State v. Ward
Docket Number | 21-0806 |
Decision Date | 09 June 2023 |
Parties | STATE OF WEST VIRGINIA, Plaintiff Below, Respondent, v. HENRY JO WARD, Defendant Below, Petitioner. |
Court | West Virginia Supreme Court |
Submitted: March 21, 2023
Troy N. Giatras, Esq.
Phillip A. Childs, Esq.
The Giatras Law Firm, PLLC
Charleston, West Virginia
Counsel for Petitioner
Lindsay S. See, Esq.
Patrick Morrisey, Esq.
Attorney General
R. Todd Goudy, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for the Respondent
1. Syllabus Point 1, State v. Byers, 247 W.Va. 168, 875 S.E.2d 306 (2022).
2. Syllabus Point 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).
3. Syllabus Point 2, State v. Harris, 230 W.Va. 717, 742 S.E.2d 133 (2013).
4. "Double jeopardy claims are reviewed de novo." Syllabus Point 1, in part, State v. Sears, 196 W.Va. 71, 468 S.E.2d 324 (1996).
5. Syllabus Point 3, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).
6. Syllabus Point 2, State v. Harris, 230 W.Va. 717, 742 S.E.2d 133 (2013).
7. Syllabus Point 8, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).
8. Syllabus Point 6, State v. Crabtree, 198 W.Va. 620, 482 S.E.2d 605 (1996).
9. "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).
10. "The offense of brandishing as defined by West Virginia Code § 61-7-11 is a lesser included offense within the definition of wanton endangerment under West Virginia Code § 61-7-12." Syllabus Point 5, State v. Bell, 211 W.Va. 308, 565 S.E.2d 430 (2002).
11. "Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Syllabus Point 8, State v. Zaccagnini, 172 W.Va. 491, 308 S.E.2d 131 (1983).
12. " Syllabus Point 5, State v. Wright, 200 W.Va. 549, 490 S.E.2d 636 (1997).
13. Syllabus Point, 6, State v. Myers, 204 W.Va. 449, 513 S.E.2d 676 (1998).
14. "The plain language of Rule 614(b) of the West Virginia Rules of Evidence authorizes trial courts to question witnesses - provided that such questioning is done in an impartial manner so as to not prejudice the parties." Syl. Pt. 3, State v. Farmer, 200 W.Va. 507, 490 S.E.2d 326 (1997).
Petitioner appeals his convictions, following a jury trial in the Circuit Court of Fayette County, of attempted murder in the second degree, two counts of wanton endangerment, malicious assault on a law enforcement officer, use or presentment of a firearm during the commission of a felony, obstructing an officer, and brandishing a deadly weapon. On appeal, Petitioner asserts that: (1) there was insufficient evidence to support his conviction for malicious assault on a law enforcement officer; (2) the principles of double jeopardy were violated by his convictions for wanton endangerment (involving Deputy Pierson), malicious assault on a law enforcement officer and use or presentment of a firearm during the commission of a felony; and (3) the circuit court abused its discretion by favoring the State throughout his trial.
Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we conclude that the double jeopardy prohibition was violated in this case with respect to Petitioner's convictions for brandishing and wanton endangerment involving Deputy Pierson, but we find no merit to his other assignments of error. Based on our holdings, we affirm in part, reverse in part, and remand this case for resentencing consistent with this opinion.
On November 29, 2020, Deputy Coty Pierson (hereinafter "Deputy Pierson") was contacted by his second cousin, Jeffrey Barnhouse, about a stolen trail camera. According to the trial testimony of Deputy Pierson, Mr. Barnhouse's trail camera captured a picture of the person who stole the camera, and that picture had been sent to Mr. Barnhouse's cell phone. Deputy Pierson looked at the picture and identified the individual in the picture as Petitioner.[1] Thereafter, Deputy Pierson and Mr. Barnhouse went to Petitioner's camper to follow up on the stolen trail camera.[2]
It is undisputed that Deputy Pierson was not on duty at the time he went to Petitioner's camper. Deputy Pierson testified that he did not wait to follow up on the stolen trail camera until he was on duty again because he was close, and he had concerns that Petitioner would get rid of the evidence. At the time Deputy Pierson arrived at Petitioner's camper he was wearing civilian clothes and he was unarmed with no badge and no handcuffs. When Deputy Pierson and Mr. Barnhouse were about forty (40) yards from...
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