State v. Flanders
| Decision Date | 01 December 2005 |
| Docket Number | No. 32290.,32290. |
| Citation | 624 S.E.2d 555 |
| Parties | STATE of West Virginia, Plaintiff Below, Appellee, v. Matthew S. FLANDERS, Defendant Below, Appellant. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. "An indictment is sufficient under Article III, § 14 of the West Virginia Constitution and W.Va. R.Crim. P. 7(c)(1) if it (1) states the elements of the offense charged; (2) puts a defendant on fair notice of the charge against which he or she must defend; and (3) enables a defendant to assert an acquittal or conviction in order to prevent being placed twice in jeopardy." Syl. pt. 6, State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999).
2. Syl. pt. 2, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996).
3. "In order for an indictment for larceny to be sufficient in law, it must identify with specificity the particular items of property which are the subject of the charge by specifically describing the property, unless the property is incapable of identification as in cases involving fungible goods, United States currency or comparable articles." Syl. pt. 5, State ex rel. Day v. Silver, 210 W.Va. 175, 556 S.E.2d 820 (2001).
4. "Where objections were not shown to have been made in the trial court, and the matters concerned were not jurisdictional in character, such objections will not be considered on appeal." Syl. pt. 1, State Road Commission v. Ferguson, 148 W.Va. 742, 137 S.E.2d 206 (1964).
Teresa C. Monk, Esq., Spencer, for the Appellant.
Darrell V. McGraw, Jr., Esq., Attorney General, Colleen A. Ford, Esq., Assistant Attorney General, Charleston, for the Appellee.
This case is before this Court upon the appeal of Matthew S. Flanders from his convictions in the Circuit Court of Roane County, West Virginia, by a jury, of three counts of breaking and entering a building other than a dwelling, two counts of larceny, one count of possession of a controlled substance with intent to deliver and five counts of conspiracy. The convictions arose from the allegations of the State that Flanders and others engaged in a crime spree in and about Spencer, West Virginia, following a Fourth of July celebration. Pursuant to orders of the Circuit Court of Roane County entered on March 12, 2004, and April 9, 2004, Flanders was sentenced to an aggregate term in the penitentiary of not less than 3 nor more than 25 years and directed to pay restitution to the crime victims. The record indicates that Flanders is currently incarcerated in the St. Marys Correctional Center in St. Marys, West Virginia.
This Court has before it the petition for appeal, all matters of record and the briefs of counsel. The appellant assigns as error the Circuit Court's denial of his motion challenging the sufficiency of the indictment and the Circuit Court's admission in evidence of a written statement given to the police by an individual named Robert Shaffer, Jr. Upon careful consideration, however, this Court concludes that those assignments are without merit. Consequently, the orders entered by the Circuit Court on March 12, 2004, and April 9, 2004, are affirmed.
According to the evidence of the State, appellant Flanders, age 18, and a number of friends gathered to watch a municipal fireworks display in Spencer on July 4, 2002. Thereafter, the appellant and Samuel McClung broke into the nearby Cain Veterinary Clinic and stole several vials of an animal tranquilizer known as ketamine. Ketamine, commonly used as an anesthetic during surgery on cats, is a Schedule III controlled substance under W. Va.Code, 60A-2-208 (2002). Known on the street as "Special K," ketamine can be cooked down to powder form and ingested as an illicit drug. While in the Clinic, the appellant and McClung also took a cash box containing approximately $100.00. The appellant and McClung then broke into the adjoining Spencer Lanes bowling alley. Finding nothing of value, they left the premises.
Later, with McClung acting as lookout, appellant Flanders broke into Reid's Auto Sales and took the keys to a number of vehicles parked on the lot. The appellant and McClung then left Reid's Auto Sales but returned shortly thereafter accompanied by M. T., a 16 year old juvenile.1 The individuals took the following vehicles from the lot: (1) a 1993 Ford Explorer, driven by Samuel McClung, (2) a 1997 Pontiac Sunfire, driven by M. T., and (3) a 1997 Chevy Monte Carlo, driven by the appellant. The individuals drove the vehicles throughout the area for an extended period of time and abandoned them in separate locations in the early morning hours of July 5, 2002. According to the report filed by the Roane County Sheriff's Department, the Pontiac Sunfire was not damaged, but the Ford Explorer was damaged in the amount of $3,500.00, and the Monte Carlo was a total loss.
In January 2003, a Roane County grand jury returned an indictment charging the appellant with a number of offenses relating to the above events. A jury trial was conducted by the Circuit Court in November 2003. Samuel McClung, under a plea agreement with the State, testified and implicated the appellant in each of the charges. In addition, State's exhibit 44 was admitted into evidence which was a small kettle containing a white powder residue. The kettle containing the powder had been seized from the appellant's bedroom pursuant to a search warrant. The State elicited testimony before the jury to the effect that, upon testing, the powder was identified as ketamine.
The appellant, on the other hand, testified at trial and denied any involvement in the events in question. Specifically, the appellant stated that he watched the fireworks in Spencer with his girlfriend, Sara Stotts, and that, thereafter, they spent the evening together at the appellant's residence. Similar testimony was given during the trial by Ms. Stotts. Consequently, an instruction upon the defense of alibi was included by the Circuit Court in its charge to the jury.
As indicated above, the jury found appellant Flanders guilty of three counts of breaking and entering a building other than a dwelling, two counts of larceny, one count of possession of a controlled substance with intent to deliver and five counts of conspiracy. The appellant was sentenced to an aggregate term in the penitentiary of not less than 3 nor more than 25 years and directed to pay restitution.2 The appellant's convictions may be summarized in relation to the events of July 4 and 5, 2002, as follows: (1) with regard to the Cain Veterinary Clinic, one count of breaking and entering a building other than a dwelling, one count of petit larceny relating to the taking of the vials of ketamine, the cash box and the money therein, one count of possession of ketamine with intent to deliver and three counts of conspiracy, (2) with regard to Spencer Lanes bowling alley, one count of breaking and entering a building other than a dwelling and (3) with regard to Reid's Auto Sales, one count of breaking and entering a building other than a dwelling, one count of grand larceny relating to the taking of the vehicles, the keys and two dealer plates, and two counts of conspiracy.
In January 2004, the Circuit Court denied the appellant's motion for a new trial. Subsequently, this appeal was granted.
First, appellant Flanders contends that the Circuit Court committed error by denying his motion to dismiss Counts 4 and 11 of the indictment. Count 4 charged the appellant with grand larceny with regard to Reid's Auto Sales,3 and Count 11 was the corresponding conspiracy charge. The appellant asserts that those Counts should have been dismissed because the use of the word "approximately" in Count 4, in relation to the value of the vehicles allegedly stolen, created an uncertainty thereby resulting in a denial of his right to be fully and plainly informed of the charges against him. The appellant relies upon State v. Criss, 125 W.Va. 225, 23 S.E.2d 613 (1942), which held that an allegation in an indictment, that a reel of stolen wire cable was of the "approximate value" of $50.00, was indefinite and rendered the indictment fatally defective.
The indictment, in Criss, alleged that the defendant committed grand larceny by taking "one reel of approximately three hundred feet of No. 2 parallel duplex wire cable . . . of the approximate value of Fifty Dollars [.]" By contrast, Count 4 herein states:
That Matthew S. Flanders, on the __ day of July, 2002, in the said County of Roane, State of West Virginia, committed the offense of "Grand Larceny", in that Matthew S. Flanders, did unlawfully, intentionally, knowingly and feloniously committed simple larceny of goods or chattels of the value of one thousand dollars or more, with the intent to permanently deprive the owner Reid's Auto Sales thereof, to-wit: one (1) 1993 Ford Explorer valued at approximately Four Thousand Dollars ($4,000.00); one (1) 1997 Pontiac Sunfire valued at approximately Four Thousand Five Hundred Dollars ($4,500.00); one (1) 1997 Chevy Monte Carlo valued at approximately Five Thousand Nine Hundred Dollars ($5,900.00); one (1) set of keys to a 1991 Pontiac Grand Prix; one (1) set of keys to a 1992 Chevy Cavalier; one (1) set of keys to a 1988 Jeep Cherokee; one (1) set of keys to a 1988 Ford Ranger; one (1) set of keys to a 1984 Ford truck; one (1) set of keys to a 1995 Dodge Neon; one (1) dealer plate # DUC2 1604; and one (1) dealer plate # DUC3 1604; with a grand total of Fourteen Thousand Four Hundred ($14,400.00) from the goods and chattels belonging to Reid's Auto Sales, in violation of the West Virginia Code 61-3-13(a), against the peace and dignity of the State...
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