State v. Stone

728 S.E.2d 155, 229 W. Va. 271, 2012 WL 2369483, 2012 W. Va. LEXIS 317
CourtWest Virginia Supreme Court
DecidedJune 21, 2012
DocketNo. 11-0519
StatusPublished
Cited by37 cases

This text of 728 S.E.2d 155 (State v. Stone) 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. Stone, 728 S.E.2d 155, 229 W. Va. 271, 2012 WL 2369483, 2012 W. Va. LEXIS 317 (W. Va. 2012).

Opinion

MeHUGH, J.:

By order entered November 16, 2010, the Circuit Court of Monongalia County re-sentenced Appellant Brian John Stone with regard to his conviction and sentence on twenty-six charges stemming from an alcohol-related automobile accident in which five people died and seven others were injured. In this appeal, Appellant challenges his multiple punishments for leaving the scene of an accident resulting in injury or death; the trial court’s order denying his motion to suppress evidence of his blood alcohol content; and the sufficiency of the evidence on the charges of DUI causing death and leaving the scene of the accident.

Upon careful consideration of the briefs and arguments of the parties, the record below and the applicable legal authority, and for the reasons stated herein, we affirm, in part, and reverse, in part, the November 16, 2010, order of the circuit court, and remand this ease, with instructions.

I. Facts and Procedural History

On July 8, 2007, sometime after 10:00 p.m., Appellant was driving his Ford F-150 truck eastbound on Interstate 68 in Monongalia County, West Virginia. Witness Daniel Greathouse was driving in front of Appellant in the same direction and observed Appellant’s truck in his reai*view mirror. Mr. [275]*275Greathouse, who estimated his own speed at eighty miles per hour, estimated that Appellant was driving at a speed close to ninety miles per hour. Mr. Greathouse testified that both he and Appellant were traveling in the right lane and another ear, a Ford Taurus driven by Cortney Evans, was traveling a car length’s distance ahead of Mr. Great-house in the left lane. According to Mr. Greathouse, Appellant passed him in the left lane and as Appellant’s truck re-entered the right lane in front of Mr. Greathouse, the back end of Appellant’s truck began swerving back and forth, hitting Mr. Evans’ car. Witness Jamie Porter, who was driving westbound on Interstate 68, testified that she observed Appellant’s truck try to “shimmy its way through” into the left lane.

Sheena Evans, Mr. Evans’ wife and front seat passenger, testified both she and her husband observed that Appellant’s truck began moving over into their ear in the left lane. As Mr. Evans tried to avoid Appellant’s track, Mrs. Evans observed her husband “trying to hold the wheel steady. He was holding the wheel so hard, and the truck just would not get off of us at all. He would not let us alone, and he just kept pushing and pushing.” According to Mrs. Evans, the contact took the car “like a bullet and shot us clear over”, across the median to the opposite side of the highway. After crossing the median, Mr. Evans’ ear crashed into a sport utility vehicle being driven westbound by Donnell Perry.

For Appellant’s part, his theory at trial was that the right front tire of his truck blew out, causing him to lose control of his vehicle, or “fishtail.” He testified that his track “suddenly pulled to the right and then I counter-steered, of course to stay on the highway, to the left, and I believe that is when my track and the Taurus ... came into contact, when I counter steered.” In contrast to Appellant’s testimony, however, Sergeant William Yaskoweak, who testified as an expert in accident reconstruction, indicated that there was no physical evidence that the right front tire on Appellant’s truck had blown out.

As a result of the accident, Mr. Evans and his son were killed as were Mr. Perry and two of his daughters. Mrs. Evans and another son were injured and Marcia Perry, Mr. Perry’s wife, and four other children in their vehicle were also injured.

Meanwhile, Mr. Greathouse testified that after Appellant’s truck made contact with Mr. Evans’ car, Appellant’s truck rolled over at least one time. The truck then went over an embankment and landed in a culvert approximately 200 yards away. Appellant’s truck was found with the engine running, in gear, with its lights on and with the passenger-side door open. Deputy David Wilfong of the Monongalia County Sheriffs Department testified that he observed Appellant hitchhiking in the opposite direction of the accident scene, approximately one-half mile away.

As Deputy Wilfong approached Appellant, he observed his eyes to be bloodshot and glassy. He further observed that Appellant was having trouble standing and was swaying back and forth. According to Deputy Wilfong, he smelled the odor of alcoholic beverage on Appellant’s breath and person. When asked if he had been in an accident, Appellant replied in the negative. However, Appellant admitted that he had been drinking forty to forty-five minutes earlier. Deputy Wilfong administered three different field sobriety tests on Appellant. Upon failing all three tests, Appellant was placed under arrest at approximately 10:45 p.m.

Thereafter, while at the Monongalia County Sheriffs Department, Appellant twice refused to submit to the intoximeter breath test. As a result, officers requested a search warrant for a sample of Appellant’s blood in order to obtain his blood alcohol content level. The Monongalia County magistrate on call found probable cause and issued the requested warrant. Tests completed on Appellant’s blood sample less than two hours after his arrest revealed that he had a blood alcohol concentration of .23, almost three times the legal limit.

Appellant was tried and convicted on twenty-five charges relating to the accident: one count of DUI; five counts of DUI causing death; seven counts of DUI causing injury; five counts of leaving the scene of an accident [276]*276causing death; and seven counts of leaving the scene of an accident causing injury.1 The trial court ordered the sentences therefor to run consecutively to each other.

Thereafter, Appellant filed post-trial motions in arrest of judgment and for post-verdict judgment of acquittal or new trial. Both motions were denied. By order entered November 16, 2010, the trial court entered a Re-Sentencing Order, which re-sentenced Appellant to allow opportunity for appeal of his convictions because a direct appeal thereof had never been filed. This appeal followed.

II. Discussion

A. Leaving the Scene of an Accident Resulting in Injury or Death

The first issue for our review is whether, as a matter of law, the driver of a vehicle who leaves the scene of an accident resulting in injury to or death of more than one person may be convicted of and sentenced for multiple violations of West Virginia Code § 17C-4-1 (1999). It is Appellant’s contention that West Virginia Code § 17C-4-1 is ambiguous in this regard and that, under the rule of lenity, the statute must be strictly construed against the State and in favor of Appellant.

West Virginia Code § 17C-4-1 (1999) provides, in relevant part:

(a) The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and shall remain at the scene of the accident until he or she has complied with the requirements of section three [§ 17C-U-3] of this article: Provided, That the driver may leave the scene of the accident as may reasonably be necessary for the purpose of rendering assistance to an injured person as required by said section three. Every such stop shall be made without obstructing traffic more than is necessary.2

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Cite This Page — Counsel Stack

Bluebook (online)
728 S.E.2d 155, 229 W. Va. 271, 2012 WL 2369483, 2012 W. Va. LEXIS 317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-stone-wva-2012.