State v. Nelson

• Decision Date: 22 July 1993
• Docket Number: No. 21273,21273
• Citation: 189 W.Va. 778,434 S.E.2d 697
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Lisa A. NELSON, Defendant Below, Appellant.

Page 697

434 S.E.2d 697

189 W.Va. 778

STATE of West Virginia, Plaintiff Below, Appellee, v. Lisa A. NELSON, Defendant Below, Appellant.

No. 21273.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 13, 1993.

Decided July 22, 1993.

Syllabus by the Court

1. "Among the criteria to be considered in determining whether a position is an office or mere employment are whether the position was created by law; whether the position was designated an office; whether the qualifications of the appointee have been prescribed; whether the duties, tenure, salary, bond and oath have been prescribed or required; and whether the one occupying the position has been constituted a representative of the sovereign." Syl. Pt. 5, State ex rel. Carson v. Wood, 154 W.Va. 397, 175 S.E.2d 482 (1970).

2. A position of mere public employment which requires providing service to the public and dealing with public records is not equivalent to an officer in lawful charge of public records for the purposes of West Virginia Code § 61-5-23 (1992).

3. "The essential predicates of a plain view warrantless seizure are (1) that the officer did not violate the Fourth Amendment in arriving at the place from which the incriminating evidence could be viewed; (2) that the item was in plain view and its incriminating character was also immediately apparent; and (3) that not only was the officer lawfully located in a place from which the object could be plainly seen, but the officer also had a lawful right of access to the object itself." Syl. Pt. 3, State v. Julius, 185 W.Va. 422, 408 S.E.2d 1 (1991).

4. "A trial court may find, as a matter of law, that a defendant was entrapped, if the evidence establishes, to such an extent that the minds of reasonable men could not differ, that the officer or agent conceived the plan and procured or directed its execution in such an unconscionable way that he could only be said to have created a crime for the purpose of making an arrest and obtaining a conviction." Syl. Pt. 4, State v. Knight, 159 W.Va. 924, 230 S.E.2d 732 (1976).

5. "When a defendant presents evidence of police conduct amounting to entrapment, and the State fails to rebut that evidence or prove defendant's predisposition to commit the crime charged, a trial judge should direct a verdict for defendant as a matter of law." Syllabus, State v. Hinkle, 169 W.Va. 271, 286 S.E.2d 699 (1982).

George B. Morrone III, Kenova, for appellant.

Rodney L. Bean, Asst. Atty. Gen., Charleston, for appellee.

WORKMAN, Chief Justice:

This case is before the Court upon the appeal of Lisa A. Nelson from a September 12, 1991, jury conviction in the Circuit Court of Cabell County for fraudulently secreting a public record in violation of West Virginia Code § 61-5-23 (1992). ¹ The Appellant had been convicted on March 21, 1991, in magistrate court of a similar charge applicable only to public officers, found in West Virginia Code § 61-5-22 (1992). ² The Appellant contends that the trial court committed the following errors: 1) allowed the Appellee to amend the warrant and charge the Appellant with a violation of West Virginia Code § 61-5-23, in that she was clearly exempt from any conviction thereunder because she was the person in lawful charge of the records concealed; 2) denied the Appellant's motion in limine made pursuant to West Virginia Rule of Evidence 403, whereby the Appellant sought to suppress any evidence of her involvement in other wrongdoings or crimes; 3) denied the Appellant's motion to suppress evidence seized during the warrantless second search of her personal desk and her personal copy of a magazine at her place of employment; 4) denied the Appellant's motion to set aside the verdict and enter a judgment of acquittal, or in the alternative, grant the motion for a new trial, wherein the Appellant contended that she had established, as a matter of law, that she had been entrapped by law enforcement officers; 5) gave various jury instructions which either incorrectly stated the law or were misleading. Upon review of the briefs of the parties, the record and all other matters submitted before the Court, we find that no error was committed and we affirm the conviction.

In October 1989, the Appellant was employed as a records clerk by the Huntington Police Department (hereinafter referred to as HPD). In September 1990, the Appellant became the subject ³ of a drug investigation being conducted by the Cabell County Sheriff's Department (hereinafter referred to as Sheriff's Department). The Sheriff's Department employed Jeffrey Terry as a confidential informant for the drug investigation. According to Mr. Terry's testimony at trial, he became acquainted with the Appellant prior to being employed as a confidential informant, while he was an inmate at the Cabell County Jail and the Appellant was a correctional officer there.

Mr. Terry testified that in September of 1990 he agreed to wear an electronic monitoring device while accompanying the Appellant to purchase marijuana ⁴ at the home of Billy and Debbie Depaul. While at the Depaul home, Mr. Terry asked the Appellant if she could check the HPD files for outstanding warrants on Mr. Depaul. Deputy Larry Pinkerman also testified that while monitoring the conversation between the Appellant, Mr. Terry and the Depauls, he heard the Appellant talk about police records, as well as divulge information about an ongoing HPD drug investigation.

Deputy Pinkerman testified at the suppression hearing that because of the Appellant's willingness to discuss information regarding an ongoing HPD investigation and to release warrant information found in HPD files, the Sheriff's Department decided to investigate whether the Appellant would "expunge or purge" HPD records. On October 26, 1990, Mr. Terry was once again employed by the Sheriff's Department to aid in an investigation concerning the Appellant's willingness to conceal information contained in Mr. Terry's police record. Mr. Terry testified that he telephoned ⁵ the Appellant while she was at work and told her that he had applied for a job at Service Machinery and that someone from there would be coming to the HPD to check his police record for felony convictions. He then asked the Appellant if she would "clean them [the felony convictions] out for me." The Appellant agreed to Mr. Terry's request.

On October 29, 1990, Mr. Terry again telephoned the Appellant to ascertain whether anyone had checked on his police record. The Appellant indicated that no one had checked his records yet. She also assured Mr. Terry that she would not disclose Mr. Terry's entire criminal record to the potential employer.

Later that same day, West Virginia State Trooper Jack W. Ice, working undercover, went into the HPD posing as Mr. Terry's potential employer while wearing an electronic monitoring device. Trooper Ice presented the Appellant with a criminal investigation authorization form for the release of Mr. Terry's criminal record. According to Trooper Ice, the Appellant proceeded to check Mr. Terry's record and then she marked on the form under "Records found" that Mr. Terry had "a felony B & E [Breaking and Entering] in 1983, April." ⁶ Further, the Appellant told Trooper Ice that the felony breaking and entering had either been reduced to a misdemeanor or dropped.

Shortly after Trooper Ice departed, Mr. Terry telephoned the Appellant. The Appellant told Mr. Terry what she had disclosed to the potential employer. She also told Mr. Terry, "Jeff, I got my neck stuck way, way out[,]" and that "I could lose my job over this."

On October 30, 1990, a search warrant ⁷ was issued for "[i]dentification and criminal record of Jeffrey A. Terry packet number 26349." The search warrant identified the place to be searched as "the Huntington Police Department Service Records Division located at 330 3rd. Avenue, Huntington, Cabell County, West Virginia[.] A two ... story building with red brick [f]ront[.]" The Sheriff's Department executed the warrant, conducting a search of the Appellant's desk at the HPD, but failed to find any incriminating evidence.

According to Lieutenant Bobby Stephens, a police officer with the HPD and the Appellant's supervisor, approximately one and one-half hours after the Sheriff's Department conducted the initial search of the Appellant's desk, he went to the Appellant's desk "to separate some of her personal effects from the property of the Police Department." The Lieutenant testified that this occurred subsequent to the Appellant's arrest, but prior to her termination from employment. During this inventory of the Appellant's personal effects, Lieutenant Stephens noticed a magazine laying in an upright file on top of the Appellant's desk. Protruding from the magazine were papers that the officer recognized as criminal rap sheets belonging to Mr. Terry. ⁸ These papers should have been in Mr. Terry's criminal history file. These documents were the same documents that were the subject of the earlier search conducted by the Sheriff's Department. Lieutenant Stephens testified that he notified the Sheriff's Department regarding the documents and turned those documents over to that department.

The Appellant presented no evidence at trial and relied upon the defense of entrapment.

I.

The first assignment of error raised by the Appellant is that the trial court erred in permitting the Appellee to amend the warrant and charge the Appellant with violating West Virginia Code § 61-5-23 instead of West Virginia Code § 61-5-22. The Appellant argues that she was clearly exempt from any conviction under West Virginia Code § 61-5-23 since she was the person in lawful charge of the records concealed. ⁹ Further, the Appellant asserts that if this Court finds that she violated West Virginia Code § 61-5-23, said code provision is unconstitutionally void for vagueness since she had no notice that the nondisclosure of a criminal history summary to a potential employer...