State of West Virginia v. Michael Kevin Brammer ( 2013 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia, FILED
Plaintiff Below, Respondent May 24, 2013
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
vs) No. 12-0408 (Greenbrier County 09-F-133) OF WEST VIRGINIA
Michael Kevin Brammer,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner’s appeal, by counsel Paul S. Detch, arises from the Circuit Court of Greenbrier
County, wherein the circuit court sentenced petitioner to a term of incarceration of one to five
years for his jury conviction of one count of conspiracy to commit embezzlement by order entered
February 27, 2012. The State, by counsel Benjamin F. Yancey III, has filed its response, to which
petitioner has filed a reply.
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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.
From January of 2007 through February of 2009, petitioner served as the president of the
Ronceverte Volunteer Fire Department (“RVFD”). During this same period, Jody Campbell and
Darrell Miller also served as the RVFD’s fire chief and treasurer, respectively. On January 23,
2007, petitioner, Campbell, and Miller opened a checking account for the RVFD with First
National Bank of Ronceverte. The account was funded by donations and other fund-raising efforts
and was used to run the department. The account was set up such that two of the signatories had
to sign for the withdrawal of any monies from the account. According to the State, beginning in
May of 2007 and extending into December of 2008, numerous checks were issued on the RVFD
account to petitioner, Campbell, Miller, and petitioner’s wife Angela Brammer. Additionally, the
State alleges that numerous electronic debits out of the account were made to pay the personal
electric and credit card bills of petitioner’s wife.
In October of 2009, Petitioner was indicted by a Greenbrier County Grand Jury on one
count of embezzlement of $1,000 or more and one count of conspiracy to commit embezzlement.
Petitioner’s jury trial commenced in December of 2011, after which he was convicted of one
count of conspiracy to commit embezzlement and acquitted of embezzlement. The circuit court
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thereafter sentenced petitioner to a term of incarceration of one to five years, but suspended his
sentence in lieu of five years of probation.
On appeal, petitioner alleges that West Virginia Code § 61-3-20 is unconstitutional, that
the State improperly charged petitioner by combining several transactions that should have been
barred by West Virginia Code § 62-2-5, and that the State was required to prove that the victim
sought the return of the allegedly embezzled money in order to convict him of conspiracy. In
support of these assignments of error, petitioner argues that the provision in West Virginia Code §
61-3-20 that states “it shall not be necessary to describe in the indictment, or to identify upon the
trial, the particular bullion, money, bank note, draft or security for money which is so taken,
converted to his own use or embezzled by him” violates constitutional due process and effective
assistance of counsel protections by failing to notify a defendant as to the charges against him.
Petitioner further argues that the vague nature of such indictments violates protections against
double jeopardy because he is unable to use his acquittal to preclude subsequent indictments for
the same acts.
Petitioner also argues that the State violated West Virginia Code § 62-2-5 by charging him
with conspiracy to commit embezzlement involving unspecified transactions between 2007 and
2009. According to petitioner, this combination of acts over a three-year period circumvents the
one-year statute of limitations in misdemeanor cases and denied him due process. Lastly,
petitioner argues that the State was required to prove that the victim sought the return of the
allegedly embezzled property. Petitioner alleges that the overwhelming evidence in this matter
indicated that the members of the RVFD, their executive board and officers, fully complied with
the rules and regulations of the corporation and fully approved or would have approved of all the
transactions at issue.
“‘The Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse
of discretion standard, unless the order violates statutory or constitutional commands.’ Syl. Pt. 1,
in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).” Syl. Pt. 1, State v. James, 227
W.Va. 407, 710 S.E.2d 98 (2011). To begin, the Court declines to address petitioner’s first
assignment of error related to the constitutionality of West Virginia Code § 61-3-20. That Code
section concerns the crime of embezzlement, of which petitioner was acquitted. As such, the issue
of the statute’s constitutionality is not at issue on appeal. Further, petitioner’s argument that the
indictment charging him with embezzlement leaves him subject to additional criminal charges in
violation of his protection against double jeopardy is not ripe because the State has not sought his
indictment on additional embezzlement charges. As such, we decline to address this issue.
The Court further finds no merit as to petitioner’s second assignment of error relating to
the State’s indictment for conspiracy to commit embezzlement. We have previously held that
“‘[g]enerally, the sufficiency of an indictment is reviewed de novo. An indictment need only meet
minimal constitutional standards, and the sufficiency of an indictment is determined by practical
rather than technical considerations.’ Syl. Pt. 2, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535(1996).” Syl. Pt. 1, State v. Johnson, 219 W.Va. 697, 639 S.E.2d 789 (2006). Petitioner argues
that the indictment, in regard to charging conspiracy to commit embezzlement, did not comply
with the requirements of West Virginia Code § 62-2-5. However, that section concerns
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indictments for embezzlement, not conspiracy, and is, therefore, not applicable. Petitioner further
argues that in charging him with conspiracy to commit embezzlement, the State improperly
combined several acts of embezzlement into one crime, thereby circumventing the requirement
that misdemeanors must be prosecuted within one year. However, we have previously held that
“W. Va. Code [§] 62-2-5, relating to the prosecution of distinct acts of embezzlement in the same
indictment, is not applicable where individual acts of embezzlement are accomplished in
accordance with a common scheme and common criminal intent.” Syl. Pt. 6, State ex rel. Cogar
v. Kidd, 160 W.Va. 371, 234 S.E.2d 899 (1977). For these reasons, we find no merit in this
assignment of error.
Lastly, we find no merit in regard to petitioner’s assignment of error that he could only be
convicted of conspiracy to commit embezzlement if the victim sought the return of the money in
question. We have previously held that “[i]n order for the State to prove a conspiracy under
W.Va.Code, 61-10-31(1), it must show that the defendant agreed with others to commit an offense
against the State and that some overt act was taken by a member of the conspiracy to effect the
object of that conspiracy.” Syl. Pt. 4, State v. Less, 170 W.Va. 259, 294 S.E.2d 62 (1981).
Therefore, it is clear that a demand for the return of allegedly embezzled money is not a necessary
element to support a conviction for conspiracy to commit embezzlement.
For the foregoing reasons, the circuit court’s order is hereby affirmed.
Affirmed.
ISSUED: May 24, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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