State v. Broughton

• Decision Date: 08 April 1996
• Docket Number: No. 22944,22944
• Citation: 196 W.Va. 281,470 S.E.2d 413
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Wayne A. BROUGHTON, Defendant Below, Appellant.

Page 413

470 S.E.2d 413

196 W.Va. 281

STATE of West Virginia, Plaintiff Below, Appellee, v. Wayne A. BROUGHTON, Defendant Below, Appellant.

No. 22944.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 17, 1996.

Decided April 8, 1996.

Syllabus by the Court

1. " 'Rulings on the admissibility of evidence are largely within a trial court's sound discretion and should not be disturbed unless there has been an abuse of discretion.' State v. Louk, 171 W.Va. 639, [643,] 301 S.E.2d 596, 599 (1983)." Syl. Pt. 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983).

2. " ' " 'Upon motion to direct a verdict for the defendant, the evidence is to be viewed in light most favorable to 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, 168 S.E.2d 716 (1969)." Syl. pt. 1, State v. Fischer, 158 W.Va. 72, 211 S.E.2d 666 (1974).' Syllabus Point 10, State v. Davis, 176 W.Va. 454, 345 S.E.2d 549 (1986)." Syl. Pt. 1, State v. Stevens, 190 W.Va. 77, 436 S.E.2d 312 (1993).

3. "In order for the State to prove a conspiracy under W.Va. Code, 61-10-31(1), it must show that the defendant agreed with others to commit an offense against the State and that some overt act was taken by a member of the conspiracy to effect the object of that conspiracy." Syl. Pt. 4, State v. Less, 170 W.Va. 259, 294 S.E.2d 62 (1981).

4. "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." Syl. Pt. 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

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." Syl. Pt. 3, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

6. "The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution consists of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." Syl. Pt. 1, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).

7. "The Double Jeopardy Clause in Article III, Section 5 of the West Virginia Constitution, provides immunity from further prosecution where a court having jurisdiction has acquitted the accused. It protects against a second prosecution for the same offense after conviction. It also prohibits multiple punishments for the same offense." Syl. Pt. 1, Conner v. Griffith, 160 W.Va. 680, 238 S.E.2d 529 (1977).

8. "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 an additional fact which the other does not." Syl. Pt. 8, State v. Zaccagnini, 172 W.Va. 491, 308 S.E.2d 131 (1983).

9. "A claim that double jeopardy has been violated based on multiple punishments imposed after a single trial is resolved by determining the legislative intent as to punishment." Syl. Pt. 7, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).

10. "In ascertaining legislative intent, a court should look initially at the language of the involved statutes and, if necessary, the legislative history to determine if the legislature has made a clear expression of its intention to aggregate sentences for related crimes. If no such clear legislative intent can be discerned, then the court should analyze the statutes under the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to determine whether each offense requires an element of proof the other does not. If there is an element of proof that is different, then the presumption is that the legislature intended to create separate offenses." Syl. Pt. 8, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).

11. "Prior to imposition of a sentence of incarceration for a defendant convicted of delivery of less than 15 grams of marihuana in violation of W.Va. Code, 60A-4-401(a), as amended, who, although not within the 'without renumeration' exception of W.Va. Code, 60A-4-402(c), as amended, has no prior criminal record, a trial court must consider: (1) whether the defendant has a history of involvement with illegal drugs; (2) whether the defendant is a reasonably good prospect for rehabilitation; (3) whether incarceration would serve a useful purpose; and (4) whether available alternatives to incarceration, such as probation conditioned upon community service, would be more appropriate." Syl Pt. 6, State v. Nicastro, 181 W.Va. 556, 383 S.E.2d 521 (1989).

12. "Sentences imposed by the trial court, if within statutory limits and if not based on some [im]permissible factor, are not subject to appellate review." Syl. Pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).

13. Where a first-time offender who otherwise falls within the purview of State v. Nicastro, 181 W.Va. 556, 383 S.E.2d 521 (1989), is simultaneously convicted of a marijuana violation and a more serious offense, failure to consider the factors outlined in Nicastro is not reversible error. In such instance, the offender can no longer be deemed a small-time offender engaged in only a negligible amount of marijuana delivery, and the rationale underlying the implementation of the Nicastro factors is no longer germane. Thus, a determination regarding the appropriateness of examination of those factors is within the sound discretion of the lower court.

14. "Article III, Section 5 of the West Virginia Constitution, which contains the cruel and unusual punishment counterpart to the Eighth Amendment of the United States Constitution, has an express statement of the proportionality principle: 'Penalties shall be proportioned to the character and degree of the offence.' " Syl. Pt. 8, State v. Vance, 164 W.Va. 216, 262 S.E.2d 423 (1980).

15. "Punishment may be constitutionally impermissible, although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity, thereby violating West Virginia Constitution, Article III, Section 5 that prohibits a penalty that is not proportionate to the character and degree of an offense." Syl. Pt. 5, State v. Cooper, 172 W.Va. 266, 304 S.E.2d 851 (1983).

16. "Disparate sentences for codefendants are not per se unconstitutional. Courts consider many factors such as each codefendant's respective involvement in the criminal transaction (including who was the prime mover), prior records, rehabilitative potential (including post-arrest conduct, age and maturity), and lack of remorse. If codefendants are similarly situated, some courts will reverse on disparity of sentence alone." Syl. Pt. 2, State v. Buck, 173 W.Va. 243, 314 S.E.2d 406 (1984).

Silas B. Taylor, Managing Deputy Attorney General, Noel P. Brock and Audy M. Perry, Jr., Assistant Attorneys General, for the State.

Richard G. Gay, Law Office of Richard G. Gay, L.C., Berkeley Springs, for Appellant.

WORKMAN, Justice.

This is an appeal by Wayne Broughton (hereinafter "Appellant") from a July 11, 1994, order of the Circuit Court of Jefferson County sentencing him to consecutive sentences of one to fifteen years for delivery of cocaine, one to fifteen years for delivery of marijuana, and one to five years for conspiracy to deliver marijuana. The Appellant contends that the lower court committed several errors which justify reversal of the final order. We affirm the decision of the lower court, except to the extent that the one to fifteen year sentence for delivery of marijuana was statutorily improper. This matter will therefore be remanded for the correction of that sentencing error.

I.

Police officers monitoring an apartment ¹ in Ranson, West Virginia, on May 14, 1993, observed Mr. Robert W. Kaetzel, Jr., enter an apartment leased to Ms. Catherine Lohmeyer and thereafter exit that apartment. Mr. Kaetzel was approached by the police officers, and marijuana and cocaine were discovered in his possession. In exchange for cooperation in the investigation of the apartment, Mr. Kaetzel was not charged with possession of marijuana or cocaine. After wiring him, Ranson police officers provided Mr. Kaetzel with marked money and sent him back into the apartment at 10:45 p.m. to consummate a drug purchase. He returned at 10:50 p.m. with 5.76 grams of marijuana and .10 grams of crack cocaine. He explained to the...