State v. Estep, 12-1048

• Decision Date: 18 October 2013
• Docket Number: No. 12-1048,12-1048
• Court: West Virginia Supreme Court
• Parties: State of West Virginia, Plaintiff, Respondent v. Justin Estep, Defendant, Petitioner

State of West Virginia, Plaintiff, Respondent v. Justin Estep, Defendant, Petitioner

No. 12-1048

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

ISSUED: October 18, 2013

(Roane County 11-F-39)

MEMORANDUM DECISION

Petitioner Justin Estep, by counsel Paul A. Montgomery, appeals his conviction for several crimes set forth below and resulting sentencing order entered by the Circuit Court of Roane County. The State of West Virginia, by counsel Scott E. Johnson, filed its response.

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 is appropriate under Rule 21 of the Rules of Appellate Procedure.

In December of 2010, petitioner and a co-defendant below went into the home of James Dodge, the victim, where they struck Mr. Dodge, causing physical injury, and removed items from the residence. Petitioner was indicted for one count of kidnapping, one count of first degree robbery, one count of burglary, one count of malicious assault, one count of petit larceny, four counts of conspiracy to commit a felony, and one count of conspiracy to commit a misdemeanor. Without objection, the circuit court dismissed the petit larceny and conspiracy to commit a misdemeanor counts.

Prior to trial, petitioner filed a motion to exclude evidence of flight. At the pretrial hearing, Roane County Chief Deputy Sheriff Todd Cole testified that he obtained a warrant for petitioner's arrest. He then notified petitioner's family members and contacts, including petitioner's wife, of the warrant and contacted the U.S. Marshal Service's fugitive task force regarding the warrant. A witness, Jessica Wolfe, testified that petitioner acknowledged to her that he had heard rumors that he was being sought by police. Petitioner conducted his action so as to evade law enforcement officials and eventually left the county. As a result, the circuit court found that petitioner took evasive action from police in order to avoid arrest. Therefore, the flight evidence was deemed admissible during the State's case-in-chief, though such evidence was limited to post-warrant conduct.

During trial, the State identified property taken from Mr. Dodge including a Black and Decker tool kit. At trial, Mr. Dodge identified State's Exhibit No. 3 as the tool set that was stolen from him. Following the jury trial, petitioner was found guilty of first degree robbery, burglary, malicious assault, conspiracy to commit first degree robbery, conspiracy to commit burglary, and conspiracy to commit malicious assault. Petitioner was acquitted of kidnapping and conspiracy to commit kidnapping. On June 25, 2012, petitioner appeared for sentencing. The circuit court noted that although petitioner was young and had no significant prior criminal history, "the record that [he] made in this one night is a significant record." The circuit court went on to discuss the necessity of incarceration in this instance due to the violent nature of the crime. Petitioner was sentenced to fifty years for the robbery conviction, two to ten for malicious assault, one to five for conspiracy to commit burglary, one to five for conspiracy to commit malicious assault, and one to five for conspiracy to commit burglary. All sentences were to run concurrent to the robbery sentence. The sentencing order was entered on August 7, 2012. Petitioner appeals both the jury verdict and the resulting sentencing order.

Petitioner sets forth six assignments of error on appeal. First, he argues that because evidence of purported flight by petitioner was offered by the State to show guilty conscience or knowledge, petitioner was unfairly prejudiced at trial. Petitioner's second assignment of error is that the circuit court abused its discretion in admitting irrelevant evidence of State's Exhibit No. 3, the Black and Decker toolbox, because foundational evidence was so insufficient. The third alleged error is that because the outcome of the trial could have had a different result but for the jury inferring guilt from Exhibit No. 3 and flight evidence, cumulative error occurred denying petitioner a fair trial. The fourth assignment of error is that the circuit court erred by ordering cumulative punishments upon petitioner for his single conspiracy to commit robbery in the first degree, conspiracy to commit malicious wounding, and conspiracy to commit burglary. Petitioner's fifth assignment of error relates to the circuit court's denial of his motion for youthful offender status. Petitioner asserts that the circuit court declined to exercise sound discretion, foregoing any determination of fitness for treatment based on factors relating to background, rehabilitation prospects, and any finding of fact that he is or is not likely to respond to the rehabilitative atmosphere of a youthful offender center. The final alleged error is that because fifty years of incarceration for petitioner is so grossly disproportionate to the crime, his age, and prior record, it shocks the conscience and does not pass a societal and judicial sense of justice.

Petitioner first argues that the purported flight evidence was offered by the State because it showed guilty conscience or knowledge, so it was unfairly prejudicial. Petitioner moved to suppress evidence of purported flight. The circuit court held an in camera hearing during which it heard testimony and argument. Chief Deputy Cole testified that he obtained an arrest warrant for petitioner in February of 2011. Witness Jessica Wolfe testified that when she was living in a car with petitioner outside of Roane County in February of 2011, she drove the car down a side road to avoid police because petitioner had "pretty much figured out" that police were looking for him. Ms. Wolfe also testified as to conversations with petitioner regarding the police looking for petitioner. Based on that testimony, the circuit court found that petitioner was aware that an arrest warrant had been issued for him and that he absented himself from Roane County.¹ Thecircuit court ruled, however, that such evidence would be limited to evidence related to events occurring after the warrant was issued. "'In certain circumstances evidence of the flight of the defendant will be admissible in a criminal trial as evidence of the defendant's guilty conscience or knowledge. Prior to admitting such evidence, however, the trial judge, upon request by either the State or the defendant, should hold an in camera hearing to determine whether the probative value of such evidence outweighs its possible prejudicial effect.' Syl. Pt. 6, State v. Payne, 167 W.Va. 252, 280 S.E.2d 72 (1981)." State v. Jessie, 225 W.Va. 21, 33, 689 S.E.2d 21, 33 (2009). Further, "'[t]he action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion.' Syllabus point 10, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds by State ex rel. R.L. v. Bedell, 192 W.Va. 435, 452 S.E.2d 893 (1994)." Syl. Pt. 2, State v. Doonan, 220 W.Va. 8, 640 S.E.2d 71 (2006). Accord Syl. Pt. 7, State ex rel. Weirton Med. Ctr. v. Mazzone, 214 W.Va. 146, 587 S.E.2d 122 (2002); Syl. Pt. 6, State v. Kopa, 173 W.Va. 43, 311 S.E.2d 412 (1983); Syl. Pt. 1, State v. Nichols, 208 W.Va. 432, 541 S.E.2d 310 (1999), overruled on other grounds by State v. McCraine, 214 W.Va. 188, 588 S.E.2d 177 (2003); Syl. Pt. 1, State v. Morris, 227 W.Va. 76, 705 S.E.2d 583 (2010). It is undisputed that the circuit court conducted an in camera hearing. It is apparent from the record that at the conclusion of that hearing, the circuit court determined that the probative value of such evidence is outweighed by the possible prejudicial effect. The circuit court also limited the time period for which flight evidence could be introduced. Based on the record in this matter, we find that the circuit court did not abuse its discretion in allowing the admission of limited flight evidence.

Petitioner's second assignment of error is that the circuit court abused its discretion in admitting the irrelevant evidence of State's Exhibit No. 3 because the foundational evidence was insufficient. Petitioner argues that the State claimed that witness Maria McLaughlin took possession of a toolbox from petitioner; however, Ms. McLaughlin could not identify that toolbox at trial. The State questioned the witness about seeing "this toolbox," and petitioner's counsel objected, stating that the witness had not identified "this toolbox." The circuit court clarified the matter on the record by stating, "Let's make it clear that the toolbox you're referring to as this tool box is this tool box that she says she received, not necessarily the toolbox on that desk over there, understood?" The State continued questioning the witness about "that toolbox," and petitioner objected. The State informed the circuit court that it was trying to establish that this toolbox would have been received somewhere in that time frame, and the court overruled the objection. As set forth above, "'[t]he action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion.' Syllabus point 10, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds by State ex rel. R.L. v. Bedell, 192 W.Va. 435, 452 S.E.2d 893 (1994)." Syl. Pt. 2, State v. Doonan, 220 W.Va. 8, 640 S.E.2d 71 (2006). Accord Syl. Pt. 7, State ex rel. Weirton Med. Ctr. v. Mazzone, 214 W.Va. 146, 587 S.E.2d 122 (2002); Syl. Pt....