State v. Phillips

Decision Date10 April 1997
Docket NumberNo. 23535,23535
Citation485 S.E.2d 676,199 W.Va. 507
PartiesSTATE of West Virginia, Plaintiff Below, Appellee, v. John PHILLIPS, Defendant Below, Appellant.
CourtWest Virginia Supreme Court

1. "The question of whether a defendant is entitled to an instruction on a lesser included offense involves a two-part inquiry. The first inquiry is a legal one having to do with whether the lesser offense is by virtue of its legal elements or definition included in the greater offense. The second inquiry is a factual one which involves a determination by the trial court of whether there is evidence which would tend to prove such lesser included offense. State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982)." Syllabus point 1, State v. Jones, 174 W.Va. 700, 329 S.E.2d 65 (1985).

2. "Under Code, 61-2-12, one who enters a home or place of business of another and makes a gesture indicating that he has in his possession a firearm or other deadly weapon, immediately orders the person or persons there in charge to take a certain position, remain there, and not follow him, and then takes physical possession of money or other things of value then on said premises and in the control of the person or persons in charge thereof, is guilty of armed [aggravated] robbery. The threat of the use of a firearm or other deadly weapon constitutes robbery by putting in fear." Syllabus point 1, State v. Young, 134 W.Va. 771, 61 S.E.2d 734 (1950).

3. "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." Syllabus point 2, State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982).

4. "Whether facts are sufficient to justify the delivery of a particular instruction is reviewed by this Court under an abuse of discretion standard. In criminal cases where a conviction results, the evidence and any reasonable inferences are considered in the light most favorable to the prosecution." Syllabus point 12, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).

5. " ' "Article III, Section 5 of the West Virginia Constitution, which contains the cruel and unusual punishment counterpart to the Eighth Amendment of the United States Constitution, has an express statement of the proportionality principle: 'Penalties shall be proportioned to the character and degree of the offence.' " Syllabus Point 8, State v. Vance, 164 W.Va. 216, 262 S.E.2d 423 (1980).' Syllabus Point 1, State v. Houston, 166 W.Va. 202, 273 S.E.2d 375 (1980)." Syllabus point 8, State v. Buck, 170 W.Va. 428, 294 S.E.2d 281 (1982).

6. "In determining whether a given sentence violates the proportionality principle found in Article III, Section 5 of the West Virginia Constitution, consideration is given to the nature of the offense, the legislative purpose behind the punishment, a comparison of the punishment with what would be inflicted in other jurisdictions, and a comparison with other offenses within the same jurisdiction." Syllabus point 5, Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981).

Ira M. Haught, Harrisville, for Appellant.

Michele Rusen, Prosecuting Attorney, Parkersburg, for Appellee.

PER CURIAM:

John Phillips, the appellant and defendant below, appeals his convictions of two counts of aggravated robbery and one count of kidnapping entered by the Circuit Court of Wood County. Phillips contends that the trial court erred in refusing to instruct the jury on the lesser included offense of nonaggravated robbery, and that the 140 year sentence he received was excessive. We find the court properly refused the nonaggravated robbery instruction, and the 140 year sentence was proportionate to the character and degree of the offences committed. Consequently, we affirm the June 13, 1995, order of the Circuit Court of Wood County.

I. FACTS

On the evening of November 3, 1993, at approximately 7:30 p.m., the defendant, John Phillips [hereinafter "Phillips"], entered a Hardee's restaurant in Parkersburg, West Virginia. There were seven employees working in the restaurant that night. Phillips waited for customers to leave and then proceeded behind the counter while pointing an air pistol at the head and shoulders of the store manager. The pistol resembled a real gun, and the employees who testified at trial indicated that they believed the weapon was real. 1 They further indicated that they were afraid and believed Phillips would use the gun if they did not follow his orders.

Phillips instructed all of the employees, except for the manager, to enter the cooler. He threatened to kill the manager if they attempted to leave. Phillips, weapon in hand, then escorted the manager to different points in the restaurant and collected money from the safe and a cash register. Finally, he took the manager to join the other employees in the cooler, threatened to kill anyone who did not remain in the cooler for an additional ten minutes, and left the premises. His hurried departure was observed by a drive-through customer who reported the incident to police.

Phillips then went into a local bar/strip club where he spent between $100 and $200 drinking and tipping the performers. A couple of hours after the robbery of Hardee's, and after visiting the bar, Phillips entered a Rax Restaurant at approximately 9:45 p.m. There were four employees working that evening. Phillips displayed his gun and gathered the four employees together behind the counter. He then ordered them into the office where he instructed them to turn around and face the wall. Phillips ordered the manager to assist him in collecting money from the office, the safe and various cash registers in the restaurant. Prior to departing, Phillips ordered all of the employees to get into the walk-in cooler, where he told them to stay for ten minutes. He promptly returned to ask about the alarm system. Before leaving a second time, he grabbed an eighteen-year-old female employee and told the other employees that he would kill her if they came out of the cooler. He then stated that he would release her in five minutes. Phillips put the girl in his car and instructed her to give him directions to the nearest interstate. She directed him to Interstate 77.

Phillips entered I-77 traveling north. Sometime thereafter, Phillips was observed by an officer of the West Virginia State Police. The officer followed Phillips. After observing that he was being followed, Phillips instructed the girl to get down on the floorboard of the vehicle, a small car. He then began to accelerate, and a high-speed chase involving several police units followed. It was dark, and one police officer testified that there was a heavy fog over the road. At times during the chase, Phillips drove at speeds up to 125 miles per hour. He crossed the median approximately three times and once traveled north in the southbound lane for an unknown distance. Officers ultimately formed a traveling road block. After Phillips struck the cruisers surrounding him with his vehicle, he stopped. The chase lasted approximately twenty-five minutes and covered a thirty-five mile stretch of I-77. The girl was retrieved from the car, and Phillips was taken into custody. Phillips had detained the girl against her will for approximately one-and-one-half hours.

After a four day jury trial, Phillips was found guilty of two counts of aggravated robbery and one count of kidnapping. He was sentenced to forty-five years on each of the aggravated robbery counts and fifty years on the kidnapping count, each sentence to be served consecutively. Phillips filed a pro-se motion for reconsideration of his sentence, claiming that the sentence was excessive. By order filed on June 13, 1995, the Circuit Court of Wood County denied the motion. It is from that order that Phillips, represented by counsel, now appeals.

II. AGGRAVATED ROBBERY

Phillips was indicted and later convicted of two counts of aggravated robbery "by the threat or presenting of a firearm," pursuant to W. Va.Code § 61-2-12 (1961) (1992 Repl.Vol.). 2 He argues that the trial court erred by refusing to instruct the jury on the lesser included offense of nonaggravated robbery. Phillips contends that he was entitled to such an instruction because the robbery was committed by the use of an air pistol that discharged pellets, rather than a firearm. We disagree. In Syllabus point one of State v. Jones, we held:

The question of whether a defendant is entitled to an instruction on a lesser included offense involves a two-part inquiry. The first inquiry is a legal one having to do with whether the lesser offense is by virtue of its legal elements or definition included in the greater offense. The second inquiry is a factual one which involves a determination by the trial court of whether there is evidence which would tend to prove such lesser included offense. State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982).

174 W.Va. 700, 329 S.E.2d 65 (1985).

We need not engage in an analysis of the first part of the above-described inquiry because we have previously determined that "nonaggravated robbery is a lesser included offense of aggravated robbery." State v. Massey, 178 W.Va. 427, 432, 359 S.E.2d 865, 870 (1987). Thus, we proceed to consider whether there was evidence presented at trial that would tend to prove that Phillips committed nonaggravated robbery. In making this determination, we look to the evidence pertaining only to the element of aggravated robbery that distinguishes it from nonaggravated robbery. "It is apparent that because the legal definition of a lesser included offense requires its elements to be embraced within the greater offense, the primary factual inquiry will center on those elements of the greater offense which are different from the elements of...

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