State v. Corra

• Decision Date: 27 February 2009
• Docket Number: No. 33911.,33911.
• Citation: 678 S.E.2d 306
• Parties: STATE of West Virginia, Appellee, v. Jeff CORRA, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

678 S.E.2d 306

STATE of West Virginia, Appellee, v. Jeff CORRA, Defendant Below, Appellant.

No. 33911.

Supreme Court of Appeals of West Virginia.

Submitted January 14, 2009.

Decided February 27, 2009.

Syllabus by the Court

1. No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.

2. "To the extent that State v. McGraw, 140 W.Va. 547, 85 S.E.2d 849 (1955), stands for the proposition that `any' change to an indictment, whether it be form or substance, requires resubmission to the grand jury for its approval, it is hereby expressly modified. An indictment may be amended by the circuit court, provided the amendment is not substantial, is sufficiently definite and certain, does not take the defendant by surprise, and any evidence the defendant had before the amendment is equally available after the amendment." Syllabus Point 2, State v. Adams, 193 W.Va. 277, 456 S.E.2d 4 (1995).

3. "A conviction based upon evidence that varies materially from the charge contained in the indictment cannot stand and must be reversed." Syllabus Point 3, State v. Nicholson, 162 W.Va. 750, 252 S.E.2d 894 (1979), overruled on other grounds by State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980).

4. "An instruction which informs the jury that it can return a verdict of guilty of a crime charged in the indictment by finding that the defendant committed acts constituting a crime not charged in the indictment is reversible error." Syllabus Point 1, State v. Blankenship, 198 W.Va. 290, 480 S.E.2d 178 (1996).

5. "Any substantial amendment, direct or indirect, of an indictment must be resubmitted to the grand jury. An `amendment of form' which does not require resubmission of an indictment to the grand jury occurs when the defendant is not misled in any sense, is not subjected to any added burden of proof, and is not otherwise prejudiced." Syllabus Point 3, State v. Adams, 193 W.Va. 277, 456 S.E.2d 4 (1995).

6. "If the proof adduced at trial differs from the allegations in an indictment, it must be determined whether the difference is a variance or an actual or a constructive amendment to the indictment. If the defendant is not misled in any sense, is not subjected to any added burden of proof, and is not otherwise prejudiced, then the difference between the proof adduced at trial and the indictment is a variance which does not usurp the traditional safeguards of the grand jury. However, if the defendant is misled, is subjected to an added burden of proof, or is otherwise prejudiced, the difference between the proof at trial and the indictment is an actual or a constructive amendment of the indictment which is reversible error." Syllabus Point 3, State v. Johnson, 197 W.Va. 575, 476 S.E.2d 522 (1996).

7. When a defendant is charged with a crime in an indictment, but the State convicts the defendant of a charge not included in the indictment, then per se error has occurred and the conviction cannot stand and must be reversed.

James M. Cagle, Esq., Charleston, for Appellant.

Ginny Conley, Prosecuting Attorney, Sean D. Francisco, Assistant Prosecuting Attorney, Parkersburg, for Appellee.

KETCHUM, Justice:¹

In this appeal from the Circuit Court of Wood County, defendant Jeff Corra was indicted and convicted of knowingly furnishing "alcoholic liquors" to persons under the age of 21 years in violation of W.Va.Code, 60-3-22a(b) [1986]. At trial, the State introduced evidence that the defendant furnished Coors Light beer to persons under the age of 21 years, and asserted that the furnishing of Coors Light was sufficient to convict the defendant of furnishing "alcoholic liquors" as alleged in the indictment. In addition, the circuit court instructed the jury that the defendant could be found guilty if he furnished "beer" to persons under the age of 21 years.

On appeal, the defendant argues that Coors Light is defined by statute as a "nonintoxicating beer" and that the indictment charging a crime under W.Va.Code, 60-3-22a(b) requires that "alcoholic liquor" be furnished before he could be convicted of violating this statute. Essentially, the defendant asserts that the indictment charged him with the crime of "furnishing alcoholic liquors," but the State convicted him of committing the different crime of "furnishing nonintoxicating beer."

As set forth below, we reverse the defendant's conviction.

I. Facts and Background

At the time of the alleged crime, the defendant, Jeff Corra, was a 50-year-old resident of Wood County and a divorced father of a 20-year-old daughter, Ashley. On the night of August 5, 2006, Ashley invited a number of her friends to her father's home. All of her guests were under the age of 21 years.

While Ashley socialized with her friends inside the defendant's home, the defendant, at times, tended to a brushfire in an area behind his house. Because the defendant was tending to the fire, he was not constantly in the home with Ashley and her guests.

Several of Ashley's friends admitted buying and bringing beer (Budweiser) and alcoholic liquor (Jagermeister) to the appellant's house, and consuming it on the premises. The State does not contend that the defendant furnished Budweiser or Jagermeister to the persons at the party. However, some of Ashley's friends drank Coors Light beer which the defendant had previously purchased and placed in his refrigerator. Although the defendant did not give Coors Light to anyone at the party, there was testimony that the defendant knew, but did nothing to stop his daughter's friends from taking his Coors Light from the refrigerator and drinking it.

In the early morning hours of August 6, 2006, four individuals under the age of 21 left the defendant's residence together in a vehicle. The vehicle—driven by 20-year-old Courtney McDonough—left the roadway and collided with a tree. Two occupants were killed and a third was seriously injured.²

As a result of the investigation surrounding the car accident, the defendant was indicted on September 15, 2006 on nine counts of violating W.Va.Code, 60-3-22a(b) [1986]³, which prohibits knowingly furnishing "alcoholic liquors" to persons unrelated to the defendant who are under the age of 21.⁴ At trial, the circuit court instructed the jury that the defendant could be convicted under this indictment if he knowingly and intentionally furnished "beer" to a person under the age of 21 who was not related to the defendant by blood or marriage. A jury convicted the defendant on four of the nine counts.

During the trial the defendant neither moved to dismiss the indictment nor moved for a judgment of acquittal on the ground that the proof offered at trial permitted the jury to convict him of a different crime (furnishing nonintoxicating beer) than that for which he was indicted (furnishing alcoholic liquor). Instead, the defendant asserted for the first time in a motion for acquittal after trial that nonintoxicating beer is not included in the definition of alcoholic liquor. However, this motion did not assert that he was convicted of a crime not charged in the indictment or that there was insufficient evidence to prove that he furnished alcoholic liquor to persons under the age of 21 years.

In an order dated August 30, 2007, the circuit court denied the motion and sentenced the defendant to ten days incarceration for each of the four counts which were to be served consecutively and fined him $400.00.

The defendant now appeals his conviction.

II. Standard of Review

The essence of the defendant's argument on appeal contains two parts. The defendant argues that the State failed to introduce evidence sufficient to show that he furnished "alcoholic liquors" to his daughter's under-aged guests as charged in the indictment. The defendant argues that, instead, the State's evidence, along with the circuit court's instructions, amended the indictment in violation of the West Virginia Constitution and permitted the defendant to be convicted of an entirely different offense—furnishing "nonintoxicating beer."

When a defendant raises a sufficiency of the evidence argument, we follow the standard of review set forth in Syllabus Point 3 of State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995):

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.

However, because this case implicates the West Virginia Constitution, our review of the issue raised in this case is plenary. See Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995) ("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."). In accord, Phillip Leon M. v. Greenbrier County Bd. of Educ., 199 W.Va. 400, 404, 484 S.E.2d 909, 913 (1996) (observing that "interpretations of the West Virginia Constitution, along with interpretations of statutes and rules, are primarily questions of law"). In addition, we have recognized that de novo review is...