State v. Hall

• Decision Date: 02 December 1982
• Docket Number: No. 15382,15382
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Earl Robert HALL.

Page 246

298 S.E.2d 246

171 W.Va. 212

STATE of West Virginia v. Earl Robert HALL.

No. 15382.

Supreme Court of Appeals of West Virginia.

Dec. 2, 1982.

Syllabus by the Court

1. "To constitute probable cause for the issuance of a search warrant, the affiant must set forth facts indicating the existence of criminal activities which would justify a search and further, if there is an unnamed informant, sufficient facts must be set forth demonstrating that the information obtained from the unnamed informant is reliable." Syllabus point 1, State v. Stone, 165 W.Va. 266, 268 S.E.2d 50 (1980).

2. "The property to be seized must be described within the warrant itself or within the sworn complaint expressly made a part of the warrant by direct reference thereto. A search warrant should not be made a catchall dragnet." State ex rel. White v. Melton, 166 W.Va. 249, 273 S.E.2d 81, 83 (1980).

3. "Widespread publicity, of itself, does not require change of venue, and neither does proof that prejudice exists against an accused, unless it appears that the prejudice against him is so great that he cannot get a fair trial." Syllabus point 1, State v. Gangwer, 169 W.Va. 177, 286 S.E.2d 389 (1982).

4. "Whether a change of venue is warranted rests in the sound discretion of the trial court, and its ruling thereon will not be disturbed, unless it clearly appears that such discretion has been abused." Syllabus point 2, State v. Gangwer, 169 W.Va. 177, 286 S.E.2d 389 (1982).

5. "[N]ormally the owner of stolen property may testify as to its value because he is deemed qualified to give an opinion concerning the value of the things which he owns...." State v. Cokeley, 159 W.Va. 664, 226 S.E.2d 40, 43 (1976).

6. "The essential elements of the offense created by [ W.Va.Code, 61-3-18 [1931]] are: (1) The property must have been previously stolen by some person other than the defendant; (2) the accused must have bought or received the property from another person or must have aided in concealing it; (3) he must have known, or had reason to believe, when he bought or received or aided in concealing the property, that it had been stolen; and (4) he must have bought or received or aided in concealing the property with a dishonest purpose." State v. McGraw, 140 W.Va. 547, 550, 85 S.E.2d 849, 852 (1955).

7. "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).

8. An instruction to the jury is proper if it is a correct statement of the law and if sufficient evidence has been offered at trial to support it.

9. Under the provisions of W.Va.Code, 61-3-18 [1931] where the State proves that a defendant received or aided in the concealment of property which was stolen from different owners on different occasions, but does not prove that the defendant received or aided in the concealment of the property at different times or different places then such defendant may be convicted of only one offense of receiving or aiding in the concealment of stolen property.

Thomas N. Trent and Jerry Dove, Asst. Attys. Gen., Charleston, for appellee.

James H. Wolverton, Timothy R. Ruckman, Callaghan, Callaghan, Ruckman & Vaughan, Richwood, for appellant.

McHUGH, Justice:

The appellant, Earl Robert Hall, was convicted of fifteen counts, eleven felonies and four misdemeanors, of buying, receiving and aiding in the concealment of stolen property. The case is before this Court on appeal from an order of the Circuit Court of Nicholas County, West Virginia, entered on October 8, 1980, sentencing the defendant to serve five consecutive indeterminate periods of not less than one year nor more than ten years each on five of the felony convictions. The remaining six felony convictions each being an indeterminate period of not less than one year nor more than ten years, as well as the four misdemeanor convictions each being a one year period, were to run concurrently with the five aforementioned consecutive sentences.

On this appeal the defendant assigns error in six different areas which will be considered in order: (1) the trial court erred in denying appellant's motion to suppress all items of property which were seized by the police pursuant to two search warrants issued on March 6, 1980, and March 7, 1980, and then allowing such items to be admitted into evidence; (2) the trial court erred in denying appellant's motion for a change of venue; (3) the trial court erred in permitting the owners of the stolen property to testify as to the value of such property; (4) the trial court erred in denying appellant's motion for a directed verdict at the conclusion of the State's evidence at trial because the prosecution failed to establish a prima facie case against the defendant; (5) the trial court erred in giving four of the jury instructions submitted by the State because the prosecution failed to introduce evidence which would justify such instructions; and (6) the trial court erred by sentencing the defendant on each of the fifteen counts upon which he was convicted because each count constituted the same crime or offense for purposes of double jeopardy.

I FACTS

The Search Warrants

On the afternoon of March 4, 1980, Sgt. R.J. Adams of the West Virginia State Police in Summersville, West Virginia, received information from a confidential informant that a large quantity of tools and various items of construction equipment were lying on and around a certain farm in Nicholas County. In addition to the tools and construction equipment, the informant also viewed one to two thousand writing pens with Gilmer Fuel Company printed on them in a motor vehicle parked at the farm. Upon further stating that he was returning to the farm on the following day, Sgt. Adams requested the informant to obtain as much information as he could regarding those items.

On March 5, 1980, Sgt. Adams again spoke with the informant who repeated that he had seen the writing pens with Gilmer Fuel Company printed on them. The informant supplied new information concerning some clearance lights which were in a box with Alfab, Inc. of Smithsville, West Virginia, written on it. Upon receiving this information Sgt. Adams contacted the police in Gilmer County, concerning the pens, and Harrisville, West Virginia, concerning the lights. As a result of his contacts Sgt. Adams was informed that the described items were taken from Gilmer Fuel Company and Alfab, Inc. in recent thefts.

Upon gaining this knowledge Sgt. Adams, on March 6, 1980, appeared before a magistrate to obtain a search warrant. Sgt. Adams completed the affidavit and complaint for the search warrant. He listed which items were to be seized, i.e., hand tools, power tools, the clearance lights and the pens. He further stated that the items had been recently stolen and that a reliable informant had personally viewed the described items.

Upon being issued a search warrant by the magistrate, Sgt. Adams and other officers searched the farm on March 6, 1980. During this search a total of 138 items were seized, including the pens and clearance lights. During the March 6, 1980, search other items were viewed by Sgt. Adams which he suspected to be stolen as well. He noted these items and then contacted other police authorities throughout the State. Upon verifying his suspicions Sgt. Adams was issued a second search warrant for the farm. The second search took place on March 7, 1980, and approximately 36 additional items were seized.

Venue

Following the searches an arrest warrant was issued for the appellant. On March 8, 1980, the appellant went to visit Elizabeth Hall (with whom the appellant was living, but apparently was not his wife) at the Summersville Memorial Hospital. As he was leaving, two state police officers approached him, whereupon the appellant ran into the nearby woods. A manhunt which involved 25 police officers and a helicopter thereafter ensued. The appellant, however, eluded the manhunt.

Two Nicholas County newspapers carried front page stories, along with pictures, of the manhunt. The articles further stated that a large amount of stolen property was recovered at the appellant's farm and that police authorities had issued warrants for appellant's arrest.

Value

At trial, in order to determine the value of the stolen items, only testimony of the owners was offered by the State. Each owner testified when he purchased his property, what condition it was in, both when purchased and when stolen, and what it was worth in his estimation. Appellant offered no evidence to refute the owners' assigned values.

Prima Facie Case

During the trial the prosecution offered two witnesses who testified that the farm was the residence of the appellant. The first was Bradley Safreed who testified that he rented the farm to Earl and Elizabeth Hall in August or September of 1979. Mr. Safreed further testified that thereafter, on March 5, 1980, he had viewed the appellant on the property using some of the stolen items while Mr. Safreed was repairing a water line at the farm. The second witness was Harold Campbell who had been staying at the farm during February of 1980. He testified that he had known the appellant for six to eight years and that the appellant did in fact live at the farm. Mr. Campbell was not cross-examined by the defense.

Jury Instructions

At the conclusion of trial, the State offered seven instructions to be given to the jury. The appellant objected to four of those instructions...