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State v. Norma G.

Supreme Court of West Virginia

April 28, 2017

State of West Virginia, Plaintiff Below, Respondent
v.
Norma G., Defendant Below, Petitioner

         Greenbrier County 13-F-52

          MEMORANDUM DECISION

         The Petitioner Norma G.[1], by counsel Ryan H. Keesee, appeals her conviction for the felony offense of extortion. Respondent State of West Virginia, by counsel Shannon Frederick Kiser, filed a response.

         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.

         In June of 2013, Norma G. ("the defendant") was indicted for the offense of extortion.[2]Following a jury trial in October of 2014, the defendant was convicted of the offense of extortion. The evidence at trial revealed that in December of 2011, the defendant contacted Corporal Baker of the Greenbrier County Sheriff's Department and told him that she found her husband, J.G., viewing pornographic material with her eight-year-old daughter. The defendant advised Corporal Baker that she confronted J.G., and told him that if he did not give her a deed to his farm property, that she would go to the police. According to Corporal Baker, the defendant repeated this statement several times. The defendant told Corporal Baker that she now owned the property. The deed to the property was entered into evidence, and showed that J.G. and his son deeded the property to the defendant on August 23, 2011. The defendant reported the crime to police months after the incident allegedly occurred, when J.G. refused to leave the property.

         J.G. testified at trial that after the defendant confronted him about her daughter, the defendant told him that she wanted the farm, and he attempted to buy his freedom from the defendant. J.G. testified that the only reason he deeded the farm to the defendant was to avoid prosecution. Corporal Baker testified that after speaking with a prosecuting attorney, he charged the defendant with extortion, based upon her receipt of the deed to J.G.'s property through accusing him of a crime.

         During the trial, there was an incident involving an allegation of prosecutorial misconduct. On the second day of trial, the defendant's counsel alleged that the special prosecuting attorney, Kristen Cook, engaged in improper communications with the attorney for a potential defense witness, Kevin M. Upon the circuit court's inquiry, Mr. Hunter, counsel for Kevin M., testified as to the exchange stating that he was approached by Ms. Cook and a deputy, and that "I got a clear indication from Ms. Cook that if [Kevin M.] indicated that [he knew about the exchange of property for the defendant's silence], that could have an impact on the custody issue[3] and was I going to talk with him - would I talk with him, and I said, if I talk with him, I will tell him to tell the truth. And I felt like they - I had a feeling I was being told that so that I would, in some way, try to influence his testimony."

         Ms. Cook apologized to the Court and to counsel. Ms. Cook stated that she invited Kevin M.'s counsel to trial in order to help him protect his client's interest. The circuit court found that Ms. Cook did not engage in prosecutorial misconduct, and that there was no evidence that the conversation was conveyed to Kevin M., although Kevin M. did not testify at trial. The defendant testified on her own behalf at trial. The jury returned a verdict of guilty of the offense of extortion.

         In addition, post-trial it was discovered that a juror, ("Juror O") who was selected to serve on the defendant's jury panel, was not qualified to sit on a Greenbrier County jury. During jury selection, the State used a peremptory strike to remove Juror O from the jury panel. The defendant filed an appeal of the jury verdict to this Court. While the defendant's direct appeal was pending, and after learning that this juror was present for the initial voir dire, the defendant filed a motion for a new trial. In response, Judge Pomponio, who presided over the defendant's trial, sent a letter to this Court advising of the improper juror, and noting that he had previously dismissed another case as a result of this juror's ineligibility.

         Subsequently, this Court filed a notice of intent to dismiss the defendant's appeal, as the defendant was granted a new trial, thereby rendering her appeal moot. Following receipt of this notice, the defendant's trial counsel and the State of West Virginia agreed to withdraw the defendant's original appeal. However, the circuit court never entered an order granting the defendant a new trial. The circuit court held a hearing on the defendant's motion for new trial on December 8, 2014. After hearing arguments regarding the unqualified juror, Judge Richardson, (who took the bench after Judge Pomponio retired), denied the defendant's motion for a new trial. The circuit court found that the defendant did not suffer prejudice as a result of this juror, and the State's use of a peremptory strike to remove the juror.

         On January 14, 2015, the circuit court ordered that the defendant undergo a sixty-day diagnostic evaluation at the Lakin Correctional Center. The defendant was sentenced June 18, 2015, to one to five years of incarceration in the state penitentiary. Her sentence was suspended by the circuit court, and the court ordered the defendant to serve the remainder of her sentence on home confinement. The defendant now appeals her conviction to this Court.

         The defendant raises several grounds on appeal. Since the alleged errors concern different principles of law, the applicable standards of review will be incorporated into the discussion of each issue. We note, generally, that, "[t]his Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo." Syl. Pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996). In addition, "[a] reviewing court should not reverse a criminal case on the facts which have been passed upon by the jury, unless the court can say that there is reasonable doubt of guilt and that the verdict must have been the result of misapprehension, or passion and prejudice." Syl. Pt.1, State v. Easton, 203 W.Va. 631, 510 S.E.2d 465 (1998) (citation omitted).

         The defendant first argues that the extortion statute, West Virginia Code § 61-2-13 is unconstitutionally overbroad in that it does not specifically include the element of intent.[4] The defendant argues that the statute makes any statement that may result in pecuniary benefit to the speaker illegal, regardless of whether the statement is protected or privileged, in violation of the First Amendment of the United States Constitution, and article three, section seven of the West Virginia Constitution.

         We have previously stressed the importance of our separation of powers doctrine, and the great deference to which the legislature is entitled in the interpretation and construction of a statute.

In considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches. Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question. Courts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond reasonable doubt.

Syl. Pt. 1, State ex rel. Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965). Further, "[w]here the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation." Syl. Pt. 2, Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384 (1970). Based on the plain words of the statute and the applicable case law governing the interpretation and construction of this statute, this Court finds that the statute is not overbroad, as it requires that the threats are made for a purpose: to "extort money, pecuniary benefit, or any bond, note or other evidence of debt." See W.Va. Code § 61-2-13. In addition, extortion is malum in se. See generally Committee on Legal Ethics of the West Virginia State Bar v. Printz, 187 W.Va. 182, 416 S.E.2d 720 (1992). Accordingly, we find no reversible error.

         Next, the defendant argues that the circuit court erred by refusing to instruct the jury regarding the meaning of "criminal intent to commit extortion." At trial the defendant's counsel offered an instruction regarding the element of intent. This instruction was rejected by the circuit court. Regarding jury instructions, we have held,

"[a] trial court's instructions to the jury must be a correct statement of the law and supported by the evidence. Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not mislead by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. A trial court, therefore, has broad discretion in formulating its charge to the jury, so long as the charge accurately reflects the law. Deference is given to a trial court's discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed only for an abuse of discretion." Syllabus Point 4, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

Syl. Pt. 8, State v. Foster, 221 W.Va. 629, 656 S.E.2d 74 (2007). Concerning the offense of extortion, the jury herein was instructed that, "in order to prove the commission of the offense of "extortion", the State of West Virginia must overcome the presumption of innocence and prove, beyond a reasonable doubt, " and prove that the defendant "accused Jack E. G. of an offense involving his alleged display of sexual material to a minor"; and thereby did obtained (sic) and extorted a certain tract or parcel of real estate situate in Greenbrier County, West Virginia." We find that this instruction was an accurate statement of the law, and that the jury was properly instructed that the State ...


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