State v. McFarland

• Decision Date: 23 November 2011
• Docket Number: No. 101413.,101413.
• Citation: 721 S.E.2d 62,228 W.Va. 492
• Parties: STATE of West Virginia, Plaintiff Below, Respondent v. Larry Arthur McFARLAND, Defendant Below, Petitioner.
• Court: West Virginia Supreme Court

228 W.Va. 492

721 S.E.2d 62

STATE of West Virginia, Plaintiff Below, Respondent

v.Larry Arthur McFARLAND, Defendant Below, Petitioner.

No. 101413.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 7, 2011.Decided Nov. 23, 2011.

Syllabus by the Court

1. “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.” Syl. pt. 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

2. “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. To the extent that our prior cases are inconsistent, they are expressly overruled.” Syl. pt. 3, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

3. “When offering evidence under Rule 404(b) of the West Virginia Rules of Evidence, the prosecution is required to identify the specific purpose for which the evidence is being offered and the jury must be instructed to limit its consideration of the evidence to only that purpose. It is not sufficient for the prosecution or the trial court merely to cite or mention the litany of possible uses listed in Rule 404(b). The specific and precise purpose for which the evidence is offered must clearly be shown from the record and that purpose alone must be told to the jury in the trial court's instruction.” Syl. pt. 1, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).

4. “Where an offer of evidence is made under Rule 404(b) of the West Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West Virginia Rules of Evidence, is to determine its admissibility. Before admitting the evidence, the trial court should conduct an in camera hearing as stated in State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and arguments of counsel, the trial court must be satisfied by a preponderance of the evidence that the acts or conduct occurred and that the defendant committed the acts. If the trial court does not find by a preponderance of the evidence that the acts or conduct was committed or that the defendant was the actor, the evidence should be excluded under Rule 404(b). If a sufficient showing has been made, the trial court must then determine the relevancy of the evidence under Rules 401 and 402 of the West Virginia Rules of Evidence and conduct the balancing required under Rule 403 of the West Virginia Rules of Evidence. If the trial court is then satisfied that the Rule 404(b) evidence is admissible, it should instruct the jury on the limited purpose for which such evidence has been admitted. A limiting instruction should be given at the time the evidence is offered, and we recommend that it be repeated in the trial court's general charge to the jury at the conclusion of the evidence.” Syl. pt. 2, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).

Christopher J. Prezioso, Esq., Luttrell & Prezioso, Martinsburg, WV, Attorney for Petitioner.

Brandon C.H. Sims, Esq., Assistant Prosecutor, Jefferson County Prosecutor's Office, Charles Town, WV, Attorney for Respondent.

PER CURIAM:

Petitioner Larry McFarland was convicted by a jury of sexual assault in the second degree. Following that conviction, the State filed an information alleging that Petitioner had been convicted of a qualifying offense under the recidivist statute at W. Va.Code § 61–11–18.¹ Petitioner admitted at the arraignment on the recidivist information that he was the same person previously convicted of a qualifying offense in California. Accordingly, the circuit court sentenced Petitioner to not less than 20 nor more than 25 years in the penitentiary. Petitioner now appeals his sexual assault and recidivist convictions to this Court. For the reasons that follow, we reverse Petitioner's convictions and remand to the circuit court for a new trial.

I.FACTS

Petitioner Larry McFarland met Grant B. and his wife, Elizabeth B.,² the alleged victim in this case, in a bar in the Spring of 2008. At that time, the parties planned to get together the next week. The following Sunday evening, Petitioner visited the home of Elizabeth B. and her husband. When he arrived at the home, Petitioner was drinking vodka and “some sort of pink juice.” After Petitioner's arrival, the B.s and Petitioner all “took shots” of Jaegermeister. Subsequently, while Grant B. was talking on the telephone, Petitioner asked Mrs. B. if she and her husband “did” cocaine on a regular basis. Elizabeth B. responded that she and her husband did not, and that mentioning cocaine to her husband would be a bad idea. Elizabeth B. explained during her testimony that while her husband is “pretty adamantly against that sort of thing,” she has “a more liberal view.”

Later in the evening, the parties drank alcoholic beverages together and Petitioner and Elizabeth B. smoked marijuana supplied by Mrs. B. During her testimony at trial, Mrs. B. testified that she drank beers, vodka “with pink liquid,” and Jaegermeister. She characterized the parties' drinking as “excessive.” At some point during the evening, the parties looked at pictures of naked women on Petitioner's cell phone. Also, Mr. B. and Petitioner discussed the physical attributes of the lead singer of the country music group Sugarland, agreeing that she was “hot.”

Ultimately, Mr. B. went to bed, and Petitioner and Mrs. B. remained up, continuing to drink alcoholic beverages together. At some point, Petitioner offered Mrs. B. cocaine. According to Petitioner, Mrs. B. did “a line of” cocaine. Mrs. B. testified that in order to appease Petitioner she merely dipped her finger in the cocaine and tasted it. During their conversation, Petitioner asked Mrs. B. to rate his physical attractiveness and indicated that he would rate Mrs. B. a “nine.” Mrs. B. stated that she did not want to rate Petitioner because she “was crazy” about her husband.

According to Mrs. B., the next thing she remembers is waking up in bed the next morning with her pants on inside out and her underwear on wrong. She felt ill, suffering vomiting, chills and severe vaginal pain. After Mrs. B. awoke, her husband called her from work and asked her why her pants were on inside out, and she replied that she did not know. Mrs. B. finally went to the hospital after 5:00 p.m. that day. A sexual assault exam revealed reddened areas and an ulceration on Mrs. B.'s external genitalia. According to the nurse who performed the exam, these injuries were consistent with a sexual assault. A DNA test performed by the West Virginia State Police indicated the presence of Petitioner's semen on Mrs. B.'s pants.

Subsequently, Petitioner was indicted for one count of second degree sexual assault. The State proceeded under the theory that Mrs. B. was physically helpless at the time of Petitioner's sexual contact with her. The State gave notice that it intended to offer into evidence prior sex crimes committed by Petitioner in California. After several pre-trial hearings, the circuit court ruled that the prior sex crime evidence was admissible under Rule 404(b) of the West Virginia Rules of Evidence to show motive and plan. Following a two-day trial, Petitioner was convicted of second degree sexual assault.

Thereafter, the State filed a recidivist information seeking to enhance Petitioner's sentence based on the prior sex crime conviction in California. At the arraignment, the circuit court informed Petitioner of his right to contest the allegations and have a jury trial on the issue. Petitioner waived these rights and admitted that he was the same person convicted of the prior crime. The circuit court subsequently sentenced Petitioner to 20 to 25 years in the penitentiary. Petitioner now appeals his convictions and raises several assignments of error.

II.STANDARD OF REVIEW

In order to decide the case before us, this Court finds it necessary to address two issues raised by Petitioner. The first issue is whether the State's evidence at trial was sufficient to support Petitioner's conviction. This Court's standard of reviewing claims of insufficiency of the evidence is well established.

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.

Syl. pt. 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). In addition, we have made clear 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...