State v. Oldaker

• Decision Date: 22 June 1983
• Docket Number: 15765,Nos. 15727,s. 15727
• Court: West Virginia Supreme Court
• Parties: , 31 A.L.R.4th 786 STATE of West Virginia v. Henry Jackson OLDAKER. (Two cases)

Page 843

304 S.E.2d 843

172 W.Va. 258, 31 A.L.R.4th 786

STATE of West Virginia v. Henry Jackson OLDAKER. (Two cases)

Nos. 15727, 15765.

Supreme Court of Appeals of West Virginia.

June 22, 1983.

[172 W.Va. 260] Syllabus by the Court

1. United States Constitution, Amendment IV, and West Virginia Constitution, Article III, § 6, do not apply to searches by private individuals unless they are acting as instruments or agents of the State.

2. Under proper circumstances, West Virginia courts will permit expert testimony about the modus operandi of criminals.

3. " 'The action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion.' Syl. pt. 5, Casto v. Martin, 159 W.Va. 761, 230 S.E.2d 722 (1976) citing Syl. pt. 10, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955)." Syllabus Point 2, State v. Rector, 167 W.Va. 748, 280 S.E.2d 597 (1981).

4. " 'Upon motion to direct a verdict for the defendant, the evidence is to be viewed in light most favorable to prosecution. It is not necessary in appraising its sufficiency that the trial court or reviewing court be convinced beyond a reasonable doubt of the guilt of the defendant; the question is whether there is substantial evidence upon which a jury might justifiably find the defendant guilty beyond a reasonable doubt.' Syllabus Point 4, State v. Johnson, 159 W.Va. 682, 226 S.E.2d 442 (1976)." Syllabus Point 5, State v. Woods, 169 W.Va. 767, 289 S.E.2d 500 (1982).

5. " 'It is within the sound discretion of the court in the furtherance of the interests of justice to permit either party, after it has rested, to reopen the case for the purpose of offering further evidence and unless that discretion is abused the action of the trial court will not be disturbed.' Syllabus point 4, State v. Fischer, W.Va., 211 S.E.2d 666 (1974)." Syllabus Point 4, State v. Daggett, 167 W.Va. 411, 280 S.E.2d 545 (1981).

6. "The power of a court in a criminal case to discharge a jury without rendering a verdict is discretionary." Syllabus Point 2, in part, State ex rel. Brooks v. Worrell, 156 W.Va. 8, 190 S.E.2d 474 (1972).

7. Receiving or aiding in concealing a stolen item is the same offense for purposes of punishment, and it is incorrect to charge receiving stolen property in one count and concealing it in another for the same item of property.

Richard A. Bush, Parkersburg, for appellant.

Harry G. Deitzler, Pros. Atty., Parkersburg, for appellee.

HARSHBARGER, Justice:

The Wood County Grand Jury returned two indictments against Henry Jackson Oldaker in October, 1981. One had four counts about a $70,000 1979 Ford tri-axle dump truck stolen from John Haynes on May 7, 1981, two for receiving stolen property knowing or having reason to believe it had been stolen in violation of W.Va.Code, 61-3-18 ¹, and the other two for violations of the same Code section, for aiding in concealing stolen property knowing or having reason to believe it was stolen. The second indictment had fourteen counts, all concerning a 1981 International truck valued at $27,000 that belonged to Ramon Noel, and alleging violations of W.Va.Code, 61-3-13 ², grand larceny, W.Va.Code, 61-3-18, supra, and W.Va.Code, 61-3-19 ³, bringing stolen property into the state.

The facts underlying each indictment differ significantly. He was tried on the first on December 14 and 15, 1981, was convicted on one count of receiving and one count of aiding in concealing stolen property, and was sentenced to one year in the Wood County Correctional Center for each conviction, the sentences to run concurrently.

His second trial on the other indictment was February 1-3, 1982. He again was found guilty on one count of receiving and one count of concealing stolen property, and again received one year concurrent sentences.

Oldaker appealed both convictions.

THE FORD

John Haynes, a truck driver for Shamblin Stone Company, parked and locked the company's 1979 Ford dump truck in a motel parking lot on May 7, 1981, but when he returned early the next morning, the truck was missing. He telephoned his employer, Shamblin, who notified state police of the theft and placed a photographic ad in a Charleston newspaper offering a $3,000 reward for the truck's recovery. A young man called to report having seen a similar truck in Parkersburg near a trailer park. Shamblin, his son, and Trooper Miles from the Parkersburg state police barracks went to the park and saw the truck bed, without cab and chassis, on a hill above where a small construction crew was working.

Miles questioned Oldaker, who was in charge of the construction site, and Oldaker told him he did not know anything about the truck bed, but had noticed it was there one morning. Miles investigated further, saw end loader tracks near the truck bed, and left. He returned later that afternoon with other troopers, and they found a broken taillight lens and several witnesses who had seen the truck intact and then saw it without its cab and chassis; but none who saw Oldaker work on or with it. Another A trooper was posted at Gilbert's shop while other officers took Gilbert to headquarters for several hours' questioning. They insinuated he may have had something to do with the missing truck and he told them several stories, at least one revision prompted by a "failed" polygraph test; but the last one was that Oldaker had rented the garage from him for $300 cash, and he had given Oldaker the key. He repeatedly told them he thought there was nothing in the garage.

confidential source told police that they might find the remains of the vehicle in a garage at "Jim" Gilbert's automobile upholstery shop.

When they took him back to his shop, Gilbert said they could look inside to see if the truck was there. Gilbert and several officers testified, however, that the policemen refused to look without a search warrant. Gilbert, whose curiosity had by then apparently been quickened, suggested that he look inside. They told him they could not stop him, that whether he did was up to him, but they could not share even a peek. He looked, he saw, and he described a large truck to the officers and identified it in a picture they showed him. They later returned with a warrant and seized it.

Oldaker moved to suppress evidence of the truck because Gilbert was an agent for the state and searched his leased garage without a warrant. The trial court decided after an in camera hearing that no illegality occurred.

After the state rested, Oldaker moved to dismiss because the admissible evidence was insufficient to submit to the jury, and his motion was denied.

The Fourth Amendment ⁴ and West Virginia Constitution, Article III, Section 6 ⁵ proscribe warrantless searches and seizures by the government, except under very limited exceptions. State v. Farley, 167 W.Va. 620, 280 S.E.2d 234 (1981); State v. Moore, 165 W.Va. 837, 272 S.E.2d 804 (1980). These constitutional provisions do not apply to searches by private individuals unless they are acting as instruments or agents of the State. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), reh. denied, 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120; State v. Riser, 170 W.Va. 473, 294 S.E.2d 461, 466 (1982). See Annot., Admissibility, In Criminal Case, of Evidence Obtained by Search by Private Individual, 36 A.L.R.3d 553 (1971 and Supp.). ⁶ The trial court determined that Gilbert acted independently and was not pressured, coerced or subtly encouraged to search the garage. As in Riser, supra, we find that the trial court's ruling was not plainly wrong nor clearly against the weight of the evidence.

Oldaker's argument about evidentiary insufficiency depends upon exclusion of the search evidence. Because it was admissible, the state had enough to go to the jury.

THE INTERNATIONAL

On May 16, 1981, West Virginia state troopers noticed a truck with a West Virginia Trooper Pritchard and Corporal Ratliff questioned Oldaker about his truck, and he told them he had purchased the back end from an insurance company as salvage, and the front from a man whose name and address he had forgotten. (Later, he denied telling them he did not know the man's name.) The police drove him home, sans truck, called a wrecker and impounded it.

license plate but no inspection sticker, travelling along a public way. Its license had expired and also was of a type that belonged on a car rather than a truck. They stopped it, whereupon its passenger, Henry Oldaker, claimed to own it but could produce no registration document. One trooper called his detachment for assistance and a license check. Two more officers arrived, defendant was deposited on the rear seat of a police car, and officers inspected the vehicle. They found that a new front end of a truck frame had been welded to a much older rear section, and that serial numbers had been scraped off the front tires. The aluminum vehicle identification (VIN) plate was suspicious: it was for a 1977 International, but was on the later model truck cab. They removed it and sent it to Charleston for examination for fingerprints.

The wrecker operator recognized the rear to have been part of a wrecked cattle truck he had towed several weeks before. The former owner of that wrecked truck also testified that it was part of his truck that had been disposed of by his insurance company.

Ramon Noel, Vice-President of Hoon, Inc., testified that the cab and engine had belonged to his company and had been missing since April 15, 1981. His stolen 1981 International was worth approximately $27,000 and had an equipment-loading tilt-bed when stolen.

FBI agent William Gaunce testified for the State about the general modus operandi of car thieves. He had examined the truck, finding that all serial numbers on the engine and frame had been obliterated either by grinding or welding and could not be...