Todd Booth, by counsel E. Scott Stanton, appeals the June 22,
2016, "Sentencing and Commitment Order" entered in
the Circuit Court of Fayette County following his conviction
by a jury of conspiracy to commit a felony, malicious
assault, and robbery in the first degree. The State of West
Virginia, by counsel Zachary Aaron Viglianco, filed a
response in support of the circuit court's order.
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.
and his co-defendants, Robert Patrick and Kristina Lambert,
were indicted on January 12, 2016, on charges of conspiracy,
malicious assault, first degree robbery, and burglary in
connection with the beating and robbery of 74-year-old Bobby
Wright ("the victim") on August 8, 2015.
Approximately two weeks earlier, the victim met petitioner
and Patrick at the vehicle repair shop where they worked in
Beckley, West Virginia. The victim hired them to repair his
vehicle. After the repairs were completed at the victim's
home in Mount Hope, the victim paid the pair, at which time
they were able to see that the victim was carrying $500 to
$800 in cash.
evening of the attack, petitioner, Patrick, and Lambert drove
to the victim's home. The victim, who was sitting in his
living room, saw someone walk by the window. The victim
testified that he got up "[a]nd I'd already knowed
[sic] them a little bit, so I went out on the porch and went
to talking to them." He then allowed Lambert to enter
the home to use the bathroom. After Lambert returned to the
car to get cigarettes, petitioner and Patrick attacked the
victim, hitting him hard enough on the head to cause him to
lose consciousness. The victim felt one of the men reach into
his pocket and steal his wallet. According to Lambert, when
the men returned to the car, they threw a wallet into the
backseat and showed her their hands, which she described as
"red." Lambert testified that the men then stated
that the victim would not be waking up for a while.
trial, Fayette County Deputy Adam Roberts, who answered the
victim's 9-1-1 call on the evening of the attack,
testified that, although the victim did not know the names of
his attackers, "[h]e stated that he had met them at Greg
Lilly Auto Sales in Beckley[, ]" and that he had
previously hired them to perform work on his vehicle.
Detective William Kevin Willis testified that receipts and
video surveillance of several stores in the area revealed
that Lambert used the victim's credit card on the evening
of the attack and that petitioner was seen in several of the
videos alongside Lambert.
result of the attack, the victim suffered a fractured orbital
bone, another skull fracture, and intracranial bleeding that
resulted in a subdural hematoma. The attack also had a
severe, degenerative impact on the victim's health,
causing his memory and cognitive function to worsen and
resulting in treatment for post-traumatic stress disorder
("PTSD"), depression, and anxiety.
February 25, 2016, the State filed a motion under Rule 15 of
the West Virginia Rules of Criminal Procedure to take the
evidentiary video deposition of the victim on the ground that
his "health is continuing to deteriorate and his ability
to physically participate in the trial of this matter [set
for April 7, 2016, ] seems less and less likely."
Following a hearing, and over petitioner's objection, the
circuit court granted the State's motion.
March 10, 2016, just prior to the scheduled video deposition
of the victim, petitioner filed with the circuit court a
waiver of his right to be present at the victim's video
deposition. However, the State objected on the ground that
the victim, who had not previously identified petitioner as
one of his attackers, would be given the opportunity to
identify the petitioner for the first time during the
deposition. The State advised the court that it needed the
victim to make the identification in order to prove its case.
Based upon the State's objection, the circuit court
refused to accept petitioner's waiver.
deposition of the victim was thereafter conducted in the
courtroom and with the circuit judge presiding. During the
course of the deposition, the victim recounted the attack and
identified petitioner and Patrick, both of whom were present,
his attackers. Counsel for petitioner and his co-defendants
cross-examined the victim.
following the victim's Rule 15 deposition, the circuit
court conducted a hearing on the motions to sever previously
filed by petitioner and Patrick. The court denied the
motions. Prior to petitioner's trial, petitioner's
co-defendants entered into plea agreements with the State.
March 18, 2016, petitioner filed a motion to suppress the
victim's identification of him at trial. Following a
hearing, the circuit court denied the motion.
April 7, 2016, the State filed a motion in limine to allow
the victim's video deposition to be played at trial on
the ground that, since the time the deposition was taken, the
victim's "mental and cognitive condition has
deteriorated to the point that it is the opinion of his
treating health care providers that he not testify in person
at the trial in this matter. . . . and that forcing [him] to
testify will cause further damage to his health and
well-being." Following a hearing, the circuit court
granted the motion.
two-day jury trial was conducted beginning on April 18, 2017.
Petitioner was convicted of conspiracy, for which he was
sentenced to one to five years of incarceration; malicious
assault, for which he was sentenced to two to ten years; and
first degree robbery, for which he was sentenced to fifty
years.The sentences were ordered to be
served consecutively to each other and to the sentence he was