State v. Sexton

346 S.E.2d 745, 176 W. Va. 595
CourtWest Virginia Supreme Court
DecidedJune 26, 1986
Docket16532
StatusPublished
Cited by3 cases

This text of 346 S.E.2d 745 (State v. Sexton) 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. Sexton, 346 S.E.2d 745, 176 W. Va. 595 (W. Va. 1986).

Opinions

PER CURIAM:

The appellant, Billy Ray Sexton, was convicted of grand larceny in the Circuit Court of Raleigh County and was sentenced to an indeterminate term of from one to ten years in the penitentiary. Following denial of his motion for a new trial, he prosecuted this appeal.

The appellant was indicted in Raleigh County for the burglary of the home of Rabbi Isadore Wein and the theft therefrom of several watches and assorted jewelry and coins, having an approximate value of $12,000. The indictment alleged that the crimes took place sometime between September 10, 1982 and October 12, 1982. The state’s evidence at trial showed that the jewelry and watches were taken from a dresser drawer in Rabbi and Mrs. Wein’s bedroom on the second floor of the house and the coins from a den on the first floor. Rabbi Wein testified that when he discovered the missing items on October 10, 1982, he found missing from the top drawer of his chest numerous rings, tie tacks, cuff links, a stick pin, and a small antique gun. Although their boxes remained, a Bulova watch and a diamond Helbros watch were [597]*597also missing. Missing from a second chest of drawers in the same room were two Rolex watches. Valuable coins and stamps were taken from the Weins’ den but nothing else in the house was taken, including Mrs. Wein’s jewelry.

The appellant had been employeed by the Weins to do miscellaneous jobs around their house and take care of an apartment building they owned since approximately 1974. Rabbi Wein testified that the appellant’s work at their house included transporting the Weins’ maid to and from work, assisting in the moving of heavy furniture, installing storm windows and mowing the lawn. The rabbi testified that the appellant had never helped carry suitcases from the bedroom, had never helped in the packing of the suitcases, and to the best of his knowledge, never had reason to go into the bedroom. The rabbi further testified that when he discovered the missing items, the appellant was at the house and when told about the robbery stated: “I haven’t got any keys.” The rabbi testified that he had taken the appellant’s keys to the house several years before after a separate incident.

The rabbi was questioned about his and Mrs. Wein’s traveling habits. He testified that they both went to Florida in October every year. Mrs. Wein would remain there for the remainder of the winter; he would return home after several days and make frequent trips back to Florida throughout the winter.

Mrs. Wein also testified on behalf of the state. She stated that the appellant had access to and was often in the house but that his duties never required him to go to the upstairs of the house where the Weins’ bedroom was located. He was, in fact, told never to go up there. Mrs. Wein denied that the appellant ever helped pack suitcases; he merely took the suitcases from the first floor of the house and placed them in the car. Mrs. Wein testified that she did the packing for trips without any help from the appellant or the maid. Finally, Mrs. Wein testified that the maid was allowed to go upstairs in the house to vacuum and dust and that the only time the appellant may have been in the bedroom was when he and his wife washed windows several years before. Mrs. Wein’s memory was not clear on this point.

Laura McComas, the Weins’ maid, testified that she had been employed by the Weins for thirty-one years; that neither she nor the appellant helped pack clothes inside a suitcase for the Weins; that the appellant and his wife had washed windows in the Weins’ bedroom several years before; and that although the appellant would on occasion carry heavy bags from the bedroom to the car, Mrs. Wein was with him the entire time he was in the bedroom.

Rabbi Wein’s insurance agent and two of the agent’s employees were called to testify for the state. Basically their testimony was that they were acquainted with the appellant through his job as a custodian of the building in which their office was located; that sometime around September 27, 1982 and October 1, 1982, the appellant came into the insurance office trying to sell a large, gold watch for $75; and that the appellant had previously tried to sell certain items to them but the items were inexpensive things such as candy and fruit. None of the employees could identify the watch peddled by the appellant as one of the missing watches.

Finally, the state elicited testimony from Beckley police officers who investigated the theft at the Wein residence. Officer Tommy Purdy testified that it was not a typical burglary in that the' house was in order and nothing was disarrayed. It appeared that the burglar had gained access to the house through a basement window that had been raised. A fingerprint specialist identified fingerprints on the Bulova watch box as being those of the appellant. No prints that had been lifted from other surfaces were useful, i.e., they were smudged and could not be identified.

The appellant testified in his own behalf that he had been hired by the Weins in 1971 to perform maintenance in an office building they owned and to transport their maid to and from work at their residence. In addition, he performed miscellaneous [598]*598tasks for Mrs. Wein around the house. The appellant testified that his duties took him throughout the house and that those duties included helping the Weins pack for trips, draining steam pipe radiators on both the first and second floor of the house, carrying luggage from the bedroom to the first floor, cleaning windows, vacuuming, dusting, and moving furniture in every room of the house. The appellant testified that on occasion when he helped with the packing he would have to close the suitcases before he carried them downstairs. In the process of closing them, he at times touched his hand to jewelry boxes that were in the suitcase.-

The appellant also testified that he purchased the watch he had tried to sell from a Mr. Walker at the Sportsman Pool Hall. He denied taking any of the missing items and disagreed with Rabbi Wein's testimony that the basement windows could be entered without using force.

At the conclusion of the testimony, the jury returned a verdict finding the appellant guilty of grand larceny and not guilty of burglary in the daytime. The appellant contends that the state’s evidence was insufficient to sustain the grand larceny con-. viction. He asserts that under State v. Noe, 160 W.Va. 10, 230 S.E.2d 826 (1976), his conviction must be set aside. In Syllabus Point 1 of Noe, we held that fingerprint evidence, being circumstantial evidence, will not sustain a conviction where it is the “only evidence linking defendant to the commission of the crime, creates a mere suspicion of guilt, does not prove the actual commission of the crime charged and fails to prove guilt to the exclusion of every reasonable hypothesis of innocence.”

Our holding in State v. Noe, supra, is not applicable to the case before us where the evidence of appellant’s fingerprints on the Bulova watch box was not the only evidence linking the appellant to the commission of the crime. The state’s evidence, which the jury was entitled to believe, was that the appellant had never had tK| opportunity to touch the watch box on agiurely innocent occasion; that any time tsBappellant had been in the bedroom from wffibh the items were taken he had been accompanied by Mrs. Wein; and that upon hearing of the robbery the appellant immediately left the Wein residence and did not return.

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Bluebook (online)
346 S.E.2d 745, 176 W. Va. 595, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sexton-wva-1986.