Submitted: May 2, 2017
from the Circuit Court of Summers County Honorable Robert A.
Irons, Judge Criminal Action No. 15-F-57
E. Johnson, Esq. Appellate Counsel Public Defender Services
Charleston, West Virginia Attorney for Petitioner
Patrick Morrisey, Esq. Attorney General Zachary A. Viglianco,
Esq. Assistant Attorney General Gordon L. Mowen, II, Esq.
Assistant Attorney General Charleston, West Virginia
Attorneys for Respondent
BY THE COURT
"'"Upon motion [for judgment of acquittal], the
evidence is to be viewed in the light most favorable to [the]
prosecution. It is not necessary in appraising its
sufficiency that the trial court or reviewing court be
convinced beyond a reasonable doubt of the guilt of the
defendant; the question is whether there is substantial
evidence upon which a jury might justifiably find the
defendant guilty beyond a reasonable doubt." State
v. West, 153 W.Va. 325');">153 W.Va. 325');">153 W.Va. 325');">153 W.Va. 325, [168 S.E.2d 716] (1969).'
Syl. Pt. 1, State v. Fischer, 158 W.Va. 72, 211
S.E.2d 666 (1974)." Syl. Pt. 5, State v.
Grimes, 226 W.Va. 411, 701 S.E.2d 449 (2009).
"The 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." Syl. Pt. 1, State v. Guthrie, 194 W.Va.
657, 461 S.E.2d 163 (1995).
"'"A judgment of conviction will not be
reversed because of improper remarks made by a prosecuting
attorney . . . to a jury which do not clearly prejudice the
accused or result in manifest injustice." Syl. pt. 1,
State v. Dunn, 162 W.Va. 63, 246 S.E.2d 245 (1978),
in part.' Syllabus Point 1, State v.
Barker, 168 W.Va. 1, 281 S.E.2d 142 (1981)." Syl.
Pt. 7, State v. Buck, 170 W.Va. 428, 294 S.E.2d 281
"The essential elements of embezzlement are a trust
relationship to the property or money involved, belonging to
someone else and in the possession of the defendant by virtue
of his office and converted to his own use with intent to
defraud." Syl. Pt. 19, State v. Riley, 151
W.Va. 364, 151 S.E.2d 308 (1966), overruled on other
grounds by Proudfoot v. Dan's Marine Serv., Inc.,
210 W.Va. 498, 558 S.E.2d 298 (2001).
"[I]n order to constitute the crime of embezzlement, it
is necessary to show (1) the trust relation of the person
charged, and that he falls within that class of persons
named; (2) that the property or thing claimed to have been
embezzled or converted is such property as is embraced in the
statute; (3) that it is the property of another person; (4)
that it came into the possession, or was placed in the care,
of the accused, under and by virtue of his office, place or
employment; (5) that his manner of dealing with or disposing
of the property, constituted a fraudulent conversion and an
appropriation of the same to his own use; and (6) that the
conversion of the property to his own use was with the intent
to deprive the owner thereof." Syl. Pt. 2, in part,
State v. Moyer, 58 W.Va. 146, 52 S.E. 30 (1905).
"A criminal defendant challenging the sufficiency of the
evidence to support a conviction takes on a heavy burden. An
appellate court must review all the evidence, whether direct
or circumstantial, in the light most favorable to the
prosecution and must credit all inferences and credibility
assessments that the jury might have drawn in favor of the
prosecution. The evidence need not be inconsistent with every
conclusion save that of guilt so long as the jury can find
guilt beyond a reasonable doubt. Credibility determinations
are for a jury and not an appellate court. Finally, a jury
verdict should be set aside only when the record contains no
evidence, regardless of how it is weighed, from which the
jury could find guilt beyond a reasonable doubt. To the
extent that our prior cases are inconsistent, they are
expressly overruled." Syl. Pt. 3, State v.
Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).
"'Four factors are taken into account in determining
whether improper prosecutorial comment is so damaging as to
require reversal: (1) the degree to which the
prosecutor's remarks have a tendency to mislead the jury
and to prejudice the accused; (2) whether the remarks were
isolated or extensive; (3) absent the remarks, the strength
of competent proof introduced to establish the guilt of the
accused; and (4) whether the comments were deliberately
placed before the jury to divert attention to extraneous
matters.' Syl. Pt. 6, State v. Sugg, 193 W.Va.
388, 456 S.E.2d 469 (1995)." Syl. Pt. 6, State ex
rel. Games-Neely v. Yoder, 237 W.Va. 301, 787 S.E.2d 572
LOUGHRY, Chief Justice:
petitioner, Jerry E. Berry, appeals from the April 15, 2016,
final order of the Circuit Court of Summers County sentencing
him to one to ten years imprisonment upon his jury conviction
of one count of the felony offense of
embezzlement. In this appeal, the petitioner contends
the circuit court erred by not granting his motions for
judgment of acquittal because the State failed to present
sufficient evidence at trial to support his conviction. The
petitioner also argues the circuit court erred by not
granting his motion for a mistrial after the prosecuting
attorney made improper remarks during the closing argument
phase of his trial. Upon consideration of the parties'
briefs and oral arguments, the submitted appendix record, and
the pertinent authorities, we find no error. Accordingly, we
Factual and Procedural Background
petitioner was elected to the Summers County Commission in
November 2000, and served as a commissioner until 2012.
During his tenure on the Commission, the petitioner was a
member of the board of directors of the regional convention
and visitor's bureau, which does business as Visit
Southern West Virginia (hereinafter "Visit
WV"). He also became president of the local
convention and visitor's bureau in Summers County known
as Three Rivers Travel Council (hereinafter
"TRTC"). A convention and visitor's bureau is a
"nonstock, nonprofit corporation with a full-time staff
working exclusively to promote tourism and to attract
conventions, conferences and visitors to the municipality,
county or region in which such convention and visitor's
bureau . . . is located or engaged in business within."
W.Va. Code § 7-18-14(d)(1) (2015). Convention and
visitor's bureaus are funded through the collection of a
hotel occupancy tax imposed by the governing bodies of
municipalities and counties. W.Va. Code § 7-18-1.
2015, a Summers County grand jury returned an indictment,
charging that the petitioner "did feloniously embezzle,
fraudulently convert to his own use and steal . . . money . .
. belonging to the Commission of Summers County, to-wit
taking and converting $41, 699.05 . . . by virtue of his
employment at Three Rivers Travel Council[.]" The
petitioner's trial occurred on January 20 and 21, 2016.
The State's witnesses included Arnold Douglas Maddy, the
president of Visit WV. He testified that sometime in late
2009 or early 2010, the Summers County Commission entered
into an arrangement with Visit WV to manage the hotel
occupancy tax funds that were being distributed to
TRTC. Explaining further, Mr. Maddy stated,
The [Summers County] convention and visitors bureau [TRTC]
had financial difficulties. And we were getting, in my
office, a lot of phone calls from vendors that they did
business with, trying to collect outstanding bills. And so we
entered into an arrangement with the CountyCommission that we
would-if they would give us the entirety of the hotel/motel
tax, we would take the 35 percent that was to go to the local
CVB, pay their bills with them. There's no fee involved.
We'd just manage their money for them, pay off all their
bills. And then, of course, we would take our 15 percent and
put it into our marketing effort. And we did that until all
those bills were paid. And I believe it was in January
2010. (footnote added)
to Mr. Maddy, after Visit WV paid the debts of TRTC, he
informed the Summers County Commission that Visit WV wished
to end their arrangement and Visit WV would be returning the
remaining funds that belonged to TRTC. On January 29, 2011,
Mr. Maddy wrote a check for $41, 699.05 made payable to
"Three Rivers Travel Council, " which was the
balance of the hotel occupancy tax that the Summers County
Commission had allocated to Visit WV to pay the debts of
Mr. Maddy's testimony, the State submitted into evidence
a letter he wrote to Commissioner Lightner on behalf of Visit
WV dated May 27, 2011. The letter stated, in pertinent part:
Our Board of Directors advised us that once the debt for the
Three Rivers Travel Council was paid off that we would no
longer be able to perform any accounting or payroll services.
Our records indicate the debt was paid off at the end of July
2010. We also gave Commissioner Berry a check payable to
Three Rivers Travel Council for $41, 699.05 on January 29,
2011 to zero out the Summers County account. Our
understanding was a new CVB was to be
organized. (footnote added)
undisputed that the $41, 699.05 check was deposited into a
bank account in the name of "Timothy Jordan Berry d/b/a
Three Rivers Travel Council." Timothy Jordan Berry is
the petitioner's son.
State's expert witness, Lawrence Ickes, a forensic
accountant, testified the bank records showed that the day
after the check was deposited into the Timothy Jordan Berry
account, $10, 600.00 was withdrawn using a counter withdrawal
slip made out to cash. Thereafter, numerous checks were
written against the account, most of them were for
"round, even amounts" and made out to cash. In
addition, several internal bank transfers were made to
another personal bank account of the petitioner's son and
$15, 000.00 was paid to closely-held corporations operated by
the petitioner and his son.
Ickes further testified that two checks totaling $6, 850.00
from BGNConvention and Visitor's Bureau
(hereinafter "BGN") were deposited into the account
in August 2011. BGN was the third Summers County convention
and visitor's bureau that was incorporated with the
Secretary of State's office. According to Mr. Ickes, by
the end of September 2011, the account was almost depleted
with a balance of only $247.00.
in his own defense, the petitioner acknowledged that the $41,
699.05 check was deposited into his son's personal bank
account. However, the petitioner characterized his son's
account as a "stopgap" measure, explaining that
TRTC could not maintain its own bank account because it had
lost its corporate status. The petitioner testified that he
withdrew the money and used it to promote Summers County and
the surrounding region. He stated that he went to various
travel shows in other states where he paid "students or
young people" $100 each, in cash, to hand out brochures
promoting tourism in Summers County and the surrounding area.
He explained that by the time he received the money from
Visit WV, the season of tourism marketing was well underway,
and he was unable to obtain space at these travel shows to
set up his own booth. The petitioner also testified that he
used the money to have brochures printed and for wages for
his son, whom he employed to set up web pages for online
promotion of Summers County and southern West Virginia
because travel marketing was progressing in a digital
direction. With regard to why he was unable to produce
receipts to show how the money was spent, the petitioner
testified he had an office at Concord University in Beckley,
West Virginia, and that at some unspecified time, college
personnel decided to re-purpose the space, which resulted in
the destruction of his records.
support his testimony regarding his attendance at travel
shows, the petitioner's ex-girlfriend testified on his
behalf. She stated that she had accompanied the petitioner to
some of the travel shows and observed him promoting Summers
County by having students distribute tourism brochures. She
was unable to say, however, how many travel ...