Criminal Law, Pages 134–136

State v. Davis

Supreme Court of Appeals of West Virginia, 1989


Defendant's son raped the victim, who pleaded with defendant to help her. Defendant said he could not help and avoided her attempts to put him between her and his son. Defendant instead let his son rape her, and he laid on the bed next to her, patted her hand, and told her not to worry. Defendant was convicted of abduction and both first and second-degree sexual abuse for aiding and abetting his son in his crimes, but the former two were overturned. He was then charged with second-degree sexual assault.


Is there sufficient evidence to sustain the conviction for second-degree sexual assault?


LexisNexis IconWestLaw LogoGoogle Scholar LogoPage 135, Bottom
State v. Fortner
  1. "Merely witnessing a crime, without intervention, does not make a person a party to its commission unless his interference was a duty, and his noninterference was one of the conditions of the commission of the crime; or unless his noninterference was designed by him and operated as an encouragement to or protection of the perpetrator."
  2. "Proof that the defendant was present at the time and place the crime was committed is a factor to be considered by the jury in determining guilt, along with other circumstances, such as the defendant's association with or relation to the perpetrator and his conduct before and after the commission of the crime."
  3. "Under the concerted action principle, a defendant who is present at the scene of a crime and, by acting with another, contributes to the criminal act, is criminally liable for such offense as if he were the sole perpetrator."


Defendant was not just a passive bystander. The assault took place in his home by his son. The victim looked to the defendant as a family member, calling him "Uncle Dewey". She begged him to help her, but he moved refused and moved out of his son's way. He laid on the bed with her and watched his son rape while patting his hand. These actions were sufficient to make him culpable of the crime. Other jurisdiction have come to the same conclusion with similar facts as well.


Yes, there is sufficient evidence to sustain defendant's conviction. Sexual assault charge affirmed.