State v. Wright

• Decision Date: 10 July 1997
• Docket Number: No. 23741,23741
• Citation: 200 W.Va. 549,490 S.E.2d 636
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Robert Jack WRIGHT, Defendant Below, Appellant.

Page 636

490 S.E.2d 636

200 W.Va. 549

STATE of West Virginia, Plaintiff Below, Appellee, v. Robert Jack WRIGHT, Defendant Below, Appellant.

No. 23741.

Supreme Court of Appeals of West Virginia.

Submitted May 6, 1997.

Decided July 10, 1997.

Syllabus by the Court

1. " 'The Double Jeopardy Clause in Article III, Section 5 of the West Virginia Constitution provides immunity from further prosecution where a court having jurisdiction has acquitted the accused. It protects against a second prosecution for the same offense after conviction. It also prohibits multiple punishments for the same offense.' Syllabus Point 1, Conner v. Griffith, 160 W.Va. 680, 238 S.E.2d 529 (1977)." Syllabus Point 2, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).

2. "[A] double jeopardy claim ... [is] reviewed de novo." Syllabus Point 1, in part, State v. Sears, 196 W.Va. 71, 468 S.E.2d 324 (1996).

3. "In ascertaining legislative intent, a court should look initially at the language of the involved statutes and, if necessary, the legislative history to determine if the legislature has made a clear expression of its intention to aggregate sentences for related crimes. If no such clear legislative intent can be discerned, then the court should analyze the statutes under the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to determine whether each offense requires an element of proof the other does not. If there is an element of proof that is different, then the presumption is that the legislature intended to create separate offenses." Syllabus Point 8, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).

4. " '[W]here 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.' Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932)." Syllabus Point 4, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).

5. " 'The test of determining whether a particular offense is a lesser included offense is that the lesser offense must be such that it is impossible to commit the greater offense without first having committed the lesser offense. An offense is not a lesser included offense if it requires the inclusion of an element not required in the greater offense.' Syllabus Point 1, State v. Louk, W.Va. , 285 S.E.2d 432 (1981)[, overruled on other grounds, State v. Jenkins, 191 W.Va. 87, 443 S.E.2d 244 (1994) ]." Syllabus Point 1, State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982).

6. "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." Syllabus Point 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

Darrell V. McGraw, Jr., Attorney General Victor S. Woods, Assistant Attorney General, Charleston, for Appellee.

Daniel R. James, Barr & James, Keyser, for Appellant.

PER CURIAM:

Robert Jack Wright appeals his convictions of malicious assault ( W. Va.Code, 61-2-9(a) [1978] ), attempted murder ( W.Va.Code, 61-2-1 [1991] and 61-11-8(1) [1994] ) and wanton endangerment with a firearm ( W.Va.Code, 61-7-12 [1994] ). Mr. Wright was convicted of the three crimes after a bench trial in the Circuit Court of Hampshire County and his sentence was based on his three convictions. On appeal, Mr. Wright alleges the following assignments of error: (1) the principles of double jeopardy were violated by his convictions of wanton endangerment and malicious assault because, in this case, both convictions are based on one act involving the use of a firearm; (2) venue was not established; and (3) the evidence presented by the State was insufficient to support his convictions. Although the State confesses error on the double jeopardy issue, the State maintains the other assignments of error are without merit. Based on our review of the record, we find no merit in Mr. Wright's assignments of error concerning venue and insufficient evidence, but we agree with the parties that the double jeopardy prohibition was violated in this case. Because of our holdings, we affirm, in part, reverse, in part and remand this case for re-sentencing consistent with this opinion.

I. Facts and Background

On the evening of May 10, 1995, Mr. Wright shot and wounded Paul Grigg, an acquaintance of Mr. Wright. The victim was shot with a .38 caliber derringer outside the victim's residence in the town of Romney, the county seat of Hampshire County. The circumstances leading to the shooting were disputed.

Mr. Wright maintains that he went to the victim's home in order to give the victim, who was his friend, a gun as a wedding present. Apparently Mr. Grigg was engaged to marry a former girlfriend of Mr. Wright. Mr. Wright testified that he had no problem with the new couple, and the victim testified that until the day of the shooting, he was unaware of any problem. According to Mr. Wright, as he pulled the gun from his front pants' pocket to show to the victim, the gun accidentally discharged injuring the victim.

According to the victim, he first met Mr. Wright several weeks earlier at the local American Legion Post. The victim testified that on May 10, 1995, Mr. Wright telephoned him and said, "This is Jack. I'm ready for a piece of your a__. I'm over at the Legion. Come on over." About an hour after the telephone call, Mr. Wright appeared at the victim's residence. The victim stepped outside his home, and the two men walked about 15 to 25 feet toward Mr. Wright's car. The victim testified that Mr. Wright was angry with him and gave the following description of the conversation leading to the shooting: "And then he [Mr. Wright] proceeded to say ... 'When I get mad, I'm mad.' And said ... 'I don't f____ around,' is what he said.... Just real shortly, then, the gun, hands went up, and a gun went off, and I was shot."

The victim testified that he thought Mr. Wright was trying to kill him. Mr. Wright testified that the shot went off when "I was pulling the gun out to give it to the man. I had no beef against Mr. Grigg [the victim]." Mr. Wright thought the gun malfunctioned and accidentally discharged when his "finger brushed against the trigger" while the gun was in the half-cocked safety position.

Clarence Lane, the State's firearm expert, testified that the gun was in good working order and that "this particular gun won't go off in a half-cocked position."

Mr. Wright was indicted on three counts: malicious assault, attempted murder, and wanton endangerment. After Mr. Wright waived his right to a jury trial, a bench trial was held in the Hampshire County Circuit Court. The circuit court found Mr. Wright guilty on all counts and sentenced him to serve two to ten years for malicious assault and one to five years for attempted murder with these sentences to run consecutively, and to serve one to five years for wanton endangerment, with this sentence to run concurrently with the other two.

Mr. Wright appealed to this Court alleging: (1) the double jeopardy prohibition applies to his convictions and punishments for both malicious assault and wanton endangerment; (2) venue was not established; and (3) the evidence was not sufficient to support his convictions.

II. Discussion

A. Double Jeopardy

"The Double Jeopardy Clause in Article III, Section 5 of the West Virginia Constitution, provides immunity from further prosecution where a court having jurisdiction has acquitted the accused. It protects against a second prosecution for the same offense after conviction. It also prohibits multiple punishments for the same offense." Syllabus Point 1, Conner v. Griffith, 160 W.Va. 680, 238 S.E.2d 529 (1977). Accord Syllabus Point 5, State v. Johnson, 197 W.Va. 575, 476 S.E.2d 522 (1996); Syllabus Point 7, State v. Broughton, 196 W.Va. 281, 470 S.E.2d 413 (1996); Syllabus Point 2, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992). Article III, § 5 of the W.Va. Const. states, in pertinent part: "[N]or shall any person, in any criminal case ... be twice put in jeopardy of life or liberty for the same offence."

We review de novo claims regarding the double jeopardy prohibition. Syllabus Point 1, in part, State v. Sears, 196 W.Va. 71, 468 S.E.2d 324 (1996) states that "a double jeopardy claim ... [is] reviewed de novo."

In this case, Mr. Wright claims his convictions for wanton endangerment ¹ and malicious assault ² are predicated upon a single gunshot, which makes wanton endangerment a lesser-included offense of malicious assault. ³ In its brief, the State conceded "that the Defendant cannot be punished for both crimes."

In State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992), we noted that the double jeopardy proscription does not prohibit multiple punishments for the same offense when a contrary legislative intent has been clearly expressed. In Gill, we found such legislative intent clearly expressed in the declaration of "a separate and distinct offense under" W.Va.Code, 61-8D-5(a) for sexual abuse involving parents, custodians or guardians. 187 W.Va. at 143, 416 S.E.2d at 260. Syllabus Point 7 of Gill states:

A claim that double jeopardy has been violated based on multiple punishments imposed after a single trial is resolved by determining the legislative intent as to punishment.

To determine legislative intent, a court should examine the language of the criminal statutes at issue and, if necessary, the legislative history to...