January 9, 2017
State of West Virginia, Plaintiff Below, Respondent
Joshua McCoy, Defendant Below, Petitioner
Joshua McCoy, by counsel Joseph T. Harvey, appeals the
Circuit Court of Mercer County's September 8, 2015, order
that sentenced him to a term of incarceration of one to five
years for his conviction of unlawful wounding, but suspended
the sentence in favor of placement at the Anthony
Correctional Center for a period of six months to two years.
The State, by counsel Zachary Aaron Vigilanco, filed a
response and a supplemental appendix. On appeal, petitioner
argues that the circuit court erred in denying his motion for
judgment of acquittal because the evidence established that
he acted in self-defense.
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.
April of 2015, petitioner visited the home of Brandon
Browning. While in the home, petitioner attempted to sell a
handgun he had in his possession to Mr. Browning and others
present in the home, including Timothy Fields, who was
drinking alcohol at the time. Ultimately, no one purchased
the handgun. At some point, Mr. Browning needed to leave the
home, so both petitioner and Mr. Fields also left. Petitioner
then went to other nearby homes in an attempt to sell his
handgun. Mr. Fields remained outside Mr. Browning's home
awaiting his return.
one hour later, petitioner approached Mr. Fields and asked to
purchase marijuana from him. Mr. Fields agreed and provided
petitioner with marijuana. The two then continued talking,
with Mr. Fields eventually recognizing that petitioner failed
to pay him for the marijuana. After Mr. Fields asked for
payment, petitioner indicated that he had already paid.
According to Mr. Fields, petitioner initiated an argument
over the payment, so Mr. Fields indicated that he would fight
petitioner if payment was not received. After petitioner
again refused, Mr. Fields told petitioner to "square
up" and approached petitioner with his fists clenched.
Petitioner then aimed his handgun at Mr. Fields, who told
petitioner he would have to shoot him. Petitioner then shot
Mr. Fields once in the leg, which did not deter Mr. Fields
from moving forward. Petitioner then shot Mr. Fields in the
abdomen, which caused him to collapse. Petitioner fired a
third shot as Mr. Fields was falling, but it failed to strike
Mr. Fields. Petitioner was later arrested and admitted to
having shot Mr. Fields. Thereafter, petitioner was charged,
upon his request, by information with the following three
counts: first-degree robbery; malicious wounding; and assault
during the commission of a felony.
jury trial commenced in July of 2015 and lasted one day. Upon
a motion for directed verdict, the circuit court dismissed
the count of first-degree robbery because Mr. Fields
voluntarily gave petitioner the marijuana. Moreover, the
circuit court dismissed the count of assault during the
commission of a felony because that charge was predicated
upon a robbery. Accordingly, the circuit court presented only
the charge of malicious wounding to the jury, along with an
instruction on self-defense. After deliberation, the jury
convicted petitioner of the lesser-included offense of
unlawful wounding. The circuit court then imposed a sentence
of one to five years for petitioner's conviction, but
suspended the sentence in favor of placement at the Anthony
Correctional Center for a period of six months to two years.
It is from the circuit court's sentencing order that
previously held as follows:
"In reviewing challenges to findings and rulings made by
a circuit court, we apply a two-pronged deferential standard
of review. We review the rulings of the circuit court
concerning a new trial and its conclusion as to the existence
of reversible error under an abuse of discretion standard,
and we review the circuit court's underlying factual
findings under a clearly erroneous standard. Questions of law
are subject to a de novo review." Syl. Pt. 3,
State v. Vance, 207 W.Va. 640, 535 S.E.2d 484
Syl. Pt. 1, State v. Blevins, 231 W.Va. 135, 744
S.E.2d 245 (2013). On appeal, petitioner argues that the
circuit court erred in denying his motion for judgment of
acquittal because the State did not establish his guilt
beyond a reasonable doubt. Specifically, petitioner argues
that he was entitled to acquittal because he acted in
self-defense. In addressing motions for judgment of
acquittal, we have stated that "[t]he Court applies a de
novo standard of review to the denial of a motion for
judgment of acquittal based upon the sufficiency of the
evidence." State v. Juntilla, 227 W.Va. 492,
711 S.E.2d 562 (2011) (citing State v. LaRock, 196
W.Va. 294, 304, 470 S.E.2d 613, 623 (1996)). As to challenges
to the sufficiency of the evidence, this Court has further
"[t]he 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).
Syl. Pt. 3, State v. Horn, 232 W.Va. 32, 750 S.E.2d
248 (2013). Specifically, petitioner argues that the evidence
established that he did not commit unlawful wounding because
he acted in self-defense. The Court, however, does not agree.
to West Virginia Code § 61-2-9(a),
If any person maliciously shoot, stab, cut or wound any
person, or by any means cause him or her bodily injury with
intent to maim, disfigure, disable or kill, he or she shall,
except where it is otherwise provided, be guilty of a felony
and, upon conviction, shall be punished by confinement in a
state correctional facility not less than two nor more than
ten years. If such act be done unlawfully, but not
maliciously, with the intent aforesaid, the offender is
guilty of a felony and, upon conviction, shall either be in a
state correctional facility not less than one nor more than
five years, or be confined in jail not exceeding twelve
months and fined not exceeding $500.
does not challenge the sufficiency of the State's
evidence in regard to the elements of unlawful wounding.
Instead, petitioner claims only that he acted in self-defense
and, accordingly, was entitled to acquittal. Petitioner's
argument, however, ignores the fact that the jury clearly
found that his use of force was not justified under the
discussing self-defense, we have held as follows:
"The amount of force that can be used in self-defense is
that normally one can return deadly force only if he
reasonably believes that the assailant is about to inflict
death or serious bodily harm; otherwise, where he is
threatened only with non-deadly force, he may use only
non-deadly force in return." Syl. pt. 1, State v.
Baker, 177 W.Va. 769, 356 S.E.2d 862 (1987).
Syl. Pt. 6, State ex rel. Adkins v. Dingus, 232
W.Va. 677, 753 S.E.2d 634 (2013). Moreover, this Court has
established that "our precedent establishes that the
'reasonableness' of a defendant's belief that he
or she was at 'imminent' risk of death or serious
bodily injury is a two-part inquiry, with a subjective
component and an objective component." State v.
Harden, 223 W.Va. 796, 802-03, 679 S.E.2d 628, 634-35
(2009). As such, the Court has set forth the following:
In determining whether the circumstances formed a reasonable
basis for the defendant to believe that he or she was at
imminent risk of serious bodily injury or death at the hands
of the decedent, the inquiry is two-fold. First, the
defendant's belief must be subjectively reasonable, which
is to say that the defendant actually believed, based upon
all the circumstances perceived by him or her at the time
deadly force was used, that such force was necessary to
prevent death or serious bodily injury. Second, the
defendant's belief must be objectively reasonable when
considering all of the circumstances surrounding the
defendant's use of deadly force, which is to say that
another person, similarly situated, could have reasonably
formed the same belief.
Id. at 798, 679 S.E.2d at 630, Syl. Pt. 3, in part.
appeal to this Court, petitioner argues that he subjectively
believed that the force he used to resist Mr. Fields, namely
a firearm, was necessary to prevent serious bodily injury or
death because he had recently been the victim of a home
invasion that left him badly beaten and, according to his
brief, "in no physical condition to fight . . . ."
As such, the evidence shows that petitioner actually believed
he was at risk of serious bodily injury or death. However,
the Court finds that petitioner cannot establish that this
belief was objectively reasonable, given the specific
circumstances of the case.
our review of the record on appeal, it is clear that it was
unreasonable, under an objective analysis, for petitioner to
use deadly force in response to Mr. Fields. There is no
evidence in the record that Mr. Fields sought to inflict
deadly force on petitioner. To the contrary, Mr. Fields
testified that he was unarmed when he approached petitioner
and told petitioner that he intended to fight him over the
nonpayment. Simply put, petitioner's use of deadly force
was objectively unreasonable under these circumstances, as
Mr. Fields clearly intended to engage petitioner physically
to obtain payment for the drugs in question and did not
present a threat of deadly force or serious bodily injury. As
such, it is clear that the jury was free to find that
petitioner's use of deadly force was unreasonable under
[w]hen there is a quarrel between two or more persons and
both or all are in fault, and a combat as a result of such
quarrel takes place and death ensues as a result; in order to
[successfully support a theory of] self-defense, [it] must
appear from the evidence and circumstances in the case . . .
that before the mortal shot was fired the person firing the
shot declined further combat, and retreated as far as he
could with safety . . . .
Syl. Pt. 1, in part, State v. Knotts, 187 W.Va. 795,
421 S.E.2d 917 (1992) (quoting Syl. Pt. 6, in part, State
v. Foley, 131 W.Va. 326, 47 S.E.2d 40 (1948)). Although
that holding concerns specific circumstances involving a
death as a result of the use of deadly force in self-defense,
it remains illustrative of petitioner's case in that
petitioner had a duty to retreat from the altercation.
According to Mr. Field's testimony, petitioner instigated
the argument over payment between the two. As such, it is
clear that petitioner was, at least in part, at fault for the
quarrel between he and Mr. Fields that resulted in combat and
that he shot Mr. Fields as a result of that combat. As such,
petitioner had a duty to retreat before firing upon Mr.
record on appeal, however, is devoid of any evidence
indicating petitioner attempted to retreat. According to Mr.
Fields, once he approached petitioner with his fists
clenched, petitioner immediately aimed the handgun at him.
Not until petitioner struck Mr. Fields with the first shot
did he move away from Mr. Fields, and even then he took only
one step back and immediately fired a second and third shot
at Mr. Fields. Therefore, it is clear that petitioner not
only used an unreasonable amount of force in response to Mr.
Fields, but he similarly failed to retreat before utilizing
force. For these reasons, we find no error in the circuit
court's denial of petitioner's motion for judgment of
foregoing reasons, the circuit court's September 8, 2015,
sentencing order is hereby affirmed.
CONCURRED IN BY: Chief Justice Allen H. Loughry I, I Justice
Robin Jean Davis, Justice Margaret L. Workman, Justice Menis
E. Ketchum, Justice Elizabeth D. Walker.