Carl Renner, by counsel Paul Andrew Montgomery, appeals the
Circuit Court of Mingo County's February 2, 2016, order
sentencing him to a term of incarceration of one to fifteen
years for his conviction of one count of burglary. The State,
by counsel Katlyn Miller, filed a response. On appeal,
petitioner argues that the circuit court erred with respect
to its burglary and reasonable doubt instructions. Petitioner
further alleges a violation of his due process rights by
virtue of prosecutorial misconduct and cumulative error.
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,
this 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.
the September of 2015 term of court, petitioner was indicted
on one count of burglary. This charge stemmed from an
incident in April of 2015, when Kimberly and Jim Whittaker
and their granddaughter returned to their home to find the
front door unlocked. Upon entering the home, Mrs. Whittaker
and her granddaughter noticed an intruder with a bandana
around his face. The Whittakers' granddaughter recognized
the intruder as petitioner, the Whittakers' neighbor. At
this point, petitioner ran to the back door while Mrs.
Whittaker repeatedly asked why he was in the home. Mrs.
Whittaker called emergency services, and petitioner
eventually escaped. Police arrived and took statements from
Mrs. Whittaker and her granddaughter. Approximately one week
later, Mrs. Whittaker noticed that the intruder took a box
containing jewelry, among other items.
trial, both Mrs. Whittaker and her granddaughter testified to
their recollection of the incident in question. Petitioner
did not testify. At the close of the State's
case-in-chief, petitioner filed a motion for judgment of
acquittal, which the circuit court denied. Thereafter, the
State gave its closing arguments, to which petitioner did not
object. Additionally, the State proposed jury instructions
that the circuit court accepted without objection from
petitioner. Thereafter, the jury returned a verdict of guilty
on the lone count of burglary.
January of 2016, the circuit court heard arguments regarding
post-trial motions, including petitioner's motion for a
new trial, which the circuit court denied. The circuit court
then sentenced petitioner to a term of incarceration of one
to fifteen years. It is from the sentencing order that
We have previously established the following standard of
"In reviewing the findings of fact and conclusions of
law of a circuit court . . ., we apply a three-pronged
standard of review. We review the decision . . . under an
abuse of discretion standard; the underlying facts are
reviewed under a clearly erroneous standard; and questions of
law and interpretations of statutes and rules are subject to
a de novo review." Syllabus Point 1, State
v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).
Syl. Pt. 1, in part, State v. Georgius, 225 W.Va.
716, 696 S.E.2d 18 (2010). Upon our review, we find no error
in the proceedings below.
this Court finds no merit to petitioner's arguments that
the circuit court erred in omitting an instruction on the
underlying crime petitioner was alleged to have intended to
commit or in its instruction on reasonable doubt. In regard
to these assignments of error, it is important to note that
petitioner did not object to the jury instructions given
below. As such, pursuant to Rule 30 of the West Virginia
Rules of Criminal Procedure, this Court will apply a
plain-error analysis to these assignments of error. We have
previously held that
"[t]o trigger application of the 'plain error'
doctrine, there must be (1) an error; (2) that is plain; (3)
that affects substantial rights; and (4) seriously affects
the fairness, integrity, or public reputation of the judicial
proceedings." Syl. Pt. 7, State v. Miller, 194
W.Va. 3, 459 S.E.2d 114 (1995).
Syl. Pt. 7, State v. Greenfield, 237 W.Va. 740, 791
S.E.2d 403 (2016). Further, we have held that "this
Court will not ordinarily recognize plain error [in the
giving of an erroneous instruction (in the absence of a
proper and timely objection at trial)], even of
constitutional magnitude, where the giving of the erroneous
instruction did not substantially impair the truth-finding
function of the trial." Syl. Pt. 2, in part, State
v. Hutchinson, 176 W.Va. 172, 342 S.E.2d 138 (1986).
argues that the circuit court erred in omitting the specific
underlying crime that he intended to commit when instructing
the jury on the material elements of burglary. Pursuant to
West Virginia Code § 61-3-11(a), "[i]f any person
shall, in the nighttime, break and enter, or enter without
breaking, or shall, in the daytime, break and enter, the
dwelling house, or an outhouse adjoining thereto or occupied
therewith, of another, with intent to commit a crime
therein, he shall be deemed guilty of burglary."
(emphasis added). According to petitioner, because the
circuit court failed to instruct the jury as to the specific
intent required to prove burglary, the circuit court's
instruction was erroneously abstract and constitutes error.
Petitioner argues that the circuit court's instruction
simply mirrored ...