State v. Plumley

• Citation: 384 S.E.2d 130,181 W.Va. 685
• Decision Date: 12 July 1989
• Docket Number: No. 18518,18518
• Parties: STATE of West Virginia v. David Lee PLUMLEY.
• Court: West Virginia Supreme Court

Page 130

384 S.E.2d 130

181 W.Va. 685

STATE of West Virginia v. David Lee PLUMLEY.

No. 18518.

Supreme Court of Appeals of

West Virginia.

July 12, 1989.

Syllabus by the Court

1. Under W.Va.Code, 61-3-11(a) [1973], the essential requirement of burglary committed in the nighttime is that the defendant "enter ... with intent to commit a felony or any larceny." The intent and the acts of the defendant are controlling, and the consent of the occupant to entry is not a defense when the defendant is shown to have entered through fraud or threat of force with the requisite criminal intent. The statutory requirement of entry is also fulfilled when a person with consent to enter exceeds the scope of the consent granted.

2. "In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done." Syllabus Point 1, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978).

3. " 'The test of determining whether a particular offense is a lesser included offense is that the lesser offense must be such that it is impossible to commit the greater offense without first having committed the lesser offense. An offense is not a lesser included offense if it requires the inclusion of an element not required in the greater offense.' Syllabus Point 1, State v. Louk, 169 W.Va. 24, 285 S.E.2d 432 (1981)." Syllabus Point 1, State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982).

4. "In order for photographs to come within our gruesome photograph rule established in State v. Rowe, 163 W.Va. 593, 259 S.E.2d 26 (1979), there must be an initial finding that they are gruesome." Syllabus Point 6, State v. Buck, 170 W.Va. 428, 294 S.E.2d 281 (1982).

5. " 'To warrant a change of venue in a criminal case, there must be a showing of good cause therefor, the burden of which rests on the defendant, the only person who, in any such case, is entitled to a change of venue. The good cause aforesaid must exist at the time application for a change of venue is made. Whether, on the showing made, a change of venue will be ordered, rests in the sound discretion of the trial court; and its ruling thereon will not be disturbed, unless it clearly appears that the discretion aforesaid has been abused.' " Syl. pt. 2, State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1946)." Syllabus Point 2, State v. Williams, 172 W.Va. 295, 305 S.E.2d 251 (1983).

6. "In certain circumstances evidence of the flight of the defendant will be admissible in a criminal trial as evidence of the defendant's guilty conscience or knowledge. Prior to admitting such evidence, however, the trial judge, upon request by either the State or the defendant, should hold an in camera hearing to determine whether the probative value of such evidence outweighs its possible prejudicial effect." Syllabus Point 6, State v. Payne, 167 W.Va. 252, 280 S.E.2d 72 (1981).

7. "Where the record of a criminal trial shows that the cumulative effect of numerous errors committed during the trial prevented the defendant from receiving a fair trial, his conviction should be set aside, even though any one of such errors standing alone would be harmless error." Syllabus Point 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972).

Attorney General Office, Brenda Craig Ellis, Charleston, for the State.

R. Lee Booten, II, Huntington, for Plumley.

NEELY, Justice:

David Lee Plumley was convicted of grand larceny, burglary, felony-murder, aggravated robbery and first degree arson by the Circuit Court of Cabell County. Mr. Plumley now appeals his conviction alleging several assignments of error including allowing the jury to consider the burglary count as the underlying offense to the felony-murder when the victim voluntarily allowed Mr. Plumley into his home. We find no merit in his allegations and affirm his conviction.

About 7:30 p.m. on January 15, 1984, a fire was discovered at the home of Roy Ball, age 72. Mr. Ball's badly charred body was found lying face up near the front door of his home. A railroad construction tool was found near Mr. Ball's head. The cause of Mr. Ball's death was determined to be blunt force injuries to the head and body burns. The blunt force injuries were consistent with the shape of a railroad construction tool discovered near the body. Later that same evening Mr. Ball's silver Cadillac was found on fire about 20 miles away near Chesapeake, Ohio.

Mr. Plumley and Richard Maddox were connected to the murder by certain circumstantial evidence. ¹ Mr. Plumley and Mr. Maddox were seen walking along the railroad tracks near the victim's home shortly after 7:00 p.m. on January 15, 1984. Later that same evening they purchased some charcoal lighter fluid and gloves in a Tradewell store in Chesapeake, Ohio. The gloves were discovered in a vehicle with Mr. Plumley and Mr. Maddox. The bottle of lighter fluid with Mr. Plumley's fingerprints was found in the trunk of the victim's car. Mr. Plumley's fingerprints were also found on the car's taillight. A pillowcase found in the victim's car was determined to be similar in color, weave and fiber to a pillowcase owned by Mr. Plumley.

I

Mr. Plumley contends that the trial court erred in allowing the jury to consider the burglary charge because under the state's evidence the victim voluntarily allowed Mr. Plumley into his home. According to Mr. Maddox, who claims to have acted as a lookout, Mr. Plumley rang the victim's door bell and asked if he could use the telephone because his car was broken down. After the victim allowed Mr. Plumley into his home, Mr. Plumley physically attacked him with a railroad construction tool that Mr. Plumley had picked up walking along the railroad tracks to the victim's house and stole a jar of coins. Later the jar of coins was discovered in the victim's car. Mr. Plumley argues that the victim's consent to enter is an absolute defense to the count of burglary because the consent means there can be no unauthorized entry.

The crime of burglary is defined in W.Va.Code, 61-3-11(a) [1973] as:

Burglary shall be a felony and any person convicted thereof shall be confined in the penitentiary not less than one nor more than fifteen years. If any person shall, in the nighttime, break and enter, or enter without breaking, or shall, in the daytime, break and enter, the dwelling house, or an outhouse adjoining thereto or occupied therewith, of another, with intent to commit a felony or any larceny therein, he shall be deemed guilty of burglary.

The operative words of the statute, so far as this case is concerned, provide:

If any person shall, in the nighttime ... enter without breaking ... the dwelling house ... of another, with intent to commit a felony or any larceny therein, he shall be deemed guilty of burglary.

Thus under W.Va.Code, 61-3-11(a) [1973], the essential requirement of burglary committed in the nighttime is that the defendant "enter ... with intent to commit a felony or any larceny." It is the intent and acts of the accused that the statute makes controlling. There is no language in the statute that the entry must be by force or that it must be against the will of the occupant. ² The plain language of the statute indicates that the consent of the occupant obtained through fraud or threat of force is not a defense to the crime of burglary. ³ Under statutes that define burglary as an entry without breaking with intent to commit a criminal offense, it is uniformly held that consent to enter is not a defense when the accused is shown to have entered through fraud or threat of force with the requisite criminal intent. ⁴

In State v. Louk, 169 W.Va. 24, 26, 285 S.E.2d 432, 434 (1981), we noted the burglary statute had expanded to some degree the common law crime of burglary. ⁵ However, this expansion was not material to the Louk decision. ⁶ The West Virginia burglary statute's departure from the traditional common law requirement of "breaking" is significant because breaking was a concept designed to keep out intruders, or to prevent trespass into the building, and a person with authority to enter could not be said to have committed a breaking. LaFave & Scott, supra § 8.13(a). However, the common law requirement of "entry" was a physical concept, and even the slightest entry by any part of the perpetrator's body was sufficient to satisfy the requirement. LaFave & Scott, supra § 8.13(b).

Because the legislature has deleted the "breaking" requirement with regard to entry in the nighttime, the statutory offense of burglary of the dwelling house of another involves no unlawfulness of entry except as the entry becomes unlawful by reason of the criminal intent of the person entering. ⁷

Even if an unauthorized or an entry against the will of the occupant were required, the consent that was given to the defendant's entry would be vitiated by the misrepresentation that was used to obtain the consent. When a person exceeds the scope of consent granted for entry, the entry requirement for burglary is met. Even under the common law definition of burglary, a constructive breaking was deemed to have occurred when entry was gained by fraud or threat of force. LaFave & Scott, supra § 813(a). In the present case, Mr. Plumley used fraud to gain entry and the victim was deceived into granting consent. See Collins, supra (Permission to use telephone is limited to specific area and single purpose). An entry obtained through fraud is unauthorized or against the will of the occupant.

II

Mr. Plumley has two assignments of error concerning the sufficiency of evidence for the burglary...