State v. Rogers

• Decision Date: 17 June 2004
• Docket Number: No. 31566.,31566.
• Citation: 600 S.E.2d 211,215 W.Va. 499
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Michael ROGERS, Defendant Below, Appellant.

600 S.E.2d 211

215 W.Va. 499

STATE of West Virginia, Plaintiff Below, Appellee, v. Michael ROGERS, Defendant Below, Appellant.

No. 31566.

Supreme Court of Appeals of West Virginia.

Submitted: April 28, 2004.

Filed: June 17, 2004.

Joseph P. Albright, Jr., Esq., Bradley & Albright, Parkersburg, for the Appellant.

Darrell V. McGraw, Jr., Esq., Attorney General, Colleen A. Ford, Esq., Assistant Attorney General, Charleston, for the Appellee.

PER CURIAM.

This case is before this Court upon the appeal of Michael Rogers from his convictions by a jury in the Circuit Court of Wood County, West Virginia, of burglary and conspiracy to commit burglary. The convictions arose from the alleged assault of two individuals by appellant Rogers and his alleged co-conspirator, David Dowler. Pursuant to the final order of the Circuit Court entered on August 14, 2002, Rogers was sentenced to 1 to 15 years in the penitentiary upon the burglary conviction and 1 to 5 years upon the conspiracy to commit burglary conviction. The order directs that the sentences be served consecutively.

This Court has before it the petition for appeal, all matters of record and the argument of counsel. Appellant Rogers contends: (1) that the Circuit Court committed error in instructing the jury upon the conspiracy to commit burglary charge, (2) that, under the circumstances of this case, the appellant's convictions of burglary and conspiracy to commit burglary violate his constitutional protections against Double Jeopardy and (3) that the Circuit Court committed error by improperly commenting upon the evidence during the trial. For the reasons stated below, however, this Court concludes that those assignments of error are without merit. Accordingly, the final order of the Circuit Court entered on August 14, 2002, is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

On the evening of November 16, 2000, an individual named Brian Drain and his friend, Danny Mackey, were working on some motor vehicles in a parking lot near Drain's apartment in Parkersburg, West Virginia. At some point, they noticed appellant Rogers and David Dowler walking toward them. Dowler was carrying a tire iron. Although the record does not reveal a motive for the events which then occurred, both Drain and Mackey recognized appellant Rogers, and Mackey recognized Dowler. After a short confrontation, Dowler struck Mackey with the tire iron, and the two began fighting. In the meantime, Drain rushed to his apartment where his wife and two children were present. He called the police and got his rifle. Soon after, Mackey entered the apartment. According to the State, Mackey then attempted to hold the screen door of the apartment shut while appellant Rogers and Dowler were pulling on it in order to gain entry and continue the assault. Although Drain threatened to shoot them, Rogers and Dowler forced their way past the threshold of the apartment. Mackey, however, pushed them back outside. According to the State, appellant Rogers and Dowler then made a second attempt to pull open the screen door while Mackey again tried to hold it shut. The police arrived and apprehended Dowler at the scene. Appellant Rogers, who ran from the area, was arrested a short distance away.

In January 2002, a Wood County grand jury indicted appellant Rogers for burglary and conspiracy to commit burglary. The burglary charge was based upon the contention of the State that, on the evening in question, Rogers broke and entered the dwelling house of Brian Drain "with intent to commit a crime therein," i.e., assault. W. Va.Code, 61-3-11 (1993). The conspiracy to commit burglary charge was based upon the contention of the State that appellant Rogers and David Dowler conspired to commit the above offense and that they committed an overt act in furtherance of the conspiracy. W. Va.Code, 61-10-31 (1971). Similar charges against David Dowler were severed from the proceedings concerning Rogers.

Appellant Rogers' trial was conducted on June 3, 2002. Rogers testified that he attempted to break up the initial fight between Dowler and Mackey and that he never tried to enter the apartment. His motion for a judgment of acquittal, however, was denied, and the case was submitted to the jury. The jury found Rogers guilty upon both charges. Appellant Rogers was sentenced to 1 to 15 years in the penitentiary upon the burglary conviction and 1 to 5 years upon the conspiracy to commit burglary conviction. The final order directs that the sentences be served consecutively.

This Court granted appellant Rogers' appeal in September 2003.

II. DISCUSSION

Pursuant to W. Va.Code, 61-10-31 (1971), a conspiracy occurs when two or more persons conspire or agree to commit an offense against the State of West Virginia and some overt act is taken by one or more of such persons in furtherance of the object of the conspiracy. State v. Stevens, 190 W.Va. 77, 80, 436 S.E.2d 312, 315 (1993); syl. pt. 4, State v. Less, 170 W.Va. 259, 294 S.E.2d 62 (1981). As W. Va.Code, 61-10-31 (1971), provides: "It shall be unlawful for two or more persons to conspire (1) to commit any offense against the State or (2) to defraud the State... if, in either case, one or more of such persons does any act to effect the object of the conspiracy." In Less, supra, this Court explained:

The agreement to commit an offense is the essential element of the crime of conspiracy — it is the conduct prohibited by the statute. The agreement may be inferred from the words and actions of the conspirators, or other circumstantial evidence, and the State is not required to show the formalities of an agreement.

* * * * * *

The substantive crime which is the object of the conspiracy can be proven as the overt act.

170 W.Va. at 265, 294 S.E.2d at 67.

Focusing upon the "agreement" requirement for a conspiracy, appellant Rogers challenges the validity of the following instruction given by the Circuit Court to the jury:

It is not necessary to show that the parties met and actually agreed to undertake the performance of an unlawful act. Further, it is not necessary that they had previously arranged a detailed plan for the execution of the act; nor is it necessary that the parties entered into a formal or expressed agreement. Rather, an agreement can be shown by tacit understanding between the co-conspirators to accomplish an unlawful act which may be inferred from the circumstances.

According to appellant Rogers, the statement within the instruction that an agreement can be shown by "tacit understanding" erroneously minimized the requirement of an agreement for a conspiracy. In that regard, Rogers asserts that the instruction is defective because it suggested to the jury that, anytime two or more individuals commit an unlawful act together, a conspiracy is automatically shown. That assertion is also the basis of appellant Rogers' Double Jeopardy claim, i.e., that it was a violation of Rogers' protection against Double Jeopardy to convict and sentence him for both burglary and conspiracy to commit burglary solely upon the determination of the jury that he and David Dowler jointly entered the apartment.

Significantly, however, Rogers did not object to the above instruction. As this Court held in syllabus point 3 of State v. Gangwer, 169 W.Va. 177, 286 S.E.2d 389 (1982): "The general rule is that a party may not assign as error the giving of an instruction unless he objects, stating distinctly the matters to which he objects and the grounds of his objection." Syl. pt. 8, State v. Garrett, 195 W.Va. 630, 466 S.E.2d 481 (1995); syl. pt. 4, State v. McCarty, 184 W.Va. 524, 401 S.E.2d 457 (1990); Vol. II, F.D. Cleckley, Handbook on West Virginia Criminal Procedure 2d, pgs. 222-226 (Michie — 1993). As stated in State v. Allen, 208 W.Va. 144, 539 S.E.2d 87 (1999): "When reviewing challenges to jury instructions, we generally look first to the record of the trial court proceedings to ensure that the claimed instructional error has been properly preserved for appellate review." 208 W.Va. at 150-51, 539 S.E.2d at 93-94.

Acknowledging the absence of an objection, appellant Rogers argues before this Court that the giving of the instruction constituted "plain error." Relevant to that inquiry is Rule 30 of the West Virginia Rules of Criminal Procedure which states, in part, that a circuit court or appellate court "may, in the interest of justice, notice plain error in the giving or refusal to give an instruction, whether or not it has been made the subject of objection." See also, W.Va. R.Crim. P. 52(b), which also recognizes the plain error doctrine. As noted in syllabus point 4 of State v. England, 180 W.Va. 342, 376 S.E.2d 548 (1988), however, the doctrine is not without limitations:

The plain error doctrine contained in Rule 30 and Rule 52(b) of the West Virginia Rules of Criminal Procedure is identical. It enables this Court to take notice of error, including instructional error occurring during the proceedings, even though such error was not brought to the attention of the trial court. However, the doctrine is to be used sparingly and only in those circumstances where substantial rights are affected, or the truth-finding process is substantially impaired, or a miscarriage of justice would otherwise result.

Syl. pt. 1, State v. Richards, 195 W.Va. 544, 466 S.E.2d 395 (1995); syl. pt. 6, State v. Mayo, 191 W.Va. 79, 443 S.E.2d 236 (1994); syl. pt. 6, State v. Nicholas, 182 W.Va. 199, 387 S.E.2d 104 (1989).

Applying a plain error analysis to this case, this Court cannot conclude that the giving of the above instruction warrants the granting of relief to appellant Rogers. While this Court noted in State v. Burd, 187 W.Va. 415, 419 S.E.2d 676 (1991), that, in State v. Kilgus, 128 N.H. 577, 519 A.2d 231 (1986), the phrase "tacit understanding between the parties to cooperate in an illegal course of conduct" was held to support a conviction for conspiracy, 187 W.Va. at 420, 419 S.E.2d at 681,...