Submitted: September 20, 2017
from the Circuit Court of Berkeley County The Honorable Gray
Silver, III, Judge Criminal Action Nos. 16-F-11, 16-F-20,
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
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
BY THE COURT
"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).
"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
"'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).
"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).
"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).
"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).
"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
"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 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).
"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
"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).
"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).
"'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).
"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).
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 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.
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. 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.
Factual and Procedural History
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,  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.
Etheridge,  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.
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 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.
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 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.
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
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
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.