State of West Virginia v. John H.B.

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia, FILED
Plaintiff Below, Respondent October 11, 2019
EDYTHE NASH GAISER, CLERK
vs.) No. 18-0905 (Wayne County 17-F-013) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
John H. B.,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner John H. B.,1 by counsel2 Juston H. Moore, appeals the April 17, 2018, Trial
Order and the subsequent August 14, 2018, Sentence Order of the Circuit Court of Wayne County.
Respondent State of West Virginia, by counsel Zachary Aaron Viglianco, filed a summary
response in support of the circuit court’s orders.
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.
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Petitioner had a minor child who provided testimony at the trial of this matter and is
referenced in this decision. Consistent with our long-standing practice in cases with sensitive facts,
we use initials where necessary to protect the identities of those involved with the case. See In re
K.H. 235 W. Va. 254, 773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162(1993); State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
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Petitioner’s counsel filed an appellate brief on petitioner’s behalf. Nevertheless,
petitioner, acting pro se, filed a hand-written two-page submission on or about February 6, 2019,
alleging that an undue delay between the incident and his psychological evaluation resulted in an
unfair and incorrect determination of criminal responsibility. Because petitioner’s pro se
submission does not comply with the West Virginia Rules of Appellate Procedure, we decline to
consider it.
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On October 19, 2016, petitioner was involved in a domestic disturbance at his home where
he resided with his wife and two children, Drew and B.B. During the disturbance, petitioner
discharged a firearm into the residence two times. Following this incident, the Wayne County
Grand Jury returned a nine count indictment charging petitioner with six counts of wanton
endangerment (Counts 1 through 6); attempted murder (Count 7); and two counts of gross child
neglect creating risk of death or serious bodily injury (Counts 8 and 9).
Petitioner waived his right to a jury trial and this matter proceeded to a bench trial on March
26, 2018. At trial, petitioner presented an insanity defense that was rejected by the trial court. The
State’s evidence at trial showed that, on October 19, 2016, petitioner consumed a significant
amount of alcohol and was described by his wife, both children, and the responding West Virginia
State Trooper, as intoxicated or very drunk. After a conversation with his elder child, Drew, where
Drew expressed concern over petitioner’s increased level of drinking, petitioner became agitated
and attempted to instigate an argument with Drew. When Drew declined petitioner’s invitations to
escalate the situation, petitioner became upset and ordered Drew to go to his bedroom.
Shortly thereafter, petitioner’s wife came looking for Drew because he was supposed to
assist in preparing dinner for the family. Per the State’s evidence, petitioner informed his wife that
she had “three minutes to talk to [Drew].” Petitioner’s wife went to Drew’s room and petitioner
began demanding that Drew exit the room. Contemporaneous with petitioner’s first demand that
he come out, Drew heard “the sound of [a] gun being racked,” that is, “the action being cycled and
a round chambered.” Drew testified that petitioner requested that he leave the bedroom “a few
more times,” and then petitioner fired a shot in the direction of Drew’s bedroom where Drew and
petitioner’s wife were located. Petitioner also fired a shot toward the room of his younger child,
B.B. The evidence presented at trial reflects that the bedrooms where the shots were fired were
located close to one another, off of the same hallway. During the course of the exchange,
petitioner’s wife gave her cell phone to Drew and he dialed 9-1-1. As a result, Trooper Earl Ray
Robinett of the West Virginia State Police arrived at the residence and arrested petitioner.
At trial, the State presented testimony from all of the victims and Trooper Robinett. At the
close of the evidence, the trial court found petitioner guilty on all offenses charged in the
indictment.
On April 27, 2018, the trial court held a sentencing hearing where it made an oral
proclamation of petitioner’s sentence. According to the court, petitioner was to be sentenced to a
determinate period of incarceration of five years for each count of wanton endangerment; an
indeterminate sentence of three to fifteen years for attempted murder; and an indeterminate period
of one to ten years for each of the two counts of gross child neglect with risk of serious bodily
injury. The trial court ordered that the sentences on Counts 1 through 3 would run concurrently
with each other; that the sentences on Counts 4 through 6 would run concurrently with each other,
but consecutively to Counts 1 through 3; and that the sentences on Counts 7 through 9 would run
concurrently with each other, but consecutively to Counts 1 through 6.
On August 10, 2018, the trial court held a hearing for purposes of clarifying petitioner’s
sentence. The court stated that it had previously misspoken as to petitioner’s sentence. Notably,
the sentencing order had not yet been entered. During the hearing, petitioner’s counsel asked the
court to run each of the sentences concurrently. The trial court announced that he “misspoke . . .
on the record as to making one of these matters consecutive, when [he] meant to make it
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concurrent.” The trial court corrected the sentences for Counts 8 and 9. Further, the circuit court
ordered that the sentences for Counts 1 through 3 (wanton endangerment, with a determinate
period of incarceration of five years) would run concurrently with each other; that the sentences
for Counts 4 through 6 (wanton endangerment, with a determinate period of incarceration of five
years) would run concurrently with each other, but consecutively to the sentences imposed for
Counts 1 through 3; and that the sentence imposed for Count 7 (attempted murder, with a period
of incarceration of not less than three years nor more than fifteen years) shall run consecutively to
the sentences imposed for Counts 1 through 6; and that the sentences imposed for Counts 8 and 9
(gross child neglect creating risk of death or serious bodily injury, with a period of incarceration
of not less than one year nor more than five years) shall run concurrently with each other, but
consecutively to Counts 1 through 7. A sentencing order memorializing all of the foregoing was
entered on August 15, 2018.
Petitioner raises two assignments of error on appeal: the sufficiency of the evidence as to
three of his wanton endangerment convictions and double jeopardy as to his sentence. We will
address each in turn.
Petitioner was found guilty of six counts of wanton endangerment. He challenges the
sufficiency of the evidence as to three of the counts of wanton endangerment, notably conceding
that the remaining three counts of wanton endangerment were proven at trial. He argues that the
evidence presented at trial supports a conviction for one count of wanton endangerment for each
of the three victims, instead of two counts for each victim. We disagree.
Wanton endangerment is a statutory crime codified at West Virginia Code § 61-7-12. This
Court has outlined the elements of wanton endangerment as follows: “(1) the defendant; (2) did
wantonly perform; (3) with a firearm; (4) an act; (5) creating substantial risk of; (6) death or serious
bodily injury to another.” State v. Wright, 200 W. Va. 549, 553, 490 S.E.2d 636, 640 (1997).
Petitioner’s challenge is to the latter elements, specifically whether each victim was
subjected to a substantial risk of death or serious bodily injury from both shots that petitioner fired.
Petitioner argues that each victim only faced a substantial risk of death or serious injury from one
gunshot, not two. At the core of petitioner’s argument is the contention that the first shot was not
fired directly at B.B. and the second shot was not fired directly at Judith and Drew. Accordingly,
petitioner argues that the elements of the crime were not satisfied, and, thus, do not support three
of the convictions of wanton endangerment.
We have held that
“[a] criminal defendant challenging the sufficiency of the evidence to support a
conviction takes on a heavy burden. An appellate court must review all the evidence,
whether direct or circumstantial, in the light most favorable to the prosecution and must
credit all inferences and credibility assessments that the jury might have drawn in favor of
the prosecution. The evidence need not be inconsistent with every conclusion save that of
guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility
determinations are for a jury and not an appellate court. Finally, a jury verdict should be
set aside only when the record contains no evidence, regardless of how it is weighed, from
which the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases
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are inconsistent, they are expressly overruled.” Syl. Pt. 3, State v. Guthrie, 194 W. Va. 657,
461 S.E.2d 163 (1995).
Syl. Pt. 5, State v. Broughton, 196 W. Va. 281, 470 S.E.2d 413 (1996).
Upon a review of the record, this Court finds that the evidence was sufficient to support a
finding that petitioner placed all three victims in substantial danger both times he discharged the
firearm into his home. For the purpose of this analysis, all the evidence must be viewed in the light
most favorable to the prosecution. Id. The testimony of the victims and Trooper Robinett support
a finding that the bedrooms where petitioner fired the shots were in close proximity to one another.
Thus, the trial court did not err in finding that both shots placed each of the three victims at
substantial risk of death or serious injury. Accordingly, we find the evidence was sufficient to
support petitioner’s convictions on all six counts of wanton endangerment.
Petitioner next asserts that the trial court subjected him to double jeopardy by amending
the terms of the sentence after the April 27, 2018, sentencing hearing. Petitioner’s double jeopardy
claim is reviewed de novo. See Syl. pt. 1, State v. Sears, 196 W. Va. 71, 468 S.E.2d 324 (1996).
In order to establish a double jeopardy claim, a defendant must first present a prima
facie claim that double jeopardy principles have been violated. Once the defendant proffers
proof to support a nonfrivolous claim, the burden shifts to the State to show by a
preponderance of the evidence that double jeopardy principles do not bar the imposition of
the prosecution or punishment of the defendant.
Id. at 75, 468 S.E.2d at 328. After our review of the record, we find petitioner has not established
a prima facie claim of double jeopardy. This Court has explained:
The Double Jeopardy Clause of the West Virginia Constitution provides, in part: “No
person shall . . . be twice put in jeopardy of life or liberty for the same offence.” W. Va.
Const. art. 3, § 5. This clause historically has served the function of preventing both
successive punishments and successive prosecutions and bars an accused from being twice
punished for the same offense and from being twice tried for it. Justices of Boston
Municipal Court v. Lydon, 466 U.S. 294, 306-07, 104 S. Ct. 1805, 1812, 80 L. Ed. 2d 311,
323-24 (1984); State v. Rummer, 189 W. Va. 369, 432 S.E.2d 39 (1993); State v. Hersman,
161 W. Va. 371, 242 S.E.2d 559 (1978); Conner v. Griffith, 160 W. Va. 680, 238 S.E.2d
529 (1977). Thus, it can be said that the Double Jeopardy Clause “prohibits merely
punishing twice, or attempting a second time to punish criminally, for the same offense.”
Helvering v. Mitchell, 303 U.S. 391, 399, 58 S. Ct. 630, 633, 82 L. Ed. 917, 922 (1938),
abrogation on other grounds recognized by United States v. Sanchez–Escareno, 950 F.2d
193 (5th Cir.1991). Indeed, in Ex parte Lange, 85 U.S. (18 Wall.) 163, 168, 21 L. Ed. 872,
876 (1874), the United States Supreme Court stated: “If there is anything settled in the
jurisprudence of England and America, it is that no man [or woman] can be twice lawfully
punished for the same offence.”
Sears, 196 W. Va. at 75, 468 S.E.2d at 328.
Simply put, the double jeopardy clause is not implicated in petitioner’s case because he did
not receive either successive punishments or successive prosecutions. Although the trial court
made a verbal announcement of petitioner’s sentence, it indicated in open court that, in the “next
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week or so, there’ll be an Order entered in your file that imposes this sentence on you, states what
the [c]ourt’s sentence was.” This Court finds that petitioner’s argument is fundamentally flawed
inasmuch as the trial court expressly indicated that the pronouncement during the hearing would
not be final until a written order was entered, and further, its oral pronouncement was not
tantamount to a formal imposition of sentence.
This Court has repeatedly recognized and reaffirmed that “[i]t is a paramount principle of
jurisprudence that a court speaks only through its order.” Legg v. Felinton, 219 W. Va. 478, 483,
637 S.E.2d 576, 581 (2006); see also State ex rel. Erlewine v. Thompson, 156 W. Va. 714, 718,
207 S.E.2d 105, 107 (1973). Since petitioner’s sentence was not finalized until an order issued,
and no order was entered by the court until after the August hearing, the court’s sentence was not
“modified” as alleged by petitioner. While we have also stated that a court’s “oral order has the
same force, effect, and validity in law as a written order,” Moats v. Preston Cty. Comm’n, 206 W.
Va. 8, 13, 521 S.E.2d 180, 185 (1999), we have made clear that “where a circuit court’s written
order conflicts with its oral statement, the written order controls.” Legg, 219 W. Va. at 483, 637
S.E.2d at 581.
Here, the trial court held a hearing for the distinct purpose of clarifying petitioner’s
sentence because the court believed it had previously misspoken on the record and caused “some
confusion . . . as to the sentence” imposed on petitioner. Thus, upon a review of the record as a
whole, we find that the trial court acted within its authority and did not subject petitioner to double
jeopardy when it clarified petitioner’s sentence by entering its written sentencing order.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: October 11, 2019
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison
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