654 S.E.2d 611
Appeal from the Circuit Court of Gilmer County
Honorable Richard A. Facemire, Judge
Criminal Action No. 05-F-8
AFFIRMED
Submitted: September 19, 2007
Filed: October 26, 2007
JUSTICE STARCHER and JUSTICE ALBRIGHT dissent and reserve the right to file
dissenting opinions.
2. “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).
3. “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. . . .” Syllabus Point 3, in part, State v.
Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995).
Per Curiam:
This case is before the Court upon the appeal of the appellant, Daniel B.
Bingman. The appellant appeals from the March 10, 2006, order of the Circuit Court of
Gilmer County, which denied his motion for a new trial and sentenced him to a term of one
year in the state penitentiary upon his conviction by a jury of one count of petit larceny in
violation of West Virginia Code § 61-3-13(b). The appellant argues that the circuit court
erred in instructing the jury on the lesser included misdemeanor offense of petit larceny
during a felony prosecution for grand larceny where the indictment came more than one year
after the offense. Based upon the parties' briefs and arguments in this proceeding, as well
as the relevant statutory and case law, we are of the opinion that the circuit court did not
commit reversible error and accordingly, affirm the decision below.
When a defendant is not indicted within one year of the
date on which an offense is committed but requests the circuit
court to instruct the jury on a time-barred lesser included
offense, the defendant by that act waives the statute of
limitations defense contained in W.Va.Code § 61-11-9.
The appellant points out that the sale of the farm equipment occurred on
January 31, 2002, and that W.Va. Code § 61-11-9 provides: “A prosecution for a
misdemeanor shall be commenced within one year after the offense was committed. . . .” In
this case, Mr. Bingman was not indicted until March 4, 2003, more than one year after the
offense. Then, that indictment languished for nineteen months until it was dismissed on
October 25, 2004. The appellant was then indicted again on the same offenses on March 9,
2005. The appellant's trial was held on December 13 and 14, 2005, and he was found guilty
of petit larceny, a misdemeanor, the lesser included offense to grand larceny, a felony. Thus,
he maintains that his conviction for a misdemeanor was barred by the statute of limitations,
while a conviction for grand larceny would not have been barred.
Conversely, the State contends that the appellant waived any right for this
Court to review this matter due to his defense counsel's failure to object to the jury
instructions that gave the jurors the option to convict the appellant of the misdemeanor
offense of petit larceny rather than the felony of grand larceny. The State further points out
that the appellant took an active role in formulating the jury instructions and that his defense
counsel actually offered an instruction on the lesser included offense. Thus, his failure to
object and his actual involvement in formulating the instructions resulted in waiver and no
error occurred. We agree.
In this case, the State charged the appellant with the felony offense of grand
larceny for stealing farm equipment in violation of W.Va. Code §61-3-13(a). Since there is
no statute of limitations for the felony offense of grand larceny, there has never been any
assertion by the appellant that prosecution for that offense was time barred. See State v.
Parsons, 214 W.Va. 342, 353, 589 S.E.2d 226, 237 (2003). The problem, however, occurred
during the time period when jury instructions were being proposed. It was at that time when
the lesser included offense of petit larceny was added for the jury's consideration. As
discussed above, the record reflects that the appellant's counsel was vigorously involved in
establishing the instructions to be presented to the jury and even included the option of
finding him guilty of the misdemeanor offense of petit larceny in the “[Appellant's] Proposed
Jury Instructions.”
The appellant's proposed instruction, which was given without objection,
stated as follows:
As part of these instructions you were instructed as to
each of the elements of the offense of Grand Larceny and the
lesser included offense of Petit Larceny as charged in the
indictment. The distinguishing feature between these two
offenses is the value of the property alleged to have been taken
and carried away. In that regard the value that must be
established is the current market value of the property at the
time it was alleged to have been taken. The owner of the
property is generally a competent witness to establish its current
market value at the time the property was taken, although other
witnesses may also be competent witnesses on the issue of
current market value.
Likewise, during a bench conference discussing the potential instructions to be presented to
the jury, the appellant's defense counsel stated the following:
But I think that we . . . somewhere uh, make uh, allowance uh,
either as Instruction Number 1, or Instruction Number 2 for the
uh, for the lesser included offense. I mean, we're, we're
obviously, obviously think that you know, under Count 1, it
could be grand larceny or petit larceny.
We believe that Syllabus Point 3 of Boyd, supra, is directly on point. In Boyd,
identical to the appellant's situation, the defendant was not indicted within one year of the
date on which his offense was committed, but requested the circuit court to instruct the jury
on a time-barred lesser included offense. In Syllabus Point 3, we held specifically that “the
defendant by that act waives the statute of limitations defense contained in W.Va.Code §
61-11-9.” We concluded in Boyd,
The requested charge was obviously in the appellant's best
interest. He requested the charge, was convicted under the
charge, and benefitted from the charge. He cannot now
complain of the result. His actions constitute a waiver of the
time limitation contained in W.Va.Code § 61-11-9. To hold
otherwise would allow defendants to sandbag trial judges by
requesting and approving an instruction they know or should
know would result in automatic reversal if given. “After a
guilty verdict has been returned based on the requested
instruction, defense counsel cannot be allowed to change legal
positions in midstream and seek a reversal based on that error.”
(Citation omitted).
In this case, the appellant was involved with the formation of instructions from
the very beginning and even proposed an instruction for the lesser included offense of petit
larceny to be provided to jurors. The appellant's counsel clearly had a choice in whether or
not this instruction would be included and the record reflects that he did not object in any
manner to the inclusion of this instruction. Moreover, the decision to include the lesser
included offense could have been a strategic decision on the part of the appellant's counsel.
He may have felt that jurors were going to convict his client of the felony of grand larceny.
With that in mind, a reasonable attorney could have concluded that the inclusion of the lesser
included offense of petit larceny would have allowed for the possibility of the jury convicting
the appellant of a misdemeanor, which is a better alternative than a felony conviction of
grand larceny. Consequently, having reviewed this issue in its entirety, we find no violation
of the appellant's rights due to the inclusion of the instruction for the lesser included offense
of petit larceny.
The appellant also maintains that there was insufficient evidence to support his
conviction. He claims that the only evidence that the farm equipment was owned solely by
Mr. Rafferty was his testimony. The appellant contends that the farm equipment was his and
that it was purchased with Virginia Rafferty's money and that Mr. Rafferty did not have the
money to purchase that equipment. Thus, the appellant argues that he was entitled to treat
this equipment as heirship property.
In Syllabus Point 1 of State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995),
we held:
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.
Moreover, as this Court made clear in Syllabus Point 3 of Guthrie,
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. . . .”
In the case at hand, we believe there was more than enough evidence for a
rational trier of fact to find the appellant guilty of this offense beyond a reasonable doubt.
It was established at trial that Mr. Rafferty owned three-sixths of the heirship property in
question where the farm equipment was located. Evidence was further presented that Mr.
Rafferty had actually purchased the farm equipment at Lemon's Tractor Supply from his own
money and not from any heirship money. Mr. Rafferty also testified that the equipment in
question was solely his property and that he did not give any share of it to any of his family
members. Thus, in consideration of all of the evidence presented, a rational trier of fact
could have concluded that the evidence established that the appellant sold equipment
purchased exclusively by his uncle, Mr. Rafferty, that was situated on land owned by Mr.
Rafferty. Thus, in this case, we find the evidence was sufficient to prove beyond a
reasonable doubt that the appellant did commit petit larceny. We consequently affirm the
circuit court's decision.