State v. Riley

282 S.E.2d 623, 168 W. Va. 129, 1981 W. Va. LEXIS 728
CourtWest Virginia Supreme Court
DecidedOctober 6, 1981
DocketNo. 14529
StatusPublished
Cited by3 cases

This text of 282 S.E.2d 623 (State v. Riley) 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. Riley, 282 S.E.2d 623, 168 W. Va. 129, 1981 W. Va. LEXIS 728 (W. Va. 1981).

Opinion

McHugh, Justice:

This action is before this Court upon the petition of Denzil Jackson Riley for an appeal and supersedeas from an order of the Circuit Court of Harrison County, West Virginia, entered upon a jury verdict, adjudging Riley (hereinafter “defendant”) guilty of the felony offense of grand larceny. Consequently, this Court has before it all matters of record, including a transcript of the defendant’s trial, and the briefs filed by counsel.

At the May, 1976 term, a grand jury of the Circuit Court of Harrison County returned a two count indictment asserting that the defendant and John Lee Aiello, Norbert William Ralajczak and Anthony Michael Resendez broke and entered a building used and occupied by Pocahontas Fuel Company, Inc., doing business as Champion Store. Count one of the indictment asserted that the defendant and the other above named persons broke and entered the building in the nighttime and removed items, enumerated in the indictment, of the total value of $2,092.19. The allegations in count two of the indictment were essentially the same as in count one, with the exception that in count two the breaking and entering and theft were alleged to have occurred in the daytime.

The defendant was tried separately from his co-indict-ees. The trial began on June 26,1978, and on June 30,1978, the jury returned the following verdict: “We the jury, find the defendant Denzil Jackson Riley, guilty of grand lar[131]*131ceny as charged in the within indictment.” Subsequently, the defendant was sentenced to the penitentiary for a period of not less than one nor more than ten years.

Specifically, the record indicates that the defendant and his co-indictees stole property from the Champion Store at Owings, West Virginia on January 16,1976. The defendant had been drinking that evening. Upon leaving in a station wagon filled with property from the store, the defendant and his co-indictees were stopped for a tail light violation by Trooper L. J. Maxey of the West Virginia Department of Public Safety. At that time Trooper Maxey saw various items of property in the station wagon and further noticed the defendant as one of the passengers. The defendant does not deny being in the station wagon stopped by Trooper Maxey. Subsequently, Trooper Maxey learned of the theft at the Champion Store and upon arriving at the scene concluded that entry into the building had been made by breaking the glass in the front door. The defendant was arrested on January 17, 1976.

The testimony adduced at the defendant’s trial indicated that many items were taken from the Champion Store during the theft, including two tape players. These tape players were described as a Capehart eight-track stereo tape-radio player and an Emerson eight-track stereo. During the trial the defendant’s confession was admitted into evidence. In that confession, the defendant admits going into the Champion Store, taking a tape player, and returning to the station wagon.1 In addition to [132]*132the confession, the defendant at trial admitted going into the Champion Store and taking a tape player.

At the conclusion of the trial, the judge informed the jury that four possible verdicts could be returned against the defendant. These verdicts were: (1) guilty of breaking and entering, (2) guilty of grand larceny, (3) guilty of petit larceny and (4) not guilty. It is from his conviction of grand larceny that the defendant appeals to this Court.

The defendant contends that there is no evidence in the record to show that he broke into the Champion Store. The defendant admits that he was present at the store but denies participation in the breaking and entering. Furthermore, the defendant contends that the elements of the offense of grand larceny were never explained to the defendant or the jury. Finally, the defendant asserts that the tape player he took from the store was a Sony tape player which was not listed upon the indictment with the other property allegedly stolen. Consequently, the defendant concludes that he could not have been convicted upon the basis of the indictment. At the time the alleged theft by the defendant occurred, W. Va. Code, 61-3-13 [1957], provided as follows:2

If any person commit simple larceny of goods or chattels, he shall, if they be of the value of fifty dollars or more, be deemed guilty of grand larceny, and, upon conviction thereof, shall be confined in the penitentiary not less than one nor more than ten years; and if they be of less value, he shall be deemed guilty of petit larceny, and, upon, conviction thereof, be confined in jail not exceeding one year.

[133]*133In both counts of the indictment, the offense of breaking and entering, W. Va. Code, 61-3-12 [1923], was combined with larceny, W. Va. Code, 61-3-13 [1957].3 Specifically, the indictment alleges that the defendant broke and entered the building with the intent to commit a larceny and, in fact, did steal, take and carry away the various items of property. As this Court has held: “An indictment may allege burglary and larceny in the same count, and likewise may join charges of breaking and entering and larceny in the same count.” Syl. pt. 3, State v. Varner, 131 W. Va. 459, 48 S.E.2d 171 (1948); Syl. pt. 2, State v. Cutlip, 131 W. Va. 141, 46 S.E.2d 454 (1948). See also Syl. pt. 1, State v. Flanagan, 48 W. Va. 115, 35 S.E. 862 (1900).

Moreover, State’s instruction number 6 and defendant’s instruction number 2 were given at the conclusion of the defendant’s trial which set forth the elements of grand and petit larceny. This Court is, therefore, of the opinion that the offense of larceny and its elements were properly set forth for the defendant and the jury.

Accordingly, this Court must consider whether there was sufficient evidence adduced at trial to support the [134]*134verdict of the jury finding the defendant guilty of grand larceny. As this Court has held:

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. Andriotto, _ W. Va. _, 280 S.E.2d 131 (1981); Syl. pt. 1, State v. Starkey, 161 W. Va. 517, 244 S.E.2d 219 (1978).

It is clear from the record that on January 16, 1976, the defendant was more than a witness to a crime. As the confession and testimony of the defendant indicate, he entered the Champion Store by way of the broken front door and removed a tape player. The defendant left the scene with the tape player by way of the station wagon along with his co-indictees and the other stolen property.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Armijo
905 P.2d 740 (New Mexico Court of Appeals, 1995)
State v. Hoselton
371 S.E.2d 366 (West Virginia Supreme Court, 1988)
State v. Ray
298 S.E.2d 921 (West Virginia Supreme Court, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
282 S.E.2d 623, 168 W. Va. 129, 1981 W. Va. LEXIS 728, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-riley-wva-1981.