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State v. Portman

Supreme Court of West Virginia

April 19, 2019

State of West Virginia, Plaintiff Below, Respondent
Vincent Portman, Defendant Below, Petitioner

          Ohio County 17-F-95


         Petitioner Vincent Portman, by counsel Matthew Brummond, appeals the Circuit Court of Ohio County's December 27, 2017, sentencing order following his conviction for failure to register as a sex offender, second offense. Respondent State of West Virginia, by counsel Holly M. Flanigan, filed a response. Petitioner filed a reply. On appeal, petitioner asserts that there was insufficient evidence to support his conviction and that the circuit court erred in refusing to instruct the jury on entrapment.

         This 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.

         Petitioner, a sex offender who is required to update his information in the sex offender registry in April of each year, arrived at his local West Virginia State Police detachment to do so between April 26 and May 1 of 2017.[1] Petitioner spoke with Trooper Chad Heckler and informed him he was there to update his registry information. Trooper Heckler asked petitioner whether he was aware that he should make an appointment, and petitioner responded that he did not want to be set up for something. Trooper Heckler then responded, "[O]h, so the State Police are in the habit of setting people up?" Petitioner reportedly said, "[A]ctually, yeah."

         Trooper Heckler conducted his part of the conversation from behind a window separating the lobby from the rest of the detachment. He noted that petitioner was irritated and agitated and that the conversation was not going well, and he accordingly walked out to the lobby to speak with petitioner face to face. Sergeant James Dean joined Trooper Heckler, and Sergeant Dean, who also observed petitioner's irritation, instructed petitioner to leave the detachment and return once his attitude had improved. Petitioner left the detachment as instructed, but he never returned to update his registry information.

         On June 7, 2017, Trooper Eric McFarland received a call detailing a harassment complaint against petitioner. On that same day, Trooper McFarland called petitioner and asked him to come to the detachment to discuss the harassment complaint, and petitioner complied. After calling petitioner, Trooper McFarland learned that petitioner was in violation of the registry requirements. When petitioner reported to the detachment, Trooper McFarland discussed the harassment complaint with petitioner and then placed him under arrest for failing to update the sex offender registry as required.[2]

         Petitioner was indicted on September 11, 2017, on one count of failure to register as a sex offender, second offense. He proceeded to trial on this charge on November 7, 2017, and the jury found him guilty. The circuit court sentenced petitioner to not less than ten nor more than twenty-five years of incarceration, which was memorialized in its December 27, 2017, sentencing order. It is from this order that petitioner appeals.

         Petitioner first argues on appeal that there was insufficient evidence to support his conviction. Petitioner asserts that he appeared in April intent on updating his registration and that his demeanor was insufficiently egregious to indicate a refusal or inability to cooperate in providing the required information. Petitioner claims his behavior did not present an objective safety risk, nor was he violent or combative; therefore, the evidence was insufficient to establish that he failed to cooperate. Regarding a claim that the evidence at trial was insufficient to convict, this Court has stated that

[t]he 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). Further,

[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.

Id. at 663, 461 S.E.2d at 169, syl. pt. 3, in part.

         It is undisputed that petitioner was required to register as a sex offender under West Virginia Code § 15-12-2(d), and that he was required to update the registry every April under West Virginia Code § 15-12-10. If a lifetime registrant, such as petitioner, "knowingly provides materially false information or . . . refuses to provide accurate information when so required by the terms of this article [governing the sex offender registry], or . . . knowingly fails to register or knowingly fails to provide a change in any required information," he or she is guilty of a felony. Id. § 15-12-8(c).

         We find that petitioner has failed to meet the "heavy burden" imposed in sufficiency of the evidence claims. Simply, the evidence established that petitioner failed to update the registry in April of 2017. There was also evidence that petitioner knew of his registration requirements, having signed forms confirming his knowledge of these requirements and having correctly updated his sex offender registry information previously, including his annual verification in 2016. Although petitioner was instructed to leave upon presenting to the detachment in an irritated and agitated state, petitioner never returned to update the registry, as also instructed and as required by law. We recently made clear that a registrant's "duty to keep the state police informed regarding [the required registry information] is a responsibility that has been statutorily imposed on him as a result of his sex offender status." State v. Beegle, 237 W.Va. 692, 698, 790 S.E.2d 528, 534 (2016) (citing W.Va. Code ยงยง 15-12-2, -3, -8). Instead of fulfilling his statutory duty, petitioner only returned to the detachment at an officer's direction in investigating a separate incident; he never ...

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