State v. Ward
| Decision Date | 15 August 1991 |
| Docket Number | No. 19704,19704 |
| Citation | 185 W.Va. 361,407 S.E.2d 365 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia, Plaintiff Below, Appellee, v. Jeffrey A. WARD, Defendant Below, Appellant. |
1. " Syllabus point 2, State v. Craft, 165 W.Va. 741, 272 S.E.2d 46 (1980).
2. " Syllabus point 4, State v. Craft, 165 W.Va. 741, 272 S.E.2d 46 (1980).
3. Syllabus point 6, State v. Oldaker, 172 W.Va. 258, 304 S.E.2d 843 (1983).
4. ." Syllabus point 2, State v. Gibson, 181 W.Va. 747, 384 S.E.2d 358 (1989).
5. West Virginia Code § 61-3-11(b) (1989) provides that a person found guilty of daytime burglary "shall be confined in the penitentiary not less than one nor more than ten years."
6. As a condition of probation, a court may require a probationer "to serve a period of confinement in the county jail of the county in which he was convicted for a period not to exceed one third of the minimum sentence established by law or one third of the least possible period of confinement in an indeterminate sentence, but in no case shall such period of confinement exceed six consecutive months." W.Va.Code § 62-12-9(4) (1989).
James M. Cagle, Charleston, for appellant.
Roger W. Tompkins, Atty. Gen., Joanna I. Tabit, Sr. Asst. Atty. Gen., Charleston, for appellee.
On December 12, 1985, the appellant, Jeffrey Ward, was found guilty of daytime burglary by entering without breaking into the home of his mother, Mrs. Crete Ward, on or about May 13, 1984. Sentencing was delayed until April 28, 1989, when Ward was ordered to serve one to ten years in the State Penitentiary at Moundsville, West Virginia. The sentence was suspended and Ward was placed on two years probation. However, he was subsequently ordered to serve four months in the Wayne County Jail as a term and condition of his probation. Ward's appeal is based primarily on his assertion that there is insufficient evidence to sustain his conviction, although he makes several additional assignments of error which we will briefly discuss.
On May 11, 1984, Mrs. Crete Ward was hospitalized for eleven days after she severely cut her foot while mowing her lawn. The daytime burglary which is the subject of this appeal allegedly occurred at some point during her hospitalization. Several days after returning home, Mrs. Ward discovered that a diamond ring, a safety deposit box key, and her will were missing from her bedroom. After visiting the bank in which the safety deposit box was located, Mrs. Ward called the police to report a burglary.
At trial, Mrs. Ward testified that she had just received her new will two or three days before her hospitalization and placed it on her desk. Jeffrey Ward was not a beneficiary under the terms of the new will, but he would inherit his mother's estate if she died without a will. The prosecution suggested that Jeffrey was the only party who stood to benefit from the theft of the will and noted that the will was stolen at a time when Mrs. Ward was in a precarious medical condition.
Neither Mrs. Ward's will nor her diamond ring were ever recovered. However, evidence introduced at trial showed that Jeffrey Ward went to the bank, signed a card, and entered the safety deposit box on May 14 and May 16, 1984. 1 The issue of whether the key he used to enter the box was the key taken from Mrs. Ward's home was a question of fact to be resolved at trial.
Ward's first assignment of error relates to the sufficiency of the evidence which was used to convict him. Specifically, Ward argues that he was entitled to a directed verdict of acquittal because the State failed to establish a prima facie case of daytime burglary. The elements of the crime are delineated in W.Va.Code § 61-3-11(b) (1989), which states that:
If any person shall, in the daytime, enter without breaking a dwelling house, or an outhouse adjoining thereto or occupied therewith, of another, with intent to commit a felony or any larceny therein, he shall be deemed guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than one nor more than ten years.
Ward states that just a single witness placed him outside of his mother's home during the daytime on May 14 or 15, 1984, and he argues that a jury could not reasonably infer his presence inside the dwelling from his presence outside the milkhouse, which is 200 to 250 feet away from Mrs. Ward's home.
The general test for reviewing the sufficiency of the evidence in a criminal proceeding has been stated by this Court 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 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.
Syl. pt. 2, State v. Craft, 165 W.Va. 741, 272 S.E.2d 46 (1980). In Craft, this Court affirmed a breaking and entering conviction although there were no witnesses to the crime and no evidence discovered at the scene which linked the defendant to the crime. Id., 165 W.Va. at 750, 272 S.E.2d at 49. However, the defendant was observed at the scene a few hours before the burglary occurred and was carrying a valise which it was later determined contained tools taken during the burglary. Another stolen tool was located in the trunk of the defendant's car. Id., 165 W.Va. at 7 48, 272 S.E.2d at 50. In affirming the conviction in Craft, we noted that exclusive possession of stolen property is not prima facie evidence that the person is the thief, but that "such possession is, nevertheless, a strong circumstance to be considered with other evidence, facts and circumstances properly tending to prove the guilt of such person." Syl. pt. 1, State v. Etchell, 147 W.Va. 338, 127 S.E.2d 609 (1962).
In the case now before us, a ring, a will, and a safety deposit box key were taken from Mrs. Ward's home. The State points out that Mrs. Ward took care to assure that her home was locked up before going to the hospital. She gave her house and car keys to the neighbor who drove her to the hospital, Rick Stephenson, and asked him to keep them for her. While waiting at the hospital, Jeffrey Ward asked Stephenson for the keys, and Stephenson handed the keys to Ward's wife, Natalie. Later, Ward refused to give the keys to his mother when she demanded their return. Mrs. Ward maintains that she never gave her son permission to use the keys to enter her home. However, he was seen at her home during a time when the theft could have occurred. Although there was no testimony at trial which placed Ward inside his mother's home during her hospitalization, Stephenson testified that he saw Ward outside the house and then heard a door slam. However, Stephenson was not certain whether the door which slammed was the door to the main house or the smaller milkhouse.
Most significantly, there is the uncontroverted evidence that although he had never done so before, Ward entered the safety deposit box on two separate occasions during his mother's hospitalization. Crete Ward testified that she never gave Jeffrey a key to the box, nor were any duplicates made, and she never gave him permission to use her key. While Ward maintains that the key he used was his own key and that he had a right to enter the box, this is an issue which is properly resolved by the jury. 2 As we stated in Craft Syllabus Point 2, State v. Etchell, 147 W.Va. 338, 127 S.E.2d 609 (1962).
Id. at syl. pt. 4. In...
To continue reading
Request your trial
-
State v. Corey
...We will note that our cases have recognized that trial courts have discretion to sua sponte declare a mistrial. See State v. Ward, 185 W.Va. 361, 407 S.E.2d 365 (1991) (mistrial declared sua sponte); State v. Gibson, 181 W.Va. 747, 384 S.E.2d 358 (1989) (same). However, neither Mr. Corey no......
-
Miller v. Cline
...Procedure where delay was not "purposeful or oppressive," but accidental and promptly remedied when discovered); State v. Ward, 185 W.Va. 361, 407 S.E.2d 365 (1991) (defendant failed to show that delay was by design). In the present case, we find no evidence of design or even prejudice caus......