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State v. Elswick

Supreme Court of West Virginia

June 3, 2019


          Wirt County No. 17-F-9


         The petitioner, Dale Freeman Elswick, by counsel Dana F. Eddy and Brendan Doneghy, appeals the Circuit Court of Wirt County's November 20, 2017, order denying his motion for a new trial and sentencing him on his burglary conviction following a jury trial. The respondent State of West Virginia ("State"), by counsel Patrick Morrisey, West Virginia Attorney General, and Shannon Frederick Kiser, Assistant Attorney General, filed a response. The petitioner asserts that the State's evidence was insufficient to prove that he broke and entered a "dwelling house" and, therefore, insufficient to convict him of burglary.

         Upon consideration of the standard of review, the briefs, the appendix record presented, and oral argument, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

         I. Facts

         On September 9, 2016, William Ward called the Wirt County Sheriff's Department to report a burglary at a neighboring house that he kept an eye on for the out-of-state owner, Lois Blubaugh ("Lois"). The house suffered flood damage in 2004. Prior to the flood, Lois's daughter, Pam Blubaugh ("Pam"), had resided in the house.[1] No one has lived in the house since the 2004 flood. Following a criminal investigation, the petitioner was indicted on March 27, 2017, on one count of "Burglary by unlawfully and feloniously, breaking and entering the dwelling house of Lois Jean Blubaugh located at 48 Daniel's Run Road, Palestine, West Virginia" in violation of West Virginia Code § 61-3-11 (2014).[2] The petitioner's one-day trial was held on September 18, 2017. The State presented the testimony of Mr. Ward, who explained that although the subject house was flooded in 2004, and the utilities were disconnected, there were no exterior indicators that the house had been flooded. Mr. Ward described the house as in "good shape" structurally, adding that the roof was fine; there were no broken windows in the house; and the front deck was solid. He stated he had earlier placed "no trespassing" signs around the property. Mr. Ward explained that he routinely watched over the house for Lois and Pam; that he made note of its exterior three or four times a day as he would drive by it; and that he had never seen the front storm door or main door open. According to Mr. Ward, Pam and Lois checked on the property "once a year or so," noting that Pam "still had a lot of personal belongings in the house . . . ."

         Testifying further, Mr. Ward stated that on the day in question, he saw a vehicle he did not recognize parked outside the subject house. He drove over to the house and blocked the egress of the unknown vehicle with his own vehicle. He observed a gun rack and mirror on the front porch and the petitioner exiting the house carrying light fixtures and a large screw driver. He also observed fresh marks on the front door jamb that looked as if someone had pried the door latch loose.

         Mr. Ward confronted the petitioner as he came out of the house, asking him, "[W]hat are you doing?" When the petitioner responded that he was "getting a few things" from the house because he thought it was abandoned, Mr. Ward told the petitioner, "Well, it's not. They just don't live there right now." Mr. Ward oversaw the petitioner's return of the items to the house and directed the petitioner to show him the trunk of his vehicle to assure himself that nothing was being taken. Sometime after the petitioner departed, Mr. Ward telephoned the local Sheriff's office to report the crime. Wirt County Deputy Dillon Goodnight spoke to Mr. Ward and visited the house a few days later.

         The State's next witness was Deputy Goodnight. The deputy testified to observing evidence of recent marks on the front door jamb where it looked as if the front door had been pried open. When questioned regarding the condition of the house, the deputy stated the house was not "a bad looking house at all on the outside" and that all the windows and doors were intact. He did note that the surrounding foliage was overgrown and he could tell that no one had been there in a while.

         In further describing his investigation, Deputy Goodnight testified that he interviewed the petitioner twice and each time he admitted that he had gone into the house and claimed the front door was already opened; that he thought the house was abandoned; and that he was going to take a few things. Deputy Goodnight also testified concerning his interview of Pam Blubaugh, who "seemed kind of distraught" when he told her what had happened at the house. The deputy added that when he informed Lois Blubaugh that someone had broken into her house, she expressed her desire to pursue charges because "it was her house and someone was in it" and "they had intentions" of repairing the house and "moving back in."

         On cross-examination, Deputy Goodnight indicated he has observed problems with the interior of the house, such as floor boards coming up and part of the living floor being sunken. When asked if he saw mold in the house on items and on the walls, he testified that he observed some white stuff, but he did not know what it was; he later testified that he believed the substance was either mold or mildew.[3] In response to the inquiry of whether the house was habitable, the deputy replied, "You can't live in it right now." The photographs the deputy had taken of the house were admitted into evidence.

         The State's final witness was Lois Blubaugh. She testified that in 2012, her daughter Pam deeded the house to the Blubaugh Revocable Trust for which she (Lois) is the owner and trustee.[4]Lois stated that prior to a flood in 2004, Pam had lived in the house and she had stayed there when she visited Pam, but that Pam had not lived in the home since it flooded. Lois testified that the property taxes were current; that the contents of the home had value to her; and that she visited the property at least annually to make certain the doors and windows were locked. She added that Pam checked on it more frequently. Testifying further, Lois stated that she had turned down prospective buyers for the property because it was her intent for Pam to move back into the house, explaining that Pam "loves the property" and "would like to move back on that property." Lois confirmed that the home needed repairs[5] and that she had made plans in that regard, although there had been some delay due to her health problems. She testified that she had explored companies that can repair flood damage; that she currently had a piece of property for sale in Pennsylvania; that she would use the proceeds from that sale to repair the house so that Pam "could move back there"; and that she would again visit Pam there.

         After the State rested its case, the petitioner moved for a directed verdict of acquittal, arguing that the State had failed to prove that the house was a "dwelling house" under the burglary statute, West Virginia Code § 61-3-11.[6] He argued that all of the objective evidence at trial showed the house had been uninhabitable since 2004, and that no one had lived in the house since that time. The State countered that under West Virginia law, a "dwelling house is a dwelling house until nobody intends to live there any longer." The circuit court denied the petitioner's motion and found that the evidence showed it is the owner's intent to repair the house so that her daughter can return to live there. The circuit court further ruled it was "a question of fact for the jury whether [the house] is a dwelling house." The defendant did not call any witnesses at trial.

         Regarding what constitutes a "dwelling house" for purposes of the crime of burglary, the trial court instructed the jury as follows:[7]

The term "Dwelling House" means any structure primarily designed for human habitation and occupancy and used as a dwelling regularly or from time to time.
A building suitable for residential purposes, having been so designated and used, being equipped with household furnishings, remains a dwelling house though temporarily unoccupied, if the absence of the householder be with the intent to return. Entry of such temporarily unoccupied building by breaking and entering, with intent to commit a larceny therein[, ] constitutes Burglary.
A structure is no longer a "dwelling house" for purpose of West Virginia's Burglary Statute, WV Code 61-3-11, when its occupants leave it without any intention of returning.

         During closing arguments, the State argued that the property was not abandoned; that the damage to the home was all interior; and that the exterior gave no outward indication as to the condition of the interior. The State further argued that a "dwelling house is a dwelling house if someone lived in it, either full-time or part-time." Arguing futher, the State asserted that whether the house was habitable did not "come into play[, ]" highlighting Lois Blubaugh's testimony concerning her intent to restore the property so that her daughter, who previously lived there, could return to do so. Defense counsel argued that a house remains a "dwelling house" if it is lived in regularly or from time to time and that being temporarily unoccupied does not mean every thirteen years, which belied any intent to ...

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