State v. Evans

State of West Virginia, Plaintiff Below, Respondent v. Joshua Evans, Defendant Below, Petitioner

No. 19-0253

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

April 20, 2020

(Grant County 18-F-3)

MEMORANDUM DECISION

Petitioner Joshua Evans, by counsel J. Brent Easton, appeals the Circuit Court of Grant County's February 15, 2019, order denying his post-trial motions and imposing sentence following his conviction for one count of first-degree murder. Respondent the State of West Virginia, by counsel Scott E. Johnson, filed a response.

The Court has considered the parties' briefs and record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure.

Robert "Bobby" Lee Shoemaker was struck by a vehicle while walking along a road near Petersburg, West Virginia, on July 10, 2017. On July 14, 2017, deputies were dispatched to the scene of a dead body, later identified as Mr. Shoemaker, approximately twenty-five feet over an embankment. A burgundy pickup truck driven by Petitioner Joshua Evans was seen traveling on that road on July 10, 2017, with damage to the driver's side of the windshield and grill. Officers located that truck on July 17, 2017, when it was discovered that the windshield had been removed, the identification numbers sanded, and a coat of black spray paint had been poorly-applied. Petitioner was arrested without incident for the offense of second-degree murder.

Petitioner was indicted on one count of first-degree murder for the death of Mr. Shoemaker and two counts of possession of a controlled substance. Petitioner filed a motion to sever the murder count from the drug counts, and that motion was granted by the circuit court. The State filed a notice to use Rule 404(b) evidence, to which petitioner objected. The circuit court held a hearing on the 404(b) evidence before entering an order granting, in part, and denying, in part, the admissibility of that evidence. Petitioner was tried by a jury on the murder charge and was convicted of that charge. However, the jury recommended that petitioner receive mercy in sentencing.

On December 20, 2018, petitioner filed a motion for a new trial, asserting insufficiency of the evidence, that the State twice impermissibly attacked petitioner's Fifth Amendment right, that the trial judge impermissibly informed the jury of the existence of drug counts that had been severed from the murder before trial, and that Rule 404(b) evidence was impermissibly introduced at trial.

In its February 15, 2019, order, the circuit court found that petitioner's post-trial motions were defense motions that had previously been ruled upon at trial. Specifically, the circuit court found

that there was sufficient evidence, at the trial, for the jury to determine malice that [petitioner's] argument with regard to a violation of [his] Fifth Amendment Right, under the Keeseker case does not amount to a violation; that the single answer of the [i]nvestigating [o]fficer did not mislead the jury to the prejudice of [petitioner]; that the single, nonresponsive,[sic] remark was isolated; that the strength of the evidence, at trial, was more than sufficient to convict [petitioner]; and that the remark was not deliberately placed before the jury to divert attention to extraneous matters.

The circuit court went on to find that petitioner's argument with regard to the rebuttal argument of the State was not a reference to petitioner's Fifth Amendment right so petitioner's post-trial motions were denied.

After hearing remarks from the victim's aunt and mother and an apology from petitioner to the victim's mother, the circuit court imposed sentence. Petitioner appeals the circuit court's February 15, 2019, order denying his post-trial motions and sentencing him to life imprisonment and a recommendation of mercy, with credit for time served. Petitioner appeals from that order.

In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000). With these standards in mind, we turn to petitioner's five assignments of error.

Petitioner first argues that there was insufficient evidence to support a conviction for first-degree murder, which requires "willful, deliberate and premeditated killing." W. Va. Code § 61-2-1. He asserts that, because there were no witnesses to the incident, the State relied on the "cumbersome argument" that the elements necessary for first-degree murder existed based upon petitioner's purported feud with a man named Cody VanMeter. He contends that the State proposed that petitioner "(1) saw who he believed to be Cody VanMeter and ran him down in a malicious, premeditated act; or (2) saw who he believed to be Cody VanMeter, flew into a rage, and intentionally ran him down." He argues, however, that both contentions are flawed. Petitioneradmits that he had an ongoing feud with Mr. VanMeter but argues that the testimony established that the confrontations between the two consistently stayed well below the level of homicidal assaults. Petitioner also points to testimony from Mr. Shoemaker's widow, who said that although Mr. VanMeter and Mr. Shoemaker were cousins, Mr. Shoemaker had a distinct walk and that while Mr. VanMeter always wears a hat, Mr. Shoemaker rarely did.

Petitioner asserts that the evidence, at most, supports a charge of voluntary manslaughter, which is a "sudden, intentional killing upon gross provocation and in the heat of passion." State v. Beegle, 188 W. Va. 681, 685, 425 S.E.2d 823, 827 (1992).¹ He argues that if the jury truly believed that petitioner mistook Mr. Shoemaker for Cody VanMeter, went into a rage, and intentionally ran him over, then voluntary manslaughter is the most severe offense of which he should have been convicted. Petitioner did not and does not contest that he was driving the pickup truck when it struck Mr. Shoemaker, but he contends that the incident was the result of accidental and/or negligent conduct by petitioner.

As we have repeatedly found,

"[a] criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a jury and not an appellate court. Finally, a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. . . ." Syllabus Point 3, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995).

Syl. Pt. 3, in part, State v. Hoyle, ___ W. Va. ___, 836 S.E.2d 817 (2019). "Malice . . . is an essential element of . . . first . . . degree murder." State v. Hall, 174 W. Va. 599, 602, 328 S.E.2d 206, 210 (1985). The circuit court's jury instruction regarding malice provided, in part:

[Malice] may be inferred or implied by you from all the evidence in this case if you find such inference is reasonable from the facts and circumstances in this case which have been proven to your satisfaction beyond all reasonable doubt. Malice may be inferred from any deliberate and cruel act done by [petitioner] without any reasonable provocation or excuse, however sudden. Malice is not confined to ill will towards any one or more particular persons; but malice is every evil design ingeneral. . . . It is not necessary that malice must have existed for any particular length of time; and it may first come into existence at the time of the act or at any previous time thereto.

With regard to intent, the circuit court further instructed that

where the State of West Virginia introduces evidence and shows beyond a reasonable doubt that [petitioner] intended to kill or injure someone under circumstances which you do not believe afforded [petitioner] excuse, justification, or provocation for his or her conduct; but in the course of attempting to commit the crime accidentally injured or kills another person, the [c]ourt may find the [petitioner's] criminal intent will be transferred to the injured or killed unintentional victim.

We have held that "[w]hether malice exists in a particular case is a question for the jury to determine . . . ." State v. Scott, 206 W. Va. 158, 165, 522 S.E.2d 626, 633 (1999). We also keep in mind our finding that the

[i]ntention to kill need not exist for any particular length of time for the act to be wilful, deliberate, and premeditated; it is only necessary that the intention initially should come into existence anytime before the homicide. State v. Burdette, 135 W.Va. 312, 63 S.E.2d 69 (1951); State v. Painter, 135 W.Va. 106, 63 S.E.2d 86 (1950).

State v. Ferguson, 165 W. Va. 529, 534, 270 S.E.2d 166, 170 (1980) (overruled on other grounds by State v. Kopa, 173 W. Va. 43, 311 S.E.2d 412 (1983)).²

Petitioner's argument ignores the doctrine of transferred intent. As this Court has explained,

[t]he doctrine of transferred intent can be described by stating that when one party shoots at another with the

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