D.K., by counsel Eric M. Francis, appeals the Circuit Court
of Greenbrier County's January 23, 2017, order denying
his motions to set aside the jury verdict and for a new
trial. Respondent State of West Virginia, by
counsel Shannon Frederick Kiser, filed a response. Petitioner
filed a reply. On appeal, petitioner contends that the
circuit court erred in giving a jury instruction on
principals and accessories and in failing to give a limiting
instruction following certain testimony.
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.
October 13, 2016, petitioner, a juvenile, and others rode
with Brandon Robinson, an adult, to Walmart. Following their
shopping, Mr. Robinson wanted to return home to Rupert, West
Virginia, but his passengers wanted to go to Alderson, West
Virginia. Mr. Robinson was low on gas, but his passengers
told him that if he drove them to Alderson, they would get
him gas so that he could drive home. After arriving in
Alderson, petitioner left the vehicle while Mr. Robinson
remained inside. Petitioner returned and put gas into Mr.
Robinson's car. Surveillance cameras located on Richard
Fox's property recorded petitioner and another
unidentified male at a vehicle owned by Mr. Fox, which was
later discovered to have a punctured gas tank. As a result,
on October 27, 2016, Chief J.M. Bennett of the Alderson
Police Department filed a petition initiating juvenile
proceedings against petitioner and charging him with petit
larceny and destruction of property. Mr. Robinson was charged
December 28, 2016, Mr. Robinson entered into a deferral
agreement with the State. This agreement provided that Mr.
Robinson's conspiracy charge would be dismissed in
exchange for his testimony against petitioner in
petitioner's juvenile proceedings.
January 3, 2017, petitioner's trial began. Among other
evidence, the jury reviewed the surveillance footage captured
by Mr. Fox's cameras. The footage shows two individuals
on Mr. Fox's property at the vehicle from which the gas
was stolen, and Mr. Robinson also testified to the
unidentified male who joined petitioner "[a]t some point
in time." Once the case was submitted to the jury, it
asked the following question: "[I]f there is no proof of
who punctured the gas tank or [de]struction of property,
[but] we know it was done[, ] is [petitioner] guilty even if
by association or innocent because the other guy may have
done the puncture?" In response to this question, the
circuit court provided an additional instruction:
The [c]ourt instructs you as the jury that a princip[al] in
the second degree is one who is present aiding and abetting
the princip[al] in the commission of an offense. If the jury
from the evidence - if the jury believes from the evidence
beyond a reasonable doubt that [petitioner] is a princip[al]
either in the first or second degree, he is liable for
punishment as if he were a princip[al] in the first degree.
You may not find [petitioner] guilty merely because he
associated with another person who committed the offense.
jury returned to its deliberations, and at the close of his
two-day trial, petitioner was found guilty of petit larceny
and destruction of property.
trial, petitioner moved to set aside the jury verdict and for
a new trial. These motions were denied, and the circuit court
entered its "Order Following Dispositional Hearing"
memorializing its rulings on January 23, 2017. It is from
this order that petitioner appeals.
appeal, petitioner argues that the circuit court erred in
giving an instruction concerning principals and accessories
and in failing to give a limiting instruction following Mr.
Robinson's testimony. We have previously held that,
"[a]s 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).
challenges the jury instruction on principals and accessories
on several grounds. First, petitioner argues that, under
State v. Blankenship, 198 W.Va. 290, 480 S.E.2d 178
(1996), the instruction was inconsistent with the evidence
presented at trial and, therefore, improperly given.
Petitioner contends that the only evidence presented at trial
was that he committed the crimes charged, that he was not
alleged to have acted in concert with anyone else, and that
he was not charged as a conspirator, aider and abettor, or an
begin by reiterating the "well-established law
surrounding convictions based on aiding and abetting[:] . . .
'[i]n the case of every felony, every principal in the
second degree, and every accessory before the fact, shall be
punishable as if he were the principal in the first
degree[.]'" State v. Legg, 218 W.Va. 519,
523, 625 S.E.2d 281, 285 (2005) (citing W.Va. Code §
61-11-6). "[T]here is no legal distinction between a
conviction as a principal in the first degree and a
conviction as an aider and abettor[.]" Id.
Therefore, "we have explicitly declared that the
inclusion of separate language in an indictment charging
aiding and abetting is not required." Id.
(citation omitted). Accordingly, the fact that petitioner was
not charged as a conspirator, aider and abettor, or accessory
does not render the instruction improperly given.
we have found that aiding and abetting instructions were
properly given where the evidence adduced at trial was
sufficient to support an aiding and abetting conviction, even
when the defendant was not indicted as an aider and abettor.
Id. at 524, 625 S.E.2d at 286 (citations omitted).
Here, in addition to the surveillance footage depicting two
individuals, Mr. Robinson testified at trial to seeing
someone with petitioner "with a black bill hat or a
toboggan" as petitioner was putting gas in Mr.
Robinson's car. The State asked Mr. Robinson, "So
was [sic] somebody else joined [D.K.] - [?]" Mr.
Robinson responded, "[a]t some point in time. I only got
a glimpse of whoever it was." Mr. Robinson further
described that, although he could not see the
individual's face, he presumed it to be a
This evidence supports the circuit court's decision to
give the challenged instruction.
our holdings that a defendant need not be explicitly charged
as an aider or abettor and that an aiding and abetting
instruction is proper where supported by the evidence, we
have also recognized that when a defendant is not provided
actual notice of the prosecution's intent to pursue a
theory of and conviction for aiding and abetting, a defendant
may be unfairly prejudiced by the request for an aiding and
abetting instruction after trial has begun. Id. at
525, 625 S.E.2d at 287. Although the instant matter is
procedurally different in that the jury's question
prompted the giving of the subject instruction, we
nonetheless find that petitioner has failed to demonstrate
that he was unfairly prejudiced by the instruction. In
determining whether prejudice resulted, we have outlined
several factors to be considered: unfair surprise;
"whether or not the defendant can show that he or she
might have framed his or her defense differently in light of
the alternate theory;" "whether or not the defense
presented was sufficient to defend against both alternative
theories;" and "whether or not the defendant took
steps to remedy the prejudice - by, for example, requesting a
continuance or asking that witnesses be recalled."
Id. at 526, 625 S.E.2d at 288. Petitioner does not
contend that he was unfairly surprised by the instruction,
that he would have framed his defense differently, or that
the defense presented was ...