State v. Mann

• Decision Date: 11 June 1999
• Docket Number: No. 25767.,25767.
• Citation: 518 S.E.2d 60,205 W.Va. 303
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Millard MANN, Defendant Below, Appellant.

518 S.E.2d 60

205 W.Va. 303

STATE of West Virginia, Plaintiff Below, Appellee, v. Millard MANN, Defendant Below, Appellant.

No. 25767.

Supreme Court of Appeals of West Virginia.

Submitted May 4, 1999.

Decided June 11, 1999.

Darrell V. McGraw, Jr., Attorney General, Barbara H. Allen, Managing Deputy Attorney General, Charleston, West Virginia, Attorneys for the Appellee.

Charles Stanford West, Williamson, West Virginia, Attorney for the Appellant.

PER CURIAM:

Appellant herein and defendant below, Millard Oscar Mann (hereinafter referred to as "Mr. Mann"), appeals from an October 5, 1998, order entered by the Circuit Court of Mingo County sentencing Mr. Mann to thirty years of imprisonment after a Mingo County jury found him guilty of aggravated robbery. On appeal to this Court, Mr. Mann contends that the State failed to prove beyond a reasonable doubt that there was sufficient evidence to support the verdict; that the trial court erred in the admission of certain photographic evidence; that the trial court erred by admitting evidence of prior bad acts; that the prosecutor made improper remarks to the jury during opening and closing arguments; that the trial court erred by rejecting certain defense jury instructions and that the sentence imposed upon Mr. Mann was disproportionate to the offense. Having reviewed the arguments of the parties, the record presented for consideration on appeal, and the pertinent authorities, we find that there was no error in the trial of this case. As such, we affirm the conviction and sentence imposed.

I. FACTUAL AND PROCEDURAL HISTORY

Mr. Mann lived in Pike County, Kentucky.¹ On the evening of September 4, 1994, Mr. Mann drove a friend, Gordon Gooslin, to the emergency room at Appalachian Regional Hospital (hereinafter referred to as "the ARH"), in Kentucky.² Mr. Mann was driving his wife's car, which was a two-door maroon Buick with Kentucky license plate number BVA-820. Mr. Gooslin was taken to the hospital because of a hand injury from a prior automobile accident. Upon arrival at the hospital, Mr. Mann complained of back pains and discomfort caused by ingesting cocaine and drinking beer. As a result of Mr. Mann's own complaints, he was treated before Mr. Gooslin.

Mr. Mann was admitted to the hospital for treatment at 8:15 p.m. Shortly before Mr. Mann was seen by a physician, an attending nurse, Bernadine Steele, observed a gun in Mr. Mann's jacket. Ms. Steele instructed a co-worker to call the police. The police were contacted, and Ms. Steele was instructed to try to detain Mr. Mann until the police arrived. Hospital workers were unable to detain Mr. Mann. After receiving a shot of Tordol for back pain, he was discharged at 8:40 p.m. Hospital workers testified that Mr. Mann was wearing a dark t-shirt with a skull or motorcycle design on it, blue jeans and a dark bandana.

Ms. Steele testified that after Mr. Mann was discharged, she followed him outside the hospital. It appeared to her that Mr. Mann was not leaving the hospital area so she went back inside. At trial, Ms. Steele testified that she again went outside the hospital at 9:00 p.m. for a cigarette break and noticed that Mr. Mann and the car driven by him were gone.³ Ms. Steele testified that she did not see Mr. Mann again until sometime after 10:00 p.m.

On the same evening, at 9:30 p.m., a man walked up to the drive-thru window of a store in Mingo County, West Virginia, called the Cold Spot, and demanded the store clerk hand over all of the money in the store.⁴ The robber had a gun and was reported as wearing a dark t-shirt with a skull or motorcycle design on it, blue jeans and a dark bandana on his face.⁵ The store clerk handed over the money, which was approximately $1,300.00. The robber then fled the scene and went to a nearby parked car. The robber got into the car and sped away. An eyewitness to the robbery, John Dotson, observed the robber get into a maroon vehicle that had the license plate number BVA-820.⁶

As a defense, Mr. Mann later explained his whereabouts during the time of the robbery by testifying that he became sick while he was at the hospital waiting for Mr. Gooslin to be treated. Mr. Mann further testified that he went into the hospital bathroom for about a half hour, where he began throwing up. Further, Mr. Mann stated that he called his wife and told her to come pick him up because he was too sick to drive. Mrs. Mann came to the hospital around the time Mr. Gooslin was discharged. The testimony at trial indicated that Mr. Mann got into a pick-up truck his wife was driving, and they rode off together. Mr. Gooslin and Mr. Smith left in the vehicle Mr. Mann had driven to the hospital.

The police identified the license plate number of the car driven by the robber as the license plate number of a car registered to Mrs. Mann. Eventually, Mr. Mann was arrested and indicted for aggravated robbery of the Cold Spot. At trial, Mr. Mann attempted to show that he did not commit the crime, because he was not the same size as the man described by witnesses.⁷ The jury rejected Mr. Mann's theory of the case and convicted him of aggravated robbery. The trial court sentenced Mr. Mann to thirty years' imprisonment. This appeal followed.

II. STANDARD OF REVIEW

Due to the numerous assignments of error asserted by Mr. Mann, we will articulate the applicable standards of review in connection with the particular assignments to which they relate.

III. DISCUSSION

A. Insufficiency of Evidence to Support the Verdict

The first assignment of error raised by Mr. Mann is that the evidence was insufficient to support the verdict finding him guilty of aggravated robbery. This Court articulated the standard of review for sufficiency of the evidence in State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). We held in Syllabus point 1 of Guthrie that:

The function of an appellate court when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.

Id.

We further elaborated in Syllabus point 3 of Guthrie, in part, that:

A criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a jury and not an appellate court. Finally, a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt.

Id.

Mr. Mann's conviction was based upon circumstantial evidence.⁸ This Court has previously ruled that we may accept any adequate evidence, including circumstantial evidence, as support for a conviction.

Circumstantial evidence ... is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some case[s] point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more.

Guthrie, 194 W.Va. at 668, 461 S.E.2d at 174 (quoting Holland v. United States, 348 U.S. 121, 139-40, 75 S.Ct. 127, 137-38, 99 L.Ed. 150, 166 (1954)).

Although the issue of circumstantial evidence is significant in this case, ultimately the most critical factor is witness credibility. The State presented uncontradicted evidence that a maroon-looking car bearing the license plate number BVA-820 was used as the getaway vehicle in the robbery. Although the evidence was conflicting as to whether the car was a Buick or an Oldsmobile, or had two-doors or four-doors, there was uncontradicted testimony by eyewitness John Dotson that the getaway vehicle was maroon in color and had the license plate number BVA-820. Uncontradicted evidence was also introduced to establish that the car driven to the hospital by Mr. Mann, and owned by Mrs. Mann, was maroon and had the license plate number BVA-820.

The State presented evidence through Nurse Steele that, at 9:00 p.m., Mr. Mann and the car he drove to the hospital had disappeared. Nurse Steele testified that she did not see Mr. Mann again until after 10:00 p.m. The robbery occurred at 9:30 p.m.⁹ During the trial, Mr. Mann accounted for his time between the hours of 9:00 p.m. and 10:00 p.m. as time spent in the hospital bathroom throwing up and calling his wife to come pick him up. No witness came forward to corroborate Mr. Mann's whereabouts at the hospital between 9:00 p.m. and 10:00 p.m. Nurse Steele also testified that she saw a gun in a jacket worn by Mr. Mann. The robbery was committed by a person using a gun. Mr. Mann however, has denied having a handgun.

The State presented additional testimony that Mr. Mann wore a dark t-shirt with a skull or motorcycle design on it, blue jeans and a dark bandana when he entered the hospital. The State also presented evidence that the person who robbed the store wore a dark t-shirt with a skull or motorcycle design on it, blue jeans and a dark bandana covering his face. In his brief, Mr....