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State v. John H. B.

Supreme Court of Appeals of West Virginia

October 11, 2019

State of West Virginia, Plaintiff Below, Respondent
v.
John H. B., Defendant Below, Petitioner

          (Wayne County 17-F-013)

          MEMORANDUM DECISION

         Petitioner John H. B., [1] by counsel[2] Juston H. Moore, appeals the April 17, 2018, Trial Order and the subsequent August 14, 2018, Sentence Order of the Circuit Court of Wayne County. Respondent State of West Virginia, by counsel Zachary Aaron Viglianco, filed a summary response in support of the circuit court's orders.

         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.

         On October 19, 2016, petitioner was involved in a domestic disturbance at his home where he resided with his wife and two children, Drew and B.B. During the disturbance, petitioner discharged a firearm into the residence two times. Following this incident, the Wayne County Grand Jury returned a nine count indictment charging petitioner with six counts of wanton endangerment (Counts 1 through 6); attempted murder (Count 7); and two counts of gross child neglect creating risk of death or serious bodily injury (Counts 8 and 9).

         Petitioner waived his right to a jury trial and this matter proceeded to a bench trial on March 26, 2018. At trial, petitioner presented an insanity defense that was rejected by the trial court. The State's evidence at trial showed that, on October 19, 2016, petitioner consumed a significant amount of alcohol and was described by his wife, both children, and the responding West Virginia State Trooper, as intoxicated or very drunk. After a conversation with his elder child, Drew, where Drew expressed concern over petitioner's increased level of drinking, petitioner became agitated and attempted to instigate an argument with Drew. When Drew declined petitioner's invitations to escalate the situation, petitioner became upset and ordered Drew to go to his bedroom.

         Shortly thereafter, petitioner's wife came looking for Drew because he was supposed to assist in preparing dinner for the family. Per the State's evidence, petitioner informed his wife that she had "three minutes to talk to [Drew]." Petitioner's wife went to Drew's room and petitioner began demanding that Drew exit the room. Contemporaneous with petitioner's first demand that he come out, Drew heard "the sound of [a] gun being racked," that is, "the action being cycled and a round chambered." Drew testified that petitioner requested that he leave the bedroom "a few more times," and then petitioner fired a shot in the direction of Drew's bedroom where Drew and petitioner's wife were located. Petitioner also fired a shot toward the room of his younger child, B.B. The evidence presented at trial reflects that the bedrooms where the shots were fired were located close to one another, off of the same hallway. During the course of the exchange, petitioner's wife gave her cell phone to Drew and he dialed 9-1-1. As a result, Trooper Earl Ray Robinett of the West Virginia State Police arrived at the residence and arrested petitioner.

         At trial, the State presented testimony from all of the victims and Trooper Robinett. At the close of the evidence, the trial court found petitioner guilty on all offenses charged in the indictment.

         On April 27, 2018, the trial court held a sentencing hearing where it made an oral proclamation of petitioner's sentence. According to the court, petitioner was to be sentenced to a determinate period of incarceration of five years for each count of wanton endangerment; an indeterminate sentence of three to fifteen years for attempted murder; and an indeterminate period of one to ten years for each of the two counts of gross child neglect with risk of serious bodily injury. The trial court ordered that the sentences on Counts 1 through 3 would run concurrently with each other; that the sentences on Counts 4 through 6 would run concurrently with each other, but consecutively to Counts 1 through 3; and that the sentences on Counts 7 through 9 would run concurrently with each other, but consecutively to Counts 1 through 6.

         On August 10, 2018, the trial court held a hearing for purposes of clarifying petitioner's sentence. The court stated that it had previously misspoken as to petitioner's sentence. Notably, the sentencing order had not yet been entered. During the hearing, petitioner's counsel asked the court to run each of the sentences concurrently. The trial court announced that he "misspoke . . . on the record as to making one of these matters consecutive, when [he] meant to make it concurrent." The trial court corrected the sentences for Counts 8 and 9. Further, the circuit court ordered that the sentences for Counts 1 through 3 (wanton endangerment, with a determinate period of incarceration of five years) would run concurrently with each other; that the sentences for Counts 4 through 6 (wanton endangerment, with a determinate period of incarceration of five years) would run concurrently with each other, but consecutively to the sentences imposed for Counts 1 through 3; and that the sentence imposed for Count 7 (attempted murder, with a period of incarceration of not less than three years nor more than fifteen years) shall run consecutively to the sentences imposed for Counts 1 through 6; and that the sentences imposed for Counts 8 and 9 (gross child neglect creating risk of death or serious bodily injury, with a period of incarceration of not less than one year nor more than five years) shall run concurrently with each other, but consecutively to Counts 1 through 7. A sentencing order memorializing all of the foregoing was entered on August 15, 2018.

         Petitioner raises two assignments of error on appeal: the sufficiency of the evidence as to three of his wanton endangerment convictions and double jeopardy as to his sentence. We will address each in turn.

         Petitioner was found guilty of six counts of wanton endangerment. He challenges the sufficiency of the evidence as to three of the counts of wanton endangerment, notably conceding that the remaining three counts of wanton endangerment were proven at trial. He argues that the evidence presented at trial supports a conviction for one count of wanton endangerment for each of the three victims, instead of two counts for each victim. We disagree.

         Wanton endangerment is a statutory crime codified at West Virginia Code § 61-7-12. This Court has outlined the elements of wanton endangerment as follows: "(1) the defendant; (2) did wantonly perform; (3) with a firearm; (4) an act; (5) creating substantial risk of; (6) death or serious bodily injury to another." State v. Wright, 200 W.Va. 549, 553, 490 S.E.2d 636, 640 (1997).

         Petitioner's challenge is to the latter elements, specifically whether each victim was subjected to a substantial risk of death or serious bodily injury from both shots that petitioner fired. Petitioner argues that each victim only faced a substantial risk of death or serious injury from one gunshot, not two. At the core of petitioner's argument is the contention that the first shot was not fired directly at B.B. and the second shot was not fired directly at Judith and Drew. Accordingly, ...


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