Randolph County 16-F-59
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.
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
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.
the circuit court denied petitioner's motion for a jury
view of the crime scene.
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.
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.
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 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.
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
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.
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
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
Syl. Pt. 4, State v. Guthrie, 194 W.Va. 657, 461
S.E.2d 163 (1995).
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
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."
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
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 ...