State v. Minigh

• Citation: 680 S.E.2d 127
• Decision Date: 23 June 2009
• Docket Number: No. 34266.,34266.
• Parties: STATE of West Virginia, Plaintiff Below, Appellee v. Danny MINIGH, Defendant Below, Appellant.
• Court: Supreme Court of West Virginia

680 S.E.2d 127

STATE of West Virginia, Plaintiff Below, Appellee v. Danny MINIGH, Defendant Below, Appellant.

No. 34266.

Supreme Court of Appeals of West Virginia.

Submitted March 11, 2009.

Decided June 23, 2009.

Syllabus by the Court

1. "The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution consists of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." Syl. Pt. 1, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).

2. "`The Double Jeopardy Clause in Article III, Section 5 of the West Virginia Constitution, provides immunity from further prosecution where a court having jurisdiction has acquitted the accused. It protects against a second prosecution for the same offense after conviction. It also prohibits multiple punishments for the same offense.'" Syllabus Point 1, Conner v. Griffith, 160 W.Va. 680, 238 S.E.2d 529 (1977). Syl. Pt. 2, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).

3. "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). Syl. Pt. 6, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).

4. "`In order to constitute the crime of attempt, two requirements must be met: (1) a specific intent to commit the underlying substantive crime; and (2) an overt act toward the commission of that crime, which falls short of completing the underlying crime.' Syl. Pt. 2, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978)." Syl. Pt. 1, State v. Burd, 187 W.Va. 415, 419 S.E.2d 676 (1991).

5. "`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.' Syl. Pt. 4, State v. Less, 170 W.Va. 259, 294 S.E.2d 62 (1981)." Syl. Pt. 3, State v. Burd, 187 W.Va. 415, 419 S.E.2d 676 (1991).

6. "The principle of collateral estoppel applies in a criminal case where an issue of ultimate fact has once been determined by a valid and final judgment. In such case, that issue may not again be litigated between the State and the defendant. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970)." Syl. Pt. 1, State v. Porter, 182 W.Va. 776, 392 S.E.2d 216 (1990).

7. "A trial court's evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review under an abuse of discretion standard." Syl. Pt. 4 State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).

8. "`Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. W. Va.R. Evid. 404(b).' Syl. Pt. 1, State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990)." Syl. Pt. 1, State v. McIntosh, 207 W.Va. 561, 534 S.E.2d 757 (2000).

9. "`Other criminal act evidence admissible as part of the res gestae or same transaction introduced for the purpose of explaining the crime charged must be confined to that which is reasonably necessary to accomplish such purpose.' Syl. pt. 1, State v. Spicer, 162 W.Va. 127, 245 S.E.2d 922 (1978)." Syl. Pt. 1, State v. Youngblood, 217 W.Va. 535, 618 S.E.2d 544 (2005), cert. granted and judgment vacated on other grounds, 547 U.S. 867, 126 S.Ct. 2188, 165 L.Ed.2d 269 (2006).

10. "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 reviewing 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).

11. "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." Syl. Pt 3, in part, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

Rocky D. Holmes, Esq. Public Defender Corp., Spencer, Attorney for Appellant.

R. Christopher Smith, Esq., West Virginia Attorney General's Office, Charleston, Attorney for Appellee.

PER CURIAM:

This case is before the Court upon the appeal of the Appellant, Danny Minigh, from the August 20, 2007, Order of the Circuit Court of Calhoun County, denying the Appellant's post-trial motions and sentencing the Appellant to a term of one to five years in the State penitentiary upon his conviction by a jury of one count of conspiracy to commit a felony offense in violation of West Virginia Code § 61-10-31(2005).¹ The felony offense at issue is conspiracy to manufacture a Schedule IV controlled substance in violation of West Virginia Code § 60A-4-101(2005). The Appellant argues that the circuit court erred: 1) by not granting the Appellant's Motion to Dismiss based upon Double Jeopardy when a Braxton County circuit court judge swore a jury, took evidence, and granted the Appellant's Motion to Dismiss, stating that the Braxton County charges are in Double Jeopardy with the Calhoun County charges due to the charges being similar in nature; 2) by allowing the Appellee to use evidence in the Calhoun County trial from the Braxton County traffic stop, ruling that this evidence is intrinsic to the charges; and 3) by not granting the Appellant's post-trial Motion for Judgment of Acquittal when the Appellee produced no evidence of a conspiracy occurring within the jurisdiction of Calhoun County.

I. Factual and Procedural Background

A. Braxton County Charges

During the night and early morning of July 22 and July 23, 2004, Trooper Mark Yost of the West Virginia State Police pulled over a vehicle traveling on Route 5 from Interstate 79 heading toward Glenville, in Braxton County, West Virginia. Trooper Yost observed a headlight out on the vehicle, causing him to stop the car. The Appellant was driving the car. He was accompanied by George Dusky, who was the owner of the vehicle and a passenger in the front seat, and James "Bub" Jones, who was a passenger in the back seat.

Trooper Yost testified that the Appellant did not have a driver's license and "appeared to be extremely nervous for a minor traffic violation." The Appellant also gave the trooper a fictitious name, Roger Minigh. After issuing the Appellant a warning, Trooper Yost asked if he could search the vehicle and both the Appellant and Mr. Dusky consented.

During the search, the trooper found a shopping list containing ingredients for methamphetamine, including such items as a hose, matches, and lye. The trooper also found a bag of white pills, one gallon of acetone, four 12-ounce bottles of HEET gas line antifreeze and one bottle of Red Devil lye. The trooper further testified that he found numerous receipts with the same date on them for various products all of which are considered methamphetamine precursors.² Finally, Trooper Yost testified that when he was removing the items from the vehicle, the Appellant made the spontaneous statement that "[t]hat is mine[,]" referring to the items being removed. Trooper Yost then gave all three men a Miranda³ warning and placed them under arrest.⁴

According to the Indictment brought in Braxton County, the Appellant was charged with attempting to operate a clandestine drug laboratory, which is a felony offense. The Circuit Court of Braxton County, by Order entered April 13, 2006, dismissed the Indictment against the Appellant, with prejudice. The Braxton County circuit court's Order indicates that prior to trial the Appellant moved to dismiss the Indictment "asserting double jeopardy. The circuit court took defendant's motion under advisement, desiring to hear the state's case in chief." The circuit court further stated in its Order:

The Court then impaneled the jury and the parties conducted voir dire of the jury panel. The parties each exercised their appropriate strikes of the jury. It appearing proper to do so, the Court then swore in the jury panel.

Each party then gave an opening statement. The State of West Virginia by counsel began the presentation of the sworn testimony of its first witness. The defendant, by counsel cross examined the witness.

At the conclusion of cross examination defendant through his counsel renewed his motion to dismiss the indictment on double jeopardy grounds. The state did not resist the motion. The Court then granted said motion.⁵

B. Calhoun County Charges

Regarding the charges brought in Calhoun County, West Virginia, James "Bub" Jones, one of the passengers in the vehicle...