Fayette County 17-F-17
Jordan Goard, by counsel Joseph M. Mosko, appeals the Circuit
Court of Fayette County's July 31, 2017, order denying
his motion for a new trial. Respondent State of West
Virginia, by counsel Gordon L. Mowen, II, filed a response.
Petitioner filed a supplemental appendix and reply. On
appeal, petitioner contends that the circuit court erred in
admitting surveillance footage without a sufficient
foundation having been laid, disallowing cross-examination of
a certain witness regarding overheard statements, and
overruling an objection to an inflammatory remark during the
State's closing argument.
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.
was indicted in January of 2017 for one count of conspiracy
to commit a felony, one count of first-degree robbery, and
one count of grand larceny. These charges arose from a
controlled drug buy initiated by a confidential informant
from petitioner at Plateau Oaks Apartments ("Plateau
petitioner's trial, which began on April 20, 2017, Mason
Hines, a crime scene investigator, fingerprint examiner, and
mobile device analyst with the City of Oak Hill Police
Department, testified that Plateau Oaks maintains
surveillance cameras, and he has accessed the footage
captured by these cameras on multiple prior occasions. In
obtaining surveillance footage from Plateau Oaks in the
course of the investigation following the controlled drug
buy, Mr. Hines detailed that he
pulled up the video, [searched] for the time and witnessed -
saw on the video an event that Sergeant Young requested that
I make a copy of. You put a thumb drive into the DVR, set
your parameters, - when you want it to start, when you want
it to stop, - and you make a copy of that part of the video
onto the thumb drive.
Hines stated that he did not tamper with or alter the video
in any way, and that it was in the same condition as when he
retrieved it from Plateau Oaks the day following the
controlled drug buy. Petitioner objected to the admission of
the video on the ground that "Mr. Hines went and got a
copy of this video footage, but there's no one from the
apartment complex that regularly maintains or manages that
footage." The circuit court overruled the objection and
admitted the footage.
Cummings, the confidential informant who purchased drugs from
petitioner, also testified at his trial. She testified that
the police provided her with money to purchase and a purse
with a camera in it to record the transaction. After
purchasing the drugs at Plateau Oaks, Ms. Cummings began
walking away through the parking lot, but petitioner followed
her, intent on taking the purse. Ms. Cummings tried to get
away from petitioner, but he picked her up, carried her
closer to the apartments, and "slammed [her] down on the
curb and then tried to jerk the purse off."
Petitioner's codefendant, Robert Lee, walked outside the
apartment complex and asked petitioner what was going
Ms. Cummings testified that petitioner informed Mr. Lee,
"She's wearing a wire. She has a wire." Ms.
Cummings stated that Mr. Lee then pointed a handgun at her
and instructed her to give petitioner the purse or he would
shoot her. Petitioner struck the back of Ms. Cummings's
head, and Ms. Cummings then "gave up fighting" with
petitioner as he jerked the purse loose from her body.
State moved to publish the surveillance video, which captured
the altercation, during Ms. Cummings's testimony.
Petitioner again objected because the State had not produced
anyone who testified that the "videos are kept in the
regular course of business, and I believe the State would be
required to establish a foundation." The State reminded
the circuit court that the video had already been admitted,
thus arguing that the objection was moot. The circuit court
found that the video was demonstrative and that Mr. Hines
"testified that he obtained it from Plateau Oaks where
this supposedly occurred and it hadn't been altered in
any respect." It then overruled the objection, again
admitted the video, and granted the State's motion to
publish it to the jury.
Maddox testified at trial on behalf of Mr. Lee. Ms. Maddox
identified petitioner as the individual who fought with Ms.
Cummings outside of the apartment complex. During the course
of her testimony, she also identified Ms. Cummings by her
first name. Accordingly, Ms. Maddox was asked whether she
knew Ms. Cummings. Ms. Maddox responded, "No. I just
heard somebody else out there say her name." Ms. Maddox
clarified that she heard someone outside the courtroom
"speaking on her about his case and - ." The
parties approached the bench at this point and indicated a
"need to put something on the record for it."
During the discussion about what Ms. Maddox overheard,
however, the court reporter's equipment malfunctioned and
the proceedings were not recorded. Petitioner's counsel
represents that Ms. Maddox said that she overheard another
woman discussing Ms. Cummings's "reputation for
engaging in various and sundry drug[-]related
activities." Counsel further represents that he
requested to cross-examine Ms. Maddox before the jury about
what she overheard, but the circuit court denied the request.
close of petitioner's two-day trial, the jury found him
guilty of conspiracy and first-degree robbery. On June 16,
2017, the parties appeared for sentencing, and the circuit
court sentenced petitioner to an indeterminate term of one
year to five years of incarceration for his conspiracy
conviction and a determinate term of sixty years of
incarceration for his first-degree robbery conviction.
Petitioner moved for a new trial on May 1, 2017, which the
circuit court denied by order entered on July 31, 2017. It is
from this order that petitioner appeals.
apply the following standard of review to a circuit
court's denial of a motion for a new trial:
In reviewing challenges to findings and rulings made by a
circuit court, we apply a two-pronged deferential standard of
review. We review the rulings of the circuit court concerning
a new trial and its conclusion as to the existence of
reversible error under an abuse of discretion standard, and
we review the circuit court's underlying factual findings
under a clearly erroneous standard. Questions of law are
subject to a de novo review.
Syl. Pt. 1, State v. Jenner, 236 W.Va. 406, 780
S.E.2d 762 (2015) (citation omitted).
raises three assignments of error on appeal. First,
petitioner argues that the circuit court erred in admitting
the surveillance footage from Plateau Oaks without a
sufficient foundation. Petitioner notes that Mr. Hines was
not an employee of Plateau Oaks and possessed no knowledge of
the apartment complex's surveillance system or of
surveillance systems generally. Petitioner also highlights
that Mr. Hines did not testify to the accuracy, completeness,
or reliability of the surveillance footage. Petitioner argues
that, under this Court's decision in State v.
Boyd, 238 W.Va. 420, 796 S.E.2d 207 (2017), additional
testimony was necessary to authenticate the video footage.
Petitioner, therefore, contends that the circuit court abused
its discretion by not requiring the State to "put forth
a more thorough showing of the absolute authenticity and
completeness of the surveillance footage."
901(a) of the West Virginia Rules of Evidence provides that
"[t]o satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must produce
evidence sufficient to support a finding that the item is
what the proponent claims it is." This standard of
admissibility "is rather slight, i.e., is the
evidence sufficient 'to support a finding' that the
object is authentic." Boyd, 238 W.Va. at 443,
796 S.E.2d at 230 (citation omitted). Further, "[a]
trial court is afforded wide discretion in determining the
admissibility of videotapes and motion pictures[, ]"
Syl. Pt. 1, Roberts v. Stevens Clinic Hosp., Inc.,
176 W.Va. 492, 345 S.E.2d 791 (1986), and ...