State v. Legg

• Citation: 625 S.E.2d 281
• Decision Date: 21 November 2005
• Docket Number: No. 32500.,32500.
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Ronnie Lynn LEGG, Defendant Below, Appellant.

625 S.E.2d 281

STATE of West Virginia, Plaintiff Below, Appellee, v. Ronnie Lynn LEGG, Defendant Below, Appellant.

No. 32500.

Supreme Court of Appeals of West Virginia.

Submitted: September 21, 2005.

Filed: November 21, 2005.

COPYRIGHT MATERIAL OMITTED

Syllabus by the Court

1. "Generally, the sufficiency of an indictment is reviewed de novo. An indictment need only meet minimal constitutional standards, and the sufficiency of an indictment is determined by practical rather than technical considerations." Syllabus Point 2, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996); Syllabus Point 3, State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999).

2. "[A] general indictment as a principal in the first degree shall be sufficient to sustain a conviction as an aider and abettor or as an accessory before the fact." Syllabus Point 1, in part, State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980); Syllabus Point 1, State v. Ashcraft, 172 W.Va. 640, 309 S.E.2d 600 (1983).

3. Where a defendant in a criminal trial can demonstrate that he or she has suffered actual prejudice as a result of the prosecution's mid-trial decision to pursue a conviction as a principal in the second degree (aider and abettor) of the crime charged, the trial court should grant any necessary and appropriate remedies; remedies may include continuances, the right to recall witnesses, or other actions that will alleviate any unfair prejudice.

Darrell V. McGraw, Jr., Attorney General, Dawn E. Warfield, Deputy Attorney General, Charleston, for Appellee.

Douglas H. Arbuckle, Esq., Lewisburg, for Appellant.

Justice STARCHER delivered the Opinion of the Court.

STARCHER, J.

The appellant, Ronnie Lynn Legg ("Mr. Legg"), was convicted by a jury in the Circuit Court of Greenbrier County, West Virginia, of the felony of "Wrongful Removal of Timber — More Than $1,000.00." W. Va. Code, 61-3-52 [2001]. Following his conviction, Mr. Legg moved for a new trial on the basis that the indictment was insufficient and the jury was wrongly instructed. Mr. Legg's motion for a new trial was denied and he was sentenced to one to two years in the penitentiary. The sentence was then suspended, and Mr. Legg was placed on home confinement. It is from this conviction that Mr. Legg now appeals.

Mr. Legg principally contends that the circuit court erred when it instructed the jury that they could find Mr. Legg guilty as a principal in the second degree, or "aider and abettor." We conclude that the circuit court did not err in giving the aiding and abetting instruction, and that this instruction did not invalidate Mr. Legg's indictment. We uphold Mr. Legg's conviction and affirm the circuit court in its refusal to grant Mr. Legg's motion for a new trial.¹

I. Facts & Background

On Saturday, July 20, 2002, Ronnie Legg joined his friend, Clinton "Bucky" Holland, on a farm owned by Holland's father. Legg and Holland were employed by David Hunter, who ran a timbering business. On the day in question, Mr. Holland had rented a skid-steerer and a skidder from Mr. Hunter in order to do some work on his father's road. Mr. Holland also rented a chainsaw, telling Hunter that he planned to cut down some trees on his father's property. After joining Mr. Holland on the Holland property, Mr. Legg used the chainsaw to cut down two red oak trees that were growing on Josh Bruner's property, which adjoined the Holland property.² After the trees were felled, Holland helped Legg skid the trees over to the Holland property. The two men cut the trees into logs and took them to Jayfor Lumber, where Mr. Legg was paid $1,624.50, by check.

Several weeks later, Conservation Officer C.R. Johnson was contacted regarding the theft of the two trees from the Bruner property, close to the boundary line shared with the Holland property. Officer Johnson obtained the names of Ronnie Legg and Bucky Holland from Jayfor Lumber, and proceeded to take a statement from Mr. Holland. On the basis of this statement, the State obtained an indictment against Mr. Legg.

Mr. Legg was indicted in June 2003 for the felony offense of "Wrongful Removal of Timber — More Than $1,000.00." The indictment alleged that Mr. Legg entered upon the Bruner property and cut down two red oak trees that were valued over at $1,000.00, in violation of W.Va. Code, 61-3-52 [2001]. The indictment made no mention of Mr. Legg acting as a principal in the second degree, or of any involvement in the crime by any other parties.

At trial, Mr. Legg did not deny cutting down the trees but insisted that he only did so at Mr. Holland's request. Mr. Legg testified that he believed the trees belonged to Holland's father. Mr. Legg further admitted that the check from Jayfor Lumber had been made out to him, but said that it was only because he had previously done business with the company, and thus had paperwork on file. Mr. Holland had not sold trees to the company before, and the two men did not want to have to wait for Holland to fill out the appropriate forms. However, Mr. Legg testified that after cashing the check, all the money went to Mr. Holland, who then paid Legg $100.00 for his help. Mr. Hunter, from whom Mr. Holland rented the chainsaw and skidder, testified that Holland gave him $400.00 in cash shortly after the trees had been sold, as payment for the equipment.

Mr. Holland, who testified for the State prior to Mr. Legg's testimony, repeatedly invoked his 5th Amendment rights, but the prosecution was able to admit his prior statement to Officer Johnson as a statement against interest made by an unavailable witness, and this ruling is not challenged on appeal.³

After resting its case, the prosecution requested an instruction on aiding and abetting. The State had not made any mention of the involvement of another party during its opening statements. It appears that the State decided to pursue a conviction based on this alternative theory only after Mr. Holland testified.

II. Standard of Review

Mr. Legg has assigned several points of error in this appeal. First, Mr. Legg asks this Court to review the sufficiency of the indictment. We have held that "[g]enerally, the sufficiency of an indictment is reviewed de novo. An indictment need only meet minimal constitutional standards, and the sufficiency of an indictment is determined by practical rather than technical considerations." Syllabus Point 2, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996); Syllabus Point 3, State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999).

Mr. Legg also asks this Court to review the circuit court's instructions to the jury on finding Mr. Legg guilty as a principal in the second degree. "[T]he question of whether a jury was properly instructed is a question of law, and the review is de novo." Syllabus Point 1, in part, State v. Brooks, 214 W.Va. 562, 591 S.E.2d 120 (2003).

Finally, we are asked to review the circuit court's order denying Mr. Legg's motion for a new trial. In State v. Vance, we said:

In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

Syllabus Point 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).

III. Discussion

A. Validity of the Indictment and Issuance of the Aiding and Abetting Instruction

In his appeal, Mr. Legg advances two intertwined arguments in which he contends that the circuit court violated his rights by allowing the jury to be instructed that they could find him guilty as either a principal in the first degree or as a principal in the second degree. Mr. Legg argues that because he was indicted only as a principal in the first degree, then either the indictment was insufficient or the jury instructions were improper.

1. Validity of the Indictment

Mr. Legg asserts that, under the doctrine of State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999), the indictment for "Wrongful Removal of Timber — More than $1,000.00" was insufficient to support his conviction. Mr. Legg does not contend that the indictment is invalid on its face, but rather that the indictment became invalid when the State requested and received instructions allowing the jury to convict Mr. Legg as either a principal in the first degree or as an aider and abettor.

In State v. Wallace, we held that in order for an indictment to be sufficient under art. III, § 14 of the West Virginia Constitution and Rule 7(c)(1) of the West Virginia Rules of Criminal Procedure, the indictment must (1) state the elements of the offense charged; (2) put the defendant on fair notice against the charges which he or she must defend; and (3) enable a defendant to assert an acquittal or conviction in order to prevent being placed twice in jeopardy. Id. at Syllabus Point 6. We further stated that an "[a]ssessment of the facial sufficiency of an indictment is limited to its `four corners,' and, because supplemental pleadings cannot cure an otherwise invalid indictment, courts are precluded from considering evidence from sources beyond the charging instrument." Id. at Syllabus Point 2. Mr. Legg contends that because he was indicted only as a principal in the first degree and not as an aider and abettor, the indictment did not set forth all of the elements of the offense, and did not put him on fair notice of all of the charges against which he had to defend.

In making this argument, Mr. Legg discounts the well-established law surrounding convictions based on aiding and abetting. W.Va. Code, 61-11-6 [1923] provides that "[i]n the case of every felony, every principal in the second degree, and every accessory before the fact, shall be punishable as if he were the principal in the first...