State v. Johnson, No. 17530

CourtSupreme Court of West Virginia
Writing for the CourtMILLER
Citation371 S.E.2d 340,179 W.Va. 619
Docket NumberNo. 17530
Decision Date01 July 1988
PartiesSTATE of West Virginia v. Tim JOHNSON.

Page 340

371 S.E.2d 340
179 W.Va. 619
STATE of West Virginia
v.
Tim JOHNSON.
No. 17530.
Supreme Court of Appeals of
West Virginia.
July 1, 1988.

Page 342

[179 W.Va. 621] Syllabus by the Court

1. Our traditional appellate standard for determining whether the failure to comply with court ordered pretrial discovery is prejudicial is contained in Syllabus Point 2 of State v. Grimm, 165 W.Va. 547, 270 S.E.2d 173 (1980), and is applicable to discovery under Rule 16 of the Rules of Criminal Procedure. It is summarized: The non-disclosure is prejudicial where the defense is surprised on a material issue and where the failure to make the disclosure hampers the preparation and presentation of the defendant's case.

2. "Rule 16(d)(2) [of the West Virginia Rules of Criminal Procedure] enables a trial court to impose sanctions that may have the effect of curing a late discovery problem." Syllabus Point 5, State v. Miller, 178 W.Va. 618, 363 S.E.2d 504 (1987).

3. "Subject to exceptions, it is a well-established common-law rule that in a criminal prosecution, proof which shows or tends to show that the accused is guilty of the commission of other crimes and offenses at other times, even though they are of the same nature as the one charged, is incompetent and inadmissible for the purpose of showing the commission of the particular crime charged, unless such other offenses are an element of or are legally connected with the offense for which the accused is on trial." Syllabus Point 11, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

4. "It is not reversible error for a trial court to give an abstract instruction where the instruction is not misleading or inapplicable to the case." Syllabus Point 7, State v. Gangwer, 169 W.Va. 177, 286 S.E.2d 389 (1982).

5. " W.Va.Code, 61-10-31(1), is a general conspiracy statute and the agreement to commit any act which is made a felony or misdemeanor by the law of this State is a conspiracy to commit an 'offense against the State' as that term is used in the statute."

Page 343

[179 W.Va. 622] Syllabus Point 1, State v. Less, 170 W.Va. 259, 294 S.E.2d 62 (1981).

6. "In order for the State to prove a conspiracy under W.Va.Code, 61-10-31(1), it must show that the defendant agreed with others to commit an offense against the State and that some overt act was taken by a member of the conspiracy to effect the object of that conspiracy." Syllabus Point 4, State v. Less, 170 W.Va. 259, 294 S.E.2d 62 (1981).

7. The double jeopardy clause of the Fifth Amendment prohibits the prosecution of a single conspiracy as two or more conspiracies under a general conspiracy statute merely because two separate substantive crimes have been committed.

8. The following factors are normally considered under a totality of circumstances test to determine whether one or two conspiracies are involved: (1) time; (2) persons acting as co-conspirators; (3) the statutory offenses charged in the indictments; (4) the overt acts charged by the government or any other description of the offenses charged which indicate the nature and the scope of the activity which the government sought to punish in each case; and (5) places where the events alleged as part of the conspiracy took place. These factors are guidelines only. The essence of the determination is whether there is one agreement to commit two crimes, or more than one agreement, each with a separate object.

9. "Where the same act or transaction constitutes a violation of 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 an additional fact which the other does not." Syllabus Point 8, State v. Zaccagnini, 172 W.Va. 491, 308 S.E.2d 131 (1983).

10. Breaking and entering and larceny are distinct and separate offenses, and indictment and conviction for both offenses even though they occurred close in time does not violate double jeopardy principles.

Silas Taylor, Deputy Atty. Gen., State Capitol, for the State.

J. David Judy, III, Moorefield, for defendant.

MILLER, Justice:

In this appeal from four felony convictions in the Circuit Court of Pendleton County, the defendant, Tim Johnson, contends the trial court committed instructional and evidentiary errors requiring the reversal of his convictions. The defendant further contends that his multiple convictions violate established double jeopardy principles. With the exception of one conspiracy count, we affirm his convictions.

I.

It is undisputed that during the early morning hours of December 24, 1985, Sarah Pope Barger, a codefendant, entered the Center Food Market in Brandywine, Pendleton County, West Virginia, and took several hundred dollars from the cash register. She then returned home where she gave all the stolen money to her husband, Marc Barger. This store was owned by Mrs. Barger's parents.

The defendant, who was alleged to have participated in the breaking and entering of the store, was charged in separate counts with breaking and entering, grand larceny, conspiracy to commit breaking and entering, and conspiracy to commit grand larceny. The State introduced evidence at trial to show the motive for the breaking and entering and larceny was to obtain money to buy illegal controlled substances.

The State's first witness was Trooper D.I. Pyle of the West Virginia Department of Public Safety who testified that his investigation had revealed a forced entry into the store. He subsequently questioned Mrs. Barger who had admitted to the use of illegal drugs, and obtained two confessions from her, the second of which implicated the defendant.

On cross-examination, Trooper Pyle disclosed that Mrs. Barger had also been charged with a subsequent breaking and entering of her parents' home which occurred in January, 1986. It was after her

Page 344

[179 W.Va. 623] arrest on that charge that she made two confessions concerning the breaking and entering of the store. In her initial confession, she implicated her husband, stating that they had a fight on the evening of December 23, 1985, concerning the fact that they did not have enough money to buy Christmas presents for everyone. After her husband questioned her about whether she could obtain access to her parents' store, she broke into the store and gave him the four to five hundred dollars she had taken. No mention was made in this confession of the defendant's participation. Trooper Pyle also stated on cross-examination that Mrs. Barger had admitted her use of illegal drugs.

Mr. and Mrs. Pope, the owners of the store, were then called as witnesses. Mr. Pope testified that he had reluctantly filed criminal charges against his daughter in connection with the robbery of the store and expressed the belief that she had broken into the store because she was "hooked" on drugs. Mrs. Pope stated that her daughter on numerous occasions had taken money and merchandise from the store during the year preceding the robbery because of her drug dependency.

The State then called Anita Bowers, who testified that she and her boyfriend, "B.B." Harris, had lived in Harrisonburg, Virginia, at the time the store was robbed, and that they were friends with Mrs. Barger and her husband, Marc. Over a general objection, she was permitted to testify that she had "partied" with the defendant and the Bargers, an apparent reference to the recreational use of drugs. She then testified, over an objection that her testimony related to a collateral crime, that at around 3:00 or 4:00 a.m. on December 24, 1985, Marc Barger and the defendant had visited her residence in Virginia for the purpose of buying drugs from her boyfriend.

The trial court at the conclusion of Ms. Bowers' direct testimony instructed the jury that whatever had happened in Virginia was only admissible for the purpose of showing the defendant's motive, if any, for participating in the acts alleged and could not be considered for any other purpose.

On cross-examination, Ms. Bowers admitted that her boyfriend had been selling a number of illegal drugs and had supplied Mrs. Barger with methamphetamines. In order to impeach her credibility, she was questioned at length concerning her drug use in general and whether she had been using drugs the morning when the defendant and Mr. Barger had allegedly sought to purchase drugs from her boyfriend. Defense counsel also questioned her about the fact that no criminal charges had ever been brought against her.

Sarah Pope Barger, the State's final witness, testified that she and her husband had an argument during the evening hours of December 23, 1985, about not having enough money for Christmas presents. Her husband had left in anger at about 10:30 p.m. and returned around midnight with the defendant. After a few minutes, the defendant had asked, obviously referring to her parents' store: "Could we go and rob the big bank tonight?" Fearing she would be caught, she initially refused to commit the robbery, but was eventually persuaded by her husband to do it.

After about an hour and a half of discussion, she and the defendant set out to rob the store. After some surveillance of the store and her parents' home which was located nearby, they returned home and she told her husband she was going to attempt the robbery. The defendant then drove her to the store and waited in the car while she broke in and took the money. Upon returning home she gave all the money to her husband who, along with the defendant, left indicating they planned to drive to Virginia to buy drugs. She admitted that part of the reason for the commission of the crime was to obtain money to purchase drugs.

On cross-examination, defense counsel questioned Mrs. Barger concerning the fact that she had not mentioned the defendant in any way in her initial written confession. His cross-examination revealed that it was not until several days later, after she had been arrested, placed in jail, and...

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39 practice notes
  • State v. Gallegos, No. 31,204.
    • United States
    • New Mexico Supreme Court of New Mexico
    • June 15, 2011
    ...he or she should be sentenced with respect to only one of the counts with the other count(s) being dismissed.”); State v. Johnson, 179 W.Va. 619, 371 S.E.2d 340, 352 (1988) (“[T]he defendant's conviction of two conspiracy offenses constituted a violation of the ... established double jeopar......
  • State v. Taylor, No. 31405.
    • United States
    • Supreme Court of West Virginia
    • February 3, 2004
    ...this case, the State introduced considerable evidence of Mr. Taylor's habitual drug use. While the State points us to State v. Johnson, 179 W.Va. 619, 371 S.E.2d 340 (1988), where we approved the introduction of a defendant's past drug use to show motive to commit breaking and entering and ......
  • State v. Rummer, No. 21095
    • United States
    • Supreme Court of West Virginia
    • May 28, 1993
    ...that he believes different principles should apply to sexual offenses than to other criminal offenses. For example, in State v. Johnson, 179 W.Va. 619, 371 S.E.2d 340 (1988), the defendant was convicted for both breaking and entering and larceny. We held that such convictions did not violat......
  • State v. Edward Charles L., No. 19004
    • United States
    • Supreme Court of West Virginia
    • July 27, 1990
    ...See, e.g., State v. Hanna, 180 W.Va. 598, 378 S.E.2d 640 (1989); State v. Stacy, 179 W.Va. 686, 371 S.E.2d 614 (1988); State v. Johnson, 179 W.Va. 619, 371 S.E.2d 340 (1988); State v. Dolin, supra; State v. Nicholson, 162 W.Va. 750, 252 S.E.2d 894 (1979), overruled on other grounds, State v......
  • Request a trial to view additional results
39 cases
  • State v. Gallegos, No. 31,204.
    • United States
    • New Mexico Supreme Court of New Mexico
    • June 15, 2011
    ...he or she should be sentenced with respect to only one of the counts with the other count(s) being dismissed.”); State v. Johnson, 179 W.Va. 619, 371 S.E.2d 340, 352 (1988) (“[T]he defendant's conviction of two conspiracy offenses constituted a violation of the ... established double jeopar......
  • State v. Taylor, No. 31405.
    • United States
    • Supreme Court of West Virginia
    • February 3, 2004
    ...this case, the State introduced considerable evidence of Mr. Taylor's habitual drug use. While the State points us to State v. Johnson, 179 W.Va. 619, 371 S.E.2d 340 (1988), where we approved the introduction of a defendant's past drug use to show motive to commit breaking and entering and ......
  • State v. Rummer, No. 21095
    • United States
    • Supreme Court of West Virginia
    • May 28, 1993
    ...that he believes different principles should apply to sexual offenses than to other criminal offenses. For example, in State v. Johnson, 179 W.Va. 619, 371 S.E.2d 340 (1988), the defendant was convicted for both breaking and entering and larceny. We held that such convictions did not violat......
  • State v. Edward Charles L., No. 19004
    • United States
    • Supreme Court of West Virginia
    • July 27, 1990
    ...See, e.g., State v. Hanna, 180 W.Va. 598, 378 S.E.2d 640 (1989); State v. Stacy, 179 W.Va. 686, 371 S.E.2d 614 (1988); State v. Johnson, 179 W.Va. 619, 371 S.E.2d 340 (1988); State v. Dolin, supra; State v. Nicholson, 162 W.Va. 750, 252 S.E.2d 894 (1979), overruled on other grounds, State v......
  • Request a trial to view additional results

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