Larry Gale Owens, by counsel Travis Sayre, appeals the
Circuit Court of Wood County's March 14, 2016, order
sentencing him to forty years of imprisonment following his
second-degree murder conviction. Respondent State of West
Virginia, by counsel Shannon Frederick Kiser, filed a
response. On appeal, petitioner contends that the circuit
court erred in failing to grant various motions concerning
the sufficiency of the evidence and in failing to admit
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.
evidence at trial showed that, on June 17, 2014, Jeffrey
Hughart and five other individuals convened at
petitioner's home, which was located along a river, to
fish and drink alcohol. Later in the evening, petitioner and
Mr. Hughart got in to a physical altercation on the
home's dock. Michelle Whitlatch, who was present at the
dock, testified to seeing Mr. Hughart "head-butt"
petitioner and petitioner punch Mr. Hughart in the mouth.
After seeing this, Ms. Whitlatch went to the home to alert
another guest, John Gann, to the altercation. As she walked
from the dock to the house, she turned around to see Mr.
Hughart with a white pipe, later identified to be a
lightweight shower rod, and petitioner with a wooden walking
stick. Ms. Whitlatch turned back around and headed into the
home just as Mr. Hughart started to swing. Ms. Whitlatch
informed Mr. Gann that petitioner and Mr. Hughart were
fighting and asked him to go outside to break up the fight.
Mr. Gann exited the house to attempt to break up the fight,
he saw petitioner repeatedly strike Mr. Hughart with the
walking stick. Mr. Hughart was unconscious on the ground on
his side, not defending himself. Mr. Gann saw petitioner hit
Mr. Hughart in the ribs and on the head with the walking
stick, which was described as being approximately six feet in
length and two and one half inches in diameter. Petitioner,
as he was striking Mr. Hughart, said something to the effect
of Mr. Hughart was "getting what he deserved." This
comment stemmed from a prior altercation between Mr. Hughart
and petitioner during which Mr. Hughart knocked several of
petitioner's teeth out. Mr. Gann, as he observed
petitioner striking Mr. Hughart, testified that he knew that
Mr. Hughart "was in trouble." Mr. Gann was able to
get to petitioner and take him toward the house. As he took
petitioner toward the house, he did not see Mr. Hughart move.
To Mr. Gann's knowledge, Mr. Hughart never regained
consciousness. At this time, petitioner told Mr. Gann that he
hoped Mr. Hughart was dead.
thirty minutes after the altercation, Mr. Gann, petitioner,
and another guest, Ashley McGrew, placed Mr. Hughart in the
bed of petitioner's truck and took him to his home. Once
they reached Mr. Hughart's home, Mr. Gann grabbed Mr.
Hughart under his arms, pulled him out of the bed of the
truck, and placed him in the yard. A neighbor noticed Mr.
Hughart on the ground bleeding and called 911. Mr. Hughart
was taken to the hospital and pronounced dead.
James Kaplan performed an autopsy on Mr. Hughart. Dr. Kaplan
noted a scalp laceration that extended to the bone, a skull
fracture, contusions on Mr. Hughart's back, a fractured
rib, and shin injuries. Dr. Kaplan opined that Mr.
Hughart's cause of death was blunt force trauma to the
head, noting that the force of the injury to Mr.
Hughart's head "would have been a very, very
forceful blow, like swinging a baseball bat at someone."
Petitioner, conversely, was observed by Wood County Deputy
Sheriff Michael Cochran to have no injury, save for an older,
scabbed-over scratch on his arm.
to trial, petitioner moved to use the statement of Ashley
McGrew, a witness to the incident from which petitioner's
murder charge stemmed. Ms. McGrew died during the pendency of
petitioner's case. The circuit court found that this
statement did not meet any hearsay exception, and petitioner
was prohibited from introducing it at trial. During trial,
petitioner moved to use the complete video of his statement
given to law enforcement. This motion was similarly denied on
the ground that it lacked relevance. Petitioner also moved
for summary judgment following presentation of the
State's case-in-chief, for acquittal at the conclusion of
his case-in-chief, and for a new trial at the conclusion of
trial. All of these motions were denied. The jury returned a
verdict of guilty of second-degree murder, and petitioner was
sentenced to forty years of incarceration. It is from the
sentencing order that petitioner appeals.
Court has held that,
[i]n 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, 641, 535
S.E.2d 484, 485 (2000).
appeal, petitioner first contends that the circuit court
erred in failing to grant his motion for summary judgment
following the State's case-in-chief, motion for acquittal
at the end of petitioner's case-in-chief, and motion for
a new trial following the conclusion of the trial. Petitioner
asserts that the State failed to prove second-degree murder
and that petitioner was not acting in self-defense beyond a
reasonable doubt. Specifically, petitioner claims that the
State failed to prove that petitioner acted with malice.
Petitioner argues that the evidence establishes that he was
first attacked by Mr. Hughart and that, in defending himself,
he fatally struck Mr. Hughart. Petitioner also contends that
he met his burden of establishing self-defense as there was
evidence presented at trial that Mr. Hughart instigated the
fight that resulted in his death. Further, petitioner asserts
that he had previously been involved in an altercation with
Mr. Hughart wherein Mr. Hughart punched petitioner and
knocked several of his teeth out. Because of this prior
altercation, petitioner claims he had a "rising fear
that he himself would be killed[.]"
regard to appellate review of the sufficiency of the evidence
presented at trial, this Court has held that
[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 ...