State of West Virginia v. Semaj Nygee Lowery ( 2024 )

FILED
October 29, 2024
C. CASEY FORBES, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
State of West Virginia,
Plaintiff Below, Respondent
v.) No. 23-100 (Raleigh County CC-41-2021-F-378)
Semaj Nygee Lowery,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Samaj Nygee Lowery appeals the sentencing order of the Circuit Court of
Raleigh County entered on January 4, 2023, following his convictions for felony possession of a
firearm and the misdemeanor offenses of defective equipment, obstruction of an officer, and
possession of marijuana.1 The petitioner argues that there was insufficient evidence to support a
conviction of felony possession of a firearm, that the circuit court erred in issuing rulings related
to hearsay during the trial, and that the proper procedures were not followed regarding the
recidivist enhancement to his sentence. Upon our review, finding no substantial question of law
and no prejudicial error, we determine that oral argument is unnecessary and that a memorandum
decision affirming the circuit court’s order is appropriate. See W. Va. R. App. P. 21.
The petitioner was stopped by West Virginia State Troopers Cox and Richardson based on
an alleged defective rear registration light and driver’s side tail lamp. At trial, the troopers testified
that the petitioner became belligerent, refused to produce his license and registration and follow
other instructions, and was talking on his cell phone. They also testified that they smelled
marijuana and so ordered the petitioner to exit the vehicle. They testified that they had to assist the
petitioner out of the vehicle, and, when they opened the door, they saw a clear bag containing what
they believed to be marijuana in the driver’s side pocket. According to the troopers, the petitioner
resisted and was placed in restraints while they further searched the vehicle. After the petitioner
was arrested and placed in the cruiser, the troopers testified that he kicked the door or window,
requiring further restraint. The troopers then returned to search the vehicle and testified that they
observed a firearm in plain sight on the floor under the driver’s seat. It appeared to the troopers
that the firearm was within the reach and control of the petitioner when he was sitting in the driver’s
seat and that the petitioner would have seen the gun when operating the vehicle. The police car
was not equipped with video, and neither trooper was wearing a body camera. The troopers
transported the petitioner to the Beckley Detachment of the State Police where they contended that
he continued to be noncompliant and belligerent, including spitting on one of the officers. A
1
The petitioner is represented by counsel Jason T. Gain. The State is represented by
Attorney General Patrick Morrisey and Assistant Attorney General Mary Beth Niday.
1
criminal history check revealed that the petitioner was convicted of felony wanton endangerment
involving a firearm on October 14, 2016.
In September 2021, the petitioner was indicted on nine counts, and he was ultimately tried
on five of those counts: 1) possession of marijuana; 2) defective equipment; 3) obstruction of an
officer; 4) assault on a government representative; and 5) felony possession of a firearm by a
prohibited person. Before trial, the State filed a motion asking the circuit court to take judicial
notice of the petitioner’s prior criminal conviction and sentence for wanton endangerment
involving a firearm. Citing confusion, prejudice, and the potential to mislead the jury, the petitioner
filed a motion in limine to prohibit the State from “presenting evidence or mentioning to the jury
that [his] prior felony conviction was Wanton Endangerment.”
At the final pretrial meeting, the parties discussed presentation of his prior wanton
endangerment conviction to the jury. The petitioner agreed to “stipulate that he has a prior felony
conviction,” further agreeing that “we are stipulating [that the petitioner] was a convicted felon,
we’re stipulating that he’s not permitted to carry a firearm.” The petitioner also did not object to
the State’s motion to take judicial notice of the conviction, but he requested that the circuit court
not allow evidence that the conviction was for wanton endangerment. The State explained that the
probative value of allowing evidence of the wanton endangerment conviction was that the statute
criminalizing the possession of a firearm by prohibited persons provides certain penalties for
certain “felonies of violence.” Ultimately, the State agreed that a stipulation would be appropriate,
so long as it stated the petitioner was a prohibited carrier, convicted of a crime with a penalty of
more than one year in the penitentiary, and so satisfied the elements of felony (as opposed to
misdemeanor) possession. The petitioner’s counsel indicated that was acceptable and “all h[e]
wanted.” The hearing related to this issue concluded with the circuit court stating its position that
it would “instruct the jury—and we can work on the fine language of that—that the parties have
agreed and the court can take judicial notice of the fact that the [petitioner], based upon a prior
conviction, is a prohibited person from possessing a firearm . . . .” The circuit court’s September
19, 2022, order on the pretrial motions reflects that there was no objection to the State’s motion
requesting that the court take judicial notice of the wanton endangerment involving a firearm
conviction and sentence, and it, therefore, took judicial notice that “by prior felony conviction in
the Circuit Court of Raleigh County, West Virginia, [the petitioner] is and was at the time of the
alleged crimes a prohibited possessor of a firearm.”
Before the State called its first witness at trial, at the State’s unopposed request, the circuit
court advised the jury that the parties agreed that it would be told “that the issue of whether or not
[the petitioner] was prohibited from carrying a gun has been agreed to. He is, in fact, a person who
is prohibited from having that.” “Therefore,” the circuit court continued, “the State will not be
calling any witnesses that will testify as to the facts or the circumstances that resulted in that. You
are not to concern yourself with the reasons as to why he could not carry a firearm, but only to
know that he is prohibited from having a firearm in his possession.”2 Again, the petitioner had no
objection.
2
Although the circuit court termed the issue as one of “judicial notice” rather than a
stipulation in its pretrial order and at the beginning of the trial, in all instances, it framed its remarks
to the jury as taking notice of what the parties agreed to, referencing the oral stipulation.
2
The State proceeded to call the two troopers who conducted the traffic stop, and they
testified as to the interaction as set forth above. The State also entered into evidence the firearm
and the ammunition from the firearm. The petitioner called three witnesses: the owner of the car,
the petitioner’s sister; Ms. Robin Buck, a friend who was on the phone with the petitioner during
the beginning of the traffic stop; and the petitioner. The petitioner’s sister testified that it was her
firearm in the car that she put under the seat of the vehicle, that she did not tell her brother about
the firearm, and that you could not see the firearm when driving the car. His sister also testified
that when she retrieved her car, she checked the lights, and they were all working. She further
testified that she did not need to have any repairs on the car after the arrest. Ms. Buck testified that
she was the owner of the establishment where the petitioner was before the incident and was also
friends with the petitioner. When she began testifying to the call she received from the petitioner
during his traffic stop, the circuit court halted the testimony and called counsel to the bench. The
circuit court was concerned that questions about the call could elicit hearsay because it was
unknown at that time if the petitioner was going to testify and because Ms. Buck may testify
regarding what she overheard the petitioner say. After some additional questions, Ms. Buck was
excused, but she was recalled after the petitioner testified. At that time, she testified that, during
her phone call with the petitioner, she did not hear him become belligerent, curse, or be aggressive.
The petitioner testified that the car he was driving belonged to his sister, that it was her
firearm under the driver’s seat, that he had no knowledge of the firearm and that he could not see
underneath the seat from his position. The petitioner testified that the car was in good working
condition with no headlight or taillight out. He was not aware of why he was stopped until after he
was put in the police car. Although, the petitioner denied being immediately belligerent, he
admitted that at some point he became belligerent. He claimed that he did not know the police
were going to search the car and did not know what they found until he read the indictment. The
petitioner also testified that he called Ms. Buck when he was stopped because he knew there was
a possibility that he would be in trouble given the marijuana he had in the car. He also testified as
to the “scuffle” between himself and the officers.
After closing arguments, the circuit court instructed the jury and included an instruction
regarding the State’s burden relating to the petitioner’s prior conviction. The court instructed the
jury in a manner that was in line with the petitioner’s desire to avoid presenting the specifics of
that conviction:
[T]he State will not be calling any witnesses that will testify as to the facts or the
circumstances that resulted in [the petitioner’s wanton endangerment conviction].
You are not to concern yourself with the reasons as to why he could not carry a
firearm, but only to know that he is prohibited from having a firearm in his
possession.
The petitioner did not object to this instruction.
The jury convicted the petitioner of one count of felony possession of a firearm and the
misdemeanor offenses of defective equipment, obstruction of an officer, and possession of
marijuana. The jury acquitted the petitioner of assault on a government officer. After conviction,
3
the State filed a “Notice of Information of Prior Conviction,” alleging that the petitioner was
previously convicted by a plea of guilty of wanton endangerment involving a firearm, an offense
punishable by confinement in the penitentiary for a term greater than one year, which the petitioner
had admitted. After the jury verdict was presented, the State asked that the jury be retained, and,
after discussion, the circuit court stated, “I believe the State is asking the court to consider
recidivism as part of any potential sentencing in this matter.” The petitioner’s then-counsel
indicated he thought that could be handled at the sentencing hearing and the circuit court replied
that he believed the State wanted “to know whether or not your client is going to challenge the
previous conviction or the recidivism application.” The petitioner’s counsel replied “No, Your
Honor.” A written order was entered shortly thereafter, indicating that the circuit court would
consider the applicable penalty enhancement in sentencing given the petitioner’s admission.
At the sentencing hearing, the circuit court heard from the State, the petitioner’s counsel,
and one of the petitioner’s family members. The petitioner also elected to speak, stating “I agree
with the prosecution that I do have a very long, length[y] criminal sentence [sic] as due to a past
of bad judgment.” At the conclusion of the hearing, the circuit court announced the sentence as a
determinate three-year sentence and then doubled it to a six-year sentence due to his habitual
offender status. The State filed a motion pursuant to Rule 35(a) of the West Virginia Rules of
Criminal Procedure to correct an illegal sentence without explanation. The petitioner did not file
post-trial motions. On January 4, 2023, the circuit court entered its sentencing order, sentencing
the petitioner to fines for the misdemeanor convictions, one year of imprisonment for the felony
possession of a firearm conviction, and an additional five years imprisonment as an enhancement
based on the recidivist information. After sentencing, the petitioner was appointed new counsel
and appealed to this Court.
Here, the petitioner asserts four assignments of error. First, he contends that there was not
a proper stipulation regarding his prior wanton endangerment conviction, so the jury was not
presented with evidence of all the required elements of felony possession of a firearm, and,
therefore, the evidence was insufficient to support that conviction. Second, he contends the circuit
court erred by improperly prohibiting the testimony of Ms. Buck as hearsay. Third, the petitioner
contends that the proper procedures were not followed for a recidivist enhancement to his sentence.
In his fourth and final assignment of error, the petitioner does not identify any new claimed error;
rather, he asserts that if the preceding assignments of error were not properly preserved below,
they should be reviewed under the plain error doctrine.3
3
In his final discussion of plain error, the petitioner references, in passing, the petitioner’s
trial counsel’s arguments related to a motion to suppress the firearm prior to trial. He clarifies that
he “is not attempting to raise ineffective assistance of counsel on direct appeal . . . but only
mentions it to highlight how the errors complained of ‘seriously affect[ed] the fairness, integrity,
or public reputation of the judicial proceedings’ in this case.’” Likewise, the petitioner mentions
certain unrelated claimed “weaknesses” in the case against him in his argument related to the
second assignment of error, again without detail or argument in support. Those passing references
are unrelated to any assignment of error and so are not properly before this Court. Accordingly,
this Court will not separately address these issues in this appeal. See State v. LaRock, 196 W. Va.
294, 302, 470 S.E.2d 613, 621 (1996) (“Although we liberally construe briefs in determining issues
4
Sufficiency of evidence
In his first assignment of error the petitioner contends that there was an inadequate or failed
stipulation regarding the petitioner’s status as a person prohibited from possessing a firearm under
West Virginia Code § 61-7-7.4 He contends that there was no evidence presented at trial to support
the contention that his prior wanton endangerment conviction was a “felony crime of violence” to,
in turn, support his conviction here for felony possession of a firearm by a prohibited person.
Without evidence to support that his prior conviction was a “felony crime of violence,” he argues
that the evidence was sufficient to support a conviction of only misdemeanor possession of a
firearm by a prohibited person. The petitioner further argues that the stipulation does not suffice
to warrant the felony conviction because the stipulation was not proper. Specifically, he contends
it was not in writing or signed, as required by West Virginia Trial Court Rule 42.05, and it did not
follow the process set out in State v. Nichols, 208 W. Va. 432, 445, 541 S.E.2d 310, 323 (1999),
overruled on other grounds by State v. McCraine, 214 W. Va. 188, 588 S.E.2d 177 (2003), and
reinstated by State v. Herbert, 234 W. Va. 576, 767 S.E.2d 471 (2014), which required an
appropriate colloquy between the circuit court, the petitioner, and the petitioner’s then-counsel
presented for review, issues which are not raised, and those mentioned only in passing but are not
supported with pertinent authority, are not considered on appeal.” (citation omitted)).
4
West Virginia Code § 61-7-7 provides, in relevant part,
(a) Except as provided in this section, no person shall possess a firearm, as such is
defined in section two of this article, who:
(1) Has been convicted in any court of a crime punishable by imprisonment for a
term exceeding one year;
....
Any person who violates the provisions of this subsection shall be guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor
more than $1,000 or confined in the county jail for not less than ninety days nor
more than one year, or both.
(b) Notwithstanding the provisions of subsection (a) of this section, any person:
(1) Who has been convicted in this state or any other jurisdiction of a felony crime
of violence against the person of another or of a felony sexual offense; . . .
(2) . . . and who possesses a firearm as such is defined in section two of this article
shall be guilty of a felony and, upon conviction thereof, shall be confined in a state
correctional facility for not more than five years or fined not more than $5,000, or
both. . . .
5
identifying the precise stipulation and demonstrating that it was made “voluntarily and
knowingly.” We review this assignment of error to determine if any rational trier of fact could
have found the essential elements of the crime were proved beyond a reasonable doubt, viewing
the evidence in the light most favorable to the prosecution. Syl. Pt. 1, State v. Guthrie, 194 W. Va.
657, 461 S.E.2d 163 (1995).
West Virginia Code § 61-7-7 prohibits any person convicted of a felony from possessing a
firearm, a person possessing a firearm who was previously convicted of “a crime punishable by
imprisonment for a term exceeding one year,” is guilty of a misdemeanor, while a person
possessing a firearm who was convicted of “a felony crime of violence against the person of
another” is guilty of a felony. During the pretrial proceedings the petitioner actively negotiated a
suitable manner for presenting his prior wanton endangerment conviction to the jury. He
immediately offered to stipulate to the prior conviction; he also failed to object to the State’s
proposal of having the circuit court judicially notice the prior conviction, given the State’s
cognizance of its burden to show, in this instance, that the petitioner’s prior conviction was a crime
of violence. Defense counsel advised the circuit court that “all [the petitioner] wanted” was a
course that avoided the potential prejudice that may have resulted from the jury knowing the nature
of his prior conviction, as was his right. See Nichols, 208 W. Va. at 442-44, 541 S.E.2d at 320-22
(discussing right to stipulate to prior conviction due to prejudice that can result from jury hearing
name and nature of prior conviction). Then, the circuit court instructed the jury regarding the
State’s burden relevant to the prior conviction in a manner that was in line with the petitioner’s
desire to avoid presenting the specifics of the petitioner’s prior conviction. In so doing, the circuit
court advised the jury—without objection and, again, compliant with “all [the petitioner]
wanted”—that
the State will not be calling any witnesses that will testify as to the facts or the
circumstances that resulted in [the petitioner’s wanton endangerment conviction].
You are not to concern yourself with the reasons as to why he could not carry a
firearm, but only to know that he is prohibited from having a firearm in his
possession.
Under these facts, the petitioner cannot now complain that the State failed to prove that the
conviction that resulted in his status as a person prohibited from possessing a firearm was one of
violence to, in turn, support a felony possession of a firearm by a prohibited person conviction.
The petitioner got “all [he] wanted,” and if the petitioner was aggrieved by the circuit court’s
implementation of his request at subsequent stages, he had the obligation to object. See State v.
LaRock, 196 W. Va. 294, 316, 470 S.E.2d 613, 635 (1996) (“When a litigant deems himself or
herself aggrieved by what he or she considers to be an important occurrence in the course of a trial
or an erroneous ruling by a trial court, he or she ordinarily must object then and there or forfeit
any right to complain at a later time.”). Among other justifications for the raise or waive rule, it is
designed to protect against the very risk at issue here: “It prevents a party from . . . planting an
error and nurturing the seed as a guarantee against a bad result[].” Id. Furthermore, active
involvement in an occurrence to which error is later assigned—like the petitioner’s conduct here—
likewise results in a waiver of the right to assign error to the occurrence. See State v. Miller, 193
W. Va. 3, 17, 19, 459 S.E.2d 114, 128, 130 (1995) (finding that the petitioner waived her right to
challenge the trial court’s failure to give an instruction on self-defense where the petitioner offered
6
no such instruction, failed to object to the court’s failure to offer such instruction, expressed
satisfaction with the jury charge, and affirmed that she had no objection to the charge). Finally, we
note that “[a] deviation from a rule of law is error unless there is a waiver. When there has been a
knowing and intentional relinquishment or abandonment of a known right, there is no error and
the inquiry as to the effect of a deviation from the rule of law need not be determined. Id. at 7,
459 S.E.2d at 118, Syl. Pt. 8, in part. As such, any error, if there be one, has been extinguished by
the petitioner’s waiver, and we do not review for plain error. Because the petitioner’s sufficiency
of the evidence claim is predicated solely on his failed challenge to the manner in which his prior
wanton endangerment conviction was presented to the jury, this assignment of error necessarily
fails.
Hearsay
Next, the petitioner argues that the court improperly excluded testimony from Ms. Buck
regarding what she overheard when she was on the phone with the petitioner during the traffic stop
as hearsay. “A trial court’s evidentiary rulings, as well as its application of the Rules of Evidence,
are subject to review under an abuse of discretion standard.” Syl. Pt. 4, State v. Rodoussakis, 204
W. Va. 58, 511 S.E.2d 469 (1998). In this case, there does not appear to have been a specific
exclusion of testimony. Instead, Ms. Buck’s testimony was, at most, interrupted. Following that
interruption, the petitioner recalled her, and she testified, without objection, that she did not hear
the petitioner curse or become belligerent or aggressive during the portion of the interaction that
she overheard. The petitioner identifies no other testimony that she was precluded from (or, rather,
delayed in) offering. Because Ms. Beck was ultimately permitted to testify as to the information
the petitioner desired to elicit, he has established no abuse of the circuit court’s discretion, and the
assignment of error lacks merit.5
Recidivist proceedings
For his final assignment of error, the petitioner argues that the circuit court erred in failing
to follow the mandatory provisions of West Virginia Code § 61-11-19, the statute regarding
recidivism enhancements to criminal sentences. The petitioner argues that the record does not
demonstrate a proper admission to the recidivist information and that the burden should be shifted
to the State to demonstrate the admission was appropriate. Vaguely, the petitioner contends that
the circuit court appears to have failed to conduct a “required colloquy” with him related to the
recidivist information. Although the petitioner fails to elaborate fully on his argument, we construe
this to be related to whether the petitioner was “duly cautioned” by the circuit court prior to his
admission. He points to the State’s Rule 35(a) motion as further evidence in support of his
contention that the sentencing procedure was “scrambled and deficient.”6
5
Without having identified any error in the first instance, there is no need for this Court to
review this assignment of error for plain error.
6
The petitioner appears to contend, in passing, that the circuit court erred in setting the
length of the petitioner’s sentence during the hearing, but it is undisputed that the written order
entered reflects a sentence appropriate under West Virginia Code § 61-11-19. “It is a paramount
principle of jurisprudence that a court speaks only through its orders,” so “it is clear that where a
7
As this is, again, an issue raised for the first time on appeal, our review is for plain error.
Following the filing of a recidivist information, West Virginia Code § 61-11-19 provides, generally
stated, that a defendant can acknowledge being the same person previously convicted or, if denied,
then it is a question for the jury to resolve. Regarding the former method of establishing identity,
and of relevance to the petitioner’s specific argument, West Virginia Code § 61-11-197 provides
that
after being duly cautioned if he or she acknowledged in open court that he or she is
the same person, the court shall sentence him or her to such further confinement as
is prescribed by § 61-11-18 of this code on a second or third conviction as the case
may be[.]
This procedural requirement, and the others specified in the statute, are mandatory and
jurisdictional for the imposition of a recidivist enhancement to a sentence and are not subject to a
harmless error analysis. Syl. Pt. 1, Holcomb v. Ballard, 232 W. Va. 253, 752 S.E.2d 284 (2013).
The record on appeal is clear that the petitioner admitted to the prior conviction in this case
both pretrial, as discussed above with regard to the oral stipulation, and post-trial, after the verdict
was entered and during the sentencing hearing. And before this Court, the petitioner does not
contend that he was not the person convicted in the charge presented in the recidivist information.
As he petitioner’s “acknowledgement” of being the same person was clear, we move to the “duly
cautioned” requirement of the statute. We have held
[t]he words ‘duly cautioned’ contained in the West Virginia recidivist
statute, Code, 61-11-19, as amended, with regard to former convictions and
sentences before a valid judgment can be imposed for an additional sentence as
provided in Code, 61-11-18, as amended, are fully complied with when the
accused, after being convicted of the substantive offense and before being
sentenced thereon, is later brought before the court in the same term and advised
that the prosecuting attorney has filed a written information informing the court of
former convictions and sentences; and the court then proceeds to advise the accused
of the nature of each former offense and of the time and place of each former
sentence, and then after giving the accused an opportunity to say whether he has
any defense thereto, asks him if he is the same person as was formerly convicted
and sentenced. If he answers in the affirmative, appropriate sentence may be
pronounced in accordance with the statute.
Syl. Pt. 4, State ex rel. Mounts v. Boles, 147 W. Va. 152, 126 S.E.2d 393 (1962).
circuit court’s written order conflicts with its oral statement, the written order controls.” Legg v.
Felinton, 219 W. Va. 478, 483, 637 S.E.2d 576, 581 (2006).
7
The petitioner does not challenge the other requirements of the statute, including the
timing of the filing of the recidivist information or its contents. The petitioner likewise does not
appear to substantively dispute that he was the defendant identified in the prior conviction.
8
As discussed above, the petitioner admitted that he was the defendant identified in the
conviction specified in the recidivist information during pretrial proceedings and sought to limit
evidence as to that conviction being presented to the jury. After the jury verdict in the underlying
proceeding, the petitioner was advised that the State had filed a written information containing the
petitioner’s former conviction and sentence. The circuit court gave the petitioner an opportunity
to assert a defense after the State asked whether the jury should be retained. The petitioner stated
his intention not to offer a defense, explicitly advising that he intended not to challenge the
recidivist information or consequent sentencing enhancement.8 As stated above, the petitioner’s
claim of error is vague and premised on an invitation to the State to show that the procedure related
to the petitioner’s acknowledgment was error-free. Of course, it is the petitioner’s burden to
demonstrate error, and, based on the foregoing, it is not clear to this Court that there was any
unwaived error in the procedure related to the petitioner’s acknowledgement of being the same
person identified in the recidivist information. Accordingly, the petitioner is entitled to no relief.
Here, even if the petitioner’s actions did not operate as a waiver, any error is immaterial and did
not seriously affect the fairness, integrity, or public reputation of the judicial proceedings given
the petitioner’s pretrial motion in limine, stipulation, statements after trial, and comments at
sentencing. See LaRock, 196 W. Va. at 299, 470 S.E.2d at 618, Syl. Pt. 7 (“An unpreserved error
is deemed plain and affects substantial rights only if the reviewing court finds the lower court
skewed the fundamental fairness or basic integrity of the proceedings in some major respect. . . .
[The plain error doctrine] should be reserved for the correction of those few errors that seriously
affect the fairness, integrity, or public reputation of the judicial proceedings.”); State ex rel.
Delligatti v. Cohee, No. 22-921, 2023 WL 3676890 (May 26, 2023) (memorandum decision)
(finding harmless error in recidivist proceeding based on an immaterial scrivener’s error in a
recidivist information that was corrected by an amended filing that was filed in the underlying
criminal matter rather than the subsequently opened recidivist matter).
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: October 29, 2024
8
The circuit court’s September 23, 2022, order also reflects that a discussion related to the
petitioner’s admission occurred. No objection was made to that order, and the petitioner does not
affirmatively claim that the discussion did not occur, although it was not reflected in the transcript.
There is a presumption of regularity of court proceedings that remains until the contrary appears,
and, contrary to the petitioner’s attempt to shift the burden to the State in this case, he has the
burden of proving any irregularity. See Syl., in part, State ex rel. Smith v. Boles, 150 W. Va. 1, 146
S.E.2d 585 (1965) (“There is a presumption of regularity of court proceedings that remains until
the contrary appears, and the burden is on the person who alleges such irregularity to show it
affirmatively . . .”).
9
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Elizabeth D. Walker
Justice John A. Hutchison
Justice C. Haley Bunn
DISSENTING:
Justice William R. Wooton
Wooton, Justice, dissenting:
Around 2:25 a.m. on September 18, 2020, the petitioner Semaj Nygee Lowery, a young
black male, was driving a blue BMV vehicle in the Mabscott area of Raleigh County, West
Virginia, when he was stopped by two West Virginia State Police Troopers for having a defective
rear right registration light and a defective driver’s side tail lamp. This traffic stop ultimately led
to the state troopers’ discovery of a gun under the driver’s seat and the petitioner being convicted
of being a prohibited person in possession of a firearm, a felony upon which the circuit court then
imposed a recidivist enhancement.
The petitioner’s sister testified that she owned the BMW the petitioner was driving that
night (he had borrowed the car from her). She also testified that she kept a gun – which she owned
– under the driver’s seat for protection, and that it could not be seen while driving the vehicle. The
petitioner testified that he did not know that the BMW had any defective registration light or
taillight, and that he did not know there was a firearm under the seat. There was no conflicting
evidence regarding ownership of the automobile or the gun.
Notwithstanding the petitioner’s evidence offered in his defense, following a one-day jury
trial, this misdemeanor traffic stop for vehicle equipment-related issues resulted in the petitioner
being sentenced to a total of six years in the West Virginia Penitentiary. The petitioner was
convicted by a jury of one felony (being a prohibited person in possession of a firearm) and three
misdemeanors (having defective equipment, obstructing, and possession of a controlled substance
10
(marijuana)).1 He was then sentenced to a determinate period of one year in the West Virginia
State Penitentiary for the felony conviction of being a prohibited person in possession of a firearm,
which conviction then led to an enhancement – a determinate five years to that initial sentence,
resulting in a total of six years for his felony conviction pursuant the West Virginia recidivist
statute.2 See W. Va. Code § 61-11-18.
A potential issue in this case that was neither raised below nor on appeal is whether the
statutory sentence for possession of a firearm by a prohibited person set forth in West Virginia
Code § 61-7-7, which requires proof of an underlying conviction as an element of the crime, can
then by enhanced in a recidivist proceeding based on that same underlying conviction. See id. §
61-11-18(a)(58). While there are many reasons a person can be prohibited from possessing a
firearm, the reason used in this case was that the petitioner was a prohibited person by virtue of
his prior conviction for “a felony crime of violence against the person of another,” i.e., wanton
endangerment involving a firearm. See id. § 61-7-7.
The issue, which could have constitutional double jeopardy implications, is worthy of
further development and exploration through research and briefing by scheduling this case for oral
argument. At its core, it appears that the petitioner has received multiple sentences for the same
underlying wanton endangerment conviction; he was originally sentenced to a period of one year
for his conviction on that crime in 2016 and is now being sentenced essentially two more times for
that crime – both as an element of the crime of possession of a firearm by a prohibited person, see
id. § 61-7-7, and under the recidivist statute. See id. § 61-11-18(a)(58). The imposition of such a
lengthy sentence, resulting from a traffic stop supposedly due to a defective taillight – a
misdemeanor – is susceptible to a closer examination by this Court.
For the foregoing reasons, I would have scheduled the matter for oral argument.
Accordingly, I respectfully dissent.
1
He was found not guilty of the charge of assault on a governmental representative.
2
The circuit court also imposed fines of $100 for each of his misdemeanor convictions.
11