State of West Virginia v. Gina Marie Jerrome

• Court: West Virginia Supreme Court
• Decided: May 8, 2014
• Docket: 13-0713
• Status: Separate

Opinion

No. 13-0713 - State of West Virginia v. Gina Marie Jerrome FILED May 8, 2014

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

LOUGHRY, Justice, concurring: OF WEST VIRGINIA

I concur in the majority’s conclusion that the petitioner’s grand larceny

conviction is properly affirmed under the “single larceny doctrine” and agree with this

Court’s recognition of the doctrine. I write separately, however, to highlight what I believe

to be the guiding principle in this regard, which is implicit in the majority’s new syllabus

point. This Court has previously made clear that with respect to singular or multiple charges,

absent a viable double jeopardy challenge, the propriety of such charge(s) is measured by

evidence of multiple separately-formed or singular intent(s), as determined by a jury. This

critical element was given thorough treatment in my colleague Justice Workman’s opinion

of State v. McGilton, 229 W.Va. 554, 729 S.E.2d 876 (2012).

In McGilton, this Court was faced with the same, but inversely presented, issue:

whether a defendant may be convicted of multiple offenses of malicious assault even when

the offenses were part of the “same course of conduct.” Id. at 556, 729 S.E.2d at 878, syl.

pt. 9, in part. This Court held that such a conviction was proper insofar as “the facts

demonstrate separate and distinct violations of the [malicious assault] statute.” Id. We

explained that whether multiple convictions could be sustained “is a question of fact which

may only be proven by examining the totality of the circumstances.” Id. at 566, 729 S.E.2d

at 888. We stated further that the propriety of such a conviction was dependent upon the

State’s ability to prove beyond a reasonable doubt that there was specific intent “for each

and every count of the indictment.” Id. at 567, 729 S.E.2d at 899 (emphasis in original).

Most importantly, we were emphatically critical of the petitioner’s attempt to persuade this

Court to rule “as a matter of law” that multiple stabbings always constitute a single offense

“regardless of the specific circumstances of the crime and irrespective of whether a

perpetrator actually formed the requisite intent each and every time he or she committed a

separate malicious assault of a victim.” Id. at 561, 729 S.E.2d at 883.

Subsequent to McGilton, Justice Workman and I criticized the majority for

disregarding these principles in State v. Goins, 231 W.Va. 617, 748 S.E.2d 813 (2013)

(Loughry, J., concurring). In Goins, the Court was faced with whether the State had

presented sufficient evidence to justify multiple convictions of brandishing where there were

multiple victims, but no evidence as to how many shots were fired in their direction. The

majority concluded that the conviction in Goins could not stand, yet blithely went on to state

that the notion that multiple brandishing violations could occur on the basis of multiple shots

was “absurd.” Id. at , 748 S.E.2d at 820. Drawing upon the analysis contained in

McGilton, we criticized the majority for making such a proclamation without recognizing,

like McGilton, that whether multiple convictions could be sustained was fact-specific: “It

is a dangerously overreaching conclusion, however, to insist that because the evidence

adduced below in this particular case did not sustain multiple convictions, that the statute

would not support such convictions were satisfactory evidence adduced; certainly, McGilton

instructs otherwise.” Goins, 231 W.Va. at , 748 S.E.2d at 823 (Loughry, J., concurring).

Taking heed of this principle, the Court’s new syllabus point properly allows

the jury to determine the number and quality of larcenies based upon the evidence with which

it is presented. Although the issue presented is typically couched in terms of whether

multiple convictions may be sustained based upon repetitive conduct, as opposed to whether

a single conviction may obtain from cumulative conduct, the underlying principle remains

the same: whether single or multiple convictions may be sustained depends on the evidence

adduced. Consistent with the clear import of McGilton, the Court’s new syllabus point

reflects that whether separate takings from separate owners constitutes a single or multiple

larcenies (of whatever degree) must be determined from the totality of the circumstances and

is dependent upon the number of separately formed intents as proven by the evidence.

The facts of the instant case not only illustrate the universe of possibilities

regarding multiple or single larcenies, but are instructive as to the nature and quality of

evidence that should be adduced at trial to support a conviction. Here, the petitioner stole

items from four victims. The items were contained in three different purses, which were

located at two different locations in one bar into which the petitioner and her boyfriend

entered that evening before leaving with the stolen items. The evidence presented at trial

indicated that the property of Karen Jewell and Christopher Violet, which were contained in

Ms. Jewell’s purse, totaled more than $1,000.00. Similarly, the collective worth of Ms.

Jewell and Lisa Bauer’s stolen items, which were contained in different purses sitting on the

same table, totaled more than $1,000.00. Sadie Atkinson’s purse, however, was located some

twenty to thirty feet away in a different part of the bar. However, there was also evidence

that the petitioner was observed “circling” the bar, ostensibly plotting her larcenous scheme,

which may have included the theft of all of the purses. Although the jury could have well

concluded from this evidence that the petitioner committed one, two, or three different

larcenies of varying degrees, it found that one larceny occurred, as was within its province.

As demonstrated by the fact pattern herein, the State must ensure that its

evidence comports with the manner in which the defendant is charged. The focus must be,

as explained in McGilton, on establishing the requisite evidence of intent to support the

charges. The majority expressly states that “[u]ltimately, the decision of what constitutes the

same place and time is determined on a case-by-case basis[,]” and its new syllabus point is

crafted in a manner that acknowledges the fact-specific nature of this issue. Unquestionably,

our precedent regarding singular or multiple charges compels the outcome reached in this

case.

I am authorized to state that Justice Workman joins in this concurrence.