State v. Vandevender

438 S.E.2d 24, 190 W. Va. 232, 1993 W. Va. LEXIS 161
CourtWest Virginia Supreme Court
DecidedNovember 23, 1993
DocketNo. 21606
StatusPublished
Cited by2 cases

This text of 438 S.E.2d 24 (State v. Vandevender) 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. Vandevender, 438 S.E.2d 24, 190 W. Va. 232, 1993 W. Va. LEXIS 161 (W. Va. 1993).

Opinion

PER CURIAM:

This action is before this Court upon an appeal from the September 2, 1992, order of the Circuit Court of Randolph County, West Virginia. The appellant, Craig Eugene Van-devender, was convicted of various misdemeanors, in violation of W.Va.Code, 6i-2-9(b) [1978] (assault), W.Va.Code, 61-2-9(c) [1978] (battery), W.Va.Code, 17C-5-3(a) [1979] (reckless driving) and W.Va.Code, 17C-4-2 [1951] (failure to stop after an accident or leaving the scene of an accident).1 The appellant received a one-year sentence which was suspended to ninety days confinement in the Randolph County Jail. On appeal, the appellant asks that this Court set aside the judgment of the circuit court and grant him a new trial. For the reasons stated below, the judgment of the circuit court is affirmed.

I

On the evening of September 21, 1991, nineteen-year-old Matthew Salazar, and his sixteen-year-old friend, Scott Layton, trav-elled from Tunnelton, West Virginia to Philip Barbour High School, also in West Virginia, to watch a football game; but, on their way home from the game, they got lost. The two boys then came upon two other men stopped on the side of the road because their truck had mechanical difficulties. Salazar, the driver of the two boys’ vehicle, agreed to give one of the men a ride in order to find help in exchange for directions home.

The details and the sequence of events shortly before the acts in question remain in dispute, but according to the transcript, the following transpired.

Salazar contended he resumed driving down the road with his two passengers when a truck, driven by the appellant, approached his vehicle from the opposite direction and the vehicles’ side mirrors collided. Salazar then continued driving down the road, because the driver of the other vehicle did not turn around. However, approximately four to five miles down the road, Salazar saw in his rearview mirror the appellant’s truck approaching rapidly. The appellant’s truck hit Salazar’s vehicle in the rear and then on the side, eventually knocking Salazar’s vehicle into a culvert.

Once Salazar stopped his vehicle, the appellant confronted him. The appellant sub[234]*234sequently reached inside the vehicle and he repeatedly hit Salazar in the face -with a beer can and then with his fists. As a result, Salazar suffered a triple fracture to his nose, a fractured jaw and a broken tooth.

II

Following an investigation of the entire incident, the appellant was indicted on the charges noted above.

At trial, the appellant offered testimony supporting his contention that he was not at the scene of the altercation, however, Salazar testified to the contrary.

The jury deliberated for approximately three and one-half hours and arrived at a verdict of not guilty on all counts. The prosecution then asked the court to poll the jury regarding the verdict. The court questioned the jurors as to whether each juror arrived at the verdict of not guilty. One juror responded to the question by stating that the verdict was not unanimous.

Thereafter, the following dialogue took place between the court and the jurors:

THE COURT: You must all agree as to a verdict of guilty or a verdict of not guilty.
THE JUROR: And if we don’t?
THE COURT: Then if you don’t — then you should so report. Let me ask you again — Mr. Miller, you’re the foreman— was the jury unanimous in it’s verdict?
MR. MILLER: No.
(The court took a brief recess and excused the jury. The court discussed the matter with the respective counsel. After hearing arguments by counsel, the jury returned to the jury box and court reconvened.)
THE COURT: Ladies and gentlemen, I’m — I’m sorry to advise you of this, but the [l]aw contemplates that all twelve (12) jurors must be in agreement as to either a verdict of guilty or not guilty on each charge. So I’m going to have to return you to your deliberations until you are all in agreement. The [l]aw contemplates the concurrence of the twelve (12) minds as to either a verdict of guilty, or as to a verdict of not guilty....

The jury, in an attempt to arrive at a unanimous verdict, then returned to their deliberations. Approximately one hour later, the jury arrived at a unanimous verdict of guilty on all counts. The court subsequently asked the jury if the verdict was unanimous, and the jury simultaneously nodded in the affirmative.

The appellant filed a motion for judgment of acquittal or a new trial which the trial court denied by order dated September 2, 1992. The appellant was sentenced to one year in the Randolph County jail. That sentence was partially suspended to ninety days confinement in the Randolph County jail.

It is from the September 2, 1992, order of the circuit court that the appellant appeals to this Court.

Ill

The sole issue on appeal is the appellant’s contention that the circuit court erred in denying the appellant’s motion for a new trial based upon the matters surrounding the jury’s verdict and the insufficiency of the evidence. However, this Court is of the opinion that there is no reversible error in this case.

Rule 31 of the West Virginia Rules of Criminal Procedure provides, in relevant part, that:

(a) Return. The verdict shall be unanimous. It shall be returned by the jury to the judge in open court.
(d) Poll of Jury. When a verdict is returned and before it is recorded the jury shall be polled at the request of any party or upon the court’s own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.

This Court discussed Rule 31 and its function in State v. Tennant, 173 W.Va. 627, 319 S.E.2d 395 (1984). In syllabus point 1 of Tennant, we focused on the unanimity of the verdict: “Rule 31 of the West Virginia Rules of Criminal Procedure, which is modeled after Rule 31 of the Federal Rules of [235]*235Criminal Procedure, mandates that the verdict in a criminal case be unanimous and provides a procedure for ensuring that the verdict is unanimous, i.e., the jury poll.” In syllabus point 2, we adopted the federal procedure for handling situations when a juror admits in a poll to having reservations or simply disagreeing with the jury’s verdict:

Federal cases have held that the language of Rule 31(d) of the Federal Rules of Criminal Procedure requires that when a juror indicates in a poll that he either disagrees with the verdict or expresses reservations about it, the trial court must either direct the jury to retire for further deliberations or discharge the jury. Although the rule does not explicitly so state, courts have also recognized that appropriate neutral questions may be asked of the juror to clarify any apparent confusion, provided the questions are not coercive. We adopt this procedure for Rule 31(d) of the West Virginia Rules of Criminal Procedure.

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Cite This Page — Counsel Stack

Bluebook (online)
438 S.E.2d 24, 190 W. Va. 232, 1993 W. Va. LEXIS 161, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-vandevender-wva-1993.