State v. Chic-Colbert, No. 12–1121.

CourtSupreme Court of West Virginia
Writing for the CourtPER CURIAM:
Citation749 S.E.2d 642,231 W.Va. 749
PartiesSTATE of West Virginia, Plaintiff Below, Respondent v. Ethan CHIC–COLBERT, Defendant Below, Petitioner.
Decision Date07 October 2013
Docket NumberNo. 12–1121.

231 W.Va. 749
749 S.E.2d 642

STATE of West Virginia, Plaintiff Below, Respondent
v.
Ethan CHIC–COLBERT, Defendant Below, Petitioner.

No. 12–1121.

Supreme Court of Appeals of
West Virginia.

Submitted Sept. 4, 2013.
Decided Oct. 7, 2013.


[749 S.E.2d 644]



Syllabus by the Court

1. “ ‘Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.’ Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).” Syl. Pt. 1, State v. Paynter, 206 W.Va. 521, 526 S.E.2d 43 (1999).

2. “Generally, the sufficiency of an indictment is reviewed de novo. An indictment need only meet minimal constitutional standards, and the sufficiency of an indictment is determined by practical rather than technical considerations.” Syl. Pt. 2, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996).

3. “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).

4. “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).

5. “ ‘ “An indictment is sufficient under Article III, § 14 of the West Virginia Constitution and W.Va. R.Crim. P. 7(c)(1) if it (1) states the elements of the offense charged; (2) puts a defendant on fair notice of the charge against which he or she must defend; and (3) enables a defendant to assert an

[749 S.E.2d 645]

acquittal or conviction in order to prevent being placed twice in jeopardy.” Syl. Pt. 6, State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999).’ Syl. Pt. 5, State v. Haines, 221 W.Va. 235, 654 S.E.2d 359 (2007).” Syl. Pt. 4, Ballard v. Dilworth, 230 W.Va. 449, 739 S.E.2d 643 (2013).

6. “Rule 12(b)(2) of the West Virginia Rules of Criminal Procedure requires that a defendant must raise any objection to an indictment prior to trial. Although a challenge to a defective indictment is never waived, this Court literally will construe an indictment in favor of validity where a defendant fails timely to challenge its sufficiency. Without objection, the indictment should be upheld unless it is so defective that it does not, by any reasonable construction, charge an offense under West Virginia law or for which the defendant was convicted.” Syl. Pt. 1, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996).

7. “ ‘An indictment for a statutory offense is sufficient if, in charging the offense, it substantially follows the language of the statute, fully informs the accused of the particular offense with which he is charged and enables the court to determine the statute on which the charge is based.’ Syl. Pt. 3, State v. Hall, 172 W.Va. 138, 304 S.E.2d 43 (1983).” Syl. Pt. 1, State v. Mullins, 181 W.Va. 415, 383 S.E.2d 47 (1989).


Woody Hill, Esq., Kelli Hill, Esq., Charleston, WV, Attorneys for Petitioner.

Patrick Morrisey, Esq., Attorney General, Scott E. Johnson, Esq., Senior Assistant Attorney General, Charleston, WV, Attorneys for Respondent.


PER CURIAM:

The petitioner and the defendant below, Ethan Chic–Colbert, appeals the August 16, 2012, order of the Circuit Court of Kanawha County sentencing him to three to fifteen years in the West Virginia Penitentiary for his conviction of one count of child neglect resulting in death and two terms of one to five years for his conviction of two counts of gross child neglect creating a substantial risk of serious bodily injury or of death. All sentences were ordered to be served consecutively, followed by twenty-five years of supervised release. 1 In this appeal, the petitioner contends that alleged errors in the indictment resulted in an illegal sentence being imposed upon him for child neglect resulting in death. The petitioner also asserts that the evidence at trial was insufficient to convict him of child neglect creating a substantial risk of bodily injury. Upon our consideration of the record in this matter, the briefs and arguments of the parties, the applicable legal authority, and for the reasons discussed below, we affirm the petitioner's convictions.

I. Factual and Procedural Background

The petitioner's convictions arise out of events that occurred around midnight on the evening of March 4, 2012. At that time, the petitioner, his two-year-old son,2 Ethan C. (“Little Ethan”), Little Ethan's mother, Lynitrah Woodson, along with Ms. Woodson's eleven-year-old son from another relationship, Jahlil C., and two of Jahlil's friends, Tyrel C. and Andrew P., ages twelve and eleven, respectively, were all traveling in a car being driven by Ms. Woodson.3 The petitioner was in the front passenger seat and all four minor children were in the backseat. The group was returning from an evening spent at a local amusement center.

Ms. Woodson, Andrew P., and Tyrel C. each testified at trial that as the group was traveling on Interstate 77 South in Charleston, West Virginia, the petitioner began

[749 S.E.2d 646]

striking Ms. Woodson multiple times with his fists. 4 Andrew P. testified that the petitioner suddenly “took his fist and hit her right in the jaw” as she was driving; that he “just kept hitting her and kept hitting her, and then she told him, ‘Please don't do it in front of the kids.’ And he just didn't quit.” Both Andrew P. and Tyler C. testified that Ms. Woodson had tried to pull over to stop and put the car in park, but the car rolled backwards; the rear of the car struck the Interstate median wall and essentially blocked a lane of travel. Both Andrew and Tyler testified that Jahlil hit the petitioner in an effort to protect his mother, and that they tried to help Jahlil in that effort, but to no effect. Both described how the petitioner then dragged Ms. Woodson from the vehicle by her hair, through the passenger side front door and onto the roadway where he continued to punch, kick, and “stomp” her.5 The boys further testified that Jahlil ran into the lanes of travel on the Interstate where he tried to flag somebody down to get help. Tyrel testified that there was a lot of traffic; that the roadway was dark; and that he was afraid that Jahlil was going to get struck by a passing motorist.

Meanwhile, two interstate travelers who came upon the scene that night, Mary Crist and Marcie Ball, testified that they saw a car drifting backwards across the lanes of travel on the Interstate until it struck the median wall. They pulled over because they believed the car had been in an accident. Upon exiting their vehicle, they saw the petitioner straddling Ms. Woodson and beating her with his fists.6 They heard Ms. Woodson screaming at the petitioner to “stop.” Other than the petitioner's testimony, there was no evidence that Ms. Woodson had a weapon or that she struck the petitioner at any time during the course of the events herein described.

As Ms. Crist and Ms. Ball were returning to their vehicle to call for help, they saw Jahlil waving for help in the Interstate roadway and then get struck by a passing motorist.7 Ms. Crist testified that as she was screaming that the boy had been hit, the petitioner got off of Ms. Woodson, kicked her one last time, looked “towards the little boy [Jahlil],” and then “took off running” directly past her and Ms. Ball, over top the guardrail, down a ravine, and up a fence. Ms. Ball testified that she ran to the little boy and “held his little hand” and “got him to look at me, and then he opened his eyes” and then he “closed his little eyes.” Jahlil later died of his injuries at a local hospital. Ms. Crist further testified that Andrew and Tyrel soon came running up to them, yelling for help and crying. She stated that as she was calling 911, she was trying to keep the other boys out of the lanes of travel on the Interstate while also trying to keep traffic from striking Ms. Ball. The women tried to hold and comfort Ms. Woodson, as well.

On May 18, 2012, the grand jury returned a seven-count indictment against the petitioner charging him with the kidnapping of Ms. Woodson (Count One); domestic battery of Ms. Woodson (Count Two); and felony murder for the death of Jahlil arising out of the kidnapping of Ms. Woodson (Count Three). In Count Four of the indictment, the petitioner was charged with child neglect causing Jahlil's death, as follows:

And the Grand Jurors aforesaid, upon their oaths aforesaid, do further present that ETHAN SAMUEL CHIC–COLBERT, being the parent, guardian and custodian of Jahlil [C.], a child, on the ____ day of March, 2012, and prior to the date of the finding of this Indictment, in the

[749 S.E.2d 647]

said County of Kanawha, did unlawfully and feloniously neglect Jahlil [C.], and by such neglect, caused the death of the said Jahlil...

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10 practice notes
  • Lawyer Disciplinary Bd. v. Thompson, No. 16–0003
    • United States
    • Supreme Court of West Virginia
    • April 10, 2017
    ...S.W., 233 W.Va. 91, 755 S.E.2d 8 (2014) ; State v. Skupnick, No. 13-0746, 2014 WL 2463002 (W. Va. June 2, 2014) ; State v. Chic–Colbert, 231 W.Va. 749, 749 S.E.2d 642 (2013) ; State v. Meadows, 231 W.Va. 10, 743 S.E.2d 318 (2013) ; State v. Linger, No. 11-1686, 2013 WL 1501422 (W. Va. April......
  • State v. Jerrome, No. 13–0713.
    • United States
    • Supreme Court of West Virginia
    • May 8, 2014
    ...of review.” Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). Accord Syl pt. 1, State v. Chic–Colbert, 231 W.Va. 749, 749 S.E.2d 642 (2013) (per curiam). We begin by noting that Ms. Jerrome was indicted on a charge of grand larceny under W. Va.Code § 61–3–13(a......
  • State v. Erin S. T., No. 15-1195
    • United States
    • Supreme Court of West Virginia
    • November 18, 2016
    ...technical considerations.' Syl. Pt. 2, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996)." Syl. Pt. 2, State v. Chic-Colbert, 231 W. Va. 749, 749 S.E.2d 642 (2013). Furthermore,[a]n indictment is sufficient under Article III, § 14 of the West Virginia Constitution and W. Va. R.Crim......
  • State v. Timothy C., No. 15–0211
    • United States
    • Supreme Court of West Virginia
    • June 3, 2016
    ...A.O. into her home, “acceptance of supervisory responsibility can come in words, actions, and course of conduct.” State v. Chic–Colbert , 231 W.Va. 749, 762, 749 S.E.2d 642, 655 (2013). Through his actions, the petitioner assumed “temporary physical control”40 of A.O. at a time when she was......
  • Request a trial to view additional results
10 cases
  • Lawyer Disciplinary Bd. v. Thompson, No. 16–0003
    • United States
    • Supreme Court of West Virginia
    • April 10, 2017
    ...S.W., 233 W.Va. 91, 755 S.E.2d 8 (2014) ; State v. Skupnick, No. 13-0746, 2014 WL 2463002 (W. Va. June 2, 2014) ; State v. Chic–Colbert, 231 W.Va. 749, 749 S.E.2d 642 (2013) ; State v. Meadows, 231 W.Va. 10, 743 S.E.2d 318 (2013) ; State v. Linger, No. 11-1686, 2013 WL 1501422 (W. Va. April......
  • State v. Jerrome, No. 13–0713.
    • United States
    • Supreme Court of West Virginia
    • May 8, 2014
    ...of review.” Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). Accord Syl pt. 1, State v. Chic–Colbert, 231 W.Va. 749, 749 S.E.2d 642 (2013) (per curiam). We begin by noting that Ms. Jerrome was indicted on a charge of grand larceny under W. Va.Code § 61–3–13(a......
  • State v. Erin S. T., No. 15-1195
    • United States
    • Supreme Court of West Virginia
    • November 18, 2016
    ...than technical considerations.' Syl. Pt. 2, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996)." Syl. Pt. 2, State v. Chic-Colbert, 231 W. Va. 749, 749 S.E.2d 642 (2013). Furthermore,[a]n indictment is sufficient under Article III, § 14 of the West Virginia Constitution and W. Va. R.Crim......
  • State v. Timothy C., No. 15–0211
    • United States
    • Supreme Court of West Virginia
    • June 3, 2016
    ...A.O. into her home, “acceptance of supervisory responsibility can come in words, actions, and course of conduct.” State v. Chic–Colbert , 231 W.Va. 749, 762, 749 S.E.2d 642, 655 (2013). Through his actions, the petitioner assumed “temporary physical control”40 of A.O. at a time when she was......
  • Request a trial to view additional results

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