State v. Kelly

• Decision Date: 19 December 1985
• Docket Number: No. 16524,16524
• Citation: 175 W.Va. 804,338 S.E.2d 405
• Parties: STATE of West Virginia v. Danny Dewayne KELLY.
• Court: West Virginia Supreme Court

Page 405

338 S.E.2d 405

175 W.Va. 804

STATE of West Virginia v. Danny Dewayne KELLY.

No. 16524.

Supreme Court of Appeals of West Virginia.

Dec. 19, 1985.

Syllabus by the Court

1. "If a person takes property of another under an honest belief of right in himself to do so, he is not guilty of larceny thereof, even though he took it with knowledge of the adverse claim of such other person, and his own claim ultimately prove to be untenable." Syllabus Point 2, State v. Bailey, 63 W.Va. 668, 60 S.E. 785 (1908).

2. "Circumstantial evidence will not support a guilty verdict, unless the fact of guilt is proved to the exclusion of every reasonable hypothesis of innocence; and circumstances which create only a suspicion of guilt but do not prove the actual commission of the crime charged, are not sufficient to sustain a conviction." Syllabus Point 2, State v. Dobbs, 163 W.Va. 630, 259 S.E.2d 829 (1979).

Hardman & Powell, J.C. Powell, Parkersburg, for appellant.

Harvey G. Deitzler, Pros. Atty., John Ernest Shank, Asst. Pros. Atty., Parkersburg, for appellee.

PER CURIAM:

Danny Dewayne Kelly was indicted for grand larceny and convicted by a jury of petty larceny in the Circuit Court of Wood County. In urging that his conviction be reversed on appeal, Kelly contends that the trial court erred in not granting a judgment of acquittal on the basis that the evidence did not prove beyond a reasonable doubt that his conduct was committed with criminal intent. Finding merit in this argument, we reverse and remand with directions.

Robert Gross and Kelly were charged in a joint indictment with stealing ten oak mantels having a value of more than $200 from two houses located in Parkersburg in April, 1983. The defense admitted that Kelly arranged for the sale of the items, but contended that he had done so at the request of one James Bradley, who he believed owned the houses. As the evidence developed, a James D. Bradley was married to one of the property owners at the time the property was taken.

The two owners of the victimized residences testified for the State along with six other witnesses. Linda Bradley, a real estate broker, testified that she and Russell Wilson had formed a general partnership named "Ruslind Rehabilitation." Its purpose was to purchase and restore three unoccupied houses for use as rental property located on Avery Street in Parkersburg, West Virginia. The partnership purchased the two-story duplexes from an estate in January, 1983, for $5,000. The City of Parkersburg had been seeking to have the houses either demolished or repaired for some time and had given the owners a July, 1983 deadline to comply with the city's code. The houses were damaged by vandalism in January and February, 1983, and efforts to prevent further destruction, such as nailing the doors shut proved largely unsuccessful. Large oak mantels with beveled glass mirrors were present in each of the houses. Some of the mirrors were broken during this time period.

Ms. Bradley testified that one Wednesday in April she had gone through the houses and found everything in place, including the mantels, after she had driven by and noticed one of the doors was standing open. When she returned the following Monday, April 25, 1983, two of the houses had been vandalized again. Locks had been torn off the front doors, windows had been broken, window frames had been torn out of the walls, staircase rails had been torn out and demolished, and two of the oak mantels had been pulled off the walls and left on the floor. The remaining ten mantels were missing.

The next day she and the other owner, Russell Wilson, in the company of a law enforcement officer identified the mantels at Maher's Antique Shop in Parkersburg. Photographs of the mantels taken at the shop were introduced in evidence. Ms. Bradley testified that she did not know either the defendant or his coindictee, Robert Gross, and had never given either of them permission to remove the mantels from the houses. On cross-examination, she testified that she had been married to a James D. Bradley at the time of the alleged grand larceny, but had since obtained a divorce.

The other owner, Russell Wilson, corroborated Ms. Bradley's testimony and also stated that he did not know the defendant or his coindictee in April, 1983, and had never given either of them permission to remove the mantels. Dale Michaels, who lived on Avery Street where the houses are located, testified that on a Wednesday afternoon in April he had walked by the house, heard noises, and noticed that a truck was parked there with mantels stacked in the back. He stopped and shortly thereafter a person came to the door with a crowbar in his hand and waved at him. He also saw another man at the back of the house, but did not see him well enough to identify him. On cross-examination, he said that the two people in and around the house made no attempt to hide or conceal their presence.

Robert Casto, the owner and operator of a new and used furniture store in Parkersburg for about two years, testified that Kelly and the coindictee Robert Gross had come to his store trying to sell materials from the two houses. Kelly told him the property was going to be torn down and burned. Although Casto was not interested initially, he agreed to go look around. He and his hired helper, Charles Taylor, then went with Kelly and Gross to the houses. Casto inquired about whether the mantels were for sale because he knew an antique dealer who might buy them. When the defendant responded that the mantels were worth $20 to $30 a piece, the four of them left. Later that day Casto contacted Robert Maher, of Maher's Antiques in Parkersburg, who expressed an interest in buying the mantels. After he and Maher returned to the houses, Maher agreed to buy the mantels, provided someone would remove and deliver them.

When Kelly returned to Castro's store a short time later, Casto offered to buy the mantels if Kelly and his friend would help remove them. They agreed and he then paid Kelly $140. On cross-examination, Casto testified that when he went to inspect the houses for items having possible salvage value, the front door on one of the houses was open and the front door on the other house had been removed from its hinges. He also stated that when Kelly returned to his store the second time and he agreed to purchase the mantels, Kelly said he would have to make a phone call to make certain that it was all right to accept the money. Kelly then made three phone calls from the store. The first two times Kelly said he could not get an answer. On his third attempt, Kelly talked on the phone.

Charles Taylor testified that he had gone with Kelly and Gross to the houses to remove the mantels, but that as soon as they arrived Kelly left, and Gross left about a half hour to forty-five minutes later. He also stated, however, that two or three of the best mantels were removed while both Kelly and Gross were present. He loaded the mantels onto the back of his truck with the help of another man he had contacted and delivered them in two trips to Maher's Antiques. On cross-examination, Taylor confirmed the testimony that Kelly had made two or three phone calls from Castro's store. He stated that they carefully removed the mantels so as not to damage them, but that some of them were already damaged.

Robert Maher corroborated Casto's testimony concerning his purchase of the mantels and testified based on his experience as a dealer in antiques that the mantels as a group were worth around $600 to $650. A police officer for the City of Parkersburg testified that he saw Kelly and another man apparently loading mantels into the back of the truck, but did not stop and make any inquiry as it was not apparent that anything illegal was taking place. He estimated there were from two to four mantels in the back of the truck. A second officer confirmed this testimony and the prosecution rested its case. The defense then moved for a judgment of acquittal which was denied.

The defense called a Nellie Bohn who testified that Kelly had come to her door sometime in April and had asked who owned the houses across the street. She told him that she did not know, but had frequently seen Linda Bradley working over there. Not long thereafter and perhaps on the same day, he came to her house again and asked to borrow a screwdriver.

Robert Gross testified that Kelly approached him on a Tuesday or Wednesday in April about tearing down some houses on Avery Street. They went to take a look at the houses and when they arrived, a man who introduced himself as Jim Bradley was present. Kelly and Bradley talked about the price for tearing down the houses. After a few minutes, he and Kelly removed a few items of old furniture from the house and put them into Bradley's truck. The next day the mantels were sold and the following day they saw James Bradley walking down Seventh Street in Parkersburg. Kelly then paid Bradley the money he had received from the sale of the mantels to Casto. Bradley then gave Kelly $40 for arranging the sale, which the two of them split.

On cross-examination, Gross testified that he had helped Kelly on other odd jobs and that Kelly told him that Bradley owned the houses. He and Casto's helper removed the first two mantels from one of the houses and Kelly did not assist in the removal because he has a paralyzed hand. He testified that the mantels were removed from the houses two days after Kelly received a telephone call on a phone he was using to receive messages about employment.

Kelly took the stand and testified that he was a self-employed contractor who did painting, both interior and exterior, and would essentially take any job that he could get, including tearing down houses. In April, he had placed an advertisement for construction and demolition work in the Parkersburg Bulletin Board. A Bulletin Board containing his advertisement was introduced in evidence. He...