State v. Hoselton

• Decision Date: 22 July 1988
• Docket Number: No. 17925,17925
• Citation: 179 W.Va. 645,371 S.E.2d 366
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Kevin Dwayne HOSELTON.

Page 366

371 S.E.2d 366

179 W.Va. 645

STATE of West Virginia v. Kevin Dwayne HOSELTON.

No. 17925.

Supreme Court of Appeals of West Virginia.

July 22, 1988.

Syllabus by the Court

1. "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." Syl. pt. 1, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978).

2. " 'Merely witnessing a crime, without intervention, does not make a person a party to its commission unless his interference was a duty, and his noninterference was one of the conditions of the commission of the crime; or unless his noninterference was designed by him and operated as an encouragement to or protection of the perpetrator.' Syllabus, State v. Patterson, 109 W.Va. 588 ." State v. Haines, 156 W.Va. 281, 192 S.E.2d 879 (1972).

William E. Kiger, Darla A. Greathouse, Parkersburg, for Kevin Dwayne Hoselton.

Richard M. Richmond, Asst. Pros. Atty., Wood County, Parkersburg, for the State.

PER CURIAM:

This case is before the Court upon the appeal of Kevin Wayne Hoselton from his conviction of entering without breaking a vessel, with intent to commit larceny, pursuant to W.Va.Code, 61-3-12 [1923]. ¹ It arises from an order of the Circuit Court of Wood County which denied the accused's motion for a new trial and sentenced the appellant to the Anthony Center for Youthful Offenders.

The accused was charged in a two-count indictment as a principal in the first degree for either breaking and entering or entering without breaking a storage unit on a docked barge with intent to commit larceny. He was eighteen years old at the time, and was with several friends, each of whom was separately indicted as a principal in the first degree. The accused was convicted of entering without breaking, as charged in the indictment. ²

The only evidence used to link the accused to the crime was his voluntary statement. ³ The pertinent answers given by the accused in his voluntary statement were, as follows:

Q. Were you with some individuals that broke into the barge?

A. Yes, sir.

Q. Once you got to the barges, what happened?

A. We all walked up on that, and I was standing outside there. Mike, he tried to get the big door open, and he couldn't do it.

Q. M[ ... ] A[ ... ]?

A. Yes, sir. And I heard a couple of other people back there--I don't know who it was--trying to get in.

Q. Why couldn't you see them?

A. Because I was standing at the end of the barge there.

Q. Were you keeping a look-out?

A. You could say that. I just didn't want to go down in there.

Q. Do you know who actually gained entry to the barge.

A. No, sir, I'm not sure.

Q. Kevin, did you know at the time that you were down there that you all were committing a crime?

A. Yes, I did know that, but--

The items stolen from the storage unit were tools, grease guns, grease and a battery charger. None of these items, or profits on their resale, were given to the accused. In both his statement and his trial testimony, the accused stated that he, standing at one end of the barge, with an obstructed view of the storage unit, was unaware of his friends' intent to steal the items until he heard the opening of the storage unit door. He then walked to the unit and saw his friends handling the goods. He then returned to the other end of the barge and went to an automobile, owned and operated by one of his friends, who remained in the storage facility. His friends returned to the automobile with the goods. The accused did not assist the others in placing the goods in the automobile. He was then immediately driven home.

The accused testified that he and his friends frequently trespassed upon the barge for fishing.

The jury convicted the accused of the offense "as charged in the indictment."

On appeal, the accused contends that the evidence is insufficient to support a conviction for entering with intent to commit larceny. Therefore, the trial judge erred when he denied the accused's motions for acquittal and new trial.

The standard for appellate review of the sufficiency of the evidence to support a conviction is contained in syllabus point 1 of State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978):

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.

The State contends there was sufficient evidence to establish that the accused was a lookout, therefore, the conviction for breaking and entering as a principal in the first degree should stand.

A lookout is one who is "by prearrangement, keeping watch to avoid interception or detection or to provide warning during the perpetration of the crimes and thereby participating in the offenses charged ..." People v. Small, 55 A.D.2d 994, 995, 391 N.Y.S.2d 192, 194 (1977).

This Court has consistently held that lookouts are aiders and abettors, principals in the second degree. State v. Audia, 171 W.Va. 568, 576-577, 301 S.E.2d 199, 208 (1983), cert. denied, Audia v. W.Va., 464 U.S. 934, 104 S.Ct. 338, 78 L.Ed.2d 307 (1983); State v. Perry, 168 W.Va. 324, 326, 284 S.E.2d 861, 863 (1981); State v. Riley, 168 W.Va. 129, 135, 282 S.E.2d 623, 627 (1981); State v. Petry, 166 W.Va. 153, 154-5, 273 S.E.2d 346, 348 (1980); State v. Crockett, 164 W.Va. 435, 265 S.E.2d 268 (1979); State v. Nicholson, 162 W.Va. 750, 753-54, 252 S.E.2d 894, 896 (1979), overruled on other grounds, State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980); State v. Grimmer, 162 W.Va. 588, 592, 251 S.E.2d 780, 784 (1979), overruled on other grounds, State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980); State v. Bennett, 157 W.Va. 702, 705, 203 S.E.2d 699, 701 (1974), overruled on other grounds, State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980) and overruled on other grounds, State v. Ellis, 161 W.Va. 40, 239 S.E.2d 670 (1977), overruled State v. Adkins, 162 W.Va. 815, 253 S.E.2d 146 (1979), overruled State v. Lassiter, 177 W.Va. 499, 354 S.E.2d 595 (1987); State v. Martin, 112 W.Va. 88, 163 S.E. 764 (1932); State v. Powers, 91 W.Va. 737, 113 S.E. 912, 916-17 (1922), overruled on other grounds, State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980).

Principals in the second degree are punishable as principals in the first degree. W.Va.Code, 61-11-6 [1923].

An aider and abettor, or principal in the second degree must "in some sort associate himself with the venture, that he participate in it as something that he wishes to bring about, that he seek[s] by his action to make it succeed." State v. Harper, 179 W.Va. 24, 28, 365 S.E.2d 69, 73 (1987), quoting Learned Hand in U.S. v. Peoni, 100 F.2d 401, 402 (2nd Cir.1938).

It is well established that in order for a defendant to be convicted as an aider and abettor, and thus a principal in the second degree, the prosecution must demonstrate that he or she shared the criminal intent of the principal in the first degree. [citations omitted] Of course we also recognize that the defendant is not required to possess the identical intent as the principal in the first degree.

State v. Harper, 179 W.Va. 24, 29, 365 S.E.2d 69, 74 (1987). ⁴

Therefore, if the State establishes evidence that an accused acted as a lookout, it has necessarily established the requisite act and mental state to support a conviction of aiding and abetting. Circumstantial or testimonial evidence sufficient to allow an inference that one is acting as a lookout includes: accomplice testimony of pre-planning, State v. Bennett, supra; evidence of an identical crime committed in a similar manner in the same neighborhood where the alleged crime charged occurred, and accomplice testimony, State v. Nicholson, 162 W.Va. 750, 755-756, 252 S.E.2d 894, 897 (1979), overruled on other grounds, Petry, supra; uncontroverted circumstantial evidence of flight in an automobile with a Pennsylvania license plate, previously parked near the scene of a late evening breaking and entering, occupied by the accused and a driver, brother of the perpetrator (the automobile also contained the perpetrator's wallet), State v. Tadder, 173 W.Va. 187, 313 S.E.2d 667 (1984). However, as stated in syllabus point 3 of State v. Haines, 156 W.Va. 281, 192 S.E.2d 879 (1972):

'Merely witnessing a crime, without intervention, does not make a person a party to its commission unless his interference was a duty, and his noninterference was one of the conditions of the commission of the crime; or unless his noninterference was designed by him and operated as an encouragement to or protection of the perpetrator.' Syllabus, State v. Patterson, 109 W.Va. 588 .

In this case, the only evidence that suggested the accused was a lookout was his response to the investigating officer's questioning: "Q. Were you a lookout? A. You could say that. I just didn't want to go down there."

In both his voluntary statement and during his testimony at trial, the accused stated that he had no prior knowledge of his friends' intentions to steal anything from the barge. When he heard the door open to the storage unit and saw his friends removing the goods, the accused left the barge and returned to the car. The accused never received any of the stolen property, which...