(Harrison County 18-F-97-1)
Vincent Paul Davis, by counsel Eric D. Householder, appeals
the Circuit Court of Harrison County's September 27,
2018, order sentencing him to not less than one nor more than
ten years of incarceration following his breaking and
entering conviction. Respondent State of West Virginia, by
counsel Mary Beth Niday, filed a response.
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 4, 2017, a new townhome complex was nearing
completion when William Barnett, who lived nearby, noticed
unusual activity at one of the townhomes. Mr. Barnett
retrieved his camera and began taking pictures of three
individuals loading appliances, including a refrigerator,
heater, water heater, and HVAC blower motor, onto a truck
trailer parked behind the townhome while his wife phoned the
police. After the three individuals noticed Mr. Barnett
taking pictures, two ran into the townhome while the third
removed the items from the trailer. The third individual then
got into his truck and drove away.
Jeremy Randolph with the Clarksburg Police Department
responded to the townhomes and observed petitioner driving
the truck and empty trailer away. Patrolman Randolph
initiated a stop of petitioner's vehicle, and interviewed
petitioner regarding his presence at the townhomes.
Petitioner stated that he was asked by two individuals, who
had noticed petitioner's trailer, to assist with hauling
materials for them from the townhomes to a storage unit in
exchange for fifty dollars. The individuals claimed that
their father owned the townhomes. As petitioner was smoking a
cigarette during the loading process, he noticed a man taking
pictures. Petitioner informed the two other men of this fact
and they ran into the townhome. Petitioner claimed that he
then realized something was amiss and unloaded the trailer.
As he was driving away, he heard Patrolman Randolph's
sirens and stopped his truck.
9, 2018, petitioner was indicted on one count of breaking and
entering in violation of West Virginia Code §
61-3-12. Petitioner was tried on July 12, 2018. At
trial, Mr. Barnett testified regarding his observations of
the individuals at the townhomes:
Q. Did you see all three of them going in and out of that
A. I seen these two coming out, that's the first time I
Q. Okay. But you had seen the guy in the red shirt
[petitioner] come out of that unit before then?
. . . .
Q. Okay. So you've seen [petitioner] walk out of that
A. Right out of that last door.
Q. From this vantage point? You see him walk out of the
Q. Okay. Is it possible that [petitioner] was smoking a
cigarette around the corner and you didn't see him?
Q. That's not ...