State v. Payne, 15-0582

• Decision Date: 21 November 2016
• Docket Number: No. 15-0582,15-0582
• Parties: State of West Virginia, Plaintiff Below, Respondent v. Wesley Owen Payne, Defendant Below, Petitioner
• Court: West Virginia Supreme Court

State of West Virginia, Plaintiff Below, Respondent v. Wesley Owen Payne, Defendant Below, Petitioner

No. 15-0582

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

November 21, 2016

(McDowell County 14-F-62-M)

MEMORANDUM DECISION

Petitioner Wesley Owen Payne, by counsel Thomas H. Evans III, appeals the Circuit Court of McDowell County's May 14, 2015, order resentencing him to a term of incarceration of thirty years for his conviction of second-degree murder. The State, by counsel Jonathan E. Porter, filed a response. On appeal, petitioner alleges that the circuit court erred in denying both his motion for judgment of acquittal¹ and his motion for a new trial. Petitioner also alleges that West Virginia Code § 61-2-1 is unconstitutionally vague.

This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

On May 19, 2013, petitioner Wesley Owen Payne shot and killed Donnie Baker. During the February of 2014 term of court, petitioner was indicted on one count of first-degree murder and one count of abduction. Petitioner's jury trial commenced in January of 2015 and continued for three days. At trial, petitioner claimed the shooting was in self-defense. The only witness to the shooting was Lisa Hughes, who was romantically involved with both petitioner and the victim. At trial, testimony established that the dispute between petitioner and the victim started because Ms. Hughes was involved in a relationship with petitioner for over twenty-five years and suddenly left him to be with the victim. Evidence showed that Ms. Hughes and the victim called 911 on another occasion out of fear of petitioner, when he previously arrived at the victim's home unannounced.

In regard to the crime in question, evidence showed that petitioner arrived at the victim's home to convince Ms. Hughes to leave the victim and come home with him. When petitioner arrived at the residence he met with the victim, who was inebriated², and a dispute occurred between the men. This altercation resulted in petitioner shooting and killing the victim with a single shell from a shotgun to the chest. At trial, the prosecution presented evidence that showed the victim never owned a shotgun like the murder weapon and that multiple shots were fired from different firearms during the incident, including the 9mm rifle that the victim owned.

When petitioner and Ms. Hughes left the scene, they fled to the home of one Mr. Prichard, who was dating petitioner's sister at the time. Mr. Prichard testified that the two acted nervous in his home, hid multiple guns and a vehicle, changed clothes, and called to have petitioner's sister "get them elsewhere." After the sister picked them up, Mr. Prichard called the sheriff's department, which resulted in petitioner and Ms. Hughes being arrested. Ms. Hughes gave the police a statement hours after the shooting in which she stated that petitioner showed up to the victim's residence and opened fire on the victim and the camper he lived in, hitting him in the chest and killing him. Ms. Hughes stated that she was terrified of petitioner and accompanied him after the shooting out of fear and against her will. At trial, however, Ms. Hughes provided a conflicting account of the events. During her testimony, Ms. Hughes said petitioner was hiding behind a vehicle and fired one "lucky" shot out of self-defense that killed the victim. Conversely, evidence introduced at trial from the crime scene, as well as Mr. Prichard's testimony, supported the State's theory that petitioner was the aggressor, as Ms. Hughes initially reported.

Petitioner testified that the reason he went to the victim's home the day of the killing was because Ms. Hughes told a friend to tell petitioner that Ms. Hughes was being held against her will and needed petitioner to pick her up at the victim's residence. Petitioner testified that he went to the victim's home unarmed to rescue Ms. Hughes. Petitioner testified that he told the victim "I come in peace" when he arrived at the home. Despite this, petitioner alleged that the victim aimed a 9mm rifle at him and fired several shots. Petitioner testified that he took cover behind a vehicle and found a loaded shotgun, which he said belonged to the victim, hidden in the yard. Petitioner stated he then picked up the gun and fired one shot in the direction of the victim as he was retreating from the victim's shots. Petitioner testified that the one shot he fired hit the victim in the chest and killed him. Further, petitioner testified he shot the victim in self-defense and did not have the requisite intent or malice to be guilty of murder. Although both sides presented evidence and testimony to prove who the initial aggressor was, the jury ultimately found petitioner to be the aggressor and rejected his contention that he acted in self-defense.

Also during trial, some of the victim's family members made comments from the courtroom's gallery, which caused the trial court to order the family members to move away from the jury. The comments were directed at petitioner and included expressions of anger about the victim's death. However, petitioner's counsel did not object or request a mistrial regarding the trial court's actions. At the close of all evidence, the jury found petitioner guilty of second-degree murder, though the circuit court granted petitioner's motion to dismiss the charge of abduction. The court denied petitioner's post-trial motions for judgment of acquittal and a newtrial and sentenced petitioner to a term of thirty years of incarceration. It is from the order resentencing him that petitioner appeals.

We have previously held as follows:

"In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review." Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).

Syl. Pt. 1, State v. Blevins, 231 W.Va. 135, 744 S.E.2d 245 (2013). On appeal, petitioner argues that the circuit court erred in denying his motion for judgment of acquittal because the State did not establish every statutory element of second-degree murder. In addressing motions for judgment of acquittal, we have stated that "[t]he Court applies a de novo standard of review to the denial of a motion for judgment of acquittal based upon the sufficiency of the evidence." State v. Juntilla, 227 W.Va. 492, 711 S.E.2d 562 (2011) (citing State v. LaRock, 196 W.Va. 294, 304, 470 S.E.2d 613, 623 (1996)). As to challenges to the sufficiency of the evidence, this Court has further explained that

"[t]he 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." Syllabus point 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

Syl. Pt. 3, State v. Horn, 232 W.Va. 32, 750 S.E.2d 248 (2013). Specifically, petitioner argues that the evidence established that he did not commit murder because he acted in self-defense. Moreover, petitioner asserts that the State failed to establish malice on his part. The Court, however, does not agree. Importantly, petitioner's argument on this issue misstates the evidence presented below.

According to petitioner, there was no evidence that he was the initial aggressor in the confrontation at issue. This argument totally ignores the fact that the jury rejected testimony from both petitioner and Ms. Hughes on this issue, especially in light of Ms. Hughes's impeachment regarding the statement she gave to police hours after the shooting in which she stated that petitioner arrived at the victim's residence and opened fire on the victim from outside. While it is true that Ms. Hughes provided a conflicting account of the events at trial, the jury clearly made a credibility determination regarding her testimony and did not find her conflicting account at trial credible. The only other testimony regarding petitioner's self-defense theorycame from petitioner, and the jury was also free to discredit his testimony if it found the same inherently incredible.

In discussing witness credibility, we have held that "[c]redibility determinations are properly made by the trier of fact . . . who has had the opportunity to observe, first hand, the demeanor of the witness." Lister v. Ballard, 237 W.Va. 34, --, 784 S.E.2d 733, 739 (2016) (quoting Miller v. Chenoweth, 229 W.Va. 114, 121, 727 S.E.2d 658, 665 (2012)). Additionally, we have held as follows: "'In the trial of a criminal prosecution, where guilt or innocence depends on conflicting evidence, the weight and credibility of the testimony of any witness is for jury determination.' Syllabus Point 1, State v. Harlow, 137 W.Va. 251, 71 S.E.2d 330 (1952)." Syl. Pt. 2, State v. Smith, 225 W.Va. 706, 696 S.E.2d 8 (2010). Based upon these holdings, it is clear that the jury was free to give less weight to the testimony of petit...