State v. Starkey, No. 13790

CourtSupreme Court of West Virginia
Writing for the CourtMILLER
Citation244 S.E.2d 219,161 W.Va. 517
PartiesSTATE of West Virginia v. Randall James STARKEY
Decision Date02 May 1978
Docket NumberNo. 13790

Page 219

244 S.E.2d 219
161 W.Va. 517
STATE of West Virginia
v.
Randall James STARKEY.
No. 13790.
Supreme Court of Appeals of West Virginia
May 2, 1978.

Page 220

Syllabus by the Court

1. 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.

2. In order to constitute the crime of attempt, two requirements must be met: (1) a specific intent to commit the underlying substantive crime; and (2) an overt act toward the commission of that crime, which falls short of completing the underlying crime.

3. An instruction in a criminal case which is not binding and does not require the jury to accept a presumption as proof beyond a reasonable doubt of any essential element of a crime, or require the defendant to introduce evidence to disprove an essential element of the crime for which he is charged, is not erroneous.

Catsonis & Linkous, Leo Catsonis, Thomas L. Linkous, Charleston, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Pamela Dawn Tarr, Asst. Atty. Gen., Charleston, for defendant in error.

[161 W.Va. 518] MILLER, Justice:

Randall Starkey appeals his conviction of attempted murder in the second degree. He assigns four grounds as error. First, the verdict is not supported by the evidence. Second, the State's instruction on the use of a deadly weapon is erroneous. Third, the trial court erred in refusing his self-defense instruction. Fourth, the judge made prejudicial remarks about him in front of the jury.

The initial question of whether there was sufficient evidence to support the guilty

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verdict requires a brief examination of our standard of review. This Court has used two standards. One is exemplified by the Fourth Syllabus of State v. Johnson, W.Va., 226 S.E.2d 442 (1976), quoting from State v. Fischer, W.Va., 211 S.E.2d 666 (1974), which in turn cited State v. West, 153 W.Va. 325, 168 S.E.2d 716 (1969):

" 'Upon motion to direct a verdict for the defendant, the evidence is to be viewed in light most favorable to prosecution. It is not necessary in appraising its sufficiency that the trial court or reviewing court be convinced beyond a reasonable doubt of the guilt of the defendant; the question is whether there is substantial evidence upon which a jury might justifiably find the defendant guilty beyond a reasonable doubt.' "

Another formulation of the standard is found in the First Syllabus of State v. Bias, 156 W.Va. 569, 195 S.E.2d 626 (1973):

" '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 accused beyond a reasonable doubt, though the evidence adduced by the accused is in conflict therewith. 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 pt. [161 W.Va. 519] 1, State v. Bowles, 117 W.Va. 217, 185 S.E. 205 (1936); Syllabus pt. 3, State v. Lewis, 133 W.Va. 584, 57 S.E.2d 513 (1949)."

Despite some dissimilarity in language, it can be seen that there are common strands between the two standards. The chief dissimilarity lies in expressing what is sufficient evidence. Johnson requires "substantial evidence upon which a jury might justifiably find the defendant guilty beyond a reasonable doubt," while the test in Bias is "that the evidence was manifestly inadequate." It is obvious that these statements are opposite sides of the same coin. Where there is substantial evidence the verdict will be affirmed. On the other hand, where the evidence is manifestly inadequate, the verdict will be reversed.

Johnson invokes the rule that the evidence is to be viewed most favorably to the prosecution, a reference to the fact that in most criminal cases there will be conflicting evidence between the prosecution and defense witnesses and with a guilty verdict the court may assume the jury believed the prosecution witnesses. The Bias rule acknowledges this same problem when it says the verdict would be upheld "though the evidence adduced by the accused is in conflict with the state's evidence."

The Bias standard is more complete in setting the requirement of viewing the evidence by impartial minds, a point which is absent from the Johnson test, but it refers to an appraising of the evidence by the trial or reviewing court, undoubtedly on the assumption that their impartiality is inherent.

A solution to these linguistic differences would be to combine the best elements of both into one integrated rule, as follows:

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 [161 W.Va. 520] 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.

Necessarily, in applying this standard, a review of the facts surrounding the crime must be made. Here, as not unexpected, there were areas of conflicting testimony, but taking the testimony most favorable to the prosecution, the following facts are found from the record.

On June 20, 1975, the victim of the crime, Blakely Sower, together with his two brothers, Ronald and Cloyce, went to the home of the defendant Starkey, who had married

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Ronald's former wife. The purpose of the visit was to enable Ronald Sower to pick up his two minor children under a custody visitation arrangement embodied in a court order. There was testimony that on previous occasions Ronald had encountered trouble when picking up the children, and his attorney had advised him to take someone with him as a witness.

When the three brothers arrived at the premises the children were not ready to leave, and the brothers waited outside the house. The defendant Starkey appeared at the kitchen door and began to verbally abuse the Sowers, calling them "punks." He invited them to come around the house to the basement door where he said he would "take care of them."

The Sower brothers walked around the house to the basement door. On the way, the prosecuting witness Blakely picked up a stick. When they arrived at the basement door the defendant called at them to come in. When they declined to do so, the defendant reached behind the door and brought out a shotgun. He pointed it at Blakely Sower and, after threatening to shoot him, discharged the shotgun into the ground near where Blakely was standing and ordered the brothers off the premises.

[161 W.Va. 521] The brothers then returned to the front of the house and by this time the children had come out of the house and their father, Ronald Sower, took them to his car. During this time an argument was ensuing between Ronald and his former wife. Ronald and his brother Cloyce got into their car with the children and began backing it down the driveway. The defendant was throwing gravel at them. Blakely Sower began to throw gravel at the defendant, who retaliated by throwing gravel back. Blakely then got into his truck and drove it through the driveway. As he passed the house, the defendant fired his shotgun. The pellets hit the right side of the topper on the truck bed, breaking the glass window.

Defendant's position is that he had not provoked the Sower brothers, but that it was they who had called him names and threatened him. He testified that had he wanted to kill Blakely Sower he could have done that when he fired the shotgun into the ground. The defendant testified he fired at the truck after he had pulled his wife from the path of the truck and it had gone past him.

At common law the attempt to commit a crime was itself a crime. 21 Am.Jur.2d Criminal Law § 110. This Court in State v. Hager, 50 W.Va. 370, 40 S.E. 393 (1901), stated that to constitute the crime of the attempt to commit a crime, "there must be an intent to commit the act, and some act done towards its consummation of such a nature as to constitute the attempt to commit the offense." 50 W.Va. at 371, 40 S.E. at 394. Much the same definition of the crime of attempt is found in State v. Franklin, 139 W.Va. 43, 54, 79 S.E.2d 692, 699 (1953), where we referred to the Virginia case of Thacker v. Commonwealth, 134 Va. 767, 769, 114 S.E. 504, 505 (1922).

W.Va.Code, 61-11-8, sets the general penalties for the crime of attempt. It has not been suggested in any of our prior decisions that this statute was intended to modify the common law elements of the crime.

[161 W.Va. 522] The law surrounding criminal attempts has produced considerable commentary relating to the vagueness of its elements. 1 Admittedly the elements are vague, but this results from the fact that an attempt to commit a crime covers a broad spectrum of different criminal offenses. Each criminal offense contains separate elements. Consequently, the type of facts necessary to prove an attempt to commit murder will not be the same as those necessary to prove

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an attempt to commit embezzlement or arson. 2

Yet from a general definitional standpoint, two requirements must be met: (1) a specific intent to commit the underlying substantive crime; and (2) an overt act toward the commission of that crime,...

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198 practice notes
  • State v. Allen, No. 25980.
    • United States
    • Supreme Court of West Virginia
    • November 17, 1999
    ...461 S.E.2d 163 (1995). 539 S.E.2d 105 Syl. pt. 3, State v. Easton, 203 W.Va. 631, 510 S.E.2d 465. Accord Syl. pt. 1, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978) ("In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where......
  • State v. Davis, No. 16433
    • United States
    • Supreme Court of West Virginia
    • March 25, 1986
    ...Clawson, 165 W.Va. 588, 619, 270 S.E.2d 659, 677 (1980); State v. Burton, 163 W.Va. 40, 58, 254 S.E.2d 129, 140 (1979); State v. Starkey, 161 W.Va. 517, 530, 244 S.E.2d 219, 227 (1978); State v. McGee, 160 W.Va. 1, 6-7, 230 S.E.2d 832, 836 (1976), overruled on other grounds State v. McAboy,......
  • State v. Tennant, No. 15978
    • United States
    • Supreme Court of West Virginia
    • July 12, 1984
    ...decline to hold that as a matter of law there was insufficient evidence on this point. See Syllabus Point 1, State v. Starkey, W.Va., 244 S.E.2d 219 (1978). The defendant also claims that one of the State's photographs, showing a portion of the deceased passenger's body under the car, was g......
  • State v. Davis, No. 25812.
    • United States
    • Supreme Court of West Virginia
    • June 28, 1999
    ...as carry in them the plain indications of a heart regardless of social duty, and fatally bent on mischief. In State v. Starkey, 161 W.Va. 517, 524, 244 S.E.2d 219, 223 (1978), overruled on other grounds, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995), we stated that "[t]he term mali......
  • Request a trial to view additional results
198 cases
  • State v. Allen, No. 25980.
    • United States
    • Supreme Court of West Virginia
    • November 17, 1999
    ...461 S.E.2d 163 (1995). 539 S.E.2d 105 Syl. pt. 3, State v. Easton, 203 W.Va. 631, 510 S.E.2d 465. Accord Syl. pt. 1, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978) ("In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where......
  • State v. Davis, No. 16433
    • United States
    • Supreme Court of West Virginia
    • March 25, 1986
    ...Clawson, 165 W.Va. 588, 619, 270 S.E.2d 659, 677 (1980); State v. Burton, 163 W.Va. 40, 58, 254 S.E.2d 129, 140 (1979); State v. Starkey, 161 W.Va. 517, 530, 244 S.E.2d 219, 227 (1978); State v. McGee, 160 W.Va. 1, 6-7, 230 S.E.2d 832, 836 (1976), overruled on other grounds State v. McAboy,......
  • State v. Tennant, No. 15978
    • United States
    • Supreme Court of West Virginia
    • July 12, 1984
    ...decline to hold that as a matter of law there was insufficient evidence on this point. See Syllabus Point 1, State v. Starkey, W.Va., 244 S.E.2d 219 (1978). The defendant also claims that one of the State's photographs, showing a portion of the deceased passenger's body under the car, was g......
  • State v. Davis, No. 25812.
    • United States
    • Supreme Court of West Virginia
    • June 28, 1999
    ...as carry in them the plain indications of a heart regardless of social duty, and fatally bent on mischief. In State v. Starkey, 161 W.Va. 517, 524, 244 S.E.2d 219, 223 (1978), overruled on other grounds, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995), we stated that "[t]he term mali......
  • Request a trial to view additional results

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