State v. Drennen

• Decision Date: 31 July 1991
• Docket Number: No. 19813,19813
• Citation: 408 S.E.2d 24,185 W.Va. 445
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Appellee, v. Paul W. DRENNEN, Appellant.

Page 24

408 S.E.2d 24

185 W.Va. 445

STATE of West Virginia, Appellee, v. Paul W. DRENNEN, Appellant.

No. 19813.

Supreme Court of Appeals of West Virginia.

Submitted May 14, 1991.

Decided July 11, 1991.

Dissenting Opinion of Chief

Justice Miller July 31, 1991.

Syllabus by the Court

1. "Although under double jeopardy principles the proper procedure is a trial of all offenses arising out of the same 'criminal transaction' jointly, separate punishments may be imposed for separate offenses arising out of a single criminal transaction." Syllabus point 3, State ex rel. Johnson v. Hamilton, 164 W.Va. 682, 266 S.E.2d 125 (1980).

2. "The joinder of related offenses to meet possible variance in the evidence is not ordinarily subject to a severance motion. In those other situations where there has been either a joinder of separate offenses in the same indictment or the consolidation of separate indictments for the purpose of holding a single trial, the question of whether to grant a motion for severance rests in the sound discretion of the trial court." Syllabus point 6, State v. Mitter, 168 W.Va. 531, 285 S.E.2d 376 (1981).

3. "In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done." Syllabus point 1, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978).

Teresa A. Tarr, Asst. Atty. Gen., Charleston, for appellant.

William E. Kiger, Parkersburg, for appellee.

PER CURIAM.

This is an appeal by Paul W. Drennen from an order of the Circuit Court of Wood County sentencing him to three concurrent terms of from one to five years in the State penitentiary on three counts of delivery of marijuana, a controlled substance, to persons under the age of eighteen. On appeal, the defendant claims that the circuit court erred in sentencing him to multiple punishments for what, if proven, he claims constituted a single offense under the laws of the State of West Virginia. He also claims that the circuit court abused its discretion in failing to grant him separate trials on the three counts charged. He further argues that the State failed to prove that he was guilty of delivering marijuana that there, in effect, was no evidence that he delivered marijuana as described in the Uniform Controlled Substances Act. After reviewing the record, this Court finds that it fails to support the defendant's contentions, and the Court can find no reversible error. Accordingly, the judgment of the Circuit Court of Wood County is affirmed.

The evidence adduced in this case shows that on June 29, 1989, three juveniles approached the defendant, who at the time was in the Parkersburg City Park, and told him that they wanted some marijuana. Shortly thereafter, the defendant and the juveniles got into an automobile and drove to a residence where the defendant indicated that he could obtain the marijuana which the juveniles were seeking.

Unknown to the defendant and the juveniles, the residence was being "staked out" by police officers at the time the defendant and the juveniles arrived. The police officers observed the defendant enter the residence and return to the automobile. A short time later, the police stopped the automobile for running a red light. As the automobile was being pulled over, one of the juveniles, who was seated in the rear of the car, placed something under the front passenger seat where the defendant was sitting. After the vehicle was stopped, one of the juveniles voluntarily told the police that there was marijuana in the car and that the defendant had obtained it. The police officers then located the bag placed under the seat and took it into custody.

During trial, Ronald K. Taylor, II, a forensic chemist with the West Virginia Department of Public Safety, testified that he received the bag of suspect substance and that he analyzed a sample of it. He weighed it and found that the sample contained 1.2 grams of substance. Two tests, a thin-layer chromatogram and a modified Duquenoise-Levine chemical test, which detect the presence of cannabinoids, the active agents in marijuana, were performed, and Chemist Taylor concluded from the test results, as well as from his physical examination of the substance, that it was marijuana.

At the conclusion of the trial, the jury returned three guilty verdicts, one as to each of the three counts in the indictment.

On appeal, the defendant's first contention is that the trial court erred in sentencing him for three offenses when the evidence adduced during trial showed that, at most, he committed one offense. In conjunction with this, he argues that it was undisputed at trial that no more than one baggie of suspect marijuana was involved and that the baggie had never been divided or subdivided, but had always remained one single package. He points out that there was no dispute in the evidence that the substance was delivered by the defendant to only one of the three juveniles.

The defendant's contention that he has improperly received three sentences is grounded in the State constitutional prohibition against double jeopardy found in Article III, § 5 of the West Virginia Constitution. That provision provides that a person may not be twice put in jeopardy of life or liberty for the same offense.

In a number of cases, this Court has discussed what constitutes a single offense for the purposes of the double jeopardy clause. In State ex rel. Dowdy v. Robinson, 163 W.Va. 154, 257 S.E.2d 167 (1979), the Court indicated that there are two tests normally used to resolve double jeopardy questions when a person is being tried twice for charges growing out of one sequence of events. The first test, which is generally known as the "same evidence" test, indicates that a person is being tried for the same offense twice if the State must adduce identical evidence to prove two charged offenses. Where such a situation exists, the State may properly, under the double jeopardy rule, impose only one sentence on the defendant. On the other hand, if different facts must be proved to establish two charged offenses, then the offenses are different, and multiple punishments may be imposed. In explaining this test, the Court stated in State ex rel. Dowdy v. Robinson, id. 163 W.Va. at 157,257 S.E.2d at 169, that:

In 1932, the United States Supreme Court adopted the "same evidence" test for defining the fifth amendment phrase "same offense" when applied to multiple counts in one trial, holding that:

[T]he applicable rule is that, where the same act or transaction constitutes a violation of the 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 a fact which the other does not.... Blockburger v. United States, 284 U.S. 299 at 304, 52 S.Ct. 180 at 182, 76 L.Ed. 306 (1932).

The second test used in resolving questions where a person is charged twice for matters growing out of the same sequence of events is the so-called "same transaction" test. The same transaction test looks to the criminal act itself. If the offense charged arose out of a single criminal transaction or occurrence, then the accused may be charged with only one offense.

In State ex rel. Johnson v. Hamilton, 164 W.Va. 682, 266 S.E.2d 125 (1980), the Court examined the "same evidence" test and the "same transaction" test in conjunction with the double jeopardy rule. In that case, the Court concluded that where a defendant was charged with several offenses growing out of the same transaction, the State was required to try all charges arising out of the single transaction in one trial. However, the Court further recognized that a single sequence of events could give rise to multiple criminal offenses which would support multiple punishment. The Court summarized this in syllabus point 3, as follows:

Although under double jeopardy principles the proper procedure is a trial of all offenses arising out of the same "criminal transaction" jointly, separate punishments may be imposed for separate offenses arising out of a single criminal transaction.

In effect, the Court ruled that the "same transaction" test was to be used to determine the propriety of joinder of offenses at trial, but that the "same evidence" test was to be used to determine whether multiple punishments could be imposed.

In the later cases of State ex rel. Watson v. Ferguson, 166 W.Va. 337, 274 S.E.2d 440 (1980), and Gilkerson v. Lilly, 169 W.Va. 412, 288 S.E.2d 164 (1982), the Court concluded that the "same transaction" test was to be used to determine the propriety of the joinder of trials on multiple charges growing out of the same sequence of events, and that it was not to be used to determine whether a person could be charged with, or punished for, multiple offenses arising out of the same sequence of events. The determination of whether a person may be tried for and convicted of more than one offense is to be made by use of the "same evidence" test which, as previously stated, provides that the "... offenses are the same unless one offense requires proof of a fact which the other does not ..." Part, syllabus point 1, State ex rel. Dowdy v. Robinson, supra.

In the present case, there is evidence that three juveniles were seeking to obtain marijuana. To obtain that marijuana, they pooled their money and approached the defendant to procure it for them. There is evidence that the defendant procured the marijuana, apparently with the joint funds, and that in the course of the sequence of events the defendant...