State v. Sapp

• Decision Date: 12 July 2000
• Docket Number: No. 26899.,26899.
• Citation: 535 S.E.2d 205,207 W.Va. 606
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Jerry Steen SAPP, Jr., Defendant Below, Appellant.
• Court: West Virginia Supreme Court

535 S.E.2d 205

207 W.Va. 606

STATE of West Virginia, Plaintiff Below, Appellee, v. Jerry Steen SAPP, Jr., Defendant Below, Appellant.

No. 26899.

Supreme Court of Appeals of West Virginia.

Submitted May 23, 2000.

Decided July 12, 2000.

Melvin C. Snyder, III, Esq., Prosecuting Attorney, Kingwood, West Virginia, Attorney for the Appellee.

James F. Cain, Esq., Elkins, West Virginia and Trudy H. Goff, Esq., Everhart, Brown & Snyder, Kingwood, West Virginia, Attorneys for the Appellant.

PER CURIAM:

The defendant, Jerry Sapp, Jr., appeals the April 9, 1999 order of the Circuit Court of Preston County, West Virginia, which denied his motion for a new trial. The defendant was convicted by jury trial of first degree murder with a recommendation of mercy for the death of Randy Nestor. On appeal, the defendant assigns numerous errors. After thoroughly reviewing the briefs and the record submitted on appeal, we find the circuit court committed no reversible error.

I. FACTS

Fortney's Mill is a camping and recreation spot located in Preston County, West Virginia. For many years residents of Preston County have gone to Fortney's Mill to swim under the bridge of Three Fork Creek; unfortunately, in recent years, Fortney's Mill has developed a bad reputation for criminal activity. On July 8, 1995, several people were enjoying the recreation at Fortney's Mill. One group which consisted of Randy Nestor, his wife, Patty Nestor, and a friend, Carolyn Constance Hunt, came from Akron, Ohio, to celebrate the Fourth of July weekend. A group of local people including the defendant, Mark Hodgkins, Brian White, Sheila Costello, and David Bell gathered at Fortney's Mill that weekend to party and have a good time.

The evidence adduced at trial indicated that during the course of the day, the defendant along with Sheila Costello, Mark Hodgkins, and Brian White bought some acid from Patty Nestor. Upon trying the acid, they discovered it had no effect on them. This made the defendant unhappy, and, as the day and evening grew longer, he became increasingly angrier. After dark, the defendant's group ended up partying with Randy Nestor's group around their campfire. The entire group was drinking beer and using drugs, especially marijuana. The defendant finally became so angry that he decided to do something about the bad acid he had purchased earlier. He picked up a piece of firewood and walked over to Randy Nestor as he sat on the ground and struck him twice with great force and violence on top of the head. People scattered and most eyewitnesses immediately left the area. When confronted by police, most refused to talk and later admitted that when they did talk, they did not tell the truth.

Randy Nestor suffered massive brain injuries as a result of the attack. Patty Nestor and Carolyn Hunt transported him by private vehicle to the emergency room at Grafton City Hospital. From there he was transported by helicopter to Ruby Memorial Hospital in Morgantown, West Virginia, where surgery was performed to relieve the pressure on his brain. Randy Nestor died six days later. The immediate cause of death recorded on the death certificate is "[b]lunt force craniocerebral traumatic injuries[.]"

The defendant was charged with murder by criminal complaint in magistrate court and arrested on October 17, 1997. He was indicted on October 22, 1997 and arraigned on October 24, 1997. After the State and the defense requested and were granted continuances, the defendant's trial commenced on February 8 and ended on February 11, 1999 with a conviction of first degree murder with a recommendation of mercy. On April 1, 1999, the defendant was sentenced according to the jury verdict. The defendant filed a motion for a new trial which was denied by the circuit court on April 9, 1999. The defendant appeals from this order.

II. DISCUSSION

On appeal, the defendant assigns several errors. He contends the circuit court erred by failing to notice plain error because the State did not prove by direct evidence that the crime occurred in Preston County as alleged in the indictment, and, as a result, venue was not proven; by admitting photographs taken during the autopsy without a preliminary finding regarding gruesomeness; by allowing other crimes committed by the defendant to be admitted into evidence; by allowing an insufficient jury panel to be drawn; by failing to include instructions regarding voluntary manslaughter and involuntary manslaughter in the jury charge; and by not instructing the jury regarding the defendant's state of intoxication at the time the crime was committed. The defendant also contends he was prejudiced because his character was attacked by the State in violation of his right to a fair trial; the special prosecutor expressed his personal opinion as to the credibility and the guilt or innocence of the defendant; and by stale prosecution. The State contends the circuit court committed no reversible error. We agree.

The defendant contends the State failed to prove the crime occurred in Preston County. We simply find no merit in this argument. Venue was proven by the State. At trial, Deputy Joseph Stiles, an investigator for the Preston County Sheriff's Office, was specifically questioned regarding the location of Fortney's Mill. He answered, "It is in the southwestern corner of Preston County. It is somewhat northwest of Newburg and Independence, and it basically lies just shy of three-tenths of a mile east of the Preston County-Taylor County line, but in Preston County." State's Exhibit 25, a map which shows the location of Fortney's Mill in Preston County was admitted into evidence with the defense stating, "There is no objection." When asked to explain the map, Deputy Stiles stated, "It is a map that I prepared that shows Fortney's Mill in relation to its location in southern Preston County. It also has four aerial photographs that I took showing the Fortney's Mill area." While explaining the aerial photographs, Deputy Stiles identified the campsites which are located in the area where the murder took place.

Furthermore, during cross-examination, the defendant himself was questioned regarding the location of Fortney's Mill. The prosecutor asked, "There is no argument, is there, that where this happened at Fortney's Mill is in Preston County, right?" The defendant answered, "True." He was asked if that is in West Virginia, to which he also answered, "True." There is no question the murder occurred at Fortney's Mill, and it was conclusively proven at trial that Fortney's Mill is located in Preston County, West Virginia.

The defendant argues the verdict in this case is clearly wrong because it is contrary to the law and the evidence. In his brief he simply concludes that "the evidence in general was insufficient on which to base a verdict of guilty of murder in the first degree." He draws this conclusion based on the fact that the witnesses and the defendant were in various stages of intoxication when the victim was murdered which resulted in inconsistencies as to the details of the murder when these witnesses testified at trial. He points to no specific inconsistencies and does not tell us how or why the evidence is insufficient. Instead, he concluded this point in his brief by reminding us that we "will reverse the judgment below if it is based upon incorrect conclusions of law."

Regarding challenges to the sufficiency of evidence to support a jury verdict, this Court has said:

"The 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 reviewing 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).

Syllabus Point 1, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996). Also,

[a] criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a jury and not an appellate court. Finally, a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases are inconsistent, they are expressly overruled.

Syllabus Point 3, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

In the case sub judice, four eyewitnesses testified at trial that the defendant attacked the victim with a piece of firewood at Fortney's Mill. When questioned regarding the events of that fateful night, David Bell stated, "I saw Jerry Sapp hit Matthew Nestor [sic] with a piece of wood." Upon further questioning, the witness answered, "Well, I remember Jerry Sapp, I don't know if he was sitting around the campfire or not. He came from somewhere, I don't know, but he came and walked up to Randy Nestor and said the acid, not using his exact words, but in effect the acid you sold us was bad." David Bell continued by stating, "I don't know if he pulled a log out of the campfire or beside of it, but he pulled it and he hit Mr. Nestor. Mr. Nestor was sitting with his legs crossed. He hit Mr. Nestor down on the top of the head face area here."

When asked to describe how the attack...