Darrell V. McGraw, Jr.
Jack L. Hickok
Attorney General
Paul R. Stone
Robert D. Goldberg
WV Public Defender Services
Assistant Attorney General Charleston, West Virginia
Charleston, West Virginia
J. Paul Williams
Attorneys for Appellee
Public Defender Corporation
Summersville, West Virginia
Attorneys for Appellant
The Opinion was delivered PER CURIAM.
2. “'The West Virginia Rules of Evidence . . . allocate significant
discretion to the trial court in making evidentiary . . . rulings. Thus, rulings on the
admissibility of evidence . . . are committed to the discretion of the trial court. Absent a few
exceptions, this Court will review evidentiary . . . rulings of the circuit court under an abuse
of discretion standard.' Syllabus Point 1, in part, McDougal v. McCammon, 193 W.Va. 229,
455 S.E.2d 788 (1995).” Syllabus Point 9, Smith v. First Community Bancshares, Inc., 212
W.Va. 809, 575 S.E.2d 419 (2002).
3. “Rule 602 of the West Virginia Rules of Evidence does not require that
the witness's knowledge be positive or rise to the level of absolute certainty. Evidence is
inadmissible under this rule only if in the proper exercise of the trial court's discretion it
finds that the witness could not have actually perceived or observed that which he testifies
to.” Syllabus Point 6, State v. Whitt, 184 W.Va. 340, 400 S.E.2d 584 (1990).
Per Curiam:
In this appeal of a criminal conviction from the Circuit Court of Nicholas
County, the appellant contends that the circuit court abused its discretion in allowing a
witness to narrate the events on a surveillance videotape played for the jury, when the witness
was not present during and did not have personal knowledge about those events. The
appellant also asserts that there is insufficient evidence in the record to support her criminal
conviction.
After careful consideration of the trial transcript, the briefs and arguments of
the parties, and all other matters of record, we affirm the appellant's conviction.
Appellant Anita M. Harris was tried before a jury and convicted of one count
of third offense shoplifting under W.Va. Code, 61-3A-1 [1981].
(See footnote 1)
The trial record indicates
that on March 17, 2002, at approximately 5:18 p.m., the appellant and a companion, Gena
Bragg, entered Bandy's Sunoco store in Calvin, West Virginia. While Ms. Bragg distracted
the cashier, the appellant took three cartons of cigarettes from a shelf behind the store's front
counter, concealed them inside her coat, and subsequently left the store without paying for
the cigarettes. By order dated May 2, 2003, the circuit court sentenced the appellant to a
period of confinement of not less than one nor more than ten years in the state penitentiary.
At trial, the prosecutor offered into evidence a videotape from the store's
surveillance camera during the testimony of a sheriff's deputy who investigated the store
manager's report of a shoplifting. After the tape was allowed into evidence, it was played
for the jury. The surveillance tape was recorded in fast motion, recording a frame only every
few seconds, and the picture was divided into four frames with each recording activities from
cameras in different parts of the store. As the tape played, because of the poor quality of the
picture, the sheriff's deputy narrated the tape, identified the appellant in the scene, and
described her actions for the jury, all over the objection of the appellant's counsel.
The appellant appeals the circuit court's May 2, 2003 sentencing order, arguing that it was error for the circuit court to allow the sheriff's deputy to narrate the surveillance videotape. The appellant also appeals the circuit court's denial of the appellant's motions for judgment of acquittal, arguing that the State failed to introduce evidence sufficient to prove its case.
A witness may not testify to a matter unless evidence is
introduced sufficient to support a finding that the witness has
personal knowledge of the matter. Evidence to prove personal
knowledge may, but need not, consist of the witness' own
testimony. This rule is subject to the provisions of Rule 703
relating to opinion testimony by expert witnesses. The appellant argues that the circuit court should, as a result of the appellant's objections,
have prevented the sheriff's deputy from describing the videotape as it played.
“The West Virginia Rules of Evidence . . . allocate significant
discretion to the trial court in making evidentiary . . . rulings.
Thus, rulings on the admissibility of evidence . . . are committed
to the discretion of the trial court. Absent a few exceptions, this
Court will review evidentiary . . . rulings of the circuit court
under an abuse of discretion standard.” Syllabus Point 1, in
part, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788
(1995). Syllabus Point 9, Smith v. First Community Bancshares, Inc., 212 W.Va. 809, 575 S.E.2d 419
(2002). As the Court in McDougal noted of the Rules of Evidence: “As the drafters of the
rules appear to recognize, evidentiary and procedural rulings, perhaps more than any others,
must be made quickly, without unnecessary fear of reversal, and must be individualized to
respond to the specific facts of each case.” McDougal v. McCammon, 193 W.Va. at 235, 455
S.E.2d at 794.
Rule 602 of the West Virginia Rules of Evidence does not
require that the witness's knowledge be positive or rise to the
level of absolute certainty. Evidence is inadmissible under this
rule only if in the proper exercise of the trial court's discretion
it finds that the witness could not have actually perceived or
observed that which he testifies to.
The record in the instant case reveals that the sheriff's deputy was not present
in the store when the appellant was alleged to have shoplifted the cartons of cigarettes. The
deputy admitted, on direct examination, that he “didn't actually see the events that are
depicted on the videotape.” Still, the deputy, throughout his testimony as the videotape was
played for the jury, pointed out and identified various individuals and described their
actions.
(See footnote 2)
While the deputy had visited the store, and could testify that the videotape
accurately reflected the layout of the store, the deputy did not actually see any of the events
The appellant first argues that the circuit court erred in allowing the sheriff's
deputy to narrate the surveillance videotape as it was played for the jury. The appellant
asserts that, because the sheriff's deputy did not have personal knowledge of what occurred
inside the convenience store, he was not competent to narrate the poor quality surveillance
videotape under Rule 602 of the West Virginia Rules of Evidence [1994]. Rule 602 states:
This Court has explained that it affords great deference to evidentiary rulings
made by a circuit court.
“The action of a trial court in admitting or excluding evidence
in the exercise of its discretion will not be disturbed by the
appellate court unless it appears that such action amounts to an
abuse of discretion.” Syllabus point 10, State v. Huffman, 141
W.Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds,
State ex rel. R.L. v. Bedell, 192 W.Va. 435, 452 S.E.2d 893
(1994).
Syllabus Point 1, State v. Calloway, 207 W.Va. 43, 528 S.E.2d 490 (1999). Stated another
way:
Before a witness may testify, Rule 602 of the Rules of Evidence provides that
a foundation must be established upon which a trier of fact could reasonably conclude that
the witness has personal knowledge of the subject matter of the witness's testimony. Rule
602 prohibits a lay witness from testifying about matters that are not within the personal
knowledge of the witness. As we stated, in Syllabus Point 6 of State v. Whitt, 184 W.Va.
340, 400 S.E.2d 584 (1990):
The record reflects that upon objections by defense counsel, the circuit court
did _ albeit, unsuccessfully _ instruct the sheriff's deputy to confine his testimony to those
matters that would be admissible under the Rules of Evidence. After the deputy's testimony,
the appellant's counsel admits that the circuit court inquired, “I assume, since you didn't
request a mistrial, that the cautionary instruction was all right with you;
(See footnote 3)
and you have no
objection to continuing?” The appellant's counsel concedes that no additional objections
were lodged, and further concedes in the appellant's brief that “perhaps” a motion for a
mistrial should have been made. The appellant, however, argues that the circuit court should
have, sua sponte, granted a mistrial after hearing the deputy's testimony.
W.Va. Code, 62-3-7 [1923] allows a circuit court discretion to declare a mistrial
in a criminal case and to discharge the jury when “there is a manifest necessity for such
discharge.” “Termination of a criminal trial arising from a manifest necessity will not result
in double jeopardy barring a retrial.” Syllabus Point 4, Keller v. Ferguson, 177 W.Va. 616,
355 S.E.2d 405 (1987). Upon a thorough review of the record, it does not appear that the
deputy's testimony manifestly required the circuit court to terminate the jury trial.
Accordingly, we cannot conclude that the circuit court abused its discretion in declining to
grant a mistrial on its own volition.
The final error asserted by the appellant is that, in the absence of the deputy sheriff's inadmissible narrative testimony, there was insufficient evidence for a jury to conclude that the appellant removed the three cartons of cigarettes from the store. The appellant contends that no witness testified to seeing the appellant remove any merchandise from the store without paying for it. Accordingly, the appellant argues that the circuit court erred in denying the appellant's motions for judgment of acquittal.
The State, however, asserts that there is ample circumstantial evidence in the
record to support the conviction. We agree.
The record reveals that the sheriff's deputy testified that a store clerk saw Gena
Bragg come into the store with another woman, and that Ms. Bragg asked the clerk to help
her choose a motor oil from a shelf in the back of the store. Ms. Bragg testified that she
entered the store with the appellant intending to buy some motor oil, and that she asked the
clerk for assistance. The clerk identified himself on the surveillance videotape leaving the
cash register and going to the back of the store with a female customer to look at types of
motor oil. The videotape also shows a woman near the register looking at sunglasses, and
as soon as the clerk leaves the register to assist Ms. Bragg, the woman takes what appears
to be several cartons of cigarettes from behind the register. A customer standing near the
register testified he saw a female reach behind the counter and take a carton of cigarettes.
The customer informed the store manager, and the store manager then reviewed the
videotape. The store manager testified that an inventory done shortly thereafter showed three
cartons of cigarettes were missing.
Ms. Bragg testified that she and the appellant arrived and left the store in the
appellant's black Mitsubishi. The store clerk indicated at trial that the person he assisted in
choosing motor oil left the store in a Mitsubishi. And the surveillance videotape shows the
purported shoplifter and the woman who needed assistance with motor oil arriving and
leaving together in a black car.
Taking the videotape together with the corroborating testimony of the State's
witnesses _ but excluding the inadmissible narrative testimony by the sheriff's deputy _ there
is sufficient evidence, albeit circumstantial, that the appellant was present in the store at the
time the crime occurred, and that she took the cigarettes with the intention to appropriate
them without paying the merchant's stated price. We therefore conclude that the circuit court
properly rejected the appellant's motions for acquittal.
The circuit court's May 2, 2003 sentencing order is affirmed.