State v. Slater

The appellant, Joshua Lee Slater, appeals his convictions for kidnaping, domestic battery, wanton endangerment, and daytime burglary by breaking and entering. He also appeals his sentence for these crimes which amounts to life with mercy plus twenty-one year’s. For the reasons that follow, we affirm.

I.

FACTS

Joshua Lee Slater, the appellant, lived with his long-time girlfriend, Angela Walls, and their two small children in a trailer in Sissonville. On November 29, 2005, the appellant and Ms. Walls got into an argument. At some point, the appellant hit Ms. Walls on the side of her head and threw a hammer, hitting her in the leg and causing minor bruising.

When Ms. Walls indicated that she was taking the children to her mother’s house, the appellant ordered her to stay at gunpoint. He also threatened to kill Ms. Walls’ entire family. The appellant then ordered Ms. Walls into the bedroom where he pointed a twelve-gauge shotgun at her and threatened to shoot her. While they were in the bedroom, the appellant ordered Ms. Walls to change into camouflage clothing. After she did so, he informed her that she had 14 hours to live, and then he was going to take her into the woods, tie her to a tree, “buckshot” her in both her knees, knock her teeth out so there would be no dental records, and set her body on fire so she could not be found. Shortly thereafter, Ms. Walls and the children escaped through the bedroom window, and Ms. Walls drove to her mother’s house.

Subsequently, the appellant went to Ms. Walls’ mother’s house. By that time, Ms. Walls, her mother Lori Walls, and the children had fled to Ms. Walls’ grandmother’s house. The appellant attempted to open the door to the Walls’ house with a key but was unable to do so. He then broke the window in the back door with the barrel of a gun and kicked in the back door. A short time later, a police officer arrived at the Walls’ house. *503Although the appellant fled the house, he was arrested later that day.

The appellant was found guilty by a jury of kidnaping, for which he was sentenced to life with mercy; domestic battery, for which he received a determinate term of one year; wanton endangerment, for which he was sentenced to a determinate term of five years; and daytime burglary by breaking and entering, for which the trial court sentenced him to an indeterminate term of not less than one nor more than fifteen years. These sentences are to run consecutively. The appellant now appeals his convictions and sentence.

II.

DISCUSSION

1. Sufficiency of Evidence to Support Burglary Conviction

First, the appellant argues that the evidence was legally insufficient to sustain the burglary conviction because the evidence failed to show that his entry into Lori Walls’ house was unauthorized. In considering this issue, we are guided by the following standard of review:

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 are inconsistent, they are expressly overruled.

Syllabus Point 3, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

Lori Walls, the owner of the house the appellant was convicted of burglarizing, testified that the appellant previously had lived in her house for many years, had a key to the house, was considered a member of the family, and had full access to her house. It is the appellant’s contention that because he was authorized to enter the Walls’ home, the elements of burglary are not present in this case. According to the appellant, unauthorized entry is an essential element of daytime burglary by breaking and entering. To support this assertion, the appellant cites State v. Plumley, 181 W.Va. 685, 384 S.E.2d 130 (1989), and State v. Louk, 169 W.Va. 24, 285 S.E.2d 432 (1981), in which this Court stated that “burglary is complete once there has been an unauthorized entry[.]” 169 W.Va. at 26, 285 S.E.2d at 434.

We find that an unauthorized entry is not an element of daytime burglary by breaking and entering. First, neither the statutory language nor this Court’s holding defining the crime of burglary indicate that an unauthorized entry is an element of daytime burglary by breaking and entering. According to W.Va.Code § 61-3-ll(a) (1993), in pertinent part, the elements of burglary by breaking and entering are: “If any person shall ... in the daytime, break and enter, the dwelling house ... of another, with intent to commit a crime therein, he shall be deemed guilty of burglary.” Further, in Syllabus Point 2 of State v. Louk, 169 W.Va. 24, 285 S.E.2d 432 (1981), we held, with regard to the elements of burglary:

The crime of burglary is defined in W.Va.Code, 61-3-ll(a), as: “Burglary shall be a felony and any person .convicted thereof shall be confined in the penitentiary not less than one nor more than fifteen years. If any person shall, in the nighttime, break and enter, or enter without breaking, or shall, in the daytime, break and enter, the dwelling house, or an outhouse adjoining thereto or occupied therewith, of another, with intent to commit [a crime] therein, he shall be deemed guilty of burglary.”

There simply is nothing in the statutory language and in our holding in Louk to indicate *504that unauthorized entry is an element of daytime burglary by breaking and entering.1

In addition, we find that the appellant’s reliance on State v. Plumley is misplaced. In Plumley, the defendant was convicted of burglary in the nighttime in addition to other crimes. The defendant had gained entry into the victim’s home for the ostensible purpose of using the victim’s telephone. The issue for this Court was whether the victim’s consent to enter was an absolute defense to the crime of burglary because the consent meant that there could be no unauthorized entry. In discussing this issue, we explained:

Thus, under W. Va.Code, 61-3-ll(a) [1973], the essential requirement of burglary committed in the nighttime is that the defendant “enter ... with intent to commit a felony or any larceny.”2 It is the intent and acts of the accused that the statute makes controlling. There is .-no language in the statute that the entiy must be by force or that it must be against the will of the occupant. The plain language of the statute indicates that the consent of the occupant obtained through fraud or threat of force is not a defense to the crime of burglary. Under statutes that define burglary as an entry without breaking with intent to commit a criminal offense, it is uniformly held that consent to enter is not a defense when the accused is shown to have entered through fraud or threat of force with the requisite criminal intent. burglary statute’s departure from the traditional common law requirement of “breaking” is significant because breaking was a concept designed to keep out intruders, or to prevent trespass into the building, and a person with authority to enter could not be said to have committed a breaking. However, the common law requirement of “entry” was a physical concept, and even the slightest entry by any part of the perpetrator’s body was sufficient to satisfy the requirement.

181 W.Va. at 688-689, 384 S.E.2d at 133-134 (footnote added and footnotes omitted). We further indicated,

In State v. Louk, 169 W.Va. 24, 26, 285 S.E.2d 432, 434 (1981), we noted the burglary statute had expanded to some degree the common law crime of burglary. However, this expansion was not material to the Louk decision. The West Virginia

181 W.Va. at 689, 384 S.E.2d at 134 (citations omitted). Moreover, we stated,

Because the legislature has deleted the “breaking” requirement with regard to entry in the nighttime, the statutory offense of burglary of the dwelling house of another involves no unlawfulness of entry except as the entry becomes unlawful by reason of the criminal intent of the person entering.3

Id. (Footnote added and footnotes omitted.). We ultimately determined that consent to enter is not an absolute defense to a charge of burglary in the nighttime, and we held in Syllabus Point 1,

Under W.Va.Code, 61-3-ll(a) [1973], the essential requirement of burglary committed in the nighttime is that the defendant “enter ... with intent to commit a felony or any larceny.” The intent and the acts of the defendant are controlling, and the consent of the occupant to enter is not a defense when the defendant is shown to have entered through fraud or threat of force with the requisite criminal intent. The statutory requirement of entry is also fulfilled when a person with consent to enter exceeds the scope of the consent granted.

At first blush, one may infer from our discussion in Plumley above that the crime *505of daytime burglary by breaking and entering requires an unauthorized entry. However, that inference is contradicted by our holding in State v. Ocheltree, 170 W.Va. 68, 289 S.E.2d 742 (1982). The issue in Ocheltree was whether criminal trespass is a lesser included offense of burglary. In considering this issue, we reasoned as follows:

The elements necessary to prove burglary under W. Va.Code, 61-3-ll(a) [1973], therefore, are: (1) in the daytime, (2) breaking and entering, (3) the dwelling-house of another, (4) with the intent to commit a felony or any larceny therein. The elements necessary to the proof of criminal trespass under W. Va.Code, 61-3B-2 [1978], are: (1) a knowing entry, (2) in a structure or conveyance, (3) without being authorized, licensed or invited.

.... To prove the crime of trespass, under W. Va.Code, 61-3B-2 [1978], the State must show .... that the entry was without authorization, license or invitation.... [T]here is no similar requirement under W. Va.Code, 61-3-11(a) [1973],

170 W.Va. at 71, 289 S.E.2d at 745. We further quoted with approval language from Estep v. State, 271 Ind. 525, 394 N.E.2d 111, 113 (1979), overruled on other grounds, Jones v. State, 438 N.E.2d 972 (Ind.1982), as follows:

Although the entry incidental to a burglary may be a trespass ... it does not follow, that it must be. One may never have been denied entry to his neighbor’s house, he may even have been expressly authorized to enter it at any time. Yet, if he enters by “breaking,” as that term has been employed in defining burglary, with the intent to commit a felony therein, he commits a burglary — although not a trespass, because the entry was authorized.

170 W.Va. at 71 fn. 4, 289 S.E.2d at 745 fn. 4. In Syllabus Point 2 of Ocheltree, we held that “[c]riminal trespass, as defined by W.Va. Code, 61-3B-2 [1978], is not a lesser included offense of burglary by breaking and entering as defined by W. Va.Code, 61-3-ll(a) [1973].” It is clear from both our discussion and holding in Ocheltree that an unauthorized entry is not a required element of burglary by breaking and entering. Therefore, we hold that an unauthorized entry is not a required element of the crime of daytime burglary by breaking and entering as defined in W.Va.Code § 61-3-ll(a).

In light of our holding, it is not relevant whether the appellant’s entry in Lori Walls’ house was authorized. Rather, the evidence had to show that the appellant committed a breaking and entering with the intent to commit a crime therein. In the instant case, there was sufficient evidence for a jury to find beyond a reasonable doubt that the appellant broke a window and entered Lori Walls’ house with the intent to harm Angela and/or Lori Walls. Therefore, we affirm the appellant’s conviction for daytime burglary by breaking and entering.

2. Sufficiency of the Evidence to Support Kidnaping Conviction

Second, the appellant contends that the evidence was legally insufficient to sustain his kidnaping conviction.4

*506The record reveals that the appellant requested to be sentenced under W.Va.Code § 61-2-14a(a)(4), which provides that the defendant’s sentence shall be a definite term of not less than ten nor more than thirty years where the court finds that the victim was returned, or was permitted to return alive without bodily harm, and without any concession having been paid or yielded. The trial court found, however, that a concession was paid or yielded in that the appellant “was able to gain control over [the victim] and kept her from leavingf.].” Thus, the court found- that subsection (4) of the statute did not apply, and sentenced the appellant to life with mercy as recommended by the jury.

The appellant first notes that under our kidnaping statute, the State must prove two distinct elements to establish the crime of' kidnaping — the act of confining the victim and the intent to use that confinement to obtain some sort of concession. He then claims that the trial court’s finding that a concession was paid or yielded was error. This is due to the fact that the concession element, as found by the trial court, is the same as the element of confining the victim. According to the appellant, this is insufficient because the concession must be something different from, and in addition to, the act of confinement. Moreover, the appellant avers that this Court is bound by the trial court’s finding of fact on the element of a concession being paid or yielded.5

We find the appellant’s argument to be without merit. This Court previously has explained that W.Va.Code § 61-2-14a provides a maximum sentence of life with or without mercy, based on the jury’s findings, and that any additional findings of fact made by the trial court operates to reduce the defendant’s sentence from the maximum sentence as found by the jury. See State v. Haught, 218 W.Va. 462, 624 S.E.2d 899 (2005). We have also held;

The provisions of the statute relating to the various punishments to be imposed upon a person convicted of the crime of kidnaping, and which punishments depend upon and are governed by the evidence introduced at the trial, do not state or prescribe any element of the offense created by the statute.

Syllabus Point 2, Pyles v. Boles, 148 W.Va. 465, 135 S.E.2d 692 (1964). Clearly, the trial court’s finding of fact that there was a concession gained was made with regal'd to sentencing and had nothing to do with the elements of the crime of kidnaping as found by the jury.

Our review of the evidence indicates that the jury could have found beyond a reasonable doubt that the appellant confined Ms. Walls for one of the purposes enumerated in the statute. For example, the jury could have found that the appellant confined Ms. Walls for the purpose of keeping his children with him. The jury also could have found that the appellant confined Ms. Walls for the purpose of killing her that evening in the woods, under cover of darkness with the intent “of evading capture or arrest.” W.Va. Code § 61-2-14a(a). Accordingly, we reject the appellant’s contention of insufficient evidence to sustain his kidnaping conviction, and we affirm the conviction.6

*507 3. The Constitutionality of the Appellant’s Sentence

The appellant also assigns as error his sentence of life with mercy plus sixteen years as excessive and violative of the proportionality and cruel and unusual punishment clauses of the constitution.7 The appellant bases his argument on the fact that he is 23 years old and has no prior criminal record. In addition, he says that the only injuries he caused were minor bruises to Ms. Walls’ face and leg which required no medical treatment, and the only damage he caused was a broken window in the back door of Lori Walls’ house. Moreover, the appellant notes that both Ms. Walls and her mother, Lori Walls, spoke on his behalf at sentencing and asked the court for mercy. Finally, the appellant opines that the facts of this case are much less egregious than those in State v. Richardson, 214 W.Va. 410, 589 S.E.2d 552 (2003), in which this Court found that sentences of thirty years for kidnaping and five for wanton endangerment were unconstitutionally harsh.

Our standard of reviewing sentencing orders is as follows: “The Supreme Court of Appeals reviews sentencing orders, including orders of restitution made in connection with a defendant’s sentencing, under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands.” Syllabus Point 1, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997). We have also held, however, that “[sentences imposed by the trial court, if within statutory limits and if not based on some unpennissible factor, are not subject to appellate review.” Syllabus Point 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504(1982).8

We conclude that the appellant’s sentence is not subject to our review because the sentence imposed for each conviction is within the statutory limit and the appellant has identified no impermissible factor9 upon which his sentence is based.10 While the *508appellant cites our per curiam opinion of State v. Richardson for support, Richardson is a deviation from our established law. While the defendant’s sentence in Richardson was within statutory limits and no impermissible sentencing factors were indicated, the Court in Richardson nevertheless conducted a proportionality analysis.11 We deem it generally to be the better practice to decline to review sentences that are within statutory limits and where no impermissible sentence factor is indicated in accord with Syllabus Point 4 of State v. Goodnight. Therefore, we find no merit to the appellant’s alleged sentencing error, and we affirm his sentence.

4. Alleged Instructional Error Regarding the Laio of Wanton Endangerment

The appellant’s next assignment of error is that the trial court failed to give additional instructions to the jury concerning the law on wanton endangerment. During deliberations, Jurors sent a note to the trial judge asldng two questions: (1) “Under ‘wanton endangerment’ does it matter if the gun is loaded?” and (2) “Does ‘wanton endangerment’ lie on the one with the gun or the perception of [the] person it is pointed at?” After reading the questions into the record, the trial court informed the parties, “And I’m going to bring them in and tell them that they have all of the legal instructions that I can give them in order to find their verdict,” to which the appellant’s counsel responded, “Yes, ma’am.” The trial court then brought the jury into the courtroom and advised them that “I instruct you that you have the Court’s instructions. That’s the only law that I can provide for you upon which you can base your verdicts.”

The appellant now contends that it was reversible error for the trial court not to answer the jury’s questions because both questions concerned essential elements of wanton endangerment. Also, the questions indicated that the jurors were confused about the proper law to apply. The State responds that the appellant forfeited this alleged error by failing to raise it below, and that the trial court’s decision not to answer the questions does not amount to plain error.

Because the appellant failed to preserve the alleged error, we will review it under our plain error analysis. We have held that “[t]o trigger application of the ‘plain error’ doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Syllabus Point 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). *509Syllabus Point 7, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996).

*508An 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. In clear terms, the plain error rule should be exercised only to avoid a miscarriage of justice. The discretionary authority of this Court invoked by lesser errors should be exercised sparingly and should be reserved for the correction of those few errors that seriously affect the fairness, integrity, or public reputation of the judicial proceedings.

*509Regarding the trial court’s duty to reinstruct the jury, this Court has held that

Where it clearly and objectively appears in a criminal case from statements of the jurors that the jury has failed to comprehend an instruction on a critical element of the crime or a constitutionally protected right, the trial court must, on request of defense counsel, reinstruct the jury.

Syllabus Point 2, State v. McClure, 163 W.Va. 33, 253 S.E.2d 555 (1979).

We find that the trial court did not err in declining to answer the jury’s questions. The jury instruction defining the crime of wanton endangerment was as follows: “The Court instructs the jury that any person who wantonly performs any act with a firearm which creates a substantial risk of death or serious bodily injury to another shall be guilty of a felony.” According to our wanton endangerment statute in pertinent part: “Any person who wantonly performs any act with a firearm which creates a substantial risk of death or serious bodily injury to another shall be guilty of a felony[.]” W.Va.Code § 61-7-12. The trial court’s instruction to the jury on wanton endangerment is identical to the statutory language. This Court has held that “[a]n instruction for a statutory offense is sufficient if it adopts and follows the language of the statute, or uses substantially equivalent language and plainly informs the jury of the particular offense for which the defendant is charged.” Syllabus Point 8, State v. Slie, 158 W.Va. 672, 213 S.E.2d 109 (1975). .Because the trial court’s instruction was identical to the statutory language, we conclude that it was sufficient.

If the appellant’s counsel had moved for the trial court to re-instruct or re-read the jury on the law of wanton endangerment in light of the jury’s confusion over the law, the court would have had a duty to do so. See State v. Lutz, 183 W.Va. 234, 395 S.E.2d 478 (1988) (finding reversible error for the judge to deny defendant’s motion to orally re-instruct the jury in light of the jury’s evident confusion over the law).12 However, counsel did not request that the instruction be re-read. Instead, the jury requested that the trial court discuss factors that are not set forth as elements of wanton endangerment in the statute. The trial court simply had no duty to do this. As explained by the trial court, the jury had been instructed on the only law upon which it could base its verdict. Therefore, we find no error in the trial court’s failure to answer the jury’s questions.

5. Alleged Instruction Error Regarding Jury Inferences

The appellant’s final ground for error is the trial court’s instruction that it would be reasonable for the juiy to infer that the appellant intended his acts and the natural and probable consequences of those acts. According to the appellant, this instruction violates the United States Supreme Court case of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and this Court’s holding in State v. O’Connell, 163 W.Va. 366, 256 S.E.2d 429 (1979), by placing the burden on the defense to rebut the inference, by stating an opinion by the' court regarding whether the jury should adopt the inference, and by instructing the jury that it must adopt the inference. The State asserts that this alleged error is not renewable by this Court because the appellant waived the error at trial. We agree with the State.

The record reveals that when the trial court was discussing its charge to the jury, the following conversation occurred between the trial court and the appellant’s counsel:

[Appellant’s counsel]: _ I believe I’m entitled to — or I’m going to ask you for an *510instruction that relates to the incidental nature of this kidnaping.

The Court: Uh-huh.

[Appellant’s counsel]: That would be my only comment. In all other respects, I have no objections. I would just ask you to give an instruction that — to the extent that the alleged kidnaping was incidental to other crimes.

After discussing the appellant’s counsel’s requested instruction on the incidental nature of the kidnaping, the following exchange occurred:

The Court: All right. . I want to take some time during the luncheon recess and plod about this incidental issue, because as I understand it, there are no other objections to the charge. Is that correct?

[Appellant’s counsel]: I have none, your Honor.

It is clear from this portion of the trial transcript that the appellant’s counsel affirmatively waived any alleged error regarding the instruction now complained of.

This Court has held that when a deviation from the law is waived, there is no error. In Syllabus Point 8 of State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), we explained:

Under the “plain error” doctrine, “waiver” of error must be distinguished from “forfeiture” of a right. 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. By contrast, mere forfeiture of a right— the failure to make timely assertion of the right — does not extinguish the error. In such a circumstance, it is necessary to continue the inquiry and to determine whether the error is “plain.” To be “plain,” the error must be “clear” or “obvious.”

Based on this rule, we find that the appellant waived any error in the allegedly improper instruction. As a result, there is no error, and this Court need not consider the issue.

III.

CONCLUSION

For the reasons set forth above, we affirm the appellant’s convictions for kidnaping, domestic battery, wanton endangerment, and daytime burglary by breaking and entering. We also affirm the appellant’s sentence of life with mercy plus twenty-one years for these crimes.

Affirmed.