State v. D.K.

• Decision Date: 23 February 2018
• Docket Number: No. 17-0154,17-0154
• Court: West Virginia Supreme Court
• Parties: State of West Virginia, Plaintiff Below, Respondent v. D.K., Defendant Below, Petitioner

State of West Virginia, Plaintiff Below, Respondent v. D.K., Defendant Below, Petitioner

No. 17-0154

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

February 23, 2018

(Greenbrier County 16-JD-23(B))

MEMORANDUM DECISION

Petitioner D.K., by counsel Eric M. Francis, appeals the Circuit Court of Greenbrier County's January 23, 2017, order denying his motions to set aside the jury verdict and for a new trial.¹ Respondent State of West Virginia, by counsel Shannon Frederick Kiser, filed a response. Petitioner filed a reply. On appeal, petitioner contends that the circuit court erred in giving a jury instruction on principals and accessories and in failing to give a limiting instruction following certain testimony.

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 circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

On October 13, 2016, petitioner, a juvenile, and others rode with Brandon Robinson, an adult, to Walmart. Following their shopping, Mr. Robinson wanted to return home to Rupert, West Virginia, but his passengers wanted to go to Alderson, West Virginia. Mr. Robinson was low on gas, but his passengers told him that if he drove them to Alderson, they would get him gas so that he could drive home. After arriving in Alderson, petitioner left the vehicle while Mr. Robinson remained inside. Petitioner returned and put gas into Mr. Robinson's car. Surveillance cameras located on Richard Fox's property recorded petitioner and another unidentified male at a vehicle owned by Mr. Fox, which was later discovered to have a punctured gas tank. As a result, on October 27, 2016, Chief J.M. Bennett of the Alderson Police Department filed a petitioninitiating juvenile proceedings against petitioner and charging him with petit larceny and destruction of property. Mr. Robinson was charged with conspiracy.

On December 28, 2016, Mr. Robinson entered into a deferral agreement with the State. This agreement provided that Mr. Robinson's conspiracy charge would be dismissed in exchange for his testimony against petitioner in petitioner's juvenile proceedings.

On January 3, 2017, petitioner's trial began. Among other evidence, the jury reviewed the surveillance footage captured by Mr. Fox's cameras. The footage shows two individuals on Mr. Fox's property at the vehicle from which the gas was stolen, and Mr. Robinson also testified to the unidentified male who joined petitioner "[a]t some point in time." Once the case was submitted to the jury, it asked the following question: "[I]f there is no proof of who punctured the gas tank or [de]struction of property, [but] we know it was done[,] is [petitioner] guilty even if by association or innocent because the other guy may have done the puncture?" In response to this question, the circuit court provided an additional instruction:

The [c]ourt instructs you as the jury that a princip[al] in the second degree is one who is present aiding and abetting the princip[al] in the commission of an offense. If the jury from the evidence - if the jury believes from the evidence beyond a reasonable doubt that [petitioner] is a princip[al] either in the first or second degree, he is liable for punishment as if he were a princip[al] in the first degree. You may not find [petitioner] guilty merely because he associated with another person who committed the offense.

The jury returned to its deliberations, and at the close of his two-day trial, petitioner was found guilty of petit larceny and destruction of property.

Following trial, petitioner moved to set aside the jury verdict and for a new trial. These motions were denied, and the circuit court entered its "Order Following Dispositional Hearing" memorializing its rulings on January 23, 2017. It is from this order that petitioner appeals.²

On appeal, petitioner argues that the circuit court erred in giving an instruction concerning principals and accessories and in failing to give a limiting instruction following Mr. Robinson's testimony. We have previously held that, "[a]s a general rule, the refusal to give a requested jury instruction is reviewed for an abuse of discretion. By contrast, the question ofwhether a jury was properly instructed is a question of law, and the review is de novo." Syl. Pt. 1, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996).

Petitioner challenges the jury instruction on principals and accessories on several grounds. First, petitioner argues that, under State v. Blankenship, 198 W.Va. 290, 480 S.E.2d 178 (1996), the instruction was inconsistent with the evidence presented at trial and, therefore, improperly given. Petitioner contends that the only evidence presented at trial was that he committed the crimes charged, that he was not alleged to have acted in concert with anyone else, and that he was not charged as a conspirator, aider and abettor, or an accessory.

We begin by reiterating the "well-established law surrounding convictions based on aiding and abetting[:] . . . '[i]n the case of every felony, every principal in the second degree, and every accessory before the fact, shall be punishable as if he were the principal in the first degree[.]'" State v. Legg, 218 W.Va. 519, 523, 625 S.E.2d 281, 285 (2005) (citing W.Va. Code § 61-11-6). "[T]here is no legal distinction between a conviction as a principal in the first degree and a conviction as an aider and abettor[.]" Id. Therefore, "we have explicitly declared that the inclusion of separate language in an indictment charging aiding and abetting is not required." Id. (citation omitted). Accordingly, the fact that petitioner was not charged as a conspirator, aider and abettor, or accessory does not render the instruction improperly given.

Moreover, we have found that aiding and abetting instructions were properly given where the evidence adduced at trial was sufficient to support an aiding and abetting conviction, even when the defendant was not indicted as an aider and abettor. Id. at 524, 625 S.E.2d at 286 (citations omitted). Here, in addition to the surveillance footage depicting two individuals, Mr. Robinson testified at trial to seeing someone with petitioner "with a black bill hat or a toboggan" as petitioner was putting gas in Mr. Robinson's car. The State asked Mr. Robinson, "So was [sic] somebody else joined [D.K.] - [?]" Mr. Robinson responded, "[a]t some point in time. I only got a glimpse of whoever it was." Mr. Robinson further described that, although he could not see the individual's face, he presumed it to be a man.³ This evidence supports the circuit court's decision to give the challenged instruction.

Despite our holdings that a defendant need not be explicitly charged as an aider or abettor and that an aiding and abetting instruction is proper where supported by the evidence, we have also recognized that when a defendant is not provided actual notice of the prosecution's intent to pursue a theory of and conviction for aiding and abetting, a defendant may be unfairly prejudiced by the request for an aiding and abetting instruction after trial has begun. Id. at 525, 625 S.E.2d at 287. Although the instant matter is procedurally different in that the jury's question prompted the giving of the subject instruction, we nonetheless find that petitioner has failed to demonstrate that he was unfairly prejudiced by the instruction. In determining whether prejudice resulted, we have outlined several factors to be considered: unfair surprise; "whether or not the defendant can show that he or she might have framed his or her defense differently in light of the alternatetheory;" "whether or not the defense presented was sufficient to defend against both alternative theories;" and "whether or not the defendant took steps to remedy the prejudice - by, for example, requesting a continuance or asking that witnesses be recalled." Id. at 526, 625 S.E.2d at 288. Petitioner does not contend that he was unfairly surprised by the instruction, that he would have framed his defense differently, or that the defense presented was insufficient to defend against both theories. Although petitioner objected to the additional instruction,⁴ he did not take steps to remedy the prejudice by requesting a continuance or that witnesses be recalled. Therefore, petitioner has failed to establish that any prejudice resulted from the circuit court's giving of the instruction.

Next, petitioner contends that the instruction is an incorrect statement of the law because it runs counter to Syllabus Point 9 of State v. Bennett, 157 W.Va. 702, 203 S.E.2d 699 (1974), which provides that "[a]n accused who is indicted solely as a principal in the first degree is entitled to a directed verdict of acquittal upon proof by the State that he was only a principal in the second degree." Petitioner's reliance on Bennett, however, is misplaced as Bennett was overruled by State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980). In Petry, we held that

[w]ith regard to all cases in which the trial shall commence after the date on which this opinion is handed down by this Court the prior common law rule requiring that aiders and abettors or accessories before the fact be indicted as such is abolished and, hereafter, a general

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