State v. Deal

• Decision Date: 27 May 1987
• Docket Number: No. 17269,17269
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, v. Jerry Allen DEAL.

Page 226

358 S.E.2d 226

178 W.Va. 142

STATE of West Virginia, v. Jerry Allen DEAL.

No. 17269.

Supreme Court of Appeals of

West Virginia.

May 27, 1987.

Syllabus by the Court

1. "When instructions are read as a whole and adequately advise the jury of all necessary elements for their consideration, the fact that a single instruction is incomplete or lacks a particular element will not constitute grounds for disturbing a jury verdict." Syllabus point 6, State v. Milam, 159 W.Va. 691, 226 S.E.2d 433 (1976).

2. " 'Most courts have held that possession with intent to deliver a controlled substance can be proven by establishing a number of circumstances, among which are the quantity of the controlled substance possessed and the presence of other paraphernalia customarily used in the packaging and delivery of controlled substances.' Syllabus Point 4, State v. Drake, 170 W.Va., 169, 291 S.E.2d 484 (1982)." Syllabus point 7, State v. Walls, 170 W.Va. 419, 294 S.E.2d 272 (1982).

3. "The appropriateness of a life recidivist sentence under our constitutional proportionality provision found in Article III, Section 5, will be analyzed as follows: We give initial emphasis to the nature of the final offense which triggers the recidivist life sentence, although consideration is also given to the other underlying convictions. The primary analysis of these offenses is to determine if they involve actual or threatened violence to the person since crimes of this nature have traditionally carried the more serious penalties and therefore justify application of the recidivist statute." Syllabus point 7, State v. Beck, 167 W.Va. 830, 286 S.E.2d 234 (1981).

David Johnson, Asst. Atty. Gen., for appellant.

Scott S. Segal, Jeffrey V. Mehalic, Charleston, for appellee.

PER CURIAM:

This is an appeal by the appellant, Jerry Allen Deal, from a final order of the Circuit Court of Braxton County, entered June 24, 1985, which sentenced him to life imprisonment in the state penitentiary as an habitual offender following his conviction of possession of a controlled substance with intent to deliver, a felony. The appellant contends that the underlying felony conviction was invalid and that the imposition of a life sentence for recidivism was improper in this case. We find no error warranting reversal of the principal conviction, but we do find error in the enhanced sentence, and we remand the case for resentencing.

On February 8, 1984, police officers arrived at the appellant's residence in Sutton, Braxton County, to serve legal papers on the appellant and his wife, Mary Ellen Deal. Upon entering the residence, the officers detected a strong odor of burning marihuana. They subsequently obtained a warrant to search the house and seized a paper bag containing a total of 125.4 grams of marihuana, packaged in four smaller plastic bags, a number of empty plastic bags and a set of scales.

The appellant and his wife were subsequently indicted on charges of possession of a controlled substance with intent to deliver. Trial of both defendants began in the Circuit Court of Braxton County on January 16, 1985, and concluded the following day with the jury finding the appellant guilty of the felony charged in the indictment and his wife guilty of the misdemeanor offense of possession of a controlled substance.

After the jury returned its verdict, the State filed written information alleging that the appellant had twice before been convicted of felonies and seeking imposition of an enhanced sentence of life imprisonment under the habitual criminal statutes, W.Va.Code § 61-11-18 et seq. (1984 Replacement Vol.). On January 25, 1985, the appellant was brought before the circuit court to respond to the information but remained silent when asked to state whether he was the same person who had been convicted of the prior offenses. Following a jury trial on the recidivist charge, conducted on April 11, 1985, the appellant was adjudged an habitual criminal and, by order entered June 24, 1985, was sentenced to life imprisonment in the state penitentiary. It is from this order that the appellant prosecutes this appeal.

I.

The appellant first attacks the validity of his underlying conviction of possession of a controlled substance with intent to deliver. He assigns as error the giving of certain of the State's instructions which he contends relieved the prosecution of its burden of proving beyond a reasonable doubt the essential elements of the offense charged.

Considered separately, there is some merit in the appellant's contention that these instructions are erroneous. For example, State's Instruction No. 2 provided: "The Court instructs the jury that the owners and occupants of a dwelling are deemed to be in constructive possession of the house and all of its contents." We have, however, rejected the theory that constructive possession of a controlled substance may be presumed from the mere presence of that substance on premises owned or occupied by the accused. State v. Dudick, 158 W.Va. 629, 213 S.E.2d 458 (1975). See also State v. Rector, 167 W.Va. 748, 280 S.E.2d 597 (1981). In order to show constructive possession in such circumstances, "the State must prove beyond a reasonable doubt that the defendant had knowledge of the controlled substance and that it was subject to defendant's dominion and control." Syllabus point 4, in part, State v. Dudick, supra. See also State v. Underwood, 168 W.Va. 52, 281 S.E.2d 491 (1981). To the extent that State's Instruction No. 2 fails to advise the jury of this requirement, it is erroneous.

It is abundantly clear, however, that the prosecution's burden of showing the appellant's knowledge of and control over the marihuana was addressed by State's Instruction No. 4, ¹ as well as by other instructions offered by counsel for Mrs. Deal. Similarly, the other omissions in the State's instructions cited by the appellant as error were adequately covered in other instructions or in the trial court's charge to the jury.

The well-settled rule in this regard was stated in syllabus point 6 of State v. Milam, 159 W.Va. 691, 226 S.E.2d 433 (1976): "When instructions are read as a whole and adequately advise the jury of all necessary elements for their consideration, the fact that a single instruction is incomplete or lacks a particular element will not constitute grounds for disturbing a jury verdict." We believe the instructions in this case, when taken as a whole, adequately advised the jury of the State's burden of proving the essential elements of the offense charged. Accordingly, we find no reversible error in the giving of the State's instructions.

The true tenor of the appellant's challenge to his conviction is that the evidence was not sufficient to show intent to deliver.

"The question of whether a person possesses a controlled substance with intent to manufacture or deliver is a jury question to be determined like other questions of intent from all the surrounding facts and circumstances, and as such intent is a basic element of the offense, it must be proven beyond a reasonable doubt." Syllabus Point 3, State v. Frisby, 161 W.Va. 734, 245 S.E.2d 622 (1978).

Syllabus point 6, State v. Walls, 170 W.Va. 419, 294 S.E.2d 272 (1982). We have also recognized, however, that

"[m]ost courts have held that possession with intent to deliver a controlled substance can be proven by establishing a number of circumstances, among which are the quantity of the controlled substance possessed and the presence of other paraphernalia customarily used in the packaging and delivery of controlled substances." Syllabus Point 4, State v. Drake, 170 W.Va., 169 291 S.E.2d 484 (1982).

Id., at syllabus point 7.

The evidence in this case was sufficient to show that the appellant was in possession of the marihuana and of paraphernalia customarily used in the packaging and delivery of that substance. The appellant contends, however, that the quantity of marihuana in this case was too small to give rise to an inference of intent to deliver.

This argument is clearly without merit. In State v. Drake, supra, we held that possession of a lesser quantity of marihuana than that found in this appellant's home was sufficient to support a conviction for possession with intent to deliver. The jury here was instructed to find the appellant not guilty of the felony offense if they believed the marihuana was for his own personal use. The jurors evidently did not believe this argument, and we cannot say, as a matter of law, that their finding was wrong. Accordingly, we find no basis for reversing the appellant's conviction of possession of a controlled substance with intent to deliver.

II.

The appellant next contends that the sentence of life imprisonment was void because trial on the habitual criminal charge was not conducted at the same term of court as his principal conviction. The appellant was convicted of the substantive offense at the October 1984 term of court. Although the habitual criminal information was filed and the appellant was brought into court to respond to it before the end of that term of court on January 31, 1985, trial on the information was not conducted until the February 1985 term of court.

W.Va.Code § 61-11-19 which sets forth the procedures governing habitual criminal proceedings, provides, in pertinent part:

It shall be the duty of the prosecuting attorney when he has knowledge of former sentence or sentences to the penitentiary of any person convicted of an offense punishable by confinement in the penitentiary to give information thereof to the court immediately upon conviction and before sentence. Said court shall, before expiration of the term at which such person was convicted, cause such person or prisoner to be brought before it, and upon an information filed by the prosecuting attorney, setting forth the records of conviction and sentence, or convictions and sentences, as the case may be, and alleging the...