State v. Berry

• Decision Date: 23 May 2017
• Docket Number: No. 16-0461,16-0461
• Citation: 800 S.E.2d 264
• Parties: STATE of West Virginia, Plaintiff Below, Respondent v. Jerry E. BERRY, Defendant Below, Petitioner
• Court: West Virginia Supreme Court

800 S.E.2d 264

STATE of West Virginia, Plaintiff Below, Respondent

v.Jerry E. BERRY, Defendant Below, Petitioner

No. 16-0461

Supreme Court of Appeals of West Virginia.

Submitted: May 2, 2017

Filed: May 23, 2017

Scott E. Johnson, Esq., Appellate Counsel, Public Defender Services, Charleston, West Virginia, Attorney for Petitioner

Patrick Morrisey, Esq., Attorney General, Zachary A. Viglianco, Esq., Assistant Attorney General, Gordon L. Mowen, II, Esq., Assistant Attorney General, Charleston, West Virginia, Attorneys for Respondent

LOUGHRY, Chief Justice:

The petitioner, Jerry E. Berry, appeals from the April 15, 2016, final order of the Circuit Court of Summers County sentencing him to one to ten years imprisonment upon his jury conviction of one count of the felony offense of embezzlement.¹ In this appeal, the petitioner contends the circuit court erred by not granting his motions for judgment of acquittal because the State failed to present sufficient evidence at trial to support his conviction. The petitioner also argues the circuit court erred by not granting his motion for a mistrial after the prosecuting attorney made improper remarks during the closing argument phase of his trial. Upon consideration of the parties' briefs and oral arguments, the submitted appendix record, and the pertinent authorities, we find no error. Accordingly, we affirm.

I. Factual and Procedural Background

The petitioner was elected to the Summers County Commission in November 2000, and served as a commissioner until 2012. During his tenure on the Commission, the petitioner was a member of the board of directors of the regional convention and visitor's bureau, which does business as Visit Southern West Virginia (hereinafter "Visit WV").² He also became president of the local convention and visitor's bureau in Summers County known as Three Rivers Travel Council (hereinafter "TRTC").³ A convention and visitor's bureau is a "nonstock, nonprofit corporation with a full-time staff working exclusively to promote tourism and to attract conventions, conferences and visitors to the municipality, county or region in which such convention and visitor's bureau ... is located or engaged in business within." W.Va. Code § 7-18-14(d)(1) (2015). Convention and visitor's bureaus are funded through the collection of a hotel occupancy tax imposed by the governing bodies of municipalities and counties. W.Va. Code § 7-18-1.

In 2015, a Summers County grand jury returned an indictment, charging that the petitioner "did feloniously embezzle, fraudulently convert to his own use and steal ... money ... belonging to the Commission of Summers County, to-wit taking and converting $41,699.05 ... by virtue of his employment at Three Rivers Travel Council[.]" The petitioner's trial occurred on January 20 and 21, 2016. The State's witnesses included Arnold Douglas Maddy, the president of Visit WV. He testified that sometime in late 2009 or early 2010, the Summers County Commission entered into an arrangement with Visit WV to manage the hotel occupancy tax funds that were being distributed to TRTC.⁴ Explaining further, Mr. Maddy stated,

The [Summers County] convention and visitors bureau [TRTC] had financial difficulties. And we were getting, in my office, a lot of phone calls from vendors that they did business with, trying to collect outstanding bills. And so we entered into an arrangement with the County Commission that we would—if they would give us the entirety of the hotel/motel tax, we would take the 35 percent that was to go to the local CVB, pay their bills with them. There's no fee involved. We'd just manage their money for them, pay off all their bills. And then, of course, we would take our 15 percent and put it into our marketing effort. And we did that until all those bills were paid. And I believe it was in January 2010.⁵ (footnote added)

According to Mr. Maddy, after Visit WV paid the debts of TRTC, he informed the Summers County Commission that Visit WV wished to end their arrangement and Visit WV would be returning the remaining funds that belonged to TRTC. On January 29, 2011, Mr. Maddy wrote a check for $41,699.05 made payable to "Three Rivers Travel Council," which was the balance of the hotel occupancy tax that the Summers County Commission had allocated to Visit WV to pay the debts of TRTC.

During Mr. Maddy's testimony, the State submitted into evidence a letter he wrote to Commissioner Lightner on behalf of Visit WV dated May 27, 2011. The letter stated, in pertinent part:

Our Board of Directors advised us that once the debt for the Three Rivers Travel Council was paid off that we would no longer be able to perform any accounting or payroll services. Our records indicate the debt was paid off at the end of July 2010. We also gave Commissioner Berry a check payable to Three Rivers Travel Council for $41,699.05 on January 29, 2011 to zero out the Summers County account. Our understanding was a new CVB was to be organized.⁶ (footnote added)

It is undisputed that the $41,699.05 check was deposited into a bank account in the name of "Timothy Jordan Berry d/b/a Three Rivers Travel Council." Timothy Jordan Berry is the petitioner's son.⁷

The State's expert witness, Lawrence Ickes, a forensic accountant, testified the bank records showed that the day after the check was deposited into the Timothy Jordan Berry account, $10,600.00 was withdrawn using a counter withdrawal slip made out to cash. Thereafter, numerous checks were written against the account, most of them were for "round, even amounts" and made out to cash. In addition, several internal bank transfers were made to another personal bank account of the petitioner's son and $15,000.00 was paid to closely-held corporations operated by the petitioner and his son.

Mr. Ickes further testified that two checks totaling $6,850.00 from BGN⁸ Convention and Visitor's Bureau (hereinafter "BGN") were deposited into the account in August 2011. BGN was the third Summers County convention and visitor's bureau that was incorporated with the Secretary of State's office.⁹ According to Mr. Ickes, by the end of September 2011, the account was almost depleted with a balance of only $247.00.

Testifying in his own defense, the petitioner acknowledged that the $41,699.05 check was deposited into his son's personal bank account. However, the petitioner characterized his son's account as a "stopgap" measure, explaining that TRTC could not maintain its own bank account because it had lost its corporate status. The petitioner testified that he withdrew the money and used it to promote Summers County and the surrounding region. He stated that he went to various travel shows in other states where he paid "students or young people" $100 each, in cash, to hand out brochures promoting tourism in Summers County and the surrounding area. He explained that by the time he received the money from Visit WV, the season of tourism marketing was well underway, and he was unable to obtain space at these travel shows to set up his own booth. The petitioner also testified that he used the money to have brochures printed and for wages for his son, whom he employed to set up web pages for online promotion of Summers County and southern West Virginia because travel marketing was progressing in a digital direction. With regard to why he was unable to produce receipts to show how the money was spent, the petitioner testified he had an office at Concord University in Beckley, West Virginia, and that at some unspecified time, college personnel decided to re-purpose the space, which resulted in the destruction of his records.¹⁰

To support his testimony regarding his attendance at travel shows, the petitioner's ex-girlfriend testified on his behalf. She stated that she had accompanied the petitioner to some of the travel shows and observed him promoting Summers County by having students distribute tourism brochures. She was unable to say, however, how many travel shows she attended with the petitioner; nor could she recall exactly when the trips occurred.

After the parties gave their closing arguments, the petitioner moved for a mistrial, claiming the prosecuting attorney had made improper remarks during his rebuttal argument that constituted an impermissible shifting of the burden of proof. The trial court denied the motion. Thereafter, the jury returned a guilty verdict. On April 15, 2016, the circuit court entered its sentencing order confining the petitioner for an indeterminate prison term of not less than one nor more than ten years. This appeal followed.

II. Standard of Review

As set forth above, the petitioner contends that the circuit court should have granted his motions for judgment of acquittal made at the close of the State's evidence and at the end of his trial because the State failed to present sufficient evidence to support a conviction. "The Court applies a de novo standard of review to the denial of a motion for judgment of acquittal based upon the sufficiency of the evidence." State v. Juntilla , 227 W.Va. 492, 497, 711 S.E.2d 562, 567 (2011) (citing State v. LaRock , 196 W.Va. 294, 304, 470 S.E.2d 613, 623 (1996) ). In addition,

" ‘[u]pon motion [for judgment of acquittal], the evidence is to be viewed in the light most favorable to [the] prosecution. It is not necessary in appraising its sufficiency that the trial court or reviewing court be convinced beyond a reasonable doubt of the guilt of the defendant; the question is whether there is substantial evidence upon which a jury might justifiably find the defendant guilty beyond a reasonable doubt.’State v. West , 153 W.Va. 325, (1969)." Syl. Pt. 1, State v. Fischer , 158 W.Va. 72, 211 S.E.2d 666 (1974).

Syl. Pt. 5, State v. Grimes , 226 W.Va. 411, 701 S.E.2d 449 (2009). Explaining further, we have stated:

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

...