11. Victoria Dawn Josimovich v. Peter Wright Josimovich - Docket No. 020153. Plaintiff appeals from the circuit court’s order adopting the family law master’s recommended order in this divorce action.

Grant 3-2
[Maynard, J., McGraw, J. ]

12. State of West Virginia v. John Scites - Docket No. 020154. Defendant appeals from his conviction on second degree sexual assault. He was sentenced to 10 to 25 years in the penitentiary. 

Grant 3-2 Issue No. 2 Only
[ Davis, C.J., Maynard, J. ]

13. Leon Richards and Elaine Richards v. Roy Kees - Docket No. 020155. Plaintiffs appeal from the circuit court’s order awarding summary judgment in favor of defendant, Roy Kees, in this action arising out of a motor vehicle accident.

 

Grant 5-0

14. State of West Virginia v. Cynthia Wyma Fitzwater Copen Lane - Docket No. 020156. Defendant appeals from her conviction of second degree murder asserting that various errors were committed by the trial court. 

Refuse 4-1
[ Starcher, J. ]

15. State of West Virginia v. Roger Lee Lemons - Docket No. 020157. The petitioner, Roger L. Lemons, Jr., challenges his conviction in the Circuit Court of Mercer County of possession with intent to deliver a schedule I controlled substance (marihuana). The petitioner was a passenger in a vehicle which had been stopped by a police officer, and the officer noticed a bag containing what appeared to be marihuana "up against the leg" of the petitioner. The petitioner contends that his conviction should have been set aside because the evidence at trial was insufficient to support a guilty verdict.

Refuse 5-0

16. State of West Virginia v. Robert Lindsey, Jr. - Docket No. 020158. The petitioner, Robert Lindsey, Jr., appeals from an order entered in the Circuit Court of Cabell County sentencing him to life imprisonment pursuant to the West Virginia recidivist statute. The petitioner’s respective convictions allegedly included delivery of less than 1 gram of cocaine, voluntary manslaughter, second degree murder and aggravated robbery. The petitioner contends, inter alia, that the triggering offense (the delivery of less than 1 gram of cocaine) did not warrant the imposition of a life sentence and that, accordingly, the recidivist statute was unconstitutionally applied in this case.

 

Accept To Motion Docket

17. Christopher A. Renahan v. Allegheny Power, Inc., d/b/a Monongahela Power Company - Docket No. 020160. The petitioner, Christopher A. Renahan, appeals from an order entered in the Circuit Court of Monongalia County denying him relief from the entry of summary judgment in favor of Allegheny Energy, Inc., and Monongahela Power Company. The summary judgment was granted in an action filed by the petitioner in that Court for retaliatory discharge. The petitioner contends, inter alia, that summary judgment was improper because the Circuit Court, in so ruling, erroneously relied upon an order entered in the United Stated District Court for the Northern District of West Virginia dismissing, on jurisdictional grounds, a similar action filed by the petitioner.

Refuse 4-1
[ McGraw, J. ]

18. State of West Virginia v. Mark Alan Linger - Docket No. 020161. The petitioner, Mark Alan Linger, appeals from an order entered in the Circuit Court of Upshur County sentencing him to the penitentiary for a term of 25 to 65 years upon his convictions of four counts of sexual assault in the first degree, four counts of incest and four counts of sexual abuse by a parent, guardian or custodian. The alleged victim was the petitioner’s six to seven year old natural daughter. The petitioner raises a number of assignments of error, including an assertion that the evidence at trial was insufficient to support the convictions.

 

Accept To Motion Docket

19. Gary Edwin Wright v. Leanne M. Wright - Docket No. 020179. In this divorce action, the petitioner, Leanne M. Wright, appeals from an order entered in the Circuit Court of Wood County granting her former husband, respondent Gary Edwin Wright, specific performance and appointing a special commissioner to convey to him the petitioner’s ownership interest in the parties’ former marital residence. The petitioner contends, inter alia, that the Circuit Court committed error in granting specific performance where the respondent had "unclean hands" at the time he requested relief. Moreover, the petitioner contends that she was entitled to receive a deed to the residence from the respondent.

 

Grant 3-2
[ Maynard, J., McGraw, J. ]

20. Barbara L. Gonzalez v. Anchor Industries, Inc. - Docket No. 020182. The petitioner, Barbara L. Gonzales, appeals from a summary judgment entered in the Circuit Court of Berkeley County in favor of the respondent, Anchor Industries, Inc. The petitioner was injured on the job after being assigned to work at the premises of the respondent by her temporary services agency. The petitioner filed a WCC claim against the agency and, in addition, brought a common law negligence action against the respondent. The Circuit Court held that respondent Anchor was a "special employer" entitled to WCC immunity under the "borrowed or loaned servant" doctrine. The petitioner contends, inter alia, that whether respondent Anchor was entitled to immunity should have been a jury question, since the record contained evidence that both the temporary services agency and the respondent supervised and controlled the petitioner’s work at the time of her injury.

 

Accept To Motion Docket

21. Hubert Junior Tucker v. Farmers & Mechanics Mutual Insurance Company - Docket No. 020186. In this insurance coverage action, the petitioner, Hubert Junior Tucker, appeals from a summary judgment, entered in the Circuit Court of Putnam County in favor of the respondent, Farmers Mutual Insurance Company. The petitioner was injured due to the negligence of the insured’s adult son. The insured and his son lived in separate mobile homes owned by the insured and located upon the insured’s farm. The Circuit Court held that, since the son did not live in the same house as the insured, the son was not a member of the insured’s "household" and, therefore, was not an insured under the policy. Petitioner Tucker contends, inter alia, that whether the son was a member of the insured’s household is a jury question.

 

Grant 3-2
[ Davis, C.J., Maynard, J. ]

 

22. In Re the Marriage of: John E. Porter v. Pebble I. Porter - Docket No. 020188. This is a bifurcated divorce action wherein the petitioner, John E. Porter, appeals from an order entered in the Circuit Court of Marion County concerning the equitable distribution of the parties’ property. The petitioner contends, inter alia, that the Circuit Court committed error in making the distribution because it determined that the respondent, Pebble I. Porter, should receive a one-half interest in property acquired during the parties’ unmarried cohabitation. In April 2001, this Court granted an appeal in John E. Porter v. Pebble I. Porter, no. 29333. That appeal concerns the issue of alimony and has been continued pending the disposition of this matter.

Accept To Motion Docket

 

23. James Stephen Marple v. Howard Painter, Warden - Docket No. 020190. The petitioner, James Stephen Marple, appeals from an order entered in the Circuit Court of Marshall County denying him habeas corpus relief with regard to his conviction of first degree murder, with a recommendation of mercy. The petitioner’s direct appeal from that conviction was affirmed by this Court in State v. Marple, 197 W.Va. 47, 475 S.E.2d 47 (1996). The petitioner asserts ineffective assistance of counsel with regard to the fact that, during the underlying trial, the State, without objection, questioned a police officer regarding the petitioner’s pre-trial, post-Miranda silence.

Refuse 5-0

24. SER Abner D. Allen v. George Trent, Warden - Docket No. 020191. The petitioner, Abner D. Allen, appeals from an order entered in the Circuit Court of Harrison County denying him relief in habeas corpus with regard to his conviction in that Court of 1st degree murder (with a recommendation of mercy). In addition, the petitioner has filed, in this Court, a related, original/appeal petition seeking habeas relief. The petitioner’s 1st degree murder conviction arose from the shooting death of the husband of the petitioner’s former wife. The petitioner raises a number of grounds upon which he challenges the validity of the conviction. His direct appeal to this Court was refused in 1997.

Refuse 5-0 Motion
Refuse 3-2 Petition
[ Starcher, J., Albright, J. ]

25. Sam Williams v. Ashley Williams - Docket No. 020198. The petitioner Sam Williams, appeals from an order entered in the Circuit Court of Cabell County granting partial summary judgment in favor of the petitioner’s daughter, respondent Ashley Williams, and holding that the petitioner is liable to the respondent in the amount of $35,214.13. In the underlying action, the petitioner alleged that the respondent wrongfully converted funds from various joint bank accounts to her own use. The ruling of the Circuit Court, however, concerns the respondent’s counterclaim wherein she alleged that the petitioner breached his fiduciary duty to her in withdrawing the funds from a separate account created under the West Virginia Uniform Transfer to Minors Act. The petitioner contends that the account in question was not, in fact, subject to the UTMA.

Refuse 4-1
[ McGraw, J. ]

26. State of West Virginia v. Kyle Andrew Hamrick - Docket No. 020199. The petitioner, Kyle Andrew Hamrick, appeals from an order entered in the Circuit Court of Greenbrier County sentencing him to the penitentiary upon his convictions of three counts of sexual assault in the second degree. The alleged victim was the petitioner’s wife from whom he was separated. The petitioner contends, inter alia, that the Circuit Court committed error in admitting at trial a statement previously given by the petitioner to a police officer.

Refuse 5-0

27. Gerald L. Chafin v. W. R. Gibson - Docket No. 020204. The petitioners, Gerald L. Chafin, et al., appeal from a summary judgment entered in the Circuit Court of Mingo County in favor of the respondent, W. R. Gibson. The petitioners alleged, inter alia, in their complaint that the respondent defamed them when he named them as "suspects" in a hit-and-run investigation. Among the issues raised by the petitioners before this Court is their claim that the respondent defamed them, since the respondent had no factual basis to maintain that the petitioners were suspects in the case.

 

Accept To Motion Docket

28. Lower Donnally Association v. Charleston Municipal Planning Commission - Docket No. 020211. The petitioner, Lower Donnally Association, challenges an order entered in the Circuit Court of Kanawha County dismissing its petition for a writ of certiorari filed in the Circuit Court from a zoning recommendation of the respondent, Charleston Municipal Planning Commission. The controversy concerns the petitioner’s opposition to the construction of a 24-unit apartment complex in the petitioner’s single-family residential area. The petitioner contends that the recommendation of the Planning Commission, because of alleged procedural irregularities, was subject to review by the Circuit Court.

Grant 5-0