State v. Anderson, No. 18-1129

CourtSupreme Court of West Virginia
Writing for the CourtChief Justice Tim Armstead Justice Margaret L. Workman Justice Elizabeth D. Walker Justice Evan H. Jenkins Justice John A. Hutchison
Decision Date16 June 2020
PartiesState of West Virginia, Plaintiff Below, Respondent v. Burton L. Anderson, Jr., Defendant Below, Petitioner
Docket NumberNo. 18-1129

State of West Virginia, Plaintiff Below, Respondent
Burton L. Anderson, Jr., Defendant Below, Petitioner

No. 18-1129


FILED: June 18, 2020
June 16, 2020

(Ritchie County 17-F-48)


Petitioner Burton L. Anderson, Jr., by counsel David C. Glover, appeals his convictions of one count of malicious assault and one count of attempted first degree murder. Respondent State of West Virginia, by counsel Mary Beth Niday, filed a response. Petitioner filed a reply.

This Court has considered the parties' briefs and the 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 affirming the order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

On March 9, 2016, the victim, Larry "Bubby" Foster, Jr. ("Mr. Foster"), was driving his motorcycle uphill on Mayberry Run Road. At the same time, petitioner was driving his pick-up truck in the opposite direction on the same dirt road. A collision occurred between Mr. Foster's motorcycle and petitioner's truck. During the October 2017 term, the Grand Jury of Ritchie County, West Virginia, returned an indictment against petitioner. The indictment alleged that in March of 2016 petitioner committed malicious assault "by unlawfully, feloniously, intentionally[,] and maliciously causing bodily injury to [Mr. Foster] by driving over [him] with his truck, with the intent to permanently maim, disfigure, disable, or kill [Mr. Foster.]" Additionally, the indictment alleged that in March of 2016 petitioner committed two counts of attempted first degree murder "by unlawfully, feloniously, willfully, maliciously, deliberately, and premeditatedly attempting to kill [Mr. Foster.]"

Prior to trial, on November 15, 2017, petitioner filed two motions. Petitioner's first motion in limine sought to preclude West Virginia State Trooper Corporal Jason Brewer from testifying as an expert witness regarding certain statements in his police report. Petitioner's second motion sought to dismiss count one, malicious assault, of the indictment because Mr. Foster had not sustained serious bodily injury to support the charge.1 The circuit court held a hearing on

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petitioner's motions the same day. The circuit court granted petitioner's motion regarding Corporal Brewer's testimony and ruled that Corporal Brewer could not testify as an expert witness. Next, the circuit court took up petitioner's motion to dismiss the malicious assault count in the indictment. Petitioner, citing to State v. George, 185 W. Va. 539, 408 S.E.2d 291 (1991), argued that the State was required to prove serious bodily injury. In response, the State asserted that petitioner's argument was inconsistent with the statute because it requires only bodily injury. The circuit court did not rule on the motion to dismiss at the hearing, however, subsequently, on the first day of trial, it denied the motion to dismiss.

Furthermore, during the November 15, 2017 pre-trial hearing, the circuit court took up the State's motion to present Rule 404(b) evidence involving a West Virginia Department of Natural Resources ("DNR") investigation and subsequent search at petitioner's residence on November 8, 2015, for evidence of spotlighting deer.2 The circuit court heard testimony from two witnesses: Mr. Foster and DNR Sergeant Dwayne Duffield. Mr. Foster testified to the following. He and petitioner had been friends for approximately ten years. On November 8, 2015, Mr. Foster was at petitioner's residence when it was raided by the DNR. At the time of the raid, Mr. Foster was in petitioner's garage with several other individuals. After the DNR officers seized five deer heads, they questioned Mr. Foster alone regarding deer meat in a tote and deer heads that were found. Petitioner was arrested by the DNR that same evening. After the raid, Mr. Foster observed that throughout the next few months petitioner began acting strangely towards him, and several of his friends advised him that petitioner was calling him a "rat." Sergeant Duffield also testified during the pre-trial hearing to the following. He received a search warrant for petitioner's residence after obtaining information that petitioner allegedly had illegally killed and possessed deer. Sergeant Duffield questioned petitioner on November 8, 2015, and obtained his statement and admission to illegally spotlighting and killing deer. The circuit court found it proper for the State to introduce the Rule 404(b) evidence as to petitioner's motive. Petitioner then argued that the evidence was more prejudicial than probative. However, the circuit court found that the evidence was relevant, part of the res gestae, and that the probative value of the evidence outweighed any prejudice to petitioner. Furthermore, the circuit court noted that the evidence shall be limited to Mr. Foster's knowledge regarding petitioner's arrest and search warrant for the DNR violations. The circuit court ruled that the State may introduce evidence regarding the arrest and investigation of the DNR charges.

A jury trial commenced on November 27, 2017, on all counts of the indictment. On the morning of the first day of trial, petitioner orally moved for a continuance of the trial contending that there was a West Virginia State Police Lab report regarding digital video recording ("DVR") footage3 that had been issued in April of 2016, but that it was not produced to petitioner until the Saturday (two days before) prior to trial via a picture through text message. Counsel for petitioner

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indicated that he had originally believed that the DVR footage for the day in question had been erased; however, the report he received on that Saturday indicated that the DVR system was password protected and it could not be viewed. The State opposed the continuance. Prior to ruling, the circuit court gave petitioner, who knew the password, and the State time to view the DVR footage. After both parties viewed the DVR footage, the State represented to the circuit court that there were no recordings on the DVR from the date of the incident at issue or before; the DVR footage starts the very next day. The parties confirmed that the dates and times of the footage were accurate with a potential twenty minute difference. The State also asserted that the existence of this hard drive had always been known and disclosed to petitioner. Petitioner continued to argue that a continuance was necessary in order for him to have the DVR footage analyzed to try to "pull off" any additional footage. After hearing the additional argument, the circuit court denied the motion because, despite the late disclosure of the report, petitioner was in exactly the same position as he was before receiving the report.4

During the presentation of its case-in-chief, the State presented seven witnesses. First, Justin Simmons, a 911 dispatcher, testified that he took a 911 call on March 9, 2016, regarding the incident at issue. Mr. Simmons indicated that the 911 recording of the three calls regarding this incident was a true and accurate representation. Second, Corporal Brewer testified that he responded to the incident on March 9, 2016, after a 911 call at approximately 4:00 p.m. from Patricia Nutter that Mr. Foster had been hit on his motorcycle on Mayberry Run Road by another neighbor's truck driven by petitioner, in Ritchie County, West Virginia. Pursuant to Corporal Brewer's investigation, he heard that there were two more 911 calls. Shortly after the first 911 call by Mrs. Nutter, Mrs. Anderson, petitioner's wife, called 911 to report that her husband had been hit by Mr. Foster. In order to obtain additional details 911 called Mrs. Anderson back. However, petitioner spoke with the 911 operator at that time. Petitioner indicated that Mr. Foster had been threatening him for the last few months and that he had heard Mr. Foster was out on some property of his. Petitioner was driving down the road when Mr. Foster came "flying through on a dirt bike, couldn't get stopped, [and] slammed into [petitioner's] freaking truck[.]" Corporal Brewer first checked on Mr. Foster's condition at Mrs. Nutter's residence and noticed some markings on Mr. Foster's chest at that time, but did not interview him because Emergency Medical Services had arrived. Corporal Brewer continued his investigation by examining the scene and the vehicles involved, including taking pictures of the road and the vehicles. Then, Corporal Brewer took the recorded statement of petitioner which was published to the jury. In the recorded statement petitioner told Corporal Brewer the following: that he left his driveway to go retrieve some automobile parts; at one point, he looked up and saw a motorcycle "flying at [him] at a high rate of speed"; that he tried to get off the side of the road but the motorcycle slid into him; and Mr. Foster was out of control weaving back and forth across the road.5 Petitioner further stated that,

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during the relevant time, he had a passenger in his truck, Joey, who was messing with the radio.6 Corporal Brewer questioned petitioner as to why he did not slam on his brakes or pull off on the right-hand side of the road; however, petitioner stated that he did not know what to do except try to go to the left. Petitioner told Corporal Brewer that he thought he hit his brakes, but Corporal Brewer did not see any sign of brake marks on the road. After the incident, petitioner saw it was Mr. Foster, yelled profanities at him, and went home to call 911. Petitioner indicated that up until then, he had no idea who was on the motorcycle. Following the publishing of the recorded statement, Corporal Brewer...

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