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State v. Hamilton

Supreme Court of West Virginia

January 6, 2017

State of West Virginia, Plaintiff Below, Respondent
Brannon J. Hamilton, Defendant Below, Petitioner

         Berkley County 15-F-58


         Petitioner 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 conviction.

         This 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.

         At approximately 5:30 a.m., on April 12, 2012, a security alarm sounded at the 19th Hole Cafe ("Cafe").[1] 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.[2] In the video, the intruder used a tire iron to break apart two safes which were stacked atop one another and bolted together.[3] 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.

         The 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.

         In 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.

         It is 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.[4]

         Petitioner 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 the safe.

         During 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.

         During his opening statement, petitioner's counsel referenced petitioner's excessive alcohol consumption.[5] 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.

         The 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]."[6] 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.

         At 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.

         During 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.

         The 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 ...

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