McDowell County 17-AP-7-S
Michael Armstrong, by counsel John H. Bryan, appeals the
Circuit Court of McDowell County's March 23, 2018, order
denying his appeal of his conviction of obstructing an
officer. The State, by counsel Holly M. Flanigan, filed a
response and a supplemental appendix. Petitioner filed a
reply. On appeal, petitioner alleges that the circuit court
erred in convicting him of obstruction using a lesser
standard of proof than "beyond a reasonable doubt."
Petitioner also contends that he was not provided a copy of
the body camera footage and one of the officers involved in
his arrest was on administrative leave during trial.
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.
November 22, 2016, four police officers were dispatched to a
home petitioner shared with his aunt in response to a
domestic violence-related 9-1-1 call. During the
officers' inquiry, petitioner refused their attempt to
perform a Terry frisk, and he was ultimately arrested
for obstructing an officer. Petitioner was tried and
convicted in magistrate court of obstructing an officer in
violation of West Virginia Code § 61-5-17(a). At
sentencing, the magistrate court imposed associated court
costs and sentenced petitioner to time served. He appealed
his conviction to circuit court and the circuit court held a
bench trial on May 15, 2017. The State presented the
testimony of Welch City Police Department Patrolman Patrick
McKinney and West Virginia State Troopers C.A. Dunn, Ralph
Justus, and Eric W. Boothe. The State also presented the
audio recording of petitioner's statement to Trooper
Boothe and a DVD containing the footage from Patrolman
McKinney's body camera from the night of the arrest.
Trooper Dunn testified that he and the three other officers
received the call regarding a domestic violence dispute at
petitioner's residence and all four officers went to the
home. Trooper Dunn explained that, as they approached the
home, they could hear "yelling" and "really
loud talking in an aggressive manner." According to
Trooper Dunn, petitioner continued to speak in a hostile and
aggressive manner, even after Trooper Justus told him several
times to "relax, calm down." Trooper Dunn described
the scene as "kind of a tense situation. [Petitioner]
had been yelling at the female, the older female that was in
the residence." Trooper Dunn believed a Terry
frisk was important "[f]or everyone's safety, due to
the demeanor and the-aggressive talking and yelling . . .
anytime we're on a call like that . . . officers will
complete that Terry frisk just for officer safety to
make sure there's no weapons, sharp objects," or
other items that may endanger persons present. Trooper Dunn
observed Trooper Justus inform petitioner that he was going
to conduct a Terry frisk, which he then attempted.
However, when Trooper Justus attempted to gain control of
petitioner's hands, petitioner tensed up and jerked his
hands away. According to Trooper Dunn, Trooper Justus could
not get petitioner's hands under control and "took
him to the floor," while continuing to instruct him to
stop resisting. Then, because petitioner continued to resist,
it was necessary for Trooper Boothe to assist Trooper Justus.
The officers were eventually able to handcuff petitioner.
Boothe corroborated Trooper Dunn's testimony and stated
that, following the arrest, the officers took petitioner to
the Welch detachment of the State Police for processing.
There, Trooper Boothe informed petitioner of his
Miranda rights and took the following recorded
Trooper Boothe: This is Trooper E.W. Boothe, [West Virginia]
State Police, Welch Detachment. Today's date is
11-22-2016. Time now is 23:14. Here present at the Welch
Detachment . . . state your name.
Petitioner: Michael Anthony Armstrong.
Trooper Boothe: Alright Mr. Armstrong, I've uh read you
your Miranda rights from a copy of your card,
Petitioner: Yes, sir.
Trooper Boothe: So what, uh, [why] did we come in contact
with you tonight?
Petitioner: My [aunt] called because we were in an argument
and she wished to have me evicted from the home. . . .
Trooper Boothe: Okay. Um. Once myself and the other troopers,
me and . . . Trooper Justus, . . . Trooper Dunn, and Welch
Police Officer Pat McKinney arrived at your house . . .
Trooper Justus, uh asked you to stand up and speak to you,