Brannon J. Hamilton, by counsel B. Craig Manford, appeals his
jury conviction on charges of breaking and entering and petit
larceny. Respondent the State of West Virginia, by counsel
Benjamin M. Hiller, filed a response in support of the
circuit court's order. Petitioner contends that the
circuit court erred in limiting his ability to introduce
evidence regarding his voluntary alcohol consumption.
Further, petitioner contends that the trial court erred in
failing to direct a verdict of acquittal in his favor when
the evidence presented was insufficient to support a
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
approximately 5:30 a.m., on April 12, 2012, a security alarm
sounded at the 19th Hole Cafe
("Cafe"). When law enforcement officers responded to
the alarm, they secured the exterior of the premises,
observed no forced entry, and returned to their detachment. A
short time later, the officers were contacted by a
representative of the Cafe who, in response to the alarm,
reviewed security surveillance video from the Cafe and
observed an intruder. The video surveillance footage showed
that around 5:00 a.m., a man with a distinctive tattoo fell
through the ceiling tile in the kitchen area of the Cafe,
where two safes were kept. In the video, the intruder used a tire
iron to break apart two safes which were stacked atop one
another and bolted together. He then took the smaller of the
two safes (which he was unable to open) and placed it in a
rolling mop bucket. He pushed the mop bucket out of the Cafe
which triggered the alarm system.
manager of the Cafe advised officers that the man shown in
the surveillance video was petitioner, a former employee of
the Cafe. The officers contacted petitioner, who agreed to
give a statement about his possible involvement in the theft.
Petitioner denied being involved in the theft and stated that
he had been consuming alcohol the previous evening from 5:00
p.m., until approximately 3:40 a.m., when he left the Cafe.
February of 2014, petitioner was indicted by the Berkeley
County Grand Jury on one count of breaking and entering and
one count of grand larceny. While he initially denied that he
was the man in the surveillance video, petitioner later
admitted that he was the individual seen in the video and
admitted to taking the safe in question. However, petitioner
denied that he entered the Cafe with the intent to commit a
felony or larceny therein and, thus, was not guilty of
breaking and entering.
undisputed that petitioner arrived at the Cafe on the evening
in question at approximately 11:30 p.m., to meet a friend
(Ian Kirk) and play video lottery machines. Mr. Kirk left the
Cafe at approximately 12:30 p.m., but petitioner stayed.
Around 3:30 a.m., the Cafe's video lottery machines were
shut down. At that time, petitioner retrieved his ticket from
the machine and left it with the bartender. Surveillance
video then shows petitioner leaving the Cafe at 3:44 a.m.,
but returning two minutes later.
contends that he reentered the Cafe simply because he
observed a police cruiser parked at a nearby convenience
store. He testified that it was his intent to either wait for
the police cruiser to leave or to find another way home so
that he could not be charged with driving his vehicle under
the influence ("DUI"). Upon returning to the Cafe,
petitioner alleges that he became sick to his stomach. The
surveillance video shows that upon reentering the Cafe,
petitioner walked to the vicinity of the women's
restroom. Petitioner does not dispute that he entered the
women's restroom, but stated that he did so because that
bathroom was much cleaner than the men's restroom.
Petitioner contends that once he entered the women's
restroom, he began vomiting and, ultimately, fell asleep on
the restroom floor. Petitioner claims that when he awoke, the
Cafe was closed. Petitioner contends that it was not until he
awoke, saw the tire iron in the women's restroom closet,
and realized he had lost approximately $600 gambling on the
video lottery machines that evening that he decided to take
pretrial proceedings, the State filed a motion in limine to
exclude evidence of petitioner's excessive alcohol
consumption during the early morning hours of April 12, 2012.
The State argued that petitioner did not proffer an expert
witness and, thus, could not present a legal defense of
diminished capacity by voluntary intoxication. Petitioner
agreed and acknowledged that the presentation of a diminished
capacity defense requires the testimony of an expert witness.
See State v. Joseph, 214 W.Va. 525, 590 S.E.2d 718
(2003). However, petitioner argued that testimony of his
excessive alcohol consumption was being proffered not to show
his "diminished capacity" but to explain the reason
that he reentered the Cafe. While the circuit court did not
directly prohibit petitioner from presenting evidence of his
alcohol consumption, the court advised petitioner to
"walk softly" regarding his excessive alcohol
consumption, so as not to inadvertently present a defense of
diminished capacity by voluntary intoxication.
his opening statement, petitioner's counsel referenced
petitioner's excessive alcohol consumption. In response, the
State objected and, outside of the presence of the jury, the
trial court conducted a bench conference to discuss the
admissibility of testimony regarding petitioner's
excessive alcohol consumption. The trial court acknowledged
that petitioner's testimony regarding his excessive
alcohol consumption would be "piling on" and
appeared to be a "backdoor" way of introducing
diminished capacity by voluntary intoxication. However, the
trial court did not make a ruling, instead urging the parties
to come to an agreement.
State presented its case-in-chief which included the
testimony of the owner, manager, and bartender of the Cafe
and a law enforcement officer who completed the criminal
investigation. At the conclusion of the State's
case-in-chief, when no agreement between the parties had been
reached as to the admission of evidence regarding
petitioner's alcohol consumption, the trial court ruled
upon petitioner's motion to introduce testimony of his
excessive alcohol consumption. Specifically, the trial court
ruled that petitioner could "testify to his alcohol
consumption while at the [Cafe], but could not testify to
drinking that may have occurred prior to arriving at the
[Cafe]." Further, the court ruled that
petitioner's friend, Mr. Kirk, could testify to what he
personally saw petitioner drink on the night in question but
"could not testify to an estimated amount of alcohol he
believed the petitioner consumed while at the [Cafe]."
Additionally, the court prevented petitioner's girlfriend
from testifying that she smelled alcohol on petitioner's
breath the morning after the theft.
trial, Mr. Kirk testified that he had four to five beers
during the course of the time he was at the Cafe with
petitioner on the evening in question, and that during that
time, petitioner was drinking mixed drinks. Petitioner then
took the stand and testified that he "[w]alked in the
door [of the Cafe] and ordered a couple of beverages."
The State objected and asked the Court to instruct the jury
to disregard petitioner's testimony regarding "a
couple of beverages." The trial court agreed and
instructed the jury accordingly.
cross-examination, the State noted that nine hours passed
between the time petitioner consumed dinner (oysters), and
when he allegedly became sick. To which petitioner responded,
"I don't think it was totally the oysters." The
State responded "[n]o, of course not." Based upon
this exchange, petitioner's counsel moved the court to
permit petitioner to testify regarding his alcohol
consumption, arguing that the State had "opened the
door" for limited additional testimony as to alcohol
ingestion. Petitioner's counsel argued that the State
left the jury with the impression that petitioner was lying
because he did not get sick until nine hours later, when
"continued drinking could have caused" him to
become ill. The trial court denied petitioner's request.
Petitioner then rested his case and moved for judgment of
acquittal based upon the State's failure to prove his
guilt beyond a reasonable doubt. That motion was denied by
the trial court. The jury was instructed, and closing
arguments were made.
jury deliberated and, on May 1, 2015, found petitioner guilty
of breaking and entering and petit larceny. Subsequently,
petitioner filed a motion for new trial, motion for judgment
of acquittal notwithstanding the verdict of the jury, and
renewed all objections made at trial. At a July 13, 2015,
hearing, the circuit court denied petitioner's motions.
On November 30, 2015, petitioner was sentenced to not less
than one nor more than ten years in the penitentiary for his
conviction for breaking and entering. Petitioner was
sentenced to one year in the regional jail for his ...