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State v. Davis

Supreme Court of Appeals of West Virginia

October 11, 2019

State of West Virginia, Plaintiff Below, Respondent
v.
Vincent Paul Davis, Defendant Below, Petitioner

          (Harrison County 18-F-97-1)

          MEMORANDUM DECISION

         Petitioner 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.

         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 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.

         Patrolman 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.

         On May 9, 2018, petitioner was indicted on one count of breaking and entering in violation of West Virginia Code § 61-3-12.[1] 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 unit?
A. I seen these two coming out, that's the first time I seen them.
Q. Okay. But you had seen the guy in the red shirt [petitioner] come out of that unit before then?
A. Correct.
. . . .
Q. Okay. So you've seen [petitioner] walk out of that townhouse?
A. Right out of that last door.
Q. From this vantage point? You see him walk out of the townhouse?
A. Yep.
Q. Okay. Is it possible that [petitioner] was smoking a cigarette around the corner and you didn't see him?
A. No.
Q. That's not ...

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