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State v. Wegman

Supreme Court of West Virginia

June 7, 2019

State of West Virginia, Plaintiff Below, Respondent
Nathaniel Ray Wegman, Defendant Below, Petitioner

          Randolph County 16-F-59


         Petitioner Nathaniel Ray Wegman, by counsel Brian W. Bailey and Steven B. Nanners, appeals the November 3, 2017, order sentencing him for his convictions of attempted first-degree murder under West Virginia § 61-11-8(1); malicious assault on a government representative under West Virginia Code § 61-2-10b; and misdemeanor fleeing under West Virginia Code § 61-5-17(d). The State of West Virginia, by counsel Benjamin F. Yancey, III, filed a response in support of the circuit court's order.

         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 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.

         In 2016 petitioner was indicted on the three counts set forth above. The charges arose from petitioner's attack on State Trooper J.J. Cornelius in a creek in Randolph County.

         Pretrial, the circuit court denied petitioner's motion for a jury view of the crime scene.

         Petitioner's two-day trial commenced on July 12, 2017. The State called the victim, Trooper Cornelius (the "trooper"), who testified as follows: On March 16, 2016, the trooper attempted to apprehend petitioner on a fugitive from justice warrant from Indiana, and to question petitioner regarding a local investigation on another matter. The trooper found petitioner at a trailer in Beverly, identified himself, told petitioner about the warrant for petitioner's arrest, and said he was going to transport petitioner to the police station. Petitioner ran out of the trailer toward Mill Creek, about 200 feet away. The trooper followed petitioner and yelled for him to stop. The trooper followed petitioner into the creek, which was about eighteen inches deep with a very swift current. The trooper grabbed petitioner by the shirt. Petitioner spun around, put the trooper in a "headlock," and both men fell into the creek due to petitioner's actions. When the trooper fell, he hit his head on the rocks, which disoriented him. Petitioner pinned the trooper's face under the water. Petitioner was partially laying on the trooper and the trooper's chest was pinned against the rocks on the creek base. The trooper "was losing oxygen fast" and "wasn't able to get a breath." The trooper managed to push himself out of the water and catch one breath before petitioner again shoved him back under the water and held him there. The trooper was getting very weak; he felt he was drowning and believed petitioner was going to kill him. The trooper could not reach his service revolver because it was pinned under his body. The trooper was able to pull his service knife out of his pocket and open it with one hand. He "poked" petitioner in the side with the knife, but petitioner continued to hold him under the water. The trooper stabbed petitioner's left side and, even though petitioner's arm was still around his neck, the trooper started to come up out of the water. The trooper then cut petitioner's face and petitioner let him go. At that point, the trooper's head was out of the water, but he was "extremely weak." The trooper floated about twenty feet downstream. With just his head and arm above water, the trooper pulled his service revolver on petitioner, but he did not fire as he was so weak he could hardly hold the revolver. The trooper looked away because he heard someone calling out. When he looked back, he saw petitioner running away.

         The State's next witness was Joseph Austin who lives near Mill Creek. Mr. Austin testified as follows: Mr. Austin arrived at the creek and saw the trooper lying in the creek with his head bobbing in and out of the water. The trooper had one hand around a rock and the other hand holding a gun pointed at petitioner. Mr. Austin called out to the trooper and asked if the trooper needed help. Mr. Austin entered the creek to assist the trooper. The water in the creek was about knee deep and the current almost knocked him off his feet. Mr. Austin carried the trooper out of the water and, as he did, saw petitioner walking away. The trooper was losing consciousness, so Mr. Austin called 911. Additional troopers and an ambulance arrived at the scene.

         Other police officers testified as follows: Petitioner was captured later that day. Petitioner had stab wounds primarily to his abdomen and chin, and had lost considerable blood by the time the police found him in the woods. The police arrested petitioner and read him his Miranda[1] rights. Petitioner was taken by helicopter to a hospital, where he received thirty to forty stitches for his stab wounds, but he was released from the hospital the next day.

         During their deliberations, the jury sent a question to the circuit court asking for the definition of attempted first-degree murder. The parties agreed that the court would re-read Instruction No. 1 to the jury that contained the statutory definition of attempted first-degree murder found in West Virginia Code § 61-11-8 (the attempt statute) and § 61-2-1 (the statute defining first-degree murder). Thereafter, the jury found petitioner guilty on all three counts.

         On November 3, 2017, the circuit court sentenced petitioner to (1) not less than three nor more that fifteen years in prison for his attempted first-degree murder conviction; (2) not less than three nor more that fifteen years in prison for his malicious assault against a government representative conviction; and (3) twelve months for his misdemeanor conviction for fleeing from an officer on foot. The court ordered that the three sentences run consecutively.

         Petitioner now appeals and raises six assignments of error. Petitioner first argues that the circuit court erred in failing to give his proposed jury instruction that would have allowed the jury to consider the lesser-included "attempt" offenses under West Virginia Code § 61-11-8, and either an "unlawful assault" or "battery" under West Virginia Code § 61-2-10b, as opposed to "malicious assault" as defined in that same section.

         "As a general rule, the refusal to give a requested jury instruction is reviewed for an abuse of discretion." Syl. Pt. 1, in part, State v. Shingleton, 222 W.Va. 647, 671 S.E.2d 478 (2008) (quoting Syl. Pt. 1, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996)).

A trial court's instructions to the jury must be a correct statement of the law and supported by the evidence. Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not mislead by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. A trial court, therefore, has broad discretion in formulating its charge to the jury, so long as the charge accurately reflects the law. Deference is given to a trial court's discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed only for an abuse of discretion.

Syl. Pt. 4, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

         The circuit court denied petitioner's proposed "lessor included" jury instruction that set out the differences between "attempted first-degree murder" and "attempted second-degree murder," and also denied his proposed jury instructions on the lesser-included offenses of "assault [as opposed to malicious assault] of a governmental representative" and "battery of a governmental representative." Petitioner argues that the circuit court's refusal to instruct the jury on these lesser-included offenses was error because it effectively gave the jury an "all or nothing" choice: conviction or acquittal. Petitioner avers this was particularly problematic where only petitioner and the trooper witnessed the entire event, and Mr. Austin saw only the aftermath and, according to petitioner, had credibility problems.

         Petitioner also claims that an attempted second-degree murder instruction was necessary because (1) the evidence pointed toward a very brief, heat-of-passion, confrontation between petitioner and the trooper; and (2) the sentence for attempted murder in the first-degree is three to fifteen years in prison while the sentence for attempted murder in the second-degree is only one to three years in prison. As for petitioner's proposed instruction regarding "assault of a governmental representative" and "battery of a governmental representative," he maintains they were proper because the jury could have interpreted the evidence as proving those crimes, particularly where the trooper's injuries were superficial. Petitioner notes that, at trial, his counsel asked the trooper: "[T]he hospital showed you had no concussion or anything more significant than scrapes and the contusion on your head, correct?" The trooper replied, "It-it said something like, head injury and things like that, I was not diagnosed with concussion that I can recall." The trooper also admitted that the entire event "[w]as a blur."

         Finally, petitioner asserts that the attempted first-degree murder instruction clearly confused the jury given that it asked for the definition of attempted first-degree murder during its deliberations. Petitioner opines that the jury's question implies that the jurors were contemplating a lesser-included offense.

         Petitioner cites to no location in the record on appeal where he requested an attempted second-degree murder instruction. "Ordinarily, a party must raise his or her objection contemporaneously with the trial court's ruling to which it relates or be forever barred from asserting that that ruling was in error." State v. Whittaker, 221 W.Va. 117, 131, 650 S.E.2d 216, 230 ...

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