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State v. Bohigian

Supreme Court of Appeals of West Virginia

November 8, 2019

State of West Virginia, Plaintiff Below, Respondent
v.
Robert Jack Bohigian, Defendant Below, Petitioner

          Marion County 17-F-24

          MEMORANDUM DECISION

         Petitioner Robert Jack Bohigian, by counsel David M. Grunau, appeals the Circuit Court of Jackson County's April 17, 2018, order sentencing him to an indeterminate term of one to ten years of incarceration, suspended for three years of probation, following his conviction of entry of a building other than a dwelling in violation of West Virginia Code § 61-3-12.[1] Respondent State of West Virginia, by counsel Elizabeth Davis Grant, filed a response. On appeal, petitioner asserts that the circuit court erred in denying his motion to set aside the verdict and grant a new trial when there was insufficient evidence to support his conviction and when the jury instructions were inadequate.

         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.

         Petitioner and Rehana Kaukab entered into an agreement whereby petitioner agreed to help Ms. Kaukab sell her deceased brother's building that previously housed his medical practice. At some point, Ms. Kaukab entered the building and discovered several items missing, including a dining table, an exam table, a sink, a toilet, and a bathtub. In the ensuing investigation, the items were discovered in petitioner's possession. In February of 2017, petitioner was indicted on one count of entry of a building other than a dwelling and one count of grand larceny.[2]

         Petitioner's trial commenced in January of 2018. The State presented the testimony of four witnesses. Officer Alexander Eakle of the Fairmont Police Department testified that he responded to the office building following a report of breaking and entering. Officer Eakle stated that he spoke to Ms. Kaukab at the scene and noted that there was a communication barrier due to the fact that English was not Ms. Kaukab's first language. Nevertheless, Officer Eakle was able to determine that the office "had been broken into and multiple items were taken from it." In the course of his investigation, Officer Eakle met with petitioner, who explained that he owned and operated a business wherein he would "go in and take down homes or other structures that people did not want and sell the items or the property." While at petitioner's place of business, Officer Eakle observed several of the items Ms. Kaukab reported stolen from her building.[3]

         The State also presented the testimony of Misti and Jason Barr, former employees of petitioner. Ms. Barr testified that part of her job duties included taking pictures of items petitioner was selling and posting those items on eBay. During her employment, Ms. Barr became familiar with Ms. Kaukab's office building. Ms. Barr testified that petitioner told her that Ms. Kaukab "told him to clear the building and get it prepared to sell." Petitioner directed the Barrs to remove the dining table, exam table, sink, toilet, and bathtub from the building for the purpose of selling the items on eBay. Ms. Barr testified that Ms. Kaukab was never present at the building while they were working and noted that petitioner had commented that he intended to "keep [Ms. Kaukab] away from there." Lastly, Ms. Barr testified that petitioner instructed her to list the item's prices as follows: $400 for the toilet, $500-$600 for the exam table, $600 for the bathtub, and $800 for the dining table.

         Ms. Kaukab testified that she engaged petitioner to sell her deceased brother's office building around 2015. The parties did not enter a written contract, but Ms. Kaukab testified that she never gave petitioner permission to remove any items from the building. Ms. Kaukab identified the items found in petitioner's possession as the items that had been removed from her building.

         Following the testimony of the State's witnesses, petitioner moved to dismiss the grand larceny charge, arguing that the State had not met its burden of showing the value of the items taken exceeded $1, 000. The circuit court denied petitioner's motion, finding that Ms. Barr's testimony regarding the value petitioner had assigned to the items was sufficient. Petitioner then testified on his own behalf, stating that he did have the items removed from the building. However, petitioner denied intending to sell the items. Rather, petitioner stated that he directed the Barrs to remove the items "because the floors in the building were only supported by the carpeting" and that the items had to be removed before they collapsed into the basement.

         After deliberations, the jury found petitioner guilty of entry of a building other than a dwelling, but acquitted him of the grand larceny charge. Following trial, petitioner moved the circuit court to either set aside the verdict or grant him a new trial, arguing that there was not sufficient evidence presented to support the requisite criminal intent, that the circuit court erred by allowing the jury to consider the grand larceny count, and that petitioner's trial counsel was ineffective. The circuit court heard argument on petitioner's motion on March 2, 2018, but ultimately denied the motion. At the sentencing hearing, petitioner was sentenced to not less than one nor more than ten years of incarceration for his entry of a building other than a dwelling conviction. However, the circuit court suspended his sentenced and placed petitioner on probation for three years. It is from the April 17, 2018, sentencing order that petitioner appeals.

         We have previously held as follows:

"In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review." Syl. Pt. 2, Walker v. West Virginia Ethics Comm'n, 201 W.Va. 108, 492 S.E.2d 167 (1997).

Syl. Pt. 2, State v. Bruffey, 207 W.Va. 267, 531 S.E.2d 332 (2000).

         On appeal, petitioner argues that the circuit court erred in denying his post-trial motion to set aside the jury verdict or his motion for a new trial when there was insufficient evidence to support the verdict. Petitioner argues that the State must have failed to prove that he had the intent to commit grand larceny given that the jury acquitted him of that charge. Therefore, the circuit court erred in not setting aside the jury's verdict on the other charge or granting him a new trial as that charge was based upon his intent to commit grand larceny. In support, petitioner argues that the State presented no credible evidence on the issue of intent. Specifically, he contends that neither Ms. Kaukab, Ms. Barr, nor Officer Eakle testified to petitioner's intent when he entered the building to remove the items and, therefore, the State was unable to prove he had the intent to commit grand larceny in the context of the charged crime of entry of a building other than a dwelling. Lastly, petitioner argues that the circuit court erred in failing to provide jury instructions including the definition of the term "larceny." According to petitioner, the jury convicted him of the entry of a building other than a dwelling charge on a lesser larceny given his belief that it found he lacked the requisite intent to commit grand larceny when he entered the building. Based on the foregoing, petitioner concludes that the circuit court erred in refusing to set aside his verdict or grant him a new trial when there was insufficient evidence to support his conviction. Having reviewed the record, we find no merit in petitioner's arguments.

         First, this Court finds no merit to petitioner's arguments that the circuit court erred in omitting an instruction on the underlying crime of "any larceny."[4] In regard to these assignments of error, it is important to note that petitioner did not object to the jury instructions given below. As such, pursuant to Rule 30 of the West Virginia Rules of Criminal Procedure, this ...


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