation marks omitted) (evaluating indictment).

466 F.3d at 296; see also U.S. v. Kingrea, 573 F.3d 186, 191 (4th Cir. 2009) (“[a]n indictment

must contain the elements of the offense charged, fairly inform a defendant of the charge,

and enable the defendant to plead double jeopardy as a defense in a future prosecution for

the same offense.” (citations omitted)).




                                              13

              This Court previously applied Russell in addressing the sufficiency of an

indictment and stated:15

              An indictment is bad or insufficient . . . when within the four
              corners of the indictment it: (1) fails to contain the elements of
              the offense to be charged and sufficiently apprise the defendant
              of what he or she must be prepared to meet; and (2) fails to
              contain sufficient accurate information to permit a plea of
              former acquittal or conviction. Russell v. United States, 369
              U.S. 749, 763-64, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240, 250-51
              (1962).

State ex rel. Forbes v. Canady, 197 W.Va. 37, 41, 475 S.E.2d 37, 41 (1996), superseded by

rule on another point of law, State v. Hartman, No. 11-0784, 2012 WL 5897494 (W.Va.

2012). Moreover, in syllabus point five of State v. Haines, 221 W.Va. 235, 654 S.E.2d 359

(2007), this Court held:

              “An indictment is sufficient under Article III, § 14 of the West
              Virginia Constitution and W.Va. R.Crim. P. 7(c)(1) if it (1)
              states the elements of the offense charged; (2) puts a defendant
              on fair notice of the charge against which he or she must defend;
              and (3) enables a defendant to assert an acquittal or conviction
              in order to prevent being placed twice in jeopardy.” Syl. Pt. 6,
              State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999).




       15
         “The sufficiency of an indictment is determined by looking to the law of the state
where the indictment issued.” Dilworth v. Markle, 2009 WL 5874321, at *6 (N.D. W.Va.
Sept. 2, 2009).

                                             14

                 As we explained in Miller, “the sufficiency of an indictment is determined by

practical rather than technical considerations.”16 Further, an indictment is sufficient if it

substantially follows the language of the statute under which the defendant is charged, fully

informs the accused of the particular offense with which he is charged, and allows this Court

to determine the statute on which the charge is based. Syl. Pt. 1, Mullins, 181 W.Va. at 416,

383 S.E.2d at 48.17



                 Having addressed Russell, the controlling decision of the United States

Supreme Court on determining the sufficiency of indictments, as well as this Court’s similar

       16
            Syl. Pt. 2, in part, Miller, 197 W.Va. 588, 476 S.E.2d 535.
       17
         As indicated previously, Warden Ballard argues that State v. David D. W., 214
W.Va. 167, 588 S.E.2d 156, is controlling in the case sub judice. In David D. W., the
defendant asserted that his 206-count indictment on various sex crimes, including multiple
counts of sexual abuse by a parent, guardian, or custodian, was insufficient because it lacked
specific dates in the various counts; it was not “plain, concise, or definite[;]” the number of
charges was determined arbitrarily; and, that as a result, “he was not able to adequately
prepare a defense.” Id. at 172, 588 S.E.2d at 161. The defendant D.W. also argued that “it
would be impossible for him to plead his convictions as a bar to a later prosecution, since the
State could draft a new indictment alleging the same offense occurred on one of the days of
the month not alleged in the previous indictment.” 214 W.Va. at 173, 588 S.E.2d at 162.
This Court disagreed and concluded, relying upon West Virginia Code § 62-2-10 (1923),
which provides that an indictment shall not be deemed invalid for failing to state, or stating
imperfectly, the time at which the offense was committed, when time is not of the essence
of the offense, that because time is not an element of the sexual crimes charged, the
indictment was sufficient. Id. at 173, 588 S.E.2d at 162; see also State v. Miller, 195 W.Va.
656, 664, 466 S.E.2d 507, 515 (1995) (“Because time is not an essential element of the
charged offenses [sexual assault] . . . the defendant “was not exposed to the danger of being
put in jeopardy to the same offenses.”). Based on David D. W., this Court finds that the
absence of specific dates in Mr. Dilworth’s indictment did not make it deficient because time
is not an essential element of the sex crimes charged.

                                               15

precedent applying Russell, the Court now turns to its discussion of Valentine v. Konteh, 395

F.3d 626 (6th Cir. 2005), the primary case relied upon by the circuit court in granting habeas

relief to Mr. Dilworth.



              In Valentine, the United States Court of Appeals for the Sixth Circuit addressed

a constitutional challenge to an indictment in a habeas proceeding brought by a state prisoner.

The indictment contained twenty identically worded counts of “child rape” and twenty

identically worded counts of felonious penetration occurring over a ten-month period.

Valentine, 395 F.3d at 628. The habeas defendant in Valentine sought a bill of particulars

prior to trial in part because he had alibi defenses for portions of the period covered by the

indictment. The bill of particulars failed to offer any differentiation between the counts. Id.

at 629. In addition, the eight-year-old victim’s trial testimony was vague. The Valentine

Court relied upon Russell to grant habeas relief to Valentine. The Valentine Court concluded

that Valentine’s indictment charging multiple, identically worded counts violated

constitutional due process in two respects: the indictment failed to provide him with notice

of the multiple incidents for which he was tried and convicted and the lack of specificity in

the indictment and the trial record subjected him to double jeopardy.




                                              16

              This Court agrees with Warden Ballard that Valentine is not binding upon this

Court.18 As pointed out by the dissent in Valentine, “no [U.S.] Supreme Court case has ever

found the use of identically worded and factually indistinguishable indictments

unconstitutional.” Valentine, 395 F.3d at 639 (Gilman, J., dissenting) (emphasis in original).

Warden Ballard correctly observed that in Renico v. Lett, __ U.S. __, 130 S.Ct. 1855 (2010),

the United States Supreme Court held that it is error for federal circuit courts to rely on any

decisions other than Supreme Court precedent when analyzing a state court’s application of

“controlling” federal precedent for purposes of state prisoner federal habeas proceedings.

This may explain why this Court could find no other federal circuit court of appeals that had

followed Valentine to grant habeas relief to a state prisoner under similar circumstances.19

       18
         Recently, in State v. Samuel S., No. 11-0877, 2012 WL 5471448 (W.Va. Nov. 9,
2012) (memorandum decision), this Court addressed a challenge to the sufficiency of an
indictment that charged the defendant with 140 counts of sexual offenses, many of which
were identical and all of which involved his young daughter over a ten-year period. We
found the petitioner’s reliance on Valentine to be misplaced and determined that the
indictment met the minimum guidelines for charging documents by setting forth the elements
of the offense charged and by giving the petitioner fair notice of the charges against which
he must defend by providing the year, the nature of the offense, and the identity of the victim.
       19
         In a recent decision issued by the United States District Court for the Northern
District of West Virginia, the court addressed a state prisoner’s claim that his indictment
violated his constitutional rights under Russell and Valentine because the counts failed to
set forth a specific date and failed to distinguish between the alleged sexual conduct. May
v. Ballard, 2012 WL 4356794 (N.D. W.Va.). The district court denied habeas relief and
found Valentine to be distinguishable based on the evidence at trial regarding the incidents
occurring during the time frame in the indictment, including distinguishing between prior bad
acts versus those charged in the indictment. Based on this distinction of which acts were at
issue, the district court found that this demonstrated that Mr. May’s due process rights were
not violated as he was provided with adequate notice of the charges against him and was
                                                                                (continued...)

                                              17

In fact, the Sixth Circuit rarely cited Valentine20 prior to Renico and has not cited it since

Renico.



              Further, there are several, significant distinctions between the case at bar and

Valentine. In Valentine, the petitioner challenged the adequacy of his indictment by seeking

a bill of particulars prior to trial. He contended that the lack of specific dates and times in

his indictment prejudiced him because he had alibi defenses. Unlike Mr. Dilworth, the

petitioner in Valentine did not confess to the crimes charged, and the victim’s trial testimony

was vague. In stark contrast, Mr. Dilworth confessed pre-trial and that confession, which

described his sexual abuse of the victim, was read into evidence at trial. Critically, his

confession was consistent with the victim’s trial testimony regarding the acts of sexual abuse

at issue and the year the alleged offenses occurred.21 Mr. Dilworth never sought a bill of

       19
         (...continued)
protected from double jeopardy concerns. Id. at *13-14. This same reasoning applies to the
instant case where the victim testified at trial concerning Mr. Dilworth’s prior bad acts
against her, which were distinguished at trial from the sexual abuse occurring in 2001, as
charged in Mr. Dilworth’s indictment.
       20
         In State of Ohio v. Stefka, 973 N.E.2d 786 (Ohio Ct. App. 2012), the court explained
that the Sixth Circuit has cited Valentine only four times, three of which were unpublished
decisions and none of which reversed a conviction based upon Valentine. See Shafer v.
Wilson, 364 F.App’x 940 (6th Cir. 2010); Cowherd v. Million, 260 F.App’x 781 (6th Cir.
2008); U.S. v. Madison, 226 F.App’x 535 (6th Cir. 2007); Joseph v. Coyle, 469 F.3d 441 (6th
Cir. 2006).
       21
        As was the case in David D. W., “it is likely that the jury found that the appellant’s
recorded statement corroborated the victim’s testimony.” David D. W., 214 W.Va. at 176,
                                                                                (continued...)

                                              18

particulars,22 and he did not assert an alibi defense. Moreover, unlike the young victim in

Valentine, here, the victim was a young adult by the time of Mr. Dilworth’s trial and she

testified at length concerning the sexual abuse perpetrated upon her by Mr. Dilworth.



              Additionally, the evidence presented in Mr. Dilworth’s trial demonstrated,

unlike in Valentine, that there were more instances of the crimes than were actually

charged—not fewer.23 Based on this Court’s review of the evidence at trial, including the

victim’s extensive trial testimony, as well as Mr. Dilworth’s confession wherein he admitted

that he had sexually abused the victim more times than he could count, it is arguable that Mr.

Dilworth was undercharged.24 Consequently, in marked contrast to Valentine, this Court


       21
        (...continued)
588 S.E.2d at 165.
       22
         A bill of particulars is a discovery device in criminal proceedings. It appears to this
Court that Mr. Dilworth did not seek a bill of particulars because he was satisfied with the
indictment and that he was fully advised of the charges against him. See State of Missouri v.
Walker, 795 S.W.2d 522, 526 (1990) (“[S]ince Walker failed to request a bill of particulars,
this court is entitled to assume he was satisfied with the information and that it fully advised
him of the facts charged.”(citations omitted)).
       23
         The Court in Valentine noted that the Ohio Court of Appeals concluded, in Mr.
Valentine’s direct criminal appeal, that Mr. Valentine was convicted of twenty counts of
felonious sexual penetration based upon evidence that demonstrated only fifteen, which
likely subjected him to a double jeopardy violation.
       24
          If the State of West Virginia were to charge Mr. Dilworth with similar crimes against
this victim and allege that the crimes occurred in 2001, there is nothing that would prevent
Mr. Dilworth from asserting double jeopardy in connection with these later charged, similar
offenses. Accord Valentine, 395 F.3d at 642 (Gilman, J., dissenting) (“Russell, read literally
                                                                                  (continued...)

                                              19

finds there was no possibility that Mr. Dilworth was convicted on ten counts with evidence

supporting fewer than those ten offenses. To the contrary, this Court is convinced from its

review of the trial court’s instructions to the jury25 and the evidence at trial that the jury found

separate and independent evidence to support its conviction of Mr. Dilworth on each and

every count of the indictment.



               Given the significant differences between the case at bar and Valentine, and

based upon this Court’s well-established law on the sufficiency of indictments, we find

Valentine to be both unpersuasive and non-governing. Imminently better reasoned is the

dissenting opinion in Valentine, with its insightful explanation that “prohibiting the use of

multiple identical charges in a single indictment would severely hamper a state’s ability to

prosecute crimes where a young child is both the victim and the sole witness.” 395 F.3d at

640. Indeed, “[u]nder a rule restricting prosecutions to exceedingly narrow and precise

charges, a sex-abuse charge would presumptively be limited to a single instance of abuse,


       24
           (...continued)
. . . clearly protects the defendant in the future, so that the current record may demonstrate
‘with accuracy’ a ‘former acquittal or conviction.’. . . It does not, as the majority suggests,
serve to protect defendants from multiple identical counts contained within the same
indictment.”).
       25
         The trial transcript reveals that the trial court repeatedly instructed the jury that it had
to find a “separate, independent act to support . . . each count based upon the evidence as
presented. . . .” After the jury returned its verdict finding Mr. Dilworth guilty on all ten
counts of the indictment, the trial court polled the jury and each juror answered in the
affirmative when asked if the verdict reached was his/her verdict.

                                                 20

despite clear evidence of multiple occasions . . . . Such an outcome is contrary to judicial

precedent and is not constitutionally required.” Id. at 641.



                 Construing Mr. Dilworth’s indictment in favor of validity, as this Court is

required to do under Miller,26 we conclude that the indictment is constitutionally sufficient

under both Russell and our existing state law. Mr. Dilworth knew the elements of the

offenses with which he was charged and had fair notice of what he had to defend against

(particularly given his confession and the victim’s pretrial statements to law enforcement in

which she described the sexual abuse perpetrated upon her by Mr. Dilworth). The indictment

also gave Mr. Dilworth proper notice by identifying the victim, the offenses committed, and

the year the offenses were committed. Because the indictment substantially followed the

language of the statute under which Mr. Dilworth was charged,27 he was informed of the

nature of the alleged offenses and the statute under which those offenses were charged. In

short, had Mr. Dilworth desired more information beyond the victim’s pre-trial statements

to law enforcement and beyond his own confession, he could have requested a bill of

particulars or otherwise sought relief from the trial court.28 As such, the circuit court abused

       26
            See note 28, infra.
       27
            West Virginia Code §61-8D-5(a).
       28
        As we previously noted, Warden Ballard asserted that Mr. Dilworth never
challenged the constitutional sufficiency of the indictment either prior to or during his trial.
Although during oral argument, Mr. Dilworth’s counsel stated that he had challenged the
                                                                                (continued...)

                                              21

       28
          (...continued)
indictment on the basis of the identical charging language in his motion for acquittal at trial,
the trial transcript does not support such argument.
         Rule 12(b)(2) of the West Virginia Rules of Criminal Procedure provides that
“[d]efenses and objections based on defects in the indictment or information (other than that
it fails to show jurisdiction in the court or to charge an offense which objections shall be
noticed by the court at any time during the pendency of the proceedings)” must be raised
prior to trial. Rule 12(f) provides that the “[f]ailure by a party to raise defenses or objection
or to make request which must be made prior to trial . . . may constitute waiver thereof, but
the court for cause shown should grant relief from the waiver.” This Court has previously
held:

       Rule 12(b)(2) of the West Virginia Rules of Criminal Procedure requires that
       a defendant must raise any objection to an indictment prior to trial. Although
       a challenge to a defective indictment is never waived, this Court literally will
       construe an indictment in favor of validity where a defendant fails timely to
       challenge its sufficiency. Without objection, the indictment should be upheld
       unless it is so defective that it does not, by any reasonable construction, charge
       an offense under West Virginia law or for which the defendant was convicted.

Miller, 197 W.Va. at 592-93, 476 S.E.2d at 539-40, Syl. Pt. 1. More recently, in syllabus
point two of State v. Tommy Y., Jr., 219 W.Va. 530, 637 S.E.2d 628 (2006), this Court stated
that

       [f]or the purposes of Rule 12(b)(2) and Rule 12(f) of the West Virginia Rules
       of Criminal Procedure, if a defect in a charging instrument does not involve
       jurisdiction or result in a failure to charge an offense, a defendant must raise
       the issue prior to trial or the defect will be deemed waived absent a showing
       of good cause for failing to timely raise the issue.

        These rules, this Court’s opinions interpreting these rules, and West Virginia Code §
62-2-11 (see note 12, supra) all promote judicial economy, while simultaneously protecting
the interests of justice. They also prevent a criminal defendant from failing to raise an issue
in a timely fashion either as trial strategy or to preserve a basis for a subsequent collateral
challenge to his conviction. Because Mr. Dilworth’s challenge to his indictment does not
involve jurisdiction and because his indictment is not “so defective that it does not, by any
reasonable construction, charge an offense under West Virginia law,” Mr. Dilworth must be
                                                                                 (continued...)

                                               22

its discretion in granting habeas relief to Mr. Dilworth.



                                       IV. Conclusion

                      In view of the foregoing, this Court concludes that Mr. Dilworth was

not denied due process because he was provided with adequate notice of the charges against

him and was not convicted in violation of double jeopardy principles. For all of these

reasons, this Court finds that the circuit court abused its discretion in granting habeas relief

to Mr. Dilworth and in setting aside nine of his ten convictions. Accordingly, the order of

the Circuit Court of Gilmer County is reversed and Mr. Dilworth is to remain imprisoned

under the sentencing order entered in the underlying criminal proceeding.

                                                                                     Reversed.




       28
          (...continued)
able to show good cause for failing to timely raise the issue. To that end, there is nothing in
either the appendix record, Mr. Dilworth’s appellate brief, or his counsel’s oral argument
before this Court that would constitute “good cause” for not having timely raised the issue.
Thus, in addition to not being entitled to habeas relief under Valentine, Mr. Dilworth was not
entitled to habeas relief because he waived the issue of alleged infirmities in the indictment
by failing to follow our law in timely raising the issue prior to trial.

                                              23
