Anthony Raheem Arriaga, by counsel Jane Moran, appeals the
order of the Circuit Court of Mingo County, entered on
January 18, 2018, sentencing him to consecutive terms of
imprisonment for life, with mercy, upon his conviction of
first-degree felony murder, one to five years upon his
conviction of conspiracy to commit first-degree murder, and
one to five years upon his conviction of conspiracy to commit
first-degree robbery. Respondent State of West Virginia
appears by counsel Patrick Morrisey and Scott E. Johnson.
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 order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.
from the Martin County, Kentucky, Sheriff's Department
and the Mingo County, West Virginia, Sheriff's Department
found the body of Bennett Hatfield in a brushy area near a
creek bed at the Mountain View Cemetery in Maher, West
Virginia, early one morning in May of 2016, after Mr.
Hatfield had been missing for a full day. It was apparent
that Mr. Hatfield had been shot, and officers collected
several articles of evidence near his body, including a
bloodied "hoodie" shirt and a toboggan, a cell
phone, a semi-automatic handgun, and a spent bullet. While
officers conducted their investigation, a nearby resident
approached them and told them that a man who identified
himself as Anthony Arriaga (and was clad only in underwear)
arrived at his residence the day prior, offering forty
dollars in exchange for transportation to Wayne County, West
Virginia. The man accepted the offer, but declined Mr.
Arriaga's request to take him to the cemetery before
proceeding on to Wayne County.
located and arrested Mr. Arriaga at his Ohio residence on the
evening of May 23, 2016. Upon arrest, Mr. Arriaga provided a
statement to the Mingo County Sheriff's Department deputy
who transported him from Ohio to West Virginia. The statement
reflects that Mr. Arriaga drove through Mingo County prior to
the murder with Brandon Fitzpatrick, intent on stealing an
automobile. The two men arrived at Mountain View Cemetery,
where they saw Mr. Hatfield placing flowers on a grave, and
saw that Mr. Hatfield drove a vehicle that they believe could
yield up to $15, 000 through illegal means. Mr. Arriaga
stated that he and Mr. Fitzpatrick exited the Chevrolet
Cavalier in which they had been traveling and Mr. Fitzpatrick
chided him to "do it, do it, do it. We can't have
any witnesses." Mr. Arriaga explained that he then shot
the small pistol he was carrying several times, hitting Mr.
Hatfield in the back. Mr. Fitzpatrick then drove away in the
Cavalier in which the two had arrived, leaving Mr. Arriaga to
take Mr. Hatfield's Denali or find other transportation.
Mr. Arriaga identified the toboggan and hoodie found at the
cemetery. In a later statement, Mr. Arriaga confirmed that he
used a semi-automatic pistol in the shooting.
Arriaga was indicted in the Circuit Court of Mingo County on
one count of first-degree murder, one count of first-degree
robbery, one count of conspiracy to commit first-degree
murder, and one count of conspiracy to commit first-degree
robbery. At trial, Mr. Arriaga testified on his own behalf
and generally testified that he had faced many challenges in
his life. His testimony concerning the criminal events was
not consistent with the statements he earlier gave to police.
He testified that Mr. Fitzpatrick was driving the car the day
Mr. Hatfield was killed, and that he was not aware that Mr.
Fitzpatrick planned to rob Mr. Hatfield when Mr. Fitzpatrick
pulled the car into the cemetery. He testified that Mr.
Fitzpatrick shot Mr. Hatfield and then ran to, and drove away
in, the Cavalier. He also testified that Mr. Fitzpatrick was
with his (Mr. Arriaga's) mother when Mr. Arriaga was
arrested, and that Mr. Fitzpatrick had made threats against
Mr. Arriaga's mother that induced Mr. Arriaga to take the
blame for the Hatfield murder. Mr. Arriaga was convicted in a
jury trial of felony murder, conspiracy to commit
first-degree murder, and conspiracy to commit first-degree
robbery. He was sentenced as described above.
appeal, petitioner asserts four assignments of error: first,
that the evidence was insufficient to support the jury
verdict; second, that the court gave "inadequate and
confusing" instructions concerning the meaning of
"attempt[;]" third, that the prosecuting attorney
engaged in misconduct; and, fourth, that the circuit court
erred in denying Mr. Arriaga's motion to suppress the
statement that he gave to police.
Arriaga's first assignment of error is premised on his
assertion that there is no clear West Virginia law defining
"robbery." The lack of clarity, he argues, impaired
the jurors' ability to evaluate his intent in committing
the crime underlying his felony-murder conviction or, absent
the predicate offense, his specific intent in murdering Mr.
Hatfield. Though Mr. Arriaga characterizes this assignment of
error as one implicating the sufficiency of the evidence
under which he was convicted, he does not discuss the
evidence but instead argues that confusion in the law
"fail[ed] to provide notice of the charges imposed on
him which is his Constitutional right and his right to
fundamental fairness of the proceedings against him. . .
." Based on the language used by petitioner, we construe
the challenge as one to the indictment, and our review is de
novo. See Syl. Pt. 2, State v. Miller, 197
W.Va. 588, 476 S.E.2d 535 (1996). We note, however, that
Rule 12(b)(2) of the West Virginia Rules of Criminal
Procedure requires that a defendant must raise any objection
to an indictment prior to trial. Although a challenge to a
defective indictment is never waived, this Court literally
will construe an indictment in favor of validity where a
defendant fails timely to challenge its sufficiency. Without
objection, the indictment should be upheld unless it is so
defective that it does not, by any reasonable construction,
charge an offense under West Virginia law or for which the
defendant was convicted.
Miller, 197 W.Va. 592-93, 476 S.E.2d at
539-40, syl. pt. 2. Petitioner has not directed our attention
to the preservation of this issue in the appendix record on
appeal. Our consideration is thus limited to the question of
whether a charge of robbery yields an indictment "so
defective" that it fails to charge a cognizable crime.
Though petitioner argues that the elements of robbery are
uncertain in our state, that is not so. West Virginia Code
§ 61-2-12(a) (2010) criminalizes the act of robbery, but
we have recognized that this statute does not actually define
the crime. See State v. Harless, 168 W.Va. 707, 710,
285 S.E.2d 461, 464 (1981). For that reason, we have
clarified that "[t]he elements of robbery, unaffected by
the statute, are derived from the common law[.]"
State v. England, 180 W.Va. 342, 347, 376 S.E.2d
548, 553 (1988). The prohibited conducted is explained:
"At common law, the definition of robbery was (1) the
unlawful taking and carrying away, (2) of money or goods, (3)
from the person of another or in his presence, (4) by force
or putting him in fear, (5) with intent to steal the money or
goods." Harless, 168 W.Va. at 707, 285 S.E.2d
at 462, syl. pt. 1. We find our jurisprudence sufficient to
have alerted petitioner of the elements of the crime
underlying his felony murder conviction, and, thus, conclude
that there is no error.
second assignment of error, petitioner complains that the
jury was inadequately instructed concerning the
"attempt" to commit a crime. We agree with the
State that petitioner failed to preserve this assignment of
error with a timely objection to the jury charge. "The
general rule is that a party may not assign as error the
giving of an instruction unless he objects, stating
distinctly the matters to which he objects and the grounds of
his objection." Syl. Pt. 8, State v. Garrett,
195 W.Va. 630, 466 S.E.2d 481 (1995) (citation omitted).
Nevertheless, we find that "the charge, reviewed as a
whole, sufficiently instructed the jury so they understood
the issues involved and were not mislead by the law."
Syl. Pt. 4, in part, State v. Guthrie, 194 W.Va.
657, 461 S.E.2d 163 (1995). There is no error.
to petitioner's third assignment of error, wherein he
argues that the prosecuting attorney engaged in misconduct by
failing to produce three cell phones taken from Mr.
Fitzpatrick upon his arrest. The State rightly points out that
the circuit court gave, at the request of Mr. Arriaga and
over the objection of the State, a "missing
evidence" instruction. See Syl. Pt. 2,
State v. Osakalumi, 194 W.Va. 758, 461 S.E.2d 504
(1995). It explained to the jury:
If you find that the State has lost, destroyed, or failed to
preserve any evidence whose contents or quality are material
to the issues in this case, then you may draw an inference
unfavorable to the State which may in itself create a
reasonable doubt as to the Defendant's guilt.
petitioner asserts that this instruction was insufficient to
address the prosecuting attorney's misconduct, we simply
find no evidence of misconduct. Three cell phones have gone
unaccounted. That fact alone does not impute bad behavior to
the State. We find that the circuit court adequately