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State v. Henson

Supreme Court of West Virginia

November 2, 2017

STATE OF WEST VIRGINIA, Plaintiff Below, Respondent
RYAN L. HENSON, Defendant Below, Petitioner STATE OF WEST VIRGINIA, Plaintiff Below, Respondent
KERRI S. REIGH, Defendant Below, Petitioner STATE OF WEST VIRGINIA, Plaintiff Below, Respondent
JONATHAN W. PHYSIOC, Defendant Below, Petitioner

          Submitted: September 20, 2017

         Appeal from the Circuit Court of Berkeley County The Honorable Gray Silver, III, Judge Criminal Action Nos. 16-F-11, 16-F-20, 16-F-14

          Michael J. Sharley, Esq. Westover, West Virginia Counsel for the Petitioner Ryan L. Henson

          Douglas F. Kobayashi, Esq. KOBY LAW Martinsburg, West Virginia Counsel for the Petitioner Kerri S. Reigh

          Lisa A. Green, Esq. LAW OFFICE OF LISA A. GREEN Shepherdstown, West Virginia Counsel for the Petitioner Jonathan W. Physioc

          Patrick Morrisey, Esq Attorney General Robert L. Hogan, Esq. Deputy Attorney General Counsel for the Respondent


         1. "The purpose of the Double Jeopardy Clause is to ensure that sentencing courts do not exceed, by the device of multiple punishments, the limits prescribed by the legislative branch of government, in which lies the substantive power to define crimes and prescribe punishments." Syl. Pt. 3, State v. Sears, 196 W.Va. 71, 468 S.E.2d 324 (1996).

         2. "The analysis of whether a criminal defendant may be separately convicted and punished for multiple violations of a single statutory provision turns upon the legislatively-intended unit of prosecution." Syl. Pt. 4, State v. Goins, 231 W.Va. 617, 748 S.E.2d 813 (2013).

         3. "'At common law, the definition of robbery was (1) the unlawful taking and carrying away, (2) of money or goods, (3) from the person of another or in his presence, (4) by force or putting him in fear, (5) with intent to steal the money or goods.' Syllabus Point 1, State v. Harless, 168 W.Va. 707, 285 S.E.2d 461 (1981)." Syl. Pt. 3, State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982).

         4. "It is impossible to conclude from either the common law or W.Va. Code, 61-2-12, that an attempt to rob a store by presenting a firearm and leaving without taking any property can, in light of double jeopardy principles, result in multiple convictions of attempted aggravated robbery for each clerk present in such store." Syl. Pt. 2, State v. Collins, 174 W.Va. 767');">174 W.Va. 767, 329 S.E.2d 839 (1984).

         5. "The action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion." Syl. Pt. 10, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds by State ex rel. R.L. v. Bedell, 192 W.Va. 435, 452 S.E.2d 893 (1994).

         6. "Under Rule 801(d)(2)(E) of the West Virginia Rules of Evidence, a declaration of a conspirator, made subsequent to the actual commission of the crime, may be admissible against any co-conspirator if it was made while the conspirators were still concerned with the concealment of their criminal conduct or their identity." Syl. Pt. 3, State v. Helmick, 201 W.Va. 163, 495 S.E.2d 262 (1997).

         7. "Under the Confrontation Clause . . . a testimonial statement is, generally, a statement that is made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Syl. Pt. 8, in part, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).

         8. "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).

         9. "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).

         10. "When a criminal defendant undertakes a sufficiency challenge, all the evidence, direct and circumstantial, must be viewed from the prosecutor's coign of vantage, and the viewer must accept all reasonable inferences from it that are consistent with the verdict. This rule requires the trial court judge to resolve all evidentiary conflicts and credibility questions in the prosecution's favor; moreover, as among competing inferences of which two or more are plausible, the judge must choose the inference that best fits the prosecution's theory of guilt." Syl. Pt. 2, State v. LaRock, 196 W.Va. 294');">196 W.Va. 294, 470 S.E.2d 613 (1996).

         11. "As a general rule, the refusal to give a requested jury instruction is reviewed for an abuse of discretion. By contrast, the question of whether a jury was properly instructed is a question of law, and the review is de novo." Syl. Pt. 1, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996).

         12. "Instructions must be based upon the evidence and an instruction which is not supported by evidence should not be given." Syl. Pt. 4, State v. Collins, 154 W.Va. 771, 180 S.E.2d 54 (1971).

         13. "'A trial court's refusal to give a requested instruction is reversible error only if: (1) the instruction is a correct statement of the law; (2) it is not substantially covered in the charge actually given to the jury; and (3) it concerns an important point in the trial so that the failure to give it seriously impairs a defendant's ability to effectively present a given defense.' Syl. Pt. 11, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994)." Syl. Pt. 13, State v. Surbaugh, 237 W.Va. 242, 786 S.E.2d 601 (2016).

         14. "When the State had or should have had evidence requested by a criminal defendant but the evidence no longer exists when the defendant seeks its production, a trial court must determine (1) whether the requested material, if in the possession of the State at the time of the defendant's request for it, would have been subject to disclosure under either West Virginia Rule of Criminal Procedure 16 or case law; (2) whether the State had a duty to preserve the material; and (3) if the State did have a duty to preserve the material, whether the duty was breached and what consequences should flow from the breach. In determining what consequences should flow from the State's breach of its duty to preserve evidence, a trial court should consider (1) the degree of negligence or bad faith involved; (2) the importance of the missing evidence considering the probative value and reliability of secondary or substitute evidence that remains available; and (3) the sufficiency of the other evidence produced at the trial to sustain the conviction." Syl. Pt. 2, State v. Osakalumi, 194 W.Va. 758');">194 W.Va. 758, 461 S.E.2d 504 (1995).


          Workman, Justice.

         Before the Court are the consolidated appeals of the three Petitioners, Ryan L. Henson ("Petitioner Henson"), Kerri S. Reigh ("Petitioner Reigh"), and Jonathon W. Physioc ("Petitioner Physioc") (also collectively referred to as "the Petitioners"), who were tried together before a jury. Each was convicted[1] on charges of one count of burglary, three counts of robbery in the first degree, three counts of assault during the commission of a felony, and one count of conspiracy and sentenced.[2]

         Several issues are raised by the Petitioners, but the main issue the Court must decide is whether double jeopardy principles were violated by the Petitioners' respective convictions for three counts of robbery in the first degree.[3] Based upon our review of the parties' briefs and arguments, we find that under our law, the Petitioners should have been indicted, tried and convicted on only a single count of robbery in the first degree. The Court, therefore, reverses the Petitioners' respective sentencing orders on this issue only and the cases are remanded to the circuit court for entry of new sentencing orders consistent with this opinion. For reasons set forth more fully below, we find no other reversible error in connection with the remainder of the assigned errors raised by the Petitioners and affirm the circuit court's rulings on those issues.

         I. Factual and Procedural History

         The charges brought against the Petitioners stemmed from the brutal beating of Robert Basore ("Robert") and his two adult sons that occurred during a home invasion in which only property located in Robert's bedroom and belonging to him was taken from the home. According to the evidence offered at trial, about two weeks before the home invasion, in April of 2015, Sherry Basore, [4] who was Robert's granddaughter, Petitioner Henson, and Totianna Etheridge, who was Petitioner Henson's then-girlfriend, visited Robert's home so that Sherry could borrow $20 from her grandfather to buy drugs. Sherry told these individuals that her grandfather had $80, 000 in his home from the sale of some land. Robert testified that only Petitioner Henson and Sherry came into his home on this visit. Robert stated that he had about $200 in his wallet and that he gave Sherry money in front of the Petitioner Henson.

         Ms. Etheridge, [5] a key witness for the Respondent ("the State"), also testified that after the visit to Robert's home, Sherry told Ms. Etheridge and Petitioner Henson what her grandfather kept in his house. According to Ms. Etheridge, Sherry explained to Petitioner Henson where everything was located in Robert's home. Sherry also told Petitioner Henson that just her father and grandfather would be in the home. Sherry even suggested that they should go during the day because her father and grandfather "would be drunk and passed out." Sherry made such disclosures because she was "dope sick, " or as Ms. Etheridge explained, Sherry was going through withdrawal from heroin and needed to get more drugs.

         In the early evening on May 7, 2015, two masked men entered Robert's home, which was unlocked at the time. Both of Robert's sons were also at home when the invasion occurred. Robert was in the kitchen and his two sons were in the living room. The two intruders used some type of metal bar to beat all three men about their heads[6] to subdue them. One of the intruders demanded that Robert tell him where his safe was and Robert refused. Robert was then dragged into his bedroom, where the intruder told him to give him his wallet and took the wallet from Robert's back pocket. The intruders also took a toolbox from Robert's bedroom containing "some silver, old antique money in it. Had some $2 bills . . . [and] I think my wife had a necklace and a bracelet. . . ." A .22 caliber rifle with a scope was also taken from Robert's bedroom. The intruders then left the house, taking no personal property from either of Robert's sons. Robert's son, Michael, testified that he had not been robbed and that the items that had been taken from his father's home were not taken in his presence. There were no fingerprints or DNA obtained from the home and the victims were unable to identify the perpetrators because of the masks.

         Ms. Etheridge testified that around 3:00 to 3:30 a.m. the next morning, she received a phone call from Petitioner Henson while she was working at the Lust Nightclub. Petitioner Henson told her that "he needed some money to get out of town because they just hit a lick." Ms. Etheridge testified that "hitting a lick" refers to "something illegal like a home invasion or some sort like that." According to Ms. Etheridge, Petitioner Henson, Petitioner Reigh and Petitioner Physioc[7] arrived together "around back" of the nightclub in a large white pickup truck about thirty minutes later. Ms. Etheridge went "out back to give them the money and he just told me that they hit a lick and they needed to get out of town and they didn't get anything because . . . [Petitioner Physioc] fucked it up." When asked by the prosecutor how that happened, Ms. Etheridge stated that "[Petitioner Physioc] . . . grabbed the wrong safe." Ms. Etheridge did not testify that either Petitioner Reigh or Petitioner Physioc made any statements to her when Petitioner Henson was telling her what had occurred nor did they attempt to leave the vehicle. The Petitioners took the money from Ms. Etheridge and left.

         Ms. Etheridge stated that she did not see Petitioner Henson again until the next morning. She and Petitioner Henson were living together at the Motel 6 in Hagerstown, Maryland. Ms. Etheridge testified that Petitioner Henson told her "[t]hat he tried everything he could to get the safe from the guy, but they had to beat him to be able to get anything" and that he had assistance in committing the crime. Ms. Etheridge then stated that Petitioner Henson told her that there were three victims, "the grandfather and the father and the uncle, " and that it was "Sherry Basore's family."

         Ms. Etheridge also testified that Petitioner Physioc had shown her "older, ancient like coins" that he had from the crime and that he had asked her if she knew where he could sell them. Ms. Etheridge also observed some of the stolen coins in Petitioner Reigh's handbag. According to Ms. Etheridge, "[Petitioner Physioc] . . . and [Petitioner Henson] had went out somewhere, me and her [Petitioner Reigh] was actually going to shoplift and she was emptying her purse and a couple of the coins fell out of her purse." The stolen items were not found or offered into evidence.

         None of the Petitioners testified at trial. At the conclusion of all the evidence, the jury returned a verdict of guilt as to all the charges against the Petitioners. The circuit court sentenced the Petitioners and this appeal ensued.

         II. ...

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