David A. Downes Darrell V. McGraw, Jr.
Front Royal, Virginia Attorney General
Attorney for the Appellant Silas B. Taylor
Senior Deputy Attorney General
Attorneys for the State of
The Opinion of the Court was delivered PER CURIAM.
JUSTICE MCGRAW, deeming himself disqualified, did not participate in the decision of this case.
JUDGE THORNSBURY, sitting by temporary assignment.
The function of an appellate court when reviewing the sufficiency of
the evidence to support a criminal conviction is to examine the evidence admitted at trial
to determine whether such evidence, if believed, is sufficient to convince a reasonable
person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is
whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proved beyond
a reasonable doubt. Syllabus point 1, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163
2. The formulation of jury instructions is within the broad discretion of
a circuit court, and a circuit court's giving of an instruction is reviewed under an abuse of
discretion standard. A verdict should not be disturbed based on the formulation of the
language of the jury instructions so long as the instructions given as a whole are accurate
and fair to both parties. Syllabus point 6, Tennant v. Marion Health Care Foundation,
Inc., 194 W. Va. 97, 459 S.E.2d 374 (1995).
3. A trial court's refusal to give a requested instruction is reversible
only if: (1) the instruction is a correct statement of the law; (2) it is not substantially
covered in the charge actually given to the jury; and (3) it concerns an important point in
the trial so that the failure to give it seriously impairs a defendant's ability to effectively
present a given defense. Syllabus point 11, State v. Derr, 192 W. Va. 165, 451 S.E.2d
4. The question of whether a defendant is entitled to an instruction on
a lesser included offense involves a two-part inquiry. The first inquiry is a legal one
having to do with whether the lesser offense is by virtue of its legal elements or definition
included in the greater offense. The second inquiry is a factual one which involves a
determination by the trial court of whether there is evidence which would tend to prove
such lesser included offense. Syllabus point 1, State v. Jones, 174 W. Va. 700, 329
S.E.2d 65 (1985).
5. When instructions are read as a whole and adequately advise the jury
of all necessary elements for their consideration, the fact that a single instruction is
incomplete or lacks a particular element will not constitute grounds for disturbing a jury
verdict. Syllabus point 6, State v. Milam, 159 W. Va. 691, 226 S.E.2d 433 (1976).
6. One to whom a representation is made may believe it to be true and
act thereon without making inquiry or investigation to determine its truth. Syllabus point
3, Morrison v. Bank of Mount Hope, 124 W. Va. 478, 20 S.E.2d 790 (1942).
7. Failure to make timely and proper objection to remarks of counsel
made in the presence of the jury, during the trial of a case, constitutes a . . . [forfeiture]
of the right to raise the question thereafter in the trial court or in the appellate court.
Syllabus point 1, in part, State v. Garrett, 195 W. Va. 630, 466 S.E.2d 481 (1995).
This appeal was filed by Danny L. Blankenship, appellant/defendant below (hereinafter referred to as Mr. Blankenship), from his conviction of one count of obtaining money by false pretenses. The Circuit Court of Fayette County sentenced Mr. Blankenship to not less than one nor more than ten years in the penitentiary. In this appeal, Mr. Blankenship assigns as error: (1) that the evidence was insufficient for a conviction, (2) the denial of certain jury instructions, and (3) improper closing argument remarks by the prosecutor. Based upon the parties' arguments on appeal, the record designated for appellate review, and the pertinent authorities, we conclude that the Circuit Court of Fayette County committed no error. The judgment is therefore affirmed.
On September 9, 1997, Mr. Blankenship and his crew began work on the
driveway. As the work progressed, Mr. Blankenship informed Mr. Dix that the cost
would probably be around $4,300.00. At some point on the same day, the cost estimate
Work was stopped on the pavement for a few days because of rain. When
weather permitted, Mr. Blankenship and his crew returned and finished the pavement job.
Mr. Blankenship demanded $6,000.00 when the work was completed. Mrs. Dix
questioned the amount charged. Mr. Blankenship explained to her how he arrived at the
figure, and demanded payment in cash. Mrs. Dix went to a bank, obtained $6,000.00 in
cash, and paid Mr. Blankenship.See footnote 3
The Dixes believed that Mr. Blankenship took advantage of them by charging
$6,000.00 for the pavement. They were not satisfied with the quality of the work and
attempted at least on one occasion to contact Mr. Blankenship.See footnote 4
However, they were
unable to locate him.
The Dixes eventually cooperated with authorities in an investigation of Mr.
Blankenship's pavement work.See footnote 5
The investigation lead to a five count indictment that
included a charge of obtaining money by false pretenses.See footnote 6
A jury trial was held on March
22 and 23, 1999.See footnote 7
The jury returned a verdict finding Mr. Blankenship guilty of obtaining
money by false pretenses. Thereafter, the circuit court sentenced Mr. Blankenship to not
less than one nor more than ten years in the penitentiary. It is from this sentence that Mr.
Blankenship now appeals.
Mr. Blankenship submits several arguments in support of his insufficiency of evidence claim. During the trial, the State presented expert testimony that the normal price for the work on the Dixes' driveway was $1,569.00. Mr. Blankenship contends that the simple fact that he charged $6,000.00 for the pavement work, and an expert for the State opined the price of the work should have been $1,569.00, is not dispositive of a false pretense charge.See footnote 10 10 The State concedes this point, but argues that it is irrelevant. We agree with the State that this issue carries no weight on the question of insufficiency of evidence.See footnote 11 11
Mr. Blankenship also argues that there was no evidence to establish the fourth element of a false pretense charge, i.e, the false pretense must be in some degree the cause, if not the controlling cause, which induced the owner to part with his property.
Mr. Blankenship contends that there was no evidence to show that the Dixes relied on any
price except the amount actually demanded by him. The State responds that there was
sufficient evidence to show Mr. Blankenship's deliberate and successful effort to mislead
the Dixes into believing that the price would be far less than he actually intended to
In reviewing the testimony of the Dixes, we find the jury could conclude that
the Dixes were induced to enter the contract on cost estimates that were far less than that
which was eventually charged. Further, the jury could have reasonably concluded, based
upon the evidence, that Mr. Blankenship intended to charge a price far above his initial
estimate.See footnote 12
Mr. Blankenship made a second estimate after his crew had torn up the
Dixes' pavement.See footnote 13
The State properly asserts that at this point the Dixes could not
realistically have terminated the contract. Otherwise, they would have been left with a
torn up driveway.See footnote 14
In sum, we find the evidence was sufficient beyond a reasonable doubt for
the jury to return a verdict finding Mr. Blankenship guilty of obtaining money by false
A verdict should not be disturbed based on the formulation of
the language of the jury instructions so long as the instructions
given as a whole are accurate and fair to both parties.
Of course, our review of the legal propriety of the trial court's instructions is de novo. Skaggs v. Elk Run Coal Co., Inc., 198 W. Va. 51, 63, 479 S.E.2d 561, 573 (1996) (citation omitted). We further stated in syllabus point four of State v. Guthrie, supra:
A trial court's instructions to the jury must be a correct statement of the law and supported by the evidence. Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not mislead by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. A trial court, therefore, has broad discretion in formulating its charge to the jury, so long as the charge accurately reflects the law. Deference is given to a trial court's discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed only for an abuse of discretion.
We will review each of the jury instruction issues individually.
1. False Pretense Instruction. Mr. Blankenship first argues that the trial
court committed error in refusing to give his proffered instruction on the four elements of
a false pretense charge, as is outlined in State v. Moore, supra. The trial court rejected
Mr. Blankenship's instruction stating that the matters were covered by the court's
instruction. Mr. Blankenship contends that the trial court's instruction was confusing
because it included at least nine separate elements.See footnote 15
Additionally, Mr. Blankenship
complains that the instruction omitted the element of actual fraud, as was required by
The State responds that any excess language in the instruction was mere
surplusage and did not confuse the jury. The State also contends that, while the phrase
actual fraud was not used in the instruction, the instruction covered this element through
the use of the phrases intent to defraud and use of false pretenses, tokens and
We have held that [d]uplication of instructions is neither desirable nor
necessary. Syl. pt. 6, Thrasher v. Amere Gas Utils.Co., 138 W. Va. 166, 75 S.E.2d 376
(1953). Regarding a trial court's refusal to give a requested jury instruction, we have held
A trial court's refusal to give a requested instruction is reversible only if: (1) the instruction is a correct statement of the law; (2) it is not substantially covered in the charge actually given to the jury; and (3) it concerns an important point in the trial so that the failure to give it seriously impairs a defendant's ability to effectively present a given defense.
Syl. pt. 11, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994). We pointed out in the Derr decision that there is no requirement 'that any particular form of words be used in advising the jury of the government's burden of proof [.]' 192 W. Va. at 180, 451 S.E.2d 746 (quoting Victor v. Nebraska, 511 U.S. 1, 114 S. Ct. 1239, 1243, 127 L. Ed.2d 583 (1994)). Moreover, [w]hile the instruction offered by [Mr. Blankenship] may have been more 'charitable,' the Court does not believe that the trial judge's refusal to give it constituted reversible error in light of the charge actually given. State v. Thompson, 176 W. Va. 300, 308, 342 S.E.2d 268, 276 (1986).
2. Lessor Included Offense of Misdemeanor False Pretense. Mr.
Blankenship next complains that the trial court committed error by refusing to give a
proffered instruction on the lesser included offense of misdemeanor false pretense.See footnote 16
a general rule, an instruction which is not sustained by the evidence should be refused.
Syl. pt. 8, Thrasher, supra. In syllabus point 1 of State v. Jones, 174 W. Va. 700, 329
S.E.2d 65 (1985), we provided the following guidelines for determining whether to give
an instruction on a lesser included offense:
The question of whether a defendant is entitled to an instruction on a lesser included offense involves a two-part inquiry. The first inquiry is a legal one having to do with whether the lesser offense is by virtue of its legal elements or definition included in the greater offense. The second inquiry is a factual one which involves a determination by the trial court of whether there is evidence which would tend to prove such lesser included offense.
Mr. Blankenship contends that out of the $6,000.00 he charged the Dixes, they were only overcharged $697.67. This calculation was determined by Mr. Blankenship on the theory that he had initially quoted the Dixes a price of $2.50 per square foot of asphalt which, when multiplied by 2,120.93 square feet of asphalt, totals $5,302.33.
We find that the trial court committed no error by refusing a lesser included offense instruction. First, the testimony as to whether a price was quoted in terms of square feet or square yards was speculative and conflicting. Mr. Dix recalled a quote of $2.25 per square yard; while Mrs. Dix was unsure if the quote was $2.50 per square yard or square foot. The number which appeared to be certain was an initial estimate of $3,000.00 to $3,500.00. There was also evidence by the State's expert that the pavement work performed had a value of $1,569.00. We are convinced that this evidence did not rise to the level of warranting a lesser included offense instruction.
3. Simultaneous Co-Existence of Fraudulent Intent and False
Representation. Mr. Blankenship next argues that the trial committed error by refusing
his proffered instruction that the State had to prove that fraudulent intent co-existed at the
time of the false representation. We have held that [t]he trial court must instruct the jury
on all essential elements of the offenses charged, and the failure of the trial court to
instruct the jury on the essential elements deprives the accused of his fundamental right to
a fair trial, and constitutes reversible error. Syllabus, State v. Miller, 184 W. Va. 367,
400 S.E.2d 611 (1990).
In support of his argument, Mr. Blankenship cites this Court's decision in
State v. Smith, 97 W. Va. 313, 125 S.E. 90 (1924). The decision in Smith involved a
conviction for larceny. One of the errors assigned in the case was that the trial court failed
to instruct the jury that the defendant had the intent to commit larceny at the time he came
into possession of the money involved in the crime. We stated in Smith that [i]f the
means employed were simply to obtain possession of the money for some lawful purpose,
and with the assent of the owner, and with no present intent to steal, the act would not be
larceny. Smith, 97 W. Va. at 314, 125 S.E. at 91. In syllabus point 1 of Smith we held:
To warrant conviction for larceny, embezzlement, or of obtaining goods or money by false pretenses the accused must have had the present intent to commit the offense at the time; and an instruction to the jury omitting this element in the several offenses is erroneous.
We affirmed the conviction in Smith after reviewing the record as a whole. In doing so, we held in syllabus point 2 of Smith that [t]hough there be error in such an instruction, or in the admission or rejection of evidence, yet, if on the whole case presented to the jury, the jury could not properly have reached a different verdict, the verdict should not be set aside.
In the instant case, the State argues that the trial court's general charge on
specific intent adequately informed the jury that it had to find Mr. Blankenship had
fraudulent intent at the time of his false representation. The trial court instructed the jury,
[o]ne of the elements of the crimes charged in the indictment in this case is the element
of specific intent. That is to say, before this defendant can be guilty as charged, he must
have intended to do what he is accused of doing.
Our cases support the State's position that a general instruction may cure an
omission of a specific element of an offense. When instructions are read as a whole and
adequately advise the jury of all necessary elements for their consideration, the fact that
a single instruction is incomplete or lacks a particular element will not constitute grounds
for disturbing a jury verdict. Syl. pt. 6, State v. Milam, 159 W. Va. 691, 226 S.E.2d
433 (1976). Accord State v. Vance, 168 W. Va. 666, 675, 285 S.E.2d 437, 443 (1981).
In view of the trial court's general instruction on specific intent, we find no prejudicial
error in the rejection of the proffered instruction.
4. Instruction on Puffing. Lastly, Mr. Blankenship argues that the trial
court committed error by rejecting his instruction on puffing. The instruction rejected
was as follows: The law is well settled that in ordinary business transactions statements
of value are mere expressions of opinion, and that erroneous statements of value will not
support even a civil action for rescission or cancellation.See footnote 17
The trial court rejected this
instruction as an incomplete statement of the law.
Our cases support the trial court's conclusion that the proffered instruction
was incomplete. This Court has also looked askance at what is commonly called 'dealers
talk' or 'puffing' as an excuse for misrepresentations. Lengyel v. Lint, 167 W. Va. 272,
277, 280 S.E.2d 66, 69 (1981). The rule in West Virginia is that a vendor guilty of a
representation made with intent to deceive should not be heard to say that the purchaser
ought not to have believed him. Horton v. Tyree, 104 W. Va. 238, 242-43, 139 S.E.
737-38 (1927). Furthermore, this Court has held that [o]ne to whom a representation is
made may believe it to be true and act thereon without making inquiry or investigation to
determine its truth. Syl. pt. 3, Morrison v. Bank of Mount Hope, 124 W. Va. 478, 20
S.E.2d 790 (1942). See also Syl. pt. 6, Gall v. Cowell, 118 W. Va. 263, 190 S.E. 130
(1937) (A representation, untrue in fact, made by one party to a contract, as of his own
knowledge, which induces the other party to enter into the contract, whereas the first party
was uninformed as to the truth or falsity of the representation, is fraudulent in equity, even
in the absence of actual fraudulent intent.); Syl. pt. 2, Stout v. Martin, 87 W. Va. 1, 104
S.E. 157 (1920) (One who represents that a certain condition exists, when in fact he has
no knowledge in regard thereto, will be liable to another, who deals with him upon the
faith of such representation, should it turn out to be false.); Syl. pt. 2, Staker v. Reese,
82 W. Va. 764, 97 S.E. 641 (1918) (One to whom a representation has been made as an
inducement to enter into a contract has the right to rely upon it as true quoad the maker,
without making inquiry or investigation to determine the truth thereof.). In light of our
previous holding that [a]n instruction which incorrectly states the law should be refused,
Syl. pt. 7, Thrasher v. Amere Gas Utils. Co., supra, we find the proffered instruction by
Mr. Blankenship was properly refused by the circuit court as it incorrectly stated the law
on puffing in this jurisdiction.See footnote 18
Syl. pt 6, State v. Sugg, 193 W. Va. 388, 456 S.E.2d 469 (1995).
Mr. Blankenship failed to make an objection to the prosecutor's remarks
prior to the jury retiring for deliberations. Consequently, the trial court rejected Mr.
Blankenship's belated motion for a mistrial. The trial court ruled: [y]ou should have
objected to those types of arguments if you felt they were improper, so that the court could
have dealt with them at that time before the jury.
The State argues that this issue is not properly before this Court because Mr.
Blankenship failed to make timely objections. We have held that [i]f either the prosecutor
or defense counsel believes the other has made improper remarks to the jury, a timely
objection should be made coupled with a request to the court to instruct the jury to
disregard the remarks. Syl. pt. 5, in part, State v. Grubbs, 178 W. Va. 811, 364 S.E.2d
824 (1987).See footnote 19
This Court has long held that [f]ailure to make timely and proper objection
to remarks of counsel made in the presence of the jury, during the trial of a case,
constitutes a . . . [forfeiture] of the right to raise the question thereafter in the trial court
or in the appellate court. Syl. pt. 1, in part, State v. Garrett, 195 W. Va. 630, 466
S.E.2d 481 (1995). Accord Syl. pt. 11 State v. Davis, 205 W. Va. 569, 519 S.E.2d 852
(1999); Syl. pt. 5, Tennant v. Marion Health Care Found., Inc., 194 W. Va. 97, 459
S.E.2d 374 (1995); Syl. pt. 1, Daniel B. by Richard B. v. Ackerman, 190 W. Va. 1, 435
S.E.2d 1 (1993); Syl. pt. 5, State v. Davis, 180 W. Va. 357, 376 S.E.2d 563 (1988); Syl.
pt. 7, State v. Cirullo, 142 W. Va. 56, 93 S.E.2d 526 (1956); Syl. pt. 6, Yuncke v.
Welker, 128 W. Va. 299, 36 S.E.2d 410 (1945). We agree with the State that this issue
was not properly preserved, and we therefore decline to address the matter.See footnote 20
In view of the foregoing, we affirm the judgment of the circuit court.
the value of real property.