State v. Davis
182 W. Va. 482, 1989 W. Va. LEXIS 273, 388 S.E.2d 508 (1989)
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Rule of Law:
A person present at the scene of a crime can be convicted as a principal in the second degree if their actions, or inaction in the face of a duty to intervene, are designed to and do operate as encouragement or protection for the primary perpetrator.
Facts:
- The victim, a close friend of the Davis family, went to defendant Dewey Davis's mobile home to do laundry.
- While there, Dewey Davis's son, Gerald Davis, attempted to force the victim into his bedroom.
- The victim fled to Dewey Davis, positioned herself behind him for protection, and pleaded with him for help.
- Dewey Davis, who had been drinking, told the victim he could not help her and then moved out of the way.
- Gerald Davis then dragged the victim down the hall and into the bedroom.
- Dewey Davis followed them into the bedroom and lay on the bed next to the victim while his son sexually assaulted her.
- As the assault occurred, Dewey Davis patted the victim's hand and told her not to worry.
Procedural Posture:
- Dewey Davis was convicted by a jury in a state trial court of second-degree sexual assault, abduction, and first-degree sexual abuse.
- On appeal, the State conceded that the abduction and sexual abuse convictions were invalid based on precedent from the case of his son, the principal perpetrator.
- Dewey Davis (appellant) appealed his remaining conviction for second-degree sexual assault to the Supreme Court of Appeals of West Virginia, arguing that the evidence was insufficient to support the verdict.
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Issue:
Does a defendant's presence during a sexual assault committed by his son, combined with his refusal to help the victim, his act of moving aside for the perpetrator, and his comforting gestures toward the victim during the assault, constitute sufficient evidence to convict him of second-degree sexual assault as a principal in the second degree?
Opinions:
Majority - Justice Miller
Yes. A defendant's presence and conduct can be sufficient to establish guilt as a principal in the second degree, even without direct physical participation in the criminal act. The court reasoned that Dewey Davis was not merely a passive bystander. The assault occurred in his home, was perpetrated by his son, and the victim specifically sought his protection. Davis's actions—refusing to help, moving aside to allow his son access to the victim, following them into the bedroom, and lying next to them while patting the victim's hand—went beyond mere presence. The court concluded that this conduct operated as encouragement and protection for the perpetrator, making him criminally culpable for aiding and abetting the sexual assault.
Analysis:
This case clarifies the boundary between being a mere witness to a crime and being a criminally liable accomplice. It establishes that in West Virginia, accomplice liability can be found based on a combination of factors, including the defendant's relationship to the perpetrator and location, as well as actions that signify approval or encouragement. The decision demonstrates that non-intervention, when coupled with other conduct showing support for the crime, can be sufficient to convict someone as a principal in the second degree. This precedent makes it easier for prosecutors to charge individuals who are present at a crime and, through their behavior, facilitate its commission without physically participating.
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