Donald Raymond Barbe v. Thomas McBride

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-7598
DONALD RAYMOND BARBE,
Petitioner - Appellant,
v.
THOMAS MCBRIDE,
Respondent - Appellee.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. John Preston Bailey,
Chief District Judge. (2:07-cv-00025-JPB-JES)
Argued: March 20, 2012 Decided: April 12, 2012
Before WILKINSON, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Virginia Whitner Hoptman, WOMBLE CARLYLE SANDRIDGE &
RICE, PLLC, Vienna, Virginia, for Appellant. Robert David
Goldberg, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA,
Charleston, West Virginia, for Appellee. ON BRIEF: Lesley
Whitcomb Fierst, WOMBLE CARLYLE SANDRIDGE & RICE, PLLC, Vienna,
Virginia, for Appellant. Darrell V. McGraw, Jr., Attorney
General, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Following his conviction on two counts of second degree
sexual assault in state court, petitioner Donald Barbe filed a
federal habeas petition challenging his conviction on due
process grounds. The district court refused to grant relief on
that basis. Petitioner now appeals, contending that the state
court’s decision to amend his indictment prior to trial to
allege “sexual intrusion” instead of “sexual intercourse”
deprived him of due process. Finding no constitutional
violation, we affirm.
I.
On September 13, 1999, a West Virginia grand jury returned
a 17-count indictment against Barbe consisting of multiple
charges of sexual assault, sexual abuse, and incest involving
three victims. For purposes of this appeal, only Counts 10 and
11 are relevant. Those two counts charged that Barbe had twice
committed the offense of “Sexual Assault in the Second
Degree” in that he unlawfully and feloniously engaged
in sexual intercourse with B.H., a person known to the
Grand Jury without that person’s consent, and the lack
of consent resulted from forcible compulsion, against
the peace and dignity of the State and in violation of
West Virginia Code §61–8B–4(a)(2).*
* Because the indictment referred to “forcible compulsion,”
it should have listed the corresponding statutory provision as
West Virginia Code § 61–8B–4(a)(1) instead of § 61–8B–4(a)(2).
Barbe has not challenged this minor drafting error on appeal.

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On October 15, the State moved to amend Counts 10 and 11
“to allege that the offense was committed by engaging in sexual
intrusion with B.H.,” rather than by engaging in “sexual
intercourse.” Under West Virginia law, “[s]exual intercourse”
is defined as “any act between persons involving penetration,
however slight, of the female sex organ by the male sex organ or
involving contact between the sex organs of one person and the
mouth or anus of another person.” W. Va. Code § 61-8B-1(7).
“Sexual intrusion,” by contrast, “means any act between persons
involving penetration, however slight, of the female sex organ
or of the anus of any person by an object for the purpose of
degrading or humiliating the person so penetrated or for
gratifying the sexual desire of either party.” Id. § 61-8B-
1(8). Either act can constitute second degree sexual assault
under West Virginia Code § 61-B-4(a), which provides that
A person is guilty of sexual assault in the second
degree when:
(1) Such person engages in sexual intercourse or
sexual intrusion with another person without the
person’s consent, and the lack of consent results from
forcible compulsion; or
(2) Such person engages in sexual intercourse or
sexual intrusion with another person who is physically
helpless.

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The state court held a hearing on the motion to amend on October
20. After concluding that “the amendment in this case is not
substantial,” it granted the motion from the bench.
The trial began on December 13, 1999. The State’s case
proceeded on the theory that Barbe had committed second degree
sexual assault against B.H. by sexual intrusion. B.H. testified
that Barbe, who was her counselor at a local 4-H club, would
sometimes drive her home from 4-H events and that he molested
her on two of these occasions. According to B.H., one time when
she was sitting with Barbe in the front seat of his vehicle, he
asked or told her to lie down. B.H. testified that after she
placed her “head in his lap,” Barbe “put his hand down the front
of my pants and started massaging my vagina.”
B.H. also stated that on a different occasion, Barbe placed
her in that same position, but when she “tried to get back
up . . . he just pushed me back down with his arm and kept my
body laid down flat.” According to B.H., he then “held my head
down in his lap and put his hand down the front of my pants and
massaged my vagina.” She also confirmed that while Barbe “had
his hands down [her] pants,” there was “penetration to . . . the
outside area of [her] vagina.” According to her testimony,
these events occurred when she was nine years old.
At the end of trial, the state court charged the jury. In
keeping with the amended indictment, it instructed the jury that

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the offense charged in Counts 10 and 11 “is sexual assault in
the second degree” and that that offense “is committed when any
person engages in sexual intrusion with another person without
the consent of the other person and the lack of consent results
from forcible compulsion.” The jury convicted Barbe on eight
counts, including Counts 10 and 11, and the state court
sentenced him to no less than 80 years’ imprisonment.
Following his conviction, Barbe sought both appellate and
habeas relief in the state and federal courts. We have
previously described much of this procedural history in detail,
see Barbe v. McBride, 521 F.3d 443, 448-52 (4th Cir. 2008), and
we see no reason to repeat those efforts here. For the purposes
of this appeal, our review is limited to a single due process
claim contained in Barbe’s second federal habeas petition. In
the district court below, petitioner sought relief under 28
U.S.C. § 2254 on the grounds that the state court violated his
due process rights “by instructing the jury on ‘sexual
intrusion,’ rather than ‘sexual intercourse’ as charged” in the
original indictment. Barbe v. McBride, 740 F. Supp. 2d 759, 763
(N.D.W. Va. 2010). The court refused to grant relief on this
basis. Id. at 772. Barbe appeals that ruling, and we review
the denial of his § 2254 petition de novo. Longworth v. Ozmint,
377 F.3d 437, 443 (4th Cir. 2004).

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II.
Rather than focus on the jury instructions on appeal, Barbe
contends that the state trial court violated his right to due
process by amending his indictment to allege “sexual intrusion”
instead of “sexual intercourse.” It is important to clarify the
limited nature of this claim. Petitioner concedes that while
the Fifth Amendment guarantees that an indictment’s “charges may
not be broadened through amendment except by the grand jury
itself,” Stirone v. United States, 361 U.S. 212, 215-16 (1960),
this right “has yet to be incorporated against the states.”
Petitioner’s Br. at 34 (citing Hurtado v. California, 110 U.S.
516, 534-35 (1884)). He therefore relies on the Fourteenth
Amendment’s Due Process Clause to challenge the amendment.
Because the Due Process Clause guarantees Barbe the “right to
reasonable notice of a charge against him, and an opportunity to
be heard his defense,” In re Oliver, 333 U.S. 257, 273 (1948),
he contends that the amendment provided him with insufficient
notice “to prepare an adequate defense.” Petitioner’s Br. at
36.
We are not persuaded. “Variances and other deficiencies in
state court indictments are not ordinarily a basis of federal
habeas corpus relief unless the deficiency makes the trial so
egregiously unfair as to amount to a deprivation of the
defendant's right to due process.” Ashford v. Edwards, 780 F.2d

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405, 407 (4th Cir. 1985). Barbe cannot make this showing for a
variety of reasons.
To begin with, the amendment to his indictment did not
broaden the nature of the State’s case. Petitioner’s original
indictment charged him with “committ[ing] the offense of ‘Sexual
Assault in the Second Degree,’” and this charge put him on
notice that he could be convicted for having engaged in either
sexual intercourse or sexual intrusion. This is because West
Virginia law provides that a “person is guilty of sexual assault
in the second degree” if he “engages in sexual intercourse or
sexual intrusion with another person without the person’s
consent, and the lack of consent results from forcible
compulsion.” W. Va. Code § 61-B-4(a)(1) (emphasis added).
Written in the disjunctive, this statute indicates that “sexual
intercourse” and “sexual intrusion” are not two separate
offenses, but two alternative methods of proving the same
offense of second degree sexual assault.
Thus, from the time of his original indictment, Barbe knew
or should have known that he could be convicted for engaging in
either form of sexual conduct. That was sufficient notice for
constitutional purposes. The Due Process Clause “does not
require the method by which the crime was committed to be
alleged in the indictment,” Hartman v. Lee, 283 F.3d 190, 194
n.3 (4th Cir. 2002), nor does it prevent a state court from

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amending that portion of the indictment when necessary. As the
district court pointed out, petitioner “was on notice from the
very beginning of the criminal proceedings against him that the
State was attempting to prove that he had committed Second
Degree Sexual Assault against B.H.” and that it “could do so by
either a showing of sexual intercourse or sexual intrusion.”
Barbe, 740 F. Supp. 2d at 772. The fact that the latter method
replaced the former in the terms of his indictment does not
offend constitutional guarantees.
Moreover, Barbe’s amended indictment matched up with the
state court’s jury charge. This was not a case in which the
trial court deprived a defendant of adequate notice by
instructing the jury on a different offense from the one
enumerated in the charging information. See, e.g., Hunter v.
New Mexico, 916 F.2d 595, 599 (10th Cir. 1990). Instead,
Barbe’s indictment -- both before and after its amendment -- and
the trial court’s jury instructions concerned the same offense
of second degree sexual assault. And both the amended
indictment and the jury instructions discussed the commission of
that offense through the specific act of sexual intrusion.
Thus, rather than exposing Barbe “to charges for which he had no
notice and thus no opportunity to plan a defense,” see Lucas v.
O’Dea, 179 F.3d 412, 417 (6th Cir. 1999), the state court’s jury
instructions simply reiterated the same charges Barbe faced

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before the trial began. There was no due process violation
here.
What is more, the substitution of terms in the indictment
did not actually prejudice petitioner. In order to succeed
here, Barbe must show that the amendment prevented him from
being able to construct an adequate defense. See Bae v. Peters,
950 F.2d 469, 478 (7th Cir. 1991) (“[A] last-minute change in
the charge could prejudice a defendant's opportunity to defend
himself; if that prejudice is severe enough, a due process
violation could occur.”). This he cannot do. There is ample
evidence that petitioner had sufficient notice of the State’s
case against him to mount an adequate defense.
For one thing, Barbe’s indictment was amended well in
advance of trial. The state court granted the motion to amend
on October 20, over seven weeks before his trial began.
Petitioner attempts to downplay this fact by pointing out that
his trial was originally scheduled for October 27 but was
delayed due to his hospitalization following the hearing on the
motion to amend. But those circumstances do not change the fact
that he and his counsel had notice of the State’s precise theory
of the case nearly two months before the actual trial began.
That is more than sufficient for purposes of the Due Process
Clause. See Stephens v. Borg, 59 F.3d 932, 936 (9th Cir. 1995)
(holding that a defendant’s constitutional rights were not

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violated because he “had five days of actual notice” before
closing arguments “of the prosecution's intention to rely on a
felony-murder theory” that was not enumerated in the original
charging information).
And even before his indictment was amended, Barbe knew of
the nature of B.H.’s testimony. As the State pointed out during
the hearing on the motion to amend, it had provided a recording
of B.H.’s statement to Barbe’s counsel on September 29, over two
weeks before it filed its motion to amend. In that recorded
statement, B.H. set forth her account of the sexual assaults,
and petitioner does not contend that she changed her story. As
the state court observed, Barbe could not be “taken by surprise
with the . . . revision because basically the information was
available both before the amendment and after the amendment.”
In other words, the alteration to his indictment was one of
form, not substance. The trial court simply amended the
indictment in order to reflect the evidence the State intended
all along to present at trial.
Like the district court, we also find it difficult “to
conceive of how [Barbe’s] defense to charges of Second Degree
Sexual Assault by sexual intrusion would have been any different
from his defense to charges of Second Degree Sexual Assault by
sexual intercourse.” Barbe, 740 F. Supp. 2d at 772. Whether
they alleged intrusion or intercourse, Counts 10 and 11 involved

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the same victim and the same two occasions. Id. Moreover,
Barbe’s defense at trial was that B.H. fabricated her
allegations, and that strategy would apply equally to charges of
intercourse or intrusion. It is hard to believe that petitioner
would have radically altered his defense had the original
indictment charged him with sexual intrusion.
III.
In sum, there is no question that the trial court provided
Barbe with sufficient notice under the Due Process Clause. For
the foregoing reasons, the judgment of the district court is
affirmed.
AFFIRMED

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