State v. Stone, No. 11–0519.

CourtSupreme Court of West Virginia
Writing for the CourtMcHUGH
Citation728 S.E.2d 155,229 W.Va. 271
PartiesSTATE of West Virginia, Respondent v. Brian John STONE, Petitioner.
Decision Date21 June 2012
Docket NumberNo. 11–0519.

229 W.Va. 271
728 S.E.2d 155

STATE of West Virginia, Respondent
v.
Brian John STONE, Petitioner.

No. 11–0519.

Supreme Court of Appeals of
West Virginia.

Submitted March 27, 2012.
Decided June 21, 2012.


[728 S.E.2d 157]



Syllabus by the Court

1. “ ‘Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.’ Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).” Syl. Pt. 2, Osborne v. U.S., 211 W.Va. 667, 567 S.E.2d 677 (2002).

2. “In construing an ambiguous criminal statute, the rule of lenity applies which requires that penal statutes must be strictly construed against the State and in favor of the defendant.” Syllabus point 5, State ex rel. Morgan v. Trent, 195 W.Va. 257, 465 S.E.2d 257 (1995).

3. “ ‘The word “any,” when used in a statute, should be construed to mean any.’ Syl. pt. 2, Thomas v. Firestone Tire & Rubber Co., 164 W.Va. 763, 266 S.E.2d 905 (1980).” Syl. Pt. 4, Williams v. W.Va. Dept. of Motor Vehicles, 187 W.Va. 406, 419 S.E.2d 474 (1992).

4. Under West Virginia Code § 17C–4–1 (1999), a driver of any vehicle involved in an accident resulting in injury to or death of any person shall stop the vehicle at the scene of the accident or as close thereto as possible but then shall forthwith return to and shall remain at the scene of the accident until he or she has complied with the requirements of West Virginia Code § 17C–4–3 (1998). A driver who fails to comply with the requirements of West Virginia Code § 17C–4–3 violates West Virginia Code § 17C–4–1 only once regardless of the number of injuries or deaths resulting from the accident.

5. “A cardinal rule of statutory interpretation is that code sections are not to be read in isolation but construed in context.” Syl. Pt. 2, In re Estate of Lewis, 217 W.Va. 48, 614 S.E.2d 695 (2005).

6. “ ‘Statutes which relate to the same persons or things, or to the same class of persons or things, or statutes which have a common purpose will be regarded in pari materia to assure recognition and implementation of the legislative intent. Accordingly, a court should not limit its consideration to any single part, provision, section, sentence, phrase or word, but rather review the act or

[728 S.E.2d 158]

statute in its entirety to ascertain legislative intent properly.’ Syllabus Point 5, Fruehauf Corp. v. Huntington Moving & Storage Co., 159 W.Va. 14, 217 S.E.2d 907 (1975).” Syl. Pt. 3, In re Estate of Lewis, 217 W.Va. 48, 614 S.E.2d 695 (2005).

7. Under West Virginia Code § 17C–5–4 (2001), any person who drives a motor vehicle in this state is deemed to have given his or her consent by the operation of the motor vehicle to a preliminary breath analysis and a secondary chemical test of either his or her blood, breath or urine for the purpose of determining the alcoholic content of his or her blood. Pursuant to West Virginia Code § 17C–4–7 (1986), if any person under arrest as specified in West Virginia Code § 17C–5–4 refuses to submit to any secondary chemical test, the tests shall not be given except pursuant to a valid search warrant. To the extent our previous decision of State v. McClead, 211 W.Va. 515, 566 S.E.2d 652 (2002), is inconsistent with this holding, it is hereby overruled.

8. “ ‘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 viewing 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.’ Syl. Pt. 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).” Syl. Pt. 1, State v. Juntilla, 227 W.Va. 492, 711 S.E.2d 562 (2011).

9. “ ‘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.' Syl. Pt. 3, in part, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).” Syl. Pt. 2, State v. Juntilla, 227 W.Va. 492, 711 S.E.2d 562 (2011).


Stephanie J. Shepherd, Hedges, Lyons & Shepherd, Morgantown, WV, for the Petitioner.

Darrell V. McGraw, Attorney General, Laura J. Young, Office of Attorney General, Charleston, WV, and Marcia Ashdown, Perry DeChristopher, Office of the Prosecuting Attorney, Morgantown, WV, for the Respondent.


McHUGH, J.:

By order entered November 16, 2010, the Circuit Court of Monongalia County re-sentenced Appellant Brian John Stone with regard to his conviction and sentence on twenty-six charges stemming from an alcohol-related automobile accident in which five people died and seven others were injured. In this appeal, Appellant challenges his multiple punishments for leaving the scene of an accident resulting in injury or death; the trial court's order denying his motion to suppress evidence of his blood alcohol content; and the sufficiency of the evidence on the charges of DUI causing death and leaving the scene of the accident.

Upon careful consideration of the briefs and arguments of the parties, the record below and the applicable legal authority, and for the reasons stated herein, we affirm, in part, and reverse, in part, the November 16, 2010, order of the circuit court, and remand this case, with instructions.

I. Facts and Procedural History

On July 8, 2007, sometime after 10:00 p.m., Appellant was driving his Ford F–150 truck eastbound on Interstate 68 in Monongalia County, West Virginia. Witness Daniel Greathouse was driving in front of Appellant in the same direction and observed Appellant's truck in his rearview mirror. Mr.

[728 S.E.2d 159]

Greathouse, who estimated his own speed at eighty miles per hour, estimated that Appellant was driving at a speed close to ninety miles per hour. Mr. Greathouse testified that both he and Appellant were traveling in the right lane and another car, a Ford Taurus driven by Cortney Evans, was traveling a car length's distance ahead of Mr. Greathouse in the left lane. According to Mr. Greathouse, Appellant passed him in the left lane and as Appellant's truck re-entered the right lane in front of Mr. Greathouse, the back end of Appellant's truck began swerving back and forth, hitting Mr. Evans' car. Witness Jamie Porter, who was driving westbound on Interstate 68, testified that she observed Appellant's truck try to “shimmy its way through” into the left lane.

Sheena Evans, Mr. Evans' wife and front seat passenger, testified both she and her husband observed that Appellant's truck began moving over into their car in the left lane. As Mr. Evans tried to avoid Appellant's truck, Mrs. Evans observed her husband “trying to hold the wheel steady. He was holding the wheel so hard, and the truck just would not get off of us at all. He would not let us alone, and he just kept pushing and pushing.” According to Mrs. Evans, the contact took the car “like a bullet and shot us clear over”, across the median to the opposite side of the highway. After crossing the median, Mr. Evans' car crashed into a sport utility vehicle being driven westbound by Donnell Perry.

For Appellant's part, his theory at trial was that the right front tire of his truck blew out, causing him to lose control of his vehicle, or “fishtail.” He testified that his truck “suddenly pulled to the right and then I counter-steered, of course to stay on the highway, to the left, and I believe that is when my truck and the Taurus ... came into contact, when I counter steered.” In contrast to Appellant's testimony, however, Sergeant William Yaskoweak, who testified as an expert in accident reconstruction, indicated that there was no physical evidence that the right front tire on Appellant's truck had blown out.

As a result of the accident, Mr. Evans and his son were killed as were Mr. Perry and two of his daughters. Mrs. Evans and another son were injured and Marcia Perry, Mr. Perry's wife, and four other children in their vehicle were also injured.

Meanwhile, Mr. Greathouse testified that after Appellant's truck made contact with Mr. Evans' car, Appellant's truck rolled over at least one time. The truck then went over an embankment and landed in a culvert approximately 200 yards away. Appellant's truck was found with the engine running, in gear, with its lights on and with the passenger-side door open. Deputy David Wilfong of the Monongalia County Sheriff's Department testified that he observed Appellant hitchhiking in the opposite direction of the accident scene, approximately one-half mile away.

As Deputy Wilfong approached Appellant, he observed his eyes to be bloodshot and glassy. He further observed that Appellant was having trouble standing and was swaying back and forth. According to Deputy Wilfong, he smelled the odor of alcoholic beverage on Appellant's breath and person. When asked if he had been in an accident, Appellant replied in the negative. However, Appellant admitted that he had been drinking forty to forty-five minutes earlier. Deputy Wilfong administered three different field sobriety tests on Appellant. Upon failing all three tests, Appellant was placed under arrest at approximately...

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29 practice notes
  • Missouri v. McNeely, No. 11–1425.
    • United States
    • U.S. Supreme Court
    • April 17, 2013
    ...Tit. 23, § 1202(f) (2007); Wash. Rev.Code § 46.20.308(1) (2012); W. Va.Code Ann. § 17C–5–7 (Supp.2012) (as interpreted in State v. Stone, 229 W.Va. 271, ––––, 728 S.E.2d 155, 167–168 (2012) ); Wyo. Stat. Ann. § 31–6–102(d) (2011) ; see also State v. Harris, 763 N.W.2d 269, 273–274 (Iowa 200......
  • State v. White, No. 11–1336.
    • United States
    • Supreme Court of West Virginia
    • June 7, 2013
    ...194 W.Va. 657, 461 S.E.2d 163 (1995).’ Syl. Pt. 1, State v. Juntilla, 227 W.Va. 492, 711 S.E.2d 562 (2011).” Syl. Pt. 8, State v. Stone, 229 W.Va. 271, 728 S.E.2d 155 (2012). 5. “ ‘ “A criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy bu......
  • State v. Jonathan B., No. 11–0282.
    • United States
    • Supreme Court of West Virginia
    • November 20, 2012
    ...a warrant. Syl. pt. 3, in part, State v. McClead, 211 W.Va. 515, 566 S.E.2d 652 (2002)overruled on other grounds by State v. Stone, 229 W.Va. 271, 728 S.E.2d 155 (2012). 16.Cf. State v. White, 228 W.Va. 530, 546, 722 S.E.2d 566, 582 (2011) (“[I]t has been observed generally that an addition......
  • Missouri v. McNeely, No. 11–1425.
    • United States
    • U.S. Supreme Court
    • April 17, 2013
    ...Tit. 23, § 1202(f) (2007); Wash. Rev.Code § 46.20.308(1) (2012); W. Va.Code Ann. § 17C–5–7 (Supp.2012) (as interpreted in State v. Stone, 229 W.Va. 271, ––––, 728 S.E.2d 155, 167–168 (2012)); Wyo. Stat. Ann. § 31–6–102(d) (2011); see also State v. Harris, 763 N.W.2d 269, 273–274 (Iowa 2009)......
  • Request a trial to view additional results
29 cases
  • Missouri v. McNeely, No. 11–1425.
    • United States
    • U.S. Supreme Court
    • April 17, 2013
    ...Tit. 23, § 1202(f) (2007); Wash. Rev.Code § 46.20.308(1) (2012); W. Va.Code Ann. § 17C–5–7 (Supp.2012) (as interpreted in State v. Stone, 229 W.Va. 271, ––––, 728 S.E.2d 155, 167–168 (2012) ); Wyo. Stat. Ann. § 31–6–102(d) (2011) ; see also State v. Harris, 763 N.W.2d 269, 273–274 (Iowa 200......
  • State v. White, No. 11–1336.
    • United States
    • Supreme Court of West Virginia
    • June 7, 2013
    ...194 W.Va. 657, 461 S.E.2d 163 (1995).’ Syl. Pt. 1, State v. Juntilla, 227 W.Va. 492, 711 S.E.2d 562 (2011).” Syl. Pt. 8, State v. Stone, 229 W.Va. 271, 728 S.E.2d 155 (2012). 5. “ ‘ “A criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy bu......
  • State v. Jonathan B., No. 11–0282.
    • United States
    • Supreme Court of West Virginia
    • November 20, 2012
    ...a warrant. Syl. pt. 3, in part, State v. McClead, 211 W.Va. 515, 566 S.E.2d 652 (2002)overruled on other grounds by State v. Stone, 229 W.Va. 271, 728 S.E.2d 155 (2012). 16.Cf. State v. White, 228 W.Va. 530, 546, 722 S.E.2d 566, 582 (2011) (“[I]t has been observed generally that an addition......
  • Missouri v. McNeely, No. 11–1425.
    • United States
    • U.S. Supreme Court
    • April 17, 2013
    ...Tit. 23, § 1202(f) (2007); Wash. Rev.Code § 46.20.308(1) (2012); W. Va.Code Ann. § 17C–5–7 (Supp.2012) (as interpreted in State v. Stone, 229 W.Va. 271, ––––, 728 S.E.2d 155, 167–168 (2012)); Wyo. Stat. Ann. § 31–6–102(d) (2011); see also State v. Harris, 763 N.W.2d 269, 273–274 (Iowa 2009)......
  • Request a trial to view additional results

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