State v. Ward

906 S.E.2d 194

STATE of West Virginia, Plaintiff Below, Respondent,

v.Henry Jo WARD, Defendant Below, Petitioner.

No. 21-0806

Supreme Court of Appeals of West Virginia.

Submitted: March 21, 2023

Filed: June 9, 2023

Syllabus by the Court

1. " ‘The Supreme Court of Appeals reviews sentencing orders … under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands.’ Syllabus point 1, in part, State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997)." Syllabus Point 1, State v. Byers, 247 W. Va. 168, 875 S.E.2d 306 (2022).

2. "The function of an appellate court when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant’s guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt." Syllabus Point 1, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995).

3. " ‘The action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion.’ Syllabus Point 10, State v. Huffman, 141 W. Va. 55, 57, 87 S.E.2d 541, 544 (1955), overruled on other grounds by State ex rel. R.L. v. Bedell, 192 W. Va. 435, 452 S.E.2d 893 (1994)." Syllabus Point 2, State v. Harris, 230 W. Va. 717, 742 S.E.2d 133 (2013).

4. "Double jeopardy claims are reviewed de novo." Syllabus Point 1, in part, State v. Sears, 196 W. Va. 71, 468 S.E.2d 324 (1996).

5. "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. To the extent that our prior cases are inconsistent, they are expressly overruled." Syllabus Point 3, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995).

6. " ‘The action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion.’ Syllabus Point 10, State v. Huffman, 141 W. Va. 55, 57, 87 S.E.2d 541, 544 (1955), overruled on other grounds by State ex rel. R.L. v. Bedell, 192 W. Va. 435, 452 S.E.2d 893 (1994)." Syllabus Point 2, State v. Harris, 230 W. Va. 717, 742 S.E.2d 133 (2013).

7. "Under the ‘plain error’ doctrine, ‘waiver’ of error must be distinguished from ‘forfeiture’ of a right. A deviation from a rule of law is error unless there is a waiver. When there has been a knowing and intentional relinquishment or abandonment of a known right, there is no error and the inquiry as to the effect of a deviation from the rule of law need not be determined. By contrast, mere forfeiture of a right - the failure to make timely assertion of the right - does not extinguish the error. In such a circumstance, it is necessary to continue the inquiry and to determine whether the error is ‘plain.’ To be ‘plain,’ the error must be ‘clear’ or ‘obvious.’ " Syllabus Point 8, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).

8. "The first inquiry under the ‘plain error rule’ codified in Rule 52(a) of the West Virginia Rules of Criminal Procedure is whether ‘error’ in fact has been committed. Deviation from a rule of law is error unless it is waived. Waiver is the intentional relin- quishment or abandonment of a known right. When there has been such a knowing waiver, there is no error and the inquiry as to the effect of the deviation from a rule of law need not be determined." Syllabus Point 6, State v. Crabtree, 198 W. Va. 620, 482 S.E.2d 605 (1996).

9. "To trigger application of the ‘plain error’ doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings." Syllabus Point 7, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).

10. "The offense of brandishing as defined by West Virginia Code § 61-7-11 is a lesser included offense within the definition of wanton endangerment under West Virginia Code § 61-7-12." Syllabus Point 5, State v. Bell, 211 W. Va. 308, 565 S.E.2d 430 (2002).

11. "Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Syllabus Point 8, State v. Zaccagnini, 172 W. Va. 491, 308 S.E.2d 131 (1983).

12. " ‘ ‘The test of determining whether a particular offense is a lesser included offense is that the lesser offense must be such that it is impossible to commit the greater offense without first having committed the lesser offense. An offense is not a lesser included offense if it requires the inclusion of an element not required in the greater offense.’ Syllabus Point 1, State v. Louk, , 285 S.E.2d 432 (1981) [overruled on other grounds, State v. Jenkins, 191 W. Va. 87, 443 S.E.2d 244 (1994)].’ Syllabus Point 1, State v. Neider, 170 W. Va. 662, 295 S.E.2d 902 (1982)." Syllabus Point 5, State v. Wright, 200 W. Va. 549, 490 S.E.2d 636 (1997).

13. "Under plain error analysis, an error may be ‘plain’ in two contexts. First, an error may be plain under existing law, which means that the plainness of the error is predicated upon legal principles that the litigants and trial court knew or should have known at the time of the prosecution. Second, an error may be plain because of a new legal principle that did not exist at the time of the prosecution, i.e., the error was unclear at the time of trial; however, it becomes plain on appeal because the applicable law has been clarified." Syllabus Point, 6, State v. Myers, 204 W. Va. 449, 513 S.E.2d 676 (1998).

14. "The plain language of Rule 614(b) of the West Virginia Rules of Evidence authorizes trial courts to question witnesses – provided that such questioning is done in an impartial manner so as to not prejudice the parties." Syl. Pt. 3, State v. Farmer, 200 W. Va. 507, 490 S.E.2d 326 (1997).

Appeal from the Circuit Court of Fayette County, The Honorable Paul M. Blake, Jr., Case No. 21-F-150

Troy N. Giatras, Esq., Phillip A. Childs, Esq., The Giatras Law Firm, PLLC, Charleston, West Virginia, Counsel for Petitioner

Lindsay S. See, Esq., Solicitor General, Patrick Morrisey, Esq., Attorney General, R. Todd Goudy, Esq., Assistant Attorney General, Charleston, West Virginia, Attorneys for the Respondent

ARMSTEAD, J.:

Petitioner appeals his convictions, following a jury trial in the Circuit Court of Fayette County, of attempted murder in the second degree, two counts of wanton endangerment, malicious assault on a law enforcement officer, use or presentment of a firearm during the commission of a felony, obstructing an officer, and brandishing a deadly weapon. On appeal, Petitioner asserts that: (1) there was insufficient evidence to support his conviction for malicious assault on a law enforcement officer; (2) the principles of double jeopardy were violated by his convictions for wanton endangerment (involving Deputy Pierson), malicious assault on a law enforcement officer and use or presentment of a firearm during the commission of a felony; and (3) the circuit court abused its discretion by favoring the State throughout his trial.

Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we con- clude that the double jeopardy prohibition was violated in this case with respect to Petitioner’s convictions for brandishing and wanton endangerment involving Deputy Pierson, but we find no merit to his other assignments of error. Based on our holdings, we affirm in part, reverse in part, and remand this case for resentencing consistent with this opinion.

I. FACTUAL AND PROCEDURAL HISTORY

On November 29, 2020, Deputy Coty Pierson (hereinafter "Deputy Pierson") was contacted by his second cousin, Jeffrey Barnhouse, about a stolen trail camera. According to the trial testimony of Deputy Pierson, Mr. Barnhouse’s trail camera captured a picture of the person who stole the camera, and that picture had been sent to Mr. Barnhouse’s cell phone. Deputy Pierson looked at the picture and identified the individual in the picture as Petitioner.¹ Thereafter, Deputy Pierson and Mr. Barnhouse went to Petitioner’s camper to follow up on the stolen trail camera.²

It is undisputed that Deputy Pierson was not on duty at the time he went to Petitioner’s camper. Deputy Pierson testified that he did not wait to follow up on the stolen trail camera until he was on duty again because he was close, and he had concerns that Petitioner would get rid of the evidence. At the time Deputy Pierson arrived at Petitioner’s camper, he was wearing civilian clothes and he was unarmed with no badge and no handcuffs. When Deputy Pierson and Mr. Barnhouse were about forty (40) yards from the camper, Deputy Pierson testified that the camper door swung open, and Petitioner came out and said "how you doing officer – or what are you doing Officer Pierson." At that time, Deputy...