State v. Slater

• Decision Date: 09 June 2008
• Docket Number: No. 33659.,33659.
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Joshua Lee SLATER, Defendant Below, Appellant.

665 S.E.2d 674

222 W.Va. 499

STATE of West Virginia, Plaintiff Below, Appellee, v. Joshua Lee SLATER, Defendant Below, Appellant.

No. 33659.

Supreme Court of Appeals of West Virginia.

Submitted April 15, 2008.

Decided June 9, 2008.

Dissenting Opinion of Justice Starcher July 23, 2008.

Concurring Opinion of Justice Benjamin July 30, 2008.

Syllabus by the Court

1. "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).

2. "The crime of burglary is defined in W.Va.Code, 61-3-11(a), 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 crime] therein, he shall be deemed guilty of burglary.'" Syllabus Point 2, State v. Louk, 169 W.Va. 24, 285 S.E.2d 432 (1981).

3. "Criminal trespass, as defined by W. Va.Code, 61-3B-2 [1978], is not a lesser included offense of burglary by breaking and entering, as defined by W.Va.Code, 61-3-11(a) [1973]." Syllabus Point 2, State v. Ocheltree, 170 W.Va. 68, 289 S.E.2d 742 (1982).

4. Unauthorized entry is not a required element of the crime of daytime burglary by breaking and entering as defined in W.Va. Code § 61-3-11(a) (1999).

5. "The provisions of the statute relating to the various punishments to be imposed upon a person convicted of the crime of kidnaping, and which punishments depend upon and are governed by the evidence introduced at the trial, do not state or prescribe any element of the offense created by the statute." Syllabus Point 2, Pyles v. Boles, 148 W.Va. 465, 135 S.E.2d 692 (1964).

6. "Sentences imposed by the trial court, if within statutory limits and if not based on some unpermissible factor, are not subject to appellate review." Syllabus Point 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).

7. "To trigger application of the `plain error' doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings." Syllabus Point 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

8. "An unpreserved error is deemed plain and affects substantial rights only if the reviewing court finds the lower court skewed the fundamental fairness or basic integrity of the proceedings in some major respect. In clear terms, the plain error rule should be exercised only to avoid a miscarriage of justice. The discretionary authority of this Court invoked by lesser errors should be exercised sparingly and should be reserved for the correction of those few errors that seriously affect the fairness, integrity, or public reputation of the judicial proceedings." Syllabus Point 7, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996).

9. "Where it clearly and objectively appears in a criminal case from statements of the jurors that the jury has failed to comprehend an instruction on a critical element of the crime or a constitutionally protected right, the trial court must, on request of defense counsel, reinstruct the jury." Syllabus Point 2, State v. McClure, 163 W.Va. 33, 253 S.E.2d 555 (1979).

10. "An instruction for a statutory offense is sufficient if it adopts and follows the language of the statute, or uses substantially equivalent language and plainly informs the jury of the particular offense for which the defendant is charged." Syllabus Point 8, State v. Slie, 158 W.Va. 672, 213 S.E.2d 109 (1975).

11. "Under the `plain error' doctrine, `waiver' of error must be distinguished from `forfeiture' of a right. A deviation from a rule of law is error unless there is a waiver. When there has been a knowing and intentional relinquishment or abandonment of a known right, there is no error and the inquiry as to the effect of a deviation from the rule of law need not be determined. By contrast, mere forfeiture of a right — the failure to make timely assertion of the right — does not extinguish the error. In such a circumstance, it is necessary to continue the inquiry and to determine whether the error is `plain.' To be `plain,' the error must be `clear' or `obvious.'" Syllabus Point 8, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

Darrell V. McGraw, Jr., Esq., Attorney General, Dawn E. Warfield, Esq., Deputy Attorney General, R. Christopher Smith, Esq., Assistant Attorney General, Charleston, WV, for the State.

Ira Mickenberg, Esq., Gregory L. Ayers, Esq., Public Defender Corporation, Charleston, WV, for Joshua Lee Slater.

MAYNARD, Chief Justice:

The appellant, Joshua Lee Slater, appeals his convictions for kidnaping, domestic battery, wanton endangerment, and daytime burglary by breaking and entering. He also appeals his sentence for these crimes which amounts to life with mercy plus twenty-one years. For the reasons that follow, we affirm.

I. FACTS

Joshua Lee Slater, the appellant, lived with his long-time girlfriend, Angela Walls, and their two small children in a trailer in Sissonville. On November 29, 2005, the appellant and Ms. Walls got into an argument. At some point, the appellant hit Ms. Walls on the side of her head and threw a hammer, hitting her in the leg and causing minor bruising.

When Ms. Walls indicated that she was taking the children to her mother's house, the appellant ordered her to stay at gunpoint. He also threatened to kill Ms. Walls' entire family. The appellant then ordered Ms. Walls into the bedroom where he pointed a twelve-gauge shotgun at her and threatened to shoot her. While they were in the bedroom, the appellant ordered Ms. Walls to change into camouflage clothing. After she did so, he informed her that she had 14 hours to live, and then he was going to take her into the woods, tie her to a tree, "buckshot" her in both her knees, knock her teeth out so there would be no dental records, and set her body on fire so she could not be found. Shortly thereafter, Ms. Walls and the children escaped through the bedroom window, and Ms. Walls drove to her mother's house.

Subsequently, the appellant went to Ms. Walls' mother's house. By that time, Ms. Walls, her mother Lori Walls, and the children had fled to Ms. Walls' grandmother's house. The appellant attempted to open the door to the Walls' house with a key but was unable to do so. He then broke the window in the back door with the barrel of a gun and kicked in the back door. A short time later, a police officer arrived at the Walls' house. Although the appellant fled the house, he was arrested later that day.

The appellant was found guilty by a jury of kidnaping, for which he was sentenced to life with mercy; domestic battery, for which he received a determinate term of one year; wanton endangerment, for which he was sentenced to a determinate term of five years; and daytime burglary by breaking and entering, for which the trial court sentenced him to an indeterminate term of not less than one nor more than fifteen years. These sentences are to run consecutively. The appellant now appeals his convictions and sentence.

II. DISCUSSION

1. Sufficiency of Evidence to Support Burglary Conviction

First, the appellant argues that the evidence was legally insufficient to sustain the burglary conviction because the evidence failed to show that his entry into Lori Walls' house was unauthorized. In considering this issue, we are guided by the following standard of review:

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).

Lori Walls, the owner of the house the appellant was convicted of burglarizing, testified that the appellant previously had lived in her house for many years, had a key to the house, was considered a member of the family, and had full access to her house. It is the appellant's contention that because he was authorized to enter the Walls' home, the elements of burglary are not present in this case. According to the appellant, unauthorized entry is an essential element of daytime burglary by breaking and entering. To support this assertion, the appellant cites State v. Plumley, 181 W.Va. 685, 384 S.E.2d 130 (1989), an...