State v. Deem

456 S.E.2d 22, 193 W. Va. 295, 1995 W. Va. LEXIS 1
CourtWest Virginia Supreme Court
DecidedFebruary 17, 1995
DocketNo. 22488
StatusPublished

This text of 456 S.E.2d 22 (State v. Deem) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Deem, 456 S.E.2d 22, 193 W. Va. 295, 1995 W. Va. LEXIS 1 (W. Va. 1995).

Opinions

PER CURIAM:

This case is before the Court on an appeal from the January 28, 1994, sentencing order of the Circuit Court of Wood County, sentencing the Appellant, Matthew Deem, to one year in the Wood County Correctional Center for his jury conviction of aiding and abetting an unlawful assault.1 The Appellant argues that the jury’s verdict was not supported by the evidence and that the lower court erred in denying the Appellant’s motions for judgment of acquittal, and for a new trial. Based upon a review of the record, the parties’ arguments, and all other matters submitted before this Court, we conclude that no error was committed by the lower court and accordingly, we affirm.

I.

On June 27, 1993, the Appellant, Kenny Tullius, Dennis Hoosier and Gary Taylor left a party in Mr. Tullius’ car for the purpose of taking Mr. Taylor home. Mr. Taylor lived near the intersection of Eighth Avenue and Elder Street in Parkersburg, West Virginia. Howard Curran, the victim, testified that as Mr. Tullius’ car approached this intersection, he and a group of people were standing in front of David Burke’s house.2 According to the victim, someone in his group made the remark “[d]o you remember me?” to Mr. Tullius as Mr. Tullius’ car passed by the group. Mr. Taylor, who was a passenger in Mr. Tullius’ car, testified that the remark he heard yelled at Mr. Tullius was “[s]low down, nigger.”

In response to the remark, Mr. Tullius pulled his car over to the curb. Mr. Taylor’s testimony indicated that Mr. Tullius originally started to pull over in front of Mr. Taylor’s house, but that he told Mr. Tullius to “go on up the road, ’cause I don’t need the trouble.” The Appellant, Mr. Hoosier, Mr. Tullius, and Mr. Taylor exited the Tullius vehicle. At that time, these individuals, with the exception of Mr. Taylor,3 were joined by Ben Gard and Robbie Cottrill, who both exited a vehicle driven by Mr. Gard. All of these individuals retrieved clubs4 from Mr. Tullius’ car, according to Mr. Charles Arnold, who lived in the neighborhood and was participating in a neighborhood watch at the time of the incident. Sandra Lynch, also a neighbor, testified that as the group took clubs from the vehicle she “heard them say, ‘[i]f you want to rumble, let’s do it.’ ”

[298]*298The Appellant’s group5 then walked with their clubs towards the victim and his group. According to both the Appellant’s and Mr. Taylor’s testimony, the Appellant briefly left his group to get a cigarette from Mr. Taylor who was on his front porch, but the Appellant returned to his group prior to the assault. The victim testified that Mr. Hoosier came to within three feet of him, that Mr. Tullius was behind Mr. Hoosier and that the rest of the Appellant’s group, including the Appellant, branched out, in a semicircular fashion, approximately twenty feet behind Mr. Hoosier and Mr. Tullius. Mr. Arnold testified that the Appellant, Mr. Gard and Mr. Cottrill had their clubs down at their sides. The victim testified that he was arguing with Mr. Hoosier and Mr. Tullius, and that prior to Mr. Hoosier striking him, Mr. Hoosier instructed the Appellant’s group that “he [Mr. Hoosier] wanted this guy [the victim] and not to touch this guy [a man identified as Mark Griffith and his girlfriend] and things like that.” Shortly thereafter, Mr. Hoosier suddenly and without any aggression displayed by the victim, struck the victim with the club. The victim sustain a laceration requiring ten stitches and a slight concussion.

According to the undisputed testimony, the Appellant and the victim never exchanged words. Further, the Appellant never said anything to Mr. Hoosier prior to Mr. Hoosier striking the victim. The victim also testified that he did not know the Appellant and that he had never had a problem with him.

After Mr. Hoosier struck the victim, Mr. Taylor testified that “[t]hey took off running up the road and said, ‘Let’s get out of here before the cops get here.’ ” Ms. Lynch also testified that she heard statements from Mr. Tullius and Mr. Hoosier as they were leaving the crime scene to the effect of “[t]hat was fun” and “[w]e ought to do this more often[,]” and that all the members of the Appellant’s group appeared to be laughing.

The Appellant6 testified on his own behalf. He stated that as they were driving around the corner at the intersection of Eighth Avenue and Elder Street someone yelled at the Tullius vehicle, causing Mr. Tullius to pull over to the curb. The Appellant testified that he grabbed a club from Mr. Tullius’ car “for self defense because I saw the two golf clubs7 and I needed it in case anything would happen.” The Appellant further stated that “I had a feeling that something would happen, but I didn’t think it would go like— get this drastic.” Finally, the Appellant’s testimony indicated that he originally denied having the club to the police because he believed he was just a witness and that he was making a statement just to inform the police about what transpired that night.

II.

The only issue before the Court is whether sufficient evidence was presented to the jury to support the Appellant’s conviction. The Appellant asserts that the State’s theory of the case was that the Appellant, simply by being in the vicinity of the assault, gave “moral support” to the principal in the first degree which warranted the Appellant’s conviction for aiding and abetting the unlawful assault. The Appellant argues that this Court has never recognized “moral support” alone as being a basis for convicting a person of aiding and abetting. In contrast, the Appellee contends that when viewed in a light most favorable to the State, the evidence was sufficient to support the Appellant’s conviction for aiding and abetting the unlawful assault.

The standard of review on appeal for determining whether sufficient evidence [299]*299was admitted at trial to support a conviction is:

In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state’s evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done.

Syl. Pt. 1, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978); see Syl. Pt. 1, State v. Kirkland, 191 W.Va. 586, 447 S.E.2d 278 (1994). Further, in syllabus point 8 of State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989) we held that

[wjhere a defendant is convicted of a particular substantive offense, the test of the sufficiency of the evidence to support the conviction necessarily involves consideration of the traditional distinctions between parties to offenses. Thus, a person may be convicted of a crime so long as the evidence demonstrates that he acted as an accessory before the fact, as a principal in the second degree, or as a principal in the first degree in the commission of such offense.

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Cite This Page — Counsel Stack

Bluebook (online)
456 S.E.2d 22, 193 W. Va. 295, 1995 W. Va. LEXIS 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-deem-wva-1995.