State v. Mullins

• Decision Date: 19 May 1989
• Docket Number: 18636,Nos. 18630,s. 18630
• Citation: 181 W.Va. 415,383 S.E.2d 47
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Terry Walker MULLINS. STATE of West Virginia v. Michael F. RODAS.

Page 47

383 S.E.2d 47

181 W.Va. 415

STATE of West Virginia v. Terry Walker MULLINS.

STATE of West Virginia v. Michael F. RODAS.

Nos. 18630, 18636.

Supreme Court of Appeals of

West Virginia.

May 19, 1989.

Rehearing Denied July 20, 1989.

Syllabus by the Court

1. "An indictment for a statutory offense is sufficient if, in charging the offense, it substantially follows the language of the statute, fully informs the accused of the particular offense with which he is charged and enables the court to determine the statute on which the charge is based." Syl. pt. 3, State v. Hall, 172 W.Va. 138, 304 S.E.2d 43 (1983).

2. An indictment for a charge of first degree arson is sufficient to sustain a conviction if, in charging the offense, it makes reference to W.Va.Code, 61-3-1, as amended, and fully informs the defendant of the particular offense with which the defendant is charged.

3. A building which contains an apartment, intended for habitation, whether occupied, unoccupied or vacant, is a "dwelling house" for purposes of W.Va.Code, 61-3-1, as amended.

4. "Where there is no evidentiary dispute or insufficiency on the elements of the greater offense which are different from the elements of the lesser included offense, then the defendant is not entitled to a lesser included offense instruction." Syl. pt. 2, State v. Neider, 170 W.Va. 662, 295 S.E.2d 902(1982).

5. To sustain a conviction of arson, when the evidence offered at trial is circumstantial, the evidence must show that the fire was of an incendiary origin and the defendant must be connected with the actual commission of the crime.

6. When a trial court fails to follow the requirements of Rule 44(c) of the West Virginia Rules of Criminal Procedure, this Court will review the record to determine if any conflict likely existed between the jointly represented parties rather than to determine whether there is an actual conflict. If, after reviewing the record, this Court determines no conflict likely existed between the jointly represented parties, such joint representation will not be deemed reversible error.

Franklin D. Cleckley, Morgantown, for Terry Walker Mullins.

Robert E. Blair, Welch, for Michael F. Rodas.

Richard M. Riffe, Asst. Atty. Gen., Charleston, for appellee.

McHUGH, Justice:

These cases are before the Court upon the appeals of Terry Walker Mullins and Michael F. Rodas. The appellants were convicted of first degree arson in the Circuit Court of McDowell County. We have reviewed the petitions for appeal, all matters of record, and briefs of the parties. We are of the opinion that the convictions should be affirmed.

I

On the night of December 9, 1986, and early morning of December 10, 1986, a two-story building, located in Bradshaw and owned by Will Harvey Mullins, was destroyed by fire. Will Harvey Mullins, the father of the appellant Mullins, was hospitalized and critically ill at the time of the fire. He died four days later.

The first floor of the building was leased to and occupied by the Sound Factory, an electronic equipment business. Four apartment units were located on the second floor of the building. Three of the units were vacant and unoccupied at the time of the burning. The other unit, according to testimony at trial, was lived in by the sister of the appellant Mullins.

During trial, the State's witnesses included Warren Henderson, who testified that on the night of December 9, 1986, he had followed a blue pick-up truck with a white camper top into Bradshaw. Because it was being driven erratically, he remembered the truck's license plate number. Henderson testified that he did not know who was in the truck.

The State's witnesses also included Benny Matney, who testified that he was driving by the Sound Factory at the time of the explosion. Matney testified that he saw a blue truck with a white top parked on the side of the road by the Sound Factory, and a man getting into the truck right before the explosion. The truck pulled away immediately upon the explosion. Matney could not identify the man getting into the truck or the driver.

The front door to the building was the only conventional way of entry, and it was padlocked at the time firefighters and the Sound Factory manager arrived at the scene. Several employees of the Sound Factory had keys to the padlock, but there was no evidence that either of the appellants possessed a key. There was evidence that a hole in the roof in the rear of the building was a means of gaining access to the interior.

An assistant chief with the Bradshaw Fire Department and an assistant state fire marshall testified that they believed the fire was of an incendiary nature, caused by a flammable liquid.

The appellants contend that they were elsewhere when the burning occurred. The appellant Rodas was employed by the appellant Mullins as a maintenance man at a trailer park. He was also employed as a bartender at the Red Cellar Lounge, owned by Mullins. The appellants closed the bar at 10:00 p.m., earlier than usual, on the night of December 9, 1986, they maintain, so that they could go to inspect a bar in War that Mullins had considered purchasing. Rodas was intoxicated when they left the Red Cellar Lounge.

The appellants testified that they drove to a bar in Yukon, then on to War and English. They drove through Bradshaw around 11:00 p.m., and reached Iaeger around 11:30 p.m., where they were stopped by Iaeger city police, and taken to city hall where they were detained and questioned. They were not formally told why they were being questioned.

The truck was searched. Garbage cans and a .38 caliber Smith & Wesson were found in the truck. The state trooper assigned to the investigation testified that the rear compartment of the truck, where the garbage cans were found, "reeked with the smell of kerosene."

II

The appellant Mullins contends that the indictment in this case was insufficient to sustain a conviction of first degree arson. ¹ The indictments alleged that the appellants:

feloniously, maliciously, willfully and unlawfully set fire to and burn a certain building and storehouse situated in Bradshaw, McDowell County, West Virginia, then owned by Will Harvey Mullins and then possessed and occupied by Bobbie Jean Hughes, an individual, trading and doing business under the name of The Sound Factory, and who owned the contents therein which were also burned and destroyed, in violation of West Virginia Code 61-3-1, as amended[.]

W.Va.Code, 61-3-1 [1935], the State's first degree arson statute, provides:

Any person who wilfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of any dwelling house, whether occupied, unoccupied or vacant, or any kitchen, shop, barn, stable or other outhouse that is parcel thereof, or belonging to or adjoining thereto, whether the property of himself or of another, shall be guilty of arson in the first degree, and upon conviction thereof, be sentenced to the penitentiary for not less than two nor more than twenty years.

Fundamentally, the appellant Mullins maintains that the language of the indictment sets forth the elements of second degree arson, not first degree arson, because it does not refer to the burning of a dwelling house. The State's second degree arson statute is W.Va.Code, 61-3-2 [1935], and it provides:

Any person who wilfully and maliciously sets fire to or burns or causes to be burned, or who aids, counsels or procures the burning of any building or structure of any class or character, whether the property of himself or of another, not included or prescribed in the preceding section, shall be guilty of arson in the second degree, and upon conviction thereof, be sentenced to the penitentiary for not less than one nor more than ten years.

Therefore, appellant Mullins argues that the indictment was insufficient to support a conviction of first degree arson. In so contending, the appellant claims that although the indictment in this case generally followed the statutory language, it is not sufficient because the language in the indictment did not also include an essential element of the offense, specifically, reference to a dwelling house. We do not agree with this contention. The appellant Mullins' contention would indicate that there is but one method of drafting an effective indictment written in statutory language to sustain a conviction. This method would require the indictment to be worded in terms that strictly spell out statutory requirements and any deviation therefrom would render the indictment defective. However, we have never required the indictment to be worded in such narrow terms. Rather, our holdings have required the indictment to substantially follow the statute's language and fully inform the defendant of the prosecution's charge.

This Court has consistently held that "[a]n indictment for a statutory offense is sufficient if, in charging the offense, it substantially follows the language of the statute, fully informs the accused of the particular offense with which he is charged and enables the court to determine the statute on which the charge is based." Syl. pt. 3, State v. Hall, 172 W.Va. 138, 304 S.E.2d 43 (1983). Accord, syl. pt. 1, State v. Fairchild, 171 W.Va. 137, 298 S.E.2d 110 (1982); see also State v. Eden, 163 W.Va. 370, 387, 256 S.E.2d 868, 878 (1979); syl. pt. 3, State v. Slie, 158 W.Va. 672, 213 S.E.2d 109 (1975); syl. pt. 3, Pyles v. Boles, 148 W.Va. 465, 135 S.E.2d 692 (1964); State v. Younger, 130 W.Va. 236, 239, 43 S.E.2d 52, 53 (1947).

In the case now before us, the indictment referred to W.Va.Code, 61-3-1 [1935], which is first degree arson. The language of the indictment, coupled with the statutory reference to W.Va.Code, 61-3-1 [1935], was sufficient to apprise the appellant Mullins of the first degree arson charge so that he could prepare for trial. ² Syl. pt. 2, State v. Harrison, 130 W.Va. 246, 43 S.E.2d 214 (1947); syl., ...