Scott Butler, by counsel John R. Anderson, appeals the
Circuit Court of Marshall County's October 26, 2016,
order denying his post-trial motion for judgment of acquittal
and sentencing him following his burglary and conspiracy to
commit burglary convictions. Respondent State of West
Virginia, by counsel Sarah B. Massey, filed a response. On
appeal, petitioner contends that the circuit court erred in
failing to grant his motion for judgment of acquittal because
there was insufficient evidence to convict him of these
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 petitioner's trial showed that, on April 18,
2016, petitioner, Selena Siburt, and two other individuals
went grocery shopping. On the way home from the grocery
store, Ms. Siburt indicated that she missed her son. Her son
had been with his father, Zachary Henry, and the four passed
by Mr. Henry's home on their way back from the grocery
store. Ms. Siburt decided to go to Mr. Henry's home to
see her son.
Hinerman, Mr. Henry's natural grandmother and adoptive
mother, was outside of the home smoking a cigarette as the
car in which petitioner, Ms. Siburt, and the others were
riding drove past. Ms. Hinerman, along with Ms.
Hinerman's husband and her granddaughter, were staying
with Mr. Henry for the week. Ms. Siburt's son and Mr.
Henry were not at the home.
Hinerman finished her cigarette around the same time that
petitioner, Ms. Siburt, and the others turned back to Mr.
Henry's home. Ms. Siburt and petitioner exited the car
and headed toward Mr. Henry's home on foot, while the
others remained in the car. Petitioner testified that he
accompanied Ms. Siburt because he was concerned about her and
the potential for an argument with Mr. Henry over their son.
Ms. Hinerman entered the home and was attempting to shut the
screen door when petitioner pulled it from her hand. After
petitioner had taken hold of the screen door, Ms. Hinerman
attempted to shut the inside door, but petitioner and Ms.
Siburt pushed into it. Although Ms. Hinerman testified that
she attempted to shut the door "with all that [she]
could, " petitioner and Ms. Siburt pushed open the door
with such force that they knocked Ms. Hinerman backwards and
entered the home.
inside the home, Ms. Siburt began looking for her son.
Petitioner remained by Ms. Hinerman and shouted to Ms. Siburt
to look in various areas of the home for her son. Ms.
Hinerman told Ms. Siburt and petitioner to leave and that Ms.
Siburt's son was not in the home, but neither Ms. Siburt
nor petitioner listened. As Ms. Siburt was searching the
home, petitioner grew more "irrational" and
"was hollering things and telling [Ms. Siburt] to go
ahead and go there in the house to look for [her son]."
Ms. Hinerman tossed her cell phone to her granddaughter and
instructed her to call the police. Petitioner then struck Ms.
Hinerman in the back of her head, causing her to "hit
the floor." Ms. Hinerman continued to tell them to leave
the home, and Ms. Siburt told petitioner to leave also. Ms.
Hinerman believed that, at this point, Ms. Siburt "knew
[petitioner] had done something wrong." After confirming
for themselves that Ms. Siburt's son was not at the home,
petitioner and Ms. Siburt left.
long after petitioner and Ms. Siburt left, the police arrived
at Mr. Henry's home. Ms. Hinerman described the vehicle
in which petitioner and Ms. Siburt arrived, and upon locating
a vehicle matching that description, petitioner and Ms.
Siburt were placed under arrest. Petitioner was indicted on
three counts: burglary, conspiracy to commit burglary, and
battery. At the conclusion of petitioner's trial, he was
found guilty of the burglary and conspiracy to commit
burglary charges. Petitioner moved for judgment of acquittal.
The circuit court denied this motion and sentenced him to not
less than one year nor more than fifteen years for the
burglary conviction and not less than one year nor more than
five years for the conspiracy to commit burglary conviction.
The sentences were ordered to run consecutively. It is from
this order that petitioner appeals.
appeal, petitioner contends that the circuit court erred in
failing to grant his motion for judgment of acquittal on the
burglary and conspiracy charges because, to establish his
guilt, the State was required to prove that petitioner
intended to batter Ms. Hinerman before entering the home and
that Ms. Siburt reached an agreement with him to batter Ms.
Hinerman before entering the home. An individual is guilty of
burglary if he or she "shall, in the daytime, break and
enter, the dwelling house . . . of another, with intent to
commit a crime therein[.]" W.Va. Code § 61-3-11(a).
"In order for the State to prove a conspiracy under
W.Va. Code, 61-10-31(1), it must show that the defendant
agreed with others to commit an offense against the State and
that some overt act was taken by a member of the conspiracy
to effect the object of that conspiracy." Syl. Pt. 9, in
part, State v. Bouie, 235 W.Va. 709, 776 S.E.2d 606
(2015) (internal quotations and citations omitted).
Petitioner contends that the State argued and the jury was
instructed that the crime petitioner purportedly intended to
commit during the burglary was a battery and that the
conspiracy to commit burglary charge similarly was predicated
on the intent to commit a battery within the home. Petitioner
argues that the evidence does not establish beyond a
reasonable doubt that petitioner intended to commit a battery
within the home because, at the time he struck Ms. Hinerman,
Ms. Siburt knew that her son was not in the home. Further,
after striking Ms. Hinerman, Ms. Siburt instructed petitioner
to leave the home, "appear[ing] to feel that the battery
was something that [petitioner] had done wrong[.]"
Court applies a de novo standard of review to appeals from
rulings on a motion for judgment of acquittal:
The trial court's disposition of a motion for judgment of
acquittal is subject to our de novo review;
therefore, this Court, like the trial court, must scrutinize
the evidence in the light most compatible with the verdict,
resolve all credibility disputes in the verdict's favor,
and then reach a judgment about whether a rational jury could
find guilt beyond a reasonable doubt.
State v. LaRock, 196 W.Va. 294, 304, 470 S.E.2d 613,
623 (1996). Regarding a claim that the evidence at trial was
insufficient to convict, this Court has stated 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 ...