State v. Tharp

400 S.E.2d 300, 184 W. Va. 292, 1990 W. Va. LEXIS 242
CourtWest Virginia Supreme Court
DecidedDecember 14, 1990
DocketNo. 19595
StatusPublished
Cited by2 cases

This text of 400 S.E.2d 300 (State v. Tharp) 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. Tharp, 400 S.E.2d 300, 184 W. Va. 292, 1990 W. Va. LEXIS 242 (W. Va. 1990).

Opinion

PER CURIAM:

The appellant, James Tharp, appeals his conviction by a jury in the Circuit Court of Hardy County of grand larceny and burglary. The appellant contends that the trial court erred in allowing the victim to testify at trial as to the identity of the appellant, and that there was insufficient evidence to support the jury verdict. We find no reversible error.

On July 21, 1989, at approximately 7:00 p.m., a man entered the home of the victim, Virginia Jennings, carrying an ax. He took the money she had in her wallet and threatened to “split” her with the ax unless she told him where all of the money in the house was located. The perpetrator had a cut over his right eye and forced Mrs. Jennings to bandage it. The perpetrator beat the eighty-six-year-old victim with the back of the ax, which fractured her left humerus and severely bruised her. He also used the ax to chop the telephone cord and to damage the table on which the phone was placed. After admitting to him that she had some money in a metal locker in the upstairs of her home, the perpetrator bodily dragged Mrs. Jennings up to her bedroom and forced her to open it.1 The perpetrator then cut the telephone cord upstairs and used it to tie Mrs. Jennings to the bed.

After the perpetrator left, Mrs. Jennings was able to loosen the telephone cords wrapped around her wrists and to free herself. She waited in her home until daylight and then went outside to get help from her neighbor, Edward Hill, who trav-elled past her home each morning on his way to work. Mrs. Jennings told Mr. Hill that she had been beaten and robbed, and he noticed that she was severely bruised. Mr. Hill went back to his home to get his wife, Patricia Hill. Mrs. Hill and her aunt, Gladys Miller, then went to Mrs. Jennings’ home to stay with her until the police arrived.

Iva Jennings, the victim’s daughter, and the police subsequently arrived at Mrs. Jennings’ residence. They found that the glass on the front door was cracked, and that the telephone cord and a table had been cut. They also noticed cigarette butts in an ashtray and a box of bandaids laying on the kitchen table. They found that there was no money in Mrs. Jennings’ wallet and that there were telephone cords and strings tied to her bed. Her ax, her rifle and some shells were also missing.

Mrs. Jennings gave a statement to the police before she was taken to the hospital. Although she could not identify the perpetrator by name, she described him as a short man with a cut over his right eye which was bleeding.

Later in the day, the police received a phone call from a member of the appellant’s family who had found the rifle near the home of the appellant’s grandmother. The police then questioned the appellant at his grandmother’s home about the rifle. He eventually admitted that he had taken the rifle from Mrs. Jennings’ home, but he denied that he had beaten her.

The grand jury returned an indictment charging the defendant with aggravated robbery, malicious assault and burglary. After a trial by jury, the appellant was convicted of grand larceny and burglary. The trial court sentenced the appellant to a period of not less than one nor more than ten years for the conviction of burglary, and to a period of not less than one nor more than fifteen years for the conviction of grand larceny. The trial court ordered that these sentences be served consecutively, and gave the appellant credit for the 137 days he served in the county jail. This case is now before us on appeal from the appellant’s conviction.

I

The appellant first contends that the trial court erred in allowing Mrs. Jennings to testify at trial as to the identity of the appellant. The appellant points out that Mrs. Jennings could not initially iden[295]*295tify the perpetrator, and that the description given by Mrs. Jennings the day after the incident did not match the appellant. The appellant maintains that Mrs. Jennings identified him as the perpetrator only after his name was suggested to her by Deputy Sheriff Robert Ferrell when he told her the appellant had admitted taking her rifle.

The factors to be considered in determining whether the identification of a suspect is reliable, was stated by this Court in syllabus point 3 of State v. Spence, 182 W.Va. 472, 388 S.E.2d 498 (1989):

‘In determining whether an out-of-court identification of a defendant is so tainted as to require suppression of an in-court identification [or testimony as to the out-of-court identification itself] a court must look to the totality of the circumstances and determine whether the identification was reliable, even though the confrontation procedure was suggestive, with due regard given to such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ pri- or description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.’ Syllabus Point 3, as amended, State v. Casdorph, 159 W.Va. 909, 230 S.E.2d 476, 478 (1976).

The evidence shows that the victim in this case was an eighty-six-year-old woman who lived alone. Although she was not able to identify the perpetrator immediately after the crime, she did have the opportunity to view him while the crime was being committed. Mrs. Jennings bandaged the perpetrator’s head and obviously had an opportunity to view him at a close distance. Although there are some inconsistencies between Mrs. Jennings’ identification of the appellant2 and the testimony of other witnesses who had seen the appellant the night of the incident, there were several things she identified which would indicate the appellant was the perpetrator. In her statement, Mrs. Jennings described the perpetrator as 25 to 30 years old, that he was a small man with small hands,3 and most importantly, that he had a cut over his right eye. Trooper R.S. Shambach and Deputy Sheriff Robert L. Ferrell, both testified that the appellant had a fresh cut over his right eye the morning after the incident.

The appellant places great emphasis on the fact that Mrs. Jennings would not have named him as the perpetrator had Deputy Ferrell not disclosed to her that the appellant had stolen her rifle. Yet, the appellant presented evidence to the jury at trial regarding Mrs. Jennings’ inability to initially identify the perpetrator, and Deputy Ferrell’s disclosure to Mrs. Jennings. Deputy Ferrell testified to the jury that the morning after the incident, Mrs. Jennings did not know who the perpetrator was, but that she identified the appellant as the perpetrator after Deputy Ferrell told her the appellant had taken her rifle. Furthermore, the appellant pointed out the inconsistencies in Mrs. Jennings’ identification to the jury, and also emphasized that the appellant was the victim’s greatnephew. Thus, the jury was fully apprised of the irregularities in Mrs. Jennings’ identification of the appellant.

Considering the criteria set forth in State v. Spence, supra, we do not believe that Mrs. Jennings’ in-court identification of the appellant as the perpetrator should have been suppressed. Although there were inconsistencies regarding the appellant’s clothing and tattoos in her description, which were pointed out to the jury, Mrs.

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Related

State v. Meade
474 S.E.2d 481 (West Virginia Supreme Court, 1996)
State v. Gill
416 S.E.2d 253 (West Virginia Supreme Court, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
400 S.E.2d 300, 184 W. Va. 292, 1990 W. Va. LEXIS 242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tharp-wva-1990.