665 S.E.2d 674
CHIEF JUSTICE MAYNARD delivered the opinion of the Court.
JUSTICE STARCHER dissents and reserves the right to file a dissenting opinion.
JUSTICE BENJAMIN concurs and reserves the right to file a concurring opinion.
2. “The crime of burglary is defined in W.Va. Code, 61-3-11(a), as: 'Burglary shall be a felony and any person convicted thereof shall be confined in the penitentiary not less than one nor more than fifteen years. If any person shall, in the nighttime, break and enter, or enter without breaking, or shall, in the daytime, break and enter, the dwelling house, or an outhouse adjoining thereto or occupied therewith, of another, with intent to commit [a crime] therein, he shall be deemed guilty of burglary.” Syllabus Point 2, State v. Louk, 169 W.Va. 24, 285 S.E.2d 432 (1981).
3. “Criminal trespass, as defined by W.Va. Code, 61-3B-2 [1978], is not
a lesser included offense of burglary by breaking and entering, as defined by W.Va. Code, 61-3-11(a) [1973].” Syllabus Point 2, State v. Ocheltree, 170 W.Va. 68, 289 S.E.2d 742
(1982).
4. Unauthorized entry is not a required element of the crime of daytime burglary by breaking and entering as defined in W.Va. Code § 61-2-14a(a) (1999).
5. “The provisions of the statute relating to the various punishments to be
imposed upon a person convicted of the crime of kidnaping, and which punishments depend
upon and are governed by the evidence introduced at the trial, do not state or prescribe any
element of the offense created by the statute.” Syllabus Point 2, Pyles v. Boles, 148 W.Va.
465, 135 S.E.2d 692 (1964).
6. “Sentences imposed by the trial court, if within statutory limits and if not based on some unpermissible factor, are not subject to appellate review.” Syllabus Point 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).
7. “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).
8. “An unpreserved error is deemed plain and affects substantial rights only if the reviewing court finds the lower court skewed the fundamental fairness or basic integrity of the proceedings in some major respect. In clear terms, the plain error rule should be exercised only to avoid a miscarriage of justice. The discretionary authority of this Court invoked by lesser errors should be exercised sparingly and should be reserved for the correction of those few errors that seriously affect the fairness, integrity, or public reputation of the judicial proceedings.” Syllabus Point 7, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996).
9. “Where it clearly and objectively appears in a criminal case from statements of the jurors that the jury has failed to comprehend an instruction on a critical element of the crime or a constitutionally protected right, the trial court must, on request of defense counsel, reinstruct the jury.” Syllabus Point 2, State v. McClure, 163 W.Va. 33, 253 S.E.2d 555 (1979).
10. “An instruction for a statutory offense is sufficient if it adopts and follows the language of the statute, or uses substantially equivalent language and plainly informs the jury of the particular offense for which the defendant is charged.” Syllabus Point 8, State v. Slie, 158 W.Va. 672, 213 S.E.2d 109 (1975).
11. “Under the 'plain error' doctrine, 'waiver' of error must be
distinguished from 'forfeiture' of a right. A deviation from a rule of law is error unless there
is a waiver. When there has been a knowing and intentional relinquishment or abandonment
of a known right, there is no error and the inquiry as to the effect of a deviation from the rule
of law need not be determined. By contrast, mere forfeiture of a right _ the failure to make
timely assertion of the right _ does not extinguish the error. In such a circumstance, it is
necessary to continue the inquiry and to determine whether the error is 'plain.' To be 'plain,'
the error must be 'clear' or 'obvious.'” Syllabus Point 8, State v. Miller, 194 W.Va. 3, 459
S.E.2d 114 (1995).
Maynard, Chief Justice:
The appellant, Joshua Lee Slater, appeals his convictions for kidnaping,
domestic battery, wanton endangerment, and daytime burglary by breaking and entering. He
also appeals his sentence for these crimes which amounts to life with mercy plus sixteen
years. For the reasons that follow, we affirm.
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. To the extent that our prior cases are
inconsistent, they are expressly overruled.
Syllabus Point 3, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).
Lori Walls, the owner of the house the appellant was convicted of burglarizing,
testified that the appellant previously had lived in her house for many years, had a key to the
house, was considered a member of the family, and had full access to her house. It is the
appellant's contention that because he was authorized to enter the Walls' home, the elements
of burglary are not present in this case. According to the appellant, unauthorized entry is an
essential element of daytime burglary by breaking and entering. To support this assertion,
the appellant cites State v. Plumley, 181 W.Va. 685, 384 S.E.2d 130 (1989), and State v.
Louk, 169 W.Va. 24, 285 S.E.2d 432 (1981), in which this Court stated that “burglary is
complete once there has been an unauthorized entry[.]” 169 W.Va. at 26, 285 S.E.2d at 434.
We find that an unauthorized entry is not an element of daytime burglary by
breaking and entering. First, neither the statutory language nor this Court's holding defining
the crime of burglary indicate that an unauthorized entry is an element of daytime burglary
by breaking and entering. According to W.Va. Code § 61-3-11(a) (1993), in pertinent part,
the elements of burglary by breaking and entering are: “If any person shall . . . in the daytime,
break and enter, the dwelling house . . . of another, with intent to commit a crime therein, he
shall be deemed guilty of burglary.” Further, in Syllabus Point 2 of State v. Louk, 169 W.Va.
24, 285 S.E.2d 432 (1981), we held, with regard to the elements of burglary:
The crime of burglary is defined in W.Va. Code, 61-3- 11(a), as: “Burglary shall be a felony and any person convicted thereof shall be confined in the penitentiary not less than one nor more than fifteen years. If any person shall, in the nighttime, break and enter, or enter without breaking, or shall, in the daytime, break and enter, the dwelling house, or an outhouse adjoining thereto or occupied therewith, of another, with intent to commit [a crime] therein, he shall be deemed guilty of burglary.”
There simply is nothing in the statutory language and in our holding in Louk to indicate that
unauthorized entry is an element of daytime burglary by breaking and entering. (See footnote 1)
In addition, we find that the appellant's reliance on State v. Plumley is
misplaced. In Plumley, the defendant was convicted of burglary in the nighttime in addition
to other crimes. The defendant had gained entry into the victim's home for the ostensible
purpose of using the victim's telephone. The issue for this Court was whether the victim's
consent to enter was an absolute defense to the crime of burglary because the consent meant
that there could be no unauthorized entry. In discussing this issue, we explained:
Thus, under W.Va. Code, 61-3-11(a) [1973], the essential
requirement of burglary committed in the nighttime is that the
defendant “enter . . . with intent to commit a felony or any
larceny.” (See footnote 2) It is the intent and acts of the accused that the statute
makes controlling. There is no language in the statute that the
entry must be by force or that it must be against the will of the
occupant. The plain language of the statute indicates that the
consent of the occupant obtained through fraud or threat of force
is not a defense to the crime of burglary. Under statutes that
define burglary as an entry without breaking with intent to
commit a criminal offense, it is uniformly held that consent to
enter is not a defense when the accused is shown to have entered
through fraud or threat of force with the requisite criminal
intent.
181 W.Va. at 688-689, 384 S.E.2d at 133-134 (footnote added and footnotes omitted).
We further indicated,
In State v. Louk, 169 W.Va. 24, 26, 285 S.E.2d 432, 434
(1981), we noted the burglary statute had expanded to some
degree the common law crime of burglary. However, this
expansion was not material to the Louk decision. The West
Virginia burglary statute's departure from the traditional
common law requirement of “breaking” is significant because
breaking was a concept designed to keep out intruders, or to
prevent trespass into the building, and a person with authority to
enter could not be said to have committed a breaking. However,
the common law requirement of “entry” was a physical concept,
and even the slightest entry by any part of the perpetrator's body
was sufficient to satisfy the requirement.
181 W.Va. at 689, 384 S.E.2d at 134 (citations omitted). Moreover, we stated,
Because the legislature has deleted the “breaking”
requirement with regard to entry in the nighttime, the statutory
offense of burglary of the dwelling house of another involves no
unlawfulness of entry except as the entry becomes unlawful by
reason of the criminal intent of the person entering. (See footnote 3)
Id. (Footnote added and footnotes omitted.). We ultimately determined that consent to enter
is not an absolute defense to a charge of burglary in the nighttime, and we held in Syllabus
Point 1,
Under W.Va. Code, 61-3-11(a) [1973], the essential
requirement of burglary committed in the nighttime is that the
defendant “enter . . . with intent to commit a felony or any
larceny.” The intent and the acts of the defendant are
controlling, and the consent of the occupant to enter is not a
defense when the defendant is shown to have entered through
fraud or threat of force with the requisite criminal intent. The
statutory requirement of entry is also fulfilled when a person
with consent to enter exceeds the scope of the consent granted.
At first blush, one may infer from our discussion in Plumley above that the
crime of daytime burglary by breaking and entering requires an unauthorized entry.
However, that inference is contradicted by our holding in State v. Ocheltree, 170 W.Va. 68,
289 S.E.2d 742 (1982). The issue in Ocheltree was whether criminal trespass is a lesser
included offense of burglary. In considering this issue, we reasoned as follows:
The elements necessary to prove burglary under W.Va.
Code, 61-3-11(a) [1973], therefore, are: (1) in the daytime, (2)
breaking and entering, (3) the dwelling house of another, (4)
with the intent to commit a felony or any larceny therein. The
elements necessary to the proof of criminal trespass under W.Va.
Code, 61-3B-2 [1978], are: (1) a knowing entry, (2) in a
structure or conveyance, (3) without being authorized, licensed
or invited.
. . . . To prove the crime of trespass, under W.Va. Code, 61-3B-
2 [1978], the State must show . . . . that the entry was without
authorization, license or invitation. . . . [T]here is no similar
requirement under W.Va. Code, 61-3-11(a) [1973].
170 W.Va. at 71, 289 S.E.2d at 745. We further quoted with approval language from Estep
v. State, 394 N.E.2d 111, 113 (Ind. 1979), overruled on other grounds, Jones v. State, 438
N.E.2d 972 (Ind. 1982), as follows:
Although the entry incidental to a burglary may be a
trespass . . . it does not follow, that it must be. One may never
have been denied entry to his neighbor's house, he may even
have been expressly authorized to enter it at any time. Yet, if he
enters by “breaking,” as that term has been employed in defining
burglary, with the intent to commit a felony therein, he commits
a burglary _ although not a trespass, because the entry was
authorized.
170 W.Va. at 71 fn. 4, 289 S.E.2d at 745 fn. 4. In Syllabus Point 2 of Ocheltree, we held that
“[c]riminal trespass, as defined by W.Va. Code, 61-3B-2 [1978], is not a lesser included
offense of burglary by breaking and entering as defined by W.Va. Code, 61-3-11(a) [1973].”
It is clear from both our discussion and holding in Ocheltree that an unauthorized entry is not
a required element of burglary by breaking and entering. Therefore, we hold that an
unauthorized entry is not a required element of the crime of daytime burglary by breaking and
entering as defined in W.Va. Code § 61-3-11(a).
In light of our holding, it is not relevant whether the appellant's entry in Lori
Walls' house was authorized. Rather, the evidence had to show that the appellant committed
a breaking and entering with the intent to commit a crime therein. In the instant case, there
was sufficient evidence for a jury to find beyond a reasonable doubt that the appellant broke
a window and entered Lori Walls' house with the intent to harm Angela and/or Lori Walls.
Therefore, we affirm the appellant's conviction for daytime burglary by breaking and
entering.
Second, the appellant contends that the evidence was legally insufficient to sustain his kidnaping conviction. (See footnote 4)
The record reveals that the appellant requested to be sentenced under W.Va.
Code § 61-2-14a(a)(4), which provides that the defendant's sentence shall be a definite term
of not less than ten nor more than thirty years where the court finds that the victim was
returned, or was permitted to return alive without bodily harm, and without any concession
having been paid or yielded. The trial court found, however, that a concession was paid or
yielded in that the appellant “was able to gain control over [the victim] and kept her from
leaving[.].” Thus, the court found that subsection (4) of the statute did not apply, and
sentenced the appellant to life with mercy as recommended by the jury.
The appellant first notes that under our kidnaping statute, the State must prove
two distinct elements to establish the crime of kidnaping _ the act of confining the victim and
the intent to use that confinement to obtain some sort of concession. He then claims that the
trial court's finding that a concession was paid or yielded was error. This is due to the fact
that the concession element, as found by the trial court, is the same as the element of
confining the victim. According to the appellant, this is insufficient because the concession
must be something different from, and in addition to, the act of confinement. Moreover, the
appellant avers that this Court is bound by the trial court's finding of fact on the element of
a concession being paid or yielded. (See footnote 5)
We find the appellant's argument to be without merit. This Court previously
has explained that W.Va. Code § 61-2-14a provides a maximum sentence of life with or
without mercy, based on the jury's findings, and that any additional findings of fact made by
the trial court operates to reduce the defendant's sentence from the maximum sentence as
found by the jury. See State v. Haught, 218 W.Va. 462, 624 S.E.2d 899 (2005). We have
also held:
The provisions of the statute relating to the various
punishments to be imposed upon a person convicted of the
crime of kidnaping, and which punishments depend upon and
are governed by the evidence introduced at the trial, do not state
or prescribe any element of the offense created by the statute.
Syllabus Point 2, Pyles v. Boles, 148 W.Va. 465, 135 S.E.2d 692 (1964). Clearly, the trial
court's finding of fact that there was a concession gained was made with regard to sentencing
and had nothing to do with the elements of the crime of kidnaping as found by the jury.
Our review of the evidence indicates that the jury could have found beyond a
reasonable doubt that the appellant confined Ms. Walls for one of the purposes enumerated
in the statute. For example, the jury could have found that the appellant confined Ms. Walls
for the purpose of keeping his children with him. The jury also could have found that the
appellant confined Ms. Walls for the purpose of killing her that evening in the woods, under
cover of darkness with the intent “of evading capture or arrest.” W.Va. Code § 61-2-14a(a).
Accordingly, we reject the appellant's contention of insufficient evidence to sustain his
kidnaping conviction, and we affirm the conviction. (See footnote 6)
We conclude that the appellant's sentence is not subject to our review because
the sentence imposed for each conviction is within the statutory limit and the appellant has
identified no impermissible factor (See footnote 9) upon which his sentence is based. (See footnote 10) While the appellant
cites our per curiam opinion of State v. Richardson for support, Richardson is a deviation
from our established law. While the defendant's sentence in Richardson was within statutory
limits and no impermissible sentencing factors were indicated, the Court in Richardson nevertheless conducted a proportionality analysis. (See footnote 11) We deem it generally to be the better
practice to decline to review sentences that are within statutory limits and where no
impermissible sentence factor is indicated in accord with Syllabus Point 4 of State v.
Goodnight. Therefore, we find no merit to the appellant's alleged sentencing error, and we
affirm his sentence.
An unpreserved error is deemed plain and affects
substantial rights only if the reviewing court finds the lower
court skewed the fundamental fairness or basic integrity of the
proceedings in some major respect. In clear terms, the plain
error rule should be exercised only to avoid a miscarriage of
justice. The discretionary authority of this Court invoked by
lesser errors should be exercised sparingly and should be
reserved for the correction of those few errors that seriously
affect the fairness, integrity, or public reputation of the judicial
proceedings.
Syllabus Point 7, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996).
Regarding the trial court's duty to reinstruct the jury, this Court has held that
Where it clearly and objectively appears in a criminal
case from statements of the jurors that the jury has failed to
comprehend an instruction on a critical element of the crime or
a constitutionally protected right, the trial court must, on request
of defense counsel, reinstruct the jury.
Syllabus Point 2, State v. McClure, 163 W.Va. 33, 253 S.E.2d 555 (1979).
We find that the trial court did not err in declining to answer the jury's
questions. The jury instruction defining the crime of wanton endangerment was as follows:
“The Court instructs the jury that any person who wantonly performs any act with a firearm
which creates a substantial risk of death or serious bodily injury to another shall be guilty of
a felony.” According to our wanton endangerment statute in pertinent part: “Any person who
wantonly performs any act with a firearm which creates a substantial risk of death or serious
bodily injury to another shall be guilty of a felony[.]” W.Va. Code § 61-7-12. The trial
court's instruction to the jury on wanton endangerment is identical to the statutory language.
This Court has held that “[a]n instruction for a statutory offense is sufficient if it adopts and
follows the language of the statute, or uses substantially equivalent language and plainly
informs the jury of the particular offense for which the defendant is charged.” Syllabus Point
8, State v. Slie, 158 W.Va. 672, 213 S.E.2d 109 (1975). Because the trial court's instruction
was identical to the statutory language, we conclude that it was sufficient.
If the appellant's counsel had moved for the trial court to re-instruct or re-read
the jury on the law of wanton endangerment in light of the jury's confusion over the law, the
court would have had a duty to do so. See State v. Lutz, 183 W.Va. 234, 395 S.E.2d 478
(1988) (finding reversible error for the judge to deny defendant's motion to orally re-instruct
the jury in light of the jury's evident confusion over the law). (See footnote 12) However, counsel did not
request that the instruction be re-read. Instead, the jury requested that the trial court discuss
factors that are not set forth as elements of wanton endangerment in the statute. The trial
court simply had no duty to do this. As explained by the trial court, the jury had been
instructed on the only law upon which it could base its verdict. Therefore, we find no error
in the trial court's failure to answer the jury's questions.
[Appellant's counsel]: . . . . I believe I'm entitled to _ or I'm
going to ask you for an instruction that relates to the incidental
nature of this kidnaping.
The Court: Uh-huh.
[Appellant's counsel]: That would be my only comment. In all
other respects, I have no objections. I would just ask you to give
an instruction that _ to the extent that the alleged kidnaping was
incidental to other crimes.
After discussing the appellant's counsel's requested instruction on the incidental nature of
the kidnaping, the following exchange occurred:
The Court: All right. I want to take some time during the
luncheon recess and plod about this incidental issue, because as
I understand it, there are no other objections to the charge. Is
that correct?
[Appellant's counsel]: I have none, your Honor.
It is clear from this portion of the trial transcript that the appellant's counsel affirmatively
waived any alleged error regarding the instruction now complained of.
This Court has held that when a deviation from the law is waived, there is no
error. In Syllabus Point 8 of State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), we
explained:
Under the “plain error” doctrine, “waiver” of error must
be distinguished from “forfeiture” of a right. A deviation from
a rule of law is error unless there is a waiver. When there has
been a knowing and intentional relinquishment or abandonment
of a known right, there is no error and the inquiry as to the effect
of a deviation from the rule of law need not be determined. By
contrast, mere forfeiture of a right _ the failure to make timely
assertion of the right _ does not extinguish the error. In such a
circumstance, it is necessary to continue the inquiry and to
determine whether the error is “plain.” To be “plain,” the error
must be “clear” or “obvious.”
Based on this rule, we find that the appellant waived any error in the allegedly improper
instruction. As a result, there is no error, and this Court need not consider the issue.