State of West Virginia v. Richard H. Corbin II ( 2017 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia,
Plaintiff Below, Respondent FILED
September 5, 2017
vs) No. 16-0655 (Morgan County 15-F-42) RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
Richard H. Corbin II, OF WEST VIRGINIA
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Richard H. Corbin II, by counsel J. Mark Sutton, appeals the Circuit Court of
Morgan County’s June 28, 2016, order sentencing him to a term of incarceration of one to five
years for his conviction of failure to update sex offender registration. The State, by counsel
Gordon L. Mowen II, filed a response and a supplemental appendix. Petitioner filed a reply. On
appeal, petitioner argues that the circuit court erred in denying his motion to suppress and his
motion to dismiss the indictment.
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.
In July of 2014, a West Virginia State Trooper observed a red Dodge Durango heading
south on Winchester Grade Road in Morgan County. The vehicle had a license plate number of
9W9584 and was registered to Richard Henry Corbin, petitioner’s father. The trooper observed
the vehicle pull into a driveway and immediately turn around to travel on the same road in the
opposite direction. According to the trooper, he believed this behavior was suspicious and
possibly indicated that the vehicle’s occupants were surveying the home to later burglarize the
same. The trooper continued to follow the vehicle, which pulled into a second driveway. At this
point, the trooper initiated contact with the vehicle’s occupants. The trooper determined that
Jessica Evans was driving the vehicle and petitioner, a registered sex offender, was a passenger.
Ms. Evans explained they were looking for a lost dog. The trooper eventually cited Ms. Evans
for driving on a suspended license before ending his encounter with the vehicle’s occupants.
However, the State Police later determined that the vehicle in question was listed on
petitioner’s sex offender registry forms. Per petitioner’s forms, the vehicle’s license plate number
was 2LH387, not 9W9584. As such, petitioner’s sex offender registry forms did not properly list
the license plate number for the vehicle. As a result, petitioner was indicted on a charge of failing
to properly update and/or maintain the information on his sex offender registry forms in
September of 2015.
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Following his indictment, petitioner filed a motion to suppress the evidence that his sex
offender registry information was outdated. According to petitioner, the trooper lacked probable
cause to initiate the traffic stop in question. Petitioner also filed a motion to dismiss the
indictment and alleged that he could not be guilty of failing to update his sex offender registry
information because he erroneously listed his father’s Durango in the first instance. The circuit
court denied both these motions. In April of 2016, petitioner entered a plea of no contest to the
charge of failure to update his sex offender registration. Petitioner reserved the right to appeal the
circuit court’s denial of his pre-trial motions. In June of 2016, the circuit court sentenced
petitioner to a term of incarceration of one to five years but suspended that sentence in favor of a
term of five years of probation. It is from the sentencing order that petitioner appeals.
We have held as follows:
“In reviewing the findings of fact and conclusions of law of a circuit court
. . . , we apply a three-pronged standard of review. We review the decision . . .
under an abuse of discretion standard; the underlying facts are reviewed under a
clearly erroneous standard; and questions of law and interpretations of statutes
and rules are subject to a de novo review.” Syllabus Point 1, State v. Head, 198
W.Va. 298, 480 S.E.2d 507 (1996).
Syl. Pt. 1, in part, State v. Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010). Further, we have
explained as follows:
1. “When reviewing a ruling on a motion to suppress, an appellate court
should construe all facts in the light most favorable to the State, as it was the
prevailing party below. Because of the highly fact-specific nature of a motion to
suppress, particular deference is given to the findings of the circuit court because
it had the opportunity to observe the witnesses and to hear testimony on the
issues. Therefore, the circuit court’s factual findings are reviewed for clear error.”
Syllabus point 1, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996).
2. “In contrast to a review of the circuit court’s factual findings, the
ultimate determination as to whether a search or seizure was reasonable under the
Fourth Amendment to the United States Constitution and Section 6 of Article III
of the West Virginia Constitution is a question of law that is reviewed de novo.
Similarly, an appellate court reviews de novo whether a search warrant was too
broad. Thus, a circuit court’s denial of a motion to suppress evidence will be
affirmed unless it is unsupported by substantial evidence, based on an erroneous
interpretation of the law, or, based on the entire record, it is clear that a mistake
has been made.” Syllabus point 2, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719
(1996).
Syl. Pts. 1 and 2, State v. Bookheimer, 221 W.Va. 720, 656 S.E.2d 471 (2007).
On appeal, petitioner argues that the circuit court erred in denying his motion to suppress
evidence of his registration because the trooper lacked a reasonable articulable suspicion to
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initiate the stop. As to traffic stops, we have held that “[p]olice officers may stop a vehicle to
investigate if they have an articulable[,] reasonable suspicion that the vehicle is subject to seizure
or a person in the vehicle has committed, is committing, or is about to commit a crime.” Syl. Pt.
1, in part, State v. Stuart, 192 W.Va. 428, 452 S.E.2d 886 (1994). Petitioner’s argument on
appeal concerning the trooper’s alleged lack of a reasonable articulable suspicion to initiate the
traffic stop in question simply ignores the evidence below. During the suppression hearing, the
trooper specifically testified that he believed the vehicle pulling into two separate driveways in a
location far from the registered owner’s own home was “highly suspicious” and was consistent
with someone “casing a home for a burglary.” That is to say, the trooper in question had a
reasonable articulable suspicion that a person in the vehicle was committing or about to commit
a crime. As the circuit court noted, the vehicle in question was already stopped in a driveway
when the trooper approached in furtherance of investigating the vehicle’s occupants’ actions.
Because we find that the trooper in question had a reasonable articulable suspicion to initiate the
stop in question, we find no error in the circuit court denying petitioner’s motion to suppress.
Finally, the Court finds no merit to petitioner’s argument that the circuit court erred in
denying his motion to dismiss the indictment. Regarding our review of a motion to dismiss an
indictment, we have held as follows:
This Court’s standard of review concerning a motion to dismiss an
indictment is, generally, de novo. However, in addition to the de novo standard,
where the circuit court conducts an evidentiary hearing upon the motion, this
Court’s “clearly erroneous” standard of review is invoked concerning the circuit
court’s findings of fact.
Syl. Pt. 1, State v. Grimes, 226 W.Va. 411, 701 S.E.2d 449 (2009). Syllabus point six of State v.
Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999), provides guidance on the issue of sufficiency of
an indictment:
An indictment is sufficient under Article Ill, § 14 of the West Virginia
Constitution and W. Va. R. Crim. P. 7(c)(1) if it (1) states the elements of the
offense charged; (2) puts a defendant on fair notice of the charge against which he
or she must defend; and (3) enables a defendant to assert an acquittal or
conviction in order to prevent being placed twice in jeopardy.
On appeal, petitioner argues that, although he did list the vehicle in question on his initial sex
offender registration forms, he was not required to do so because the vehicle belonged to his
father and he did not have a driver’s license at the time. Accordingly, he argues that he was not
required to update that information. As such, petitioner argues that he could not be guilty of the
crime charged in the indictment.
Pursuant to West Virginia Code § 15-12-2(d)(7),
[p]ersons required to register under the provisions of this article shall register in
person at the West Virginia State Police detachment responsible for covering the
county of his or her residence, and in doing so, provide or cooperate in providing,
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at a minimum, the following when registering: [i]nformation related to any motor
vehicle, trailer or motor home owned or regularly operated by a registrant,
including vehicle make, model, color and license plate number . . . .
(emphasis added). In the present matter, it is clear that the indictment in question was sufficient
in that it stated the elements of the offense charged, put petitioner on fair notice of the charge
against which he was required to defend, and enabled him to assert an acquittal or conviction to
prevent double jeopardy. Petitioner’s argument turns wholly on a factual determination of
whether he regularly operated the vehicle in question such that he was required to update the
information concerning the vehicle on his sex offender registration forms. The only argument
petitioner set forth below to show that he did not regularly operate the vehicle was that he did not
have a valid driver’s license at the time of the indictment. This, however, is insufficient to
necessitate dismissal of the indictment, as petitioner could have operated the vehicle absent a
valid driver’s license, just as the operator of the vehicle was doing at the time of the underlying
traffic stop.
More importantly, as the circuit court noted, whether petitioner regularly operated the
vehicle “was a fact question for the jury to decide and an element the State would need to prove”
at trial. However, petitioner waived his right to a jury trial by entering into a plea agreement. As
such, the issue of whether petitioner regularly operated the vehicle in question is not at issue on
appeal to this Court, as the same was never determined below. Petitioner further argues that the
indictment clearly stated that he failed to provide a change in information regarding “his current
vehicle registration.” According to petitioner, the language rendered the indictment insufficient,
as the subject vehicle belonged to his father. However, the circuit court specifically found that
the language in question was sufficient given that the “reference in the indictment to ‘his’ [did]
not limit the State to having to prove [petitioner] owned the vehicle but rather ‘his’ refer[red] to
that which [petitioner was] required to register.” We agree. It is clear that the indictment refers to
petitioner’s duty to update the information regarding the vehicle in question because of his initial
inclusion of the vehicle as one subject to registration. Accordingly, we find no error in the circuit
court’s denial of petitioner’s motion to dismiss the indictment.
For the foregoing reasons, the circuit court’s June 28, 2016, sentencing order is hereby
affirmed.
Affirmed.
ISSUED: September 5, 2017
CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
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