September 2000 Term
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
Defendant Below, Appellant
Appeal from the Circuit Court of Marshall County
Honorable Mark A. Karl, Judge
Felony Case No. 99-F-16
REVERSED AND REMANDED
Submitted: November 28, 2000
Filed: December 11, 2000
The Opinion of the Court was delivered PER CURIAM.
2. 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. Syl. Pt. 1, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d
3. When a criminal defendant
undertakes a sufficiency challenge, all the evidence, direct and circumstantial,
must be viewed from the prosecutor's coign of vantage, and the viewer must accept
all reasonable inferences from it that are consistent with the verdict. This
rule requires the trial court judge to resolve all evidentiary conflicts and
credibility questions in the prosecution's favor; moreover, as among competing
inferences of which two or more are plausible, the judge must choose the inference
that best fits the prosecution's theory of guilt. Syl. Pt. 2, State
v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996).
4. In determining whether
there is sufficient evidence to support a jury verdict the court should: (1)
consider the evidence most favorable to the prevailing party; (2) assume that
all conflicts in the evidence were resolved by the jury in favor of the prevailing
party; (3) assume as proved all facts which the prevailing party's evidence
tends to prove; and (4) give to the prevailing party the benefit of all favorable
inferences which reasonably may be drawn from the facts proved. Syl. Pt.
5, Orr v. Crowder, 173 W. Va. 335, 315 S.E.2d 593 (1983), cert. denied,
469 U. S. 98 (1984).
5. In a criminal prosecution,
the State is required to prove beyond a reasonable doubt every material element of the crime with which the defendant
is charged. . . . Syl. Pt. 4, in part, State v. Pendry, 159 W.
Va. 738, 227 S.E.2d 210 (1976), overruled in part on other grounds by
Jones v. Warden, West Virginia Penitentiary, 161 W. Va. 168, 241 S.E.2d
This is an appeal by Roland
W. Williams (hereinafter Appellant) from a January 24, 2000, order
of the Circuit Court of Marshall County. The lower court sentenced the Appellant
to thirty days in the penitentiary and fined him treble damages of $9,052.00,
subsequent to his conviction for wrongful injury to timber. The Appellant contends
that the lower court erred by refusing to direct a verdict of acquittal on the
grounds of insufficiency of evidence. The Appellant also contends that the prosecution's
comments during closing argument constitute reversible error and that the lower
court erred in admitting a videotape into evidence. We vacate the conviction
and remand for the entry of a judgment of acquittal.
The Appellant began timbering
the Reilley property in 1997, three years after entering into the initial agreement.
The Appellant's nephew and grandnephew, Royal and Brad Williams, assisted the
Appellant in the timbering endeavor. In April 1997, Mr. Swierkos walked his
property line and discovered that loggers had entered what he perceived to be
his property and had removed trees. Mr. Swierkos contacted the sheriff and was
advised to have his property resurveyed to determine the precise boundary along
which the trees were being removed.See
footnote 2 2 In July 1997, Mr. Swierkos walked the property
again and determined that logging was still being conducted on his property.
On July 7, 1997, Mr. Swierkos
and his father-in-law confronted the Appellant and his nephews. Mr. Swierkos
videotaped this confrontation and later presented the videotape at trial. The
video depicts an initial conversation with Brad Williams in which Brad states,
I ain't the one.See footnote
3 3 After a brief conversation with Brad Williams, Mr. Swierkos
converses with the Appellant and Royal Williams who both denied being on the
wrong property or seeing any markings indicating the property line.See
footnote 4 4 The video captures Mr. Swierkos or his companion
stating, You guys are on private property, you know, as well as
other comments such as You're in trouble boy, You're in big
trouble, The sheriff is on his way, DNR too, and Call
the sheriff, tell him we've got them.
Mr. Swierkos filed a civil
suit against the Appellant approximately one month after the July 1997 confrontation.
One year later, in June 1998, Mr. Swierkos contacted the West Virginia State
Police. A statement was taken by Trooper First Class Scott Goodnight, of the
Moundsville Detachment, in July 1998. Mr. Swierkos indicated that the civil
suit had not progressed and that he had just heard that the Appellant had filed
for bankruptcy. In a November 1998 statement to the State Police, the Appellant
indicated that he had walked portions of the boundary lines in 1994 with the
Reilleys. The Appellant also indicated that he did not notice any property markers
during his timbering operations until the day Mr. Swierkos arrived with his
video camera and would have questioned the Reilleys about the markers if he
had seen them. The Appellant discussed what he perceived to be the boundary
between the Reilley and Swierkos properties, referencing the corner of an iron
bridge, a bottom, a large red oak tree, and a hillside above a trailer
court. The Appellant reiterated that he did not realize that he ever crossed onto the Swierkos property and
stated: The only thing I can tell you, sir, if I would of knew it was
another man's property, I definitely wouldn't have been on it. . . .
The Appellant was indicted
by a grand jury in Marshall County on March 9, 1999, for wrongful injury to
timber, a felony, in violation of West Virginia Code § 61-3-52 (1996).See
footnote 5 5 The indictment stated that the Appellant had willfully,
maliciously and feloniously, with intent to do harm, unlawfully entered upon
the lands of George W. Swierkos, and cut down and removed timber of a value
of more than $1,000.00. . . . The Appellant filed a motion in limine seeking
to exclude the videotape made by Mr. Swierkos. The lower court, during a suppression
hearing conducted on August 11, 1999, found that the video portion of the videotape
was admissible in its entirety. The lower court limited the audio portion, finding
that the audio portion prior to the conversation with Brad Williams should not
be heard by the jury.See footnote 6 6
At trial, Trooper Goodnight
testified that he had investigated the timbering and had seen boundary markers
on the property during that investigation, conducted approximately one year after the timbering occurred. Trooper Goodnight further
testified that the Appellant had indicated that he had not seen any markers
and would have questioned his location if he had seen any boundary markers indicating
that he was on the wrong property.
Michael Wade, a forestry consultant, testified that the timber removed from the Swierkos property could be valued at $2,895.65. He also explained that he had visited the property three days after Mr. Swierkos' confrontation with the loggers and had seen boundary markers on the trees and in the woods.See footnote 7 7
The Reilley sons, Timothy and John, testified concerning the initial explanation they had given to the Appellant concerning the boundary lines. Timothy indicated that the group had not walked the entire line, but that they had walked enough that he knew where the line was located. Timothy also stated that the Appellant had returned with questions regarding the location of certain property lines, but had not questioned the location of the line adjoining the Swierkos property. John Reilley testified that the Appellant had not been given a map of the property and that the group had only walked three to four percent of the property line when the initial agreement to timber had been made in 1994.
Mr. Swierkos testified that the old logging roads on his property had been overgrown by brush. Mr. Swierkos explained that the Appellant had informed him during their July 7, 1997, conversation that the Appellant thought he was on the correct property and that the Reilleys had given him permission to cut in certain areas. Mr. Swierkos testified concerning a marker lying in the middle of the logging road, intimating that the Appellant should have been placed on notice by the presence of the marker that he was no longer on the Reilley property. Mr. Swierkos explained that the Appellant had not removed the logs he had cut. Ms. Swierkos sold those logs for $3,900.00; however, when asked whether he would rather have the check or have his property back the way it was before this happened, he answered: I would not take a check, no way.
During rebuttal closing argument,
the prosecutor stated, I can guarantee you one thing: If this wasn't a
crime, we wouldn't be here today. The Court would have thrown this case out
along time ago if this wasn't a crime. The lower court sustained Appellant's
counsel's objection to the statement, but no curative instruction was requested
The prosecutor also made the
following remarks during his rebuttal closing:
I said, we could stand here and talk about reasonable doubt, credibility, burden
of proof, weighing issues all day long, but I want to leave you with one general
rule of thumb.
go back in the jury room, look in your hearts. As long as you do what your heart
tells you is right, you've done the right thing. When all else fails, use your
reason, use your common experience, weigh all the evidence, and do what your heart
tells you is the right thing.
Appellant's counsel did not object to those statements by the prosecutor.
The Appellant assigns the
following errors: (1) failure to grant a motion for judgment of acquittal; (2)
prosecutorial misconduct in urging the jury to disregard the legal concepts
of reasonable doubt and in suggesting that if a crime had not been committed,
the court would not be conducting the trial; and (3) error in allowing introduction
of the videotape made by Mr. Swierkos.
criminal defendant challenging the sufficiency of the evidence to support a
conviction takes on a heavy burden. An appellate court must review all the evidence,
whether direct or circumstantial, in the light most favorable to the prosecution
and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be
inconsistent with every conclusion save that of guilt so long as the jury can
find guilt beyond a reasonable doubt. Credibility determinations are for a jury
and not an appellate court. Finally, a jury verdict should be set aside only
when the record contains no evidence, regardless of how it is weighed, from
which the jury could find guilt beyond a reasonable doubt. To the extent that
our prior cases are inconsistent, they are expressly overruled.
Syllabus point one of Guthrie presented the following general guidance:
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.
194 W. Va. at 663, 461 S.E.2d at 169, Syl. Pt. 1. The onerous burden upon a criminal defendant challenging a conviction was also expressed in State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996), as follows:
convicted defendant who presses a claim of evidentiary insufficiency faces an
uphill climb. The defendant fails if the evidence presented, taken in the light
most agreeable to the prosecution, is adequate to permit a rational jury to
find the essential elements of the offense of conviction beyond a reasonable
doubt. Phrased another way, as long as the aggregate evidence justifies a judgment
of conviction, other hypotheses more congenial to a finding of innocence need not be ruled out. We reverse
only if no rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.
Id. at 303, 470 S.E.2d at 622. We set forth the criminal defendant's burden in syllabus point two of LaRock, as follows:
a criminal defendant undertakes a sufficiency challenge, all the evidence, direct
and circumstantial, must be viewed from the prosecutor's coign of vantage, and
the viewer must accept all reasonable inferences from it that are consistent
with the verdict. This rule requires the trial court judge to resolve all evidentiary
conflicts and credibility questions in the prosecution's favor; moreover, as
among competing inferences of which two or more are plausible, the judge must
choose the inference that best fits the prosecution's theory of guilt.
Id. at 299, 470 S.E.2d at 618, Syl. Pt. 2. The Guthrie and LaRock approaches are also consistent with prior pronouncements such as syllabus point five of Orr v. Crowder, 173 W. Va. 335, 315 S.E.2d 593 (1983), cert. denied, 469 U. S. 981 (1984):
determining whether there is sufficient evidence to support a jury verdict the
court should: (1) consider the evidence most favorable to the prevailing party;
(2) assume that all conflicts in the evidence were resolved by the jury in favor
of the prevailing party; (3) assume as proved all facts which the prevailing
party's evidence tends to prove; and (4) give to the prevailing party the benefit
of all favorable inferences which reasonably may be drawn from the facts proved.
The Appellant alleged that the
evidence in the present case is insufficient to prove a criminal violation beyond
a reasonable doubt. The Appellant contends that the evidence presented by the
State was insufficient to establish the particular elements of the statutory violation
which was allegedly committed; namely, the Appellant contends that the State did
not prove beyond a reasonable doubt that he acted willfully and maliciously
and with intent to do harm or that he cut timber without permission upon
the lands of another. See W. Va. Code § 61-3-52. Each element
of a violation must be proven beyond a reasonable doubt by the State, as required
by syllabus point four, in part, of State v. Pendry, 159 W. Va. 738, 227
S.E.2d 210 (1976), overruled in part on other grounds by Jones v. Warden,
West Virginia Penitentiary, 161 W. Va. 168, 241 S.E.2d 914 (1978): In
a criminal prosecution, the State is required to prove beyond a reasonable doubt
every material element of the crime with which the defendant is charged. . . .
Regarding the precise location
of the boundary line and whether the Appellant actually crossed it, the State
failed to present a deed depicting the precise boundary line; nor did a surveyor
testify to establish the property line. There was no fence along the property
line; nor were there any remnants of a fence. The only evidence of the property
line was the testimony of Mr. Swierkos and the inconsistent and conflicting
evidence of the presence of boundary markings. That testimony regarding the
existence and nature of the boundary markings was contradictory, and the videotape
introduced by the State generated additional confusion by showing various markers without providing any opportunity for
the viewer to be properly oriented regarding distance from the actual property
Moreover, the Appellant contends
that the necessary element of malice was not proven beyond a reasonable doubt.
This Court has consistently recognized the difficulty in enumerating a definitive
list of actions constituting malice in a given situation. We have observed that
methods of proving malice cannot be definitely prescribed because
it is a subjective attitude. State v. Gunter, 123 W. Va. 569, 574, 17
S.E.2d 46, 49 (1941). In State v. Burgess, 205 W. Va. 87, 516 S.E.2d
491 (1999), a case relied upon by the Appellant but rejected by the State as
irrelevant to the crime of injury to timber,See
footnote 8 8 this Court again explained that malice is not an
effortlessly defined term. Id. at 89, 516 S.E.2d at 493. The question
facing the Court in Burgess was whether the defendant's killing of an
animal was malicious. This Court consulted Black's Law Dictionary 956 (6th ed.
1990) and utilized the following definition of malice: The intentional
doing of a wrongful act without just cause or excuse, with an intent to inflict
an injury or under circumstances that the law will imply an evil intent. . .
. A condition of the mind showing a heart regardless of social duty and fatally
bent on mischief. 205 W. Va. at 89, 516 S.E.2d at 493 (quoting Black's
Law Dictionary 958 (6th ed. 1990)). We also noted the following definition of malicious
as [c]haracterized by, or involving, malice; having, or done with, wicked,
evil or mischievous intentions or motives; wrongful and done intentionally without
just cause or excuse or as a result of ill will. 205 W. Va. at 89, 516
S.E.2d at 493 (quoting Black's Law Dictionary 958 (6th ed.1990)).
The Burgess Court also
consulted the following seasoned definition of malice applied in State v.
Douglass, 28 W. Va. 297, 1886 WL 1818 (1886):
'the source of . . . malice
is not only confined to a particular ill will to the deceased, but is intended
to denote . . . an action flowing from a wicked and corrupt motive, a thing
done malo animo, where the fact has been attended with such circumstances
as carry in them the plain indications of a heart regardless of social duty,
and fatally bent on mischief. And therefore malice is implied from any deliberate
205 W. Va. at 89, 516 S.E.2d at 493 (quoting Douglass, 28 W. Va. at 299, 1886 WL 1818 at p.2) We concluded in Burgess that we simply cannot say the act was evil and cruel. 205 W. Va. at 90, 516 S.E.2d at 494. There simply is not sufficient evidence in this case from which a reasonable jury could find malice. Id.See footnote 9 9
Likewise, in the present case,
an analysis of the evidence presented at trial, even when viewed in a light most favorable to the prosecution, does not justify
a finding of malice. The State's evidence, at best, proved that the Appellant
was shown portions of the boundary line three years prior to his initiation
of the timbering project. While the jury could have inferred from the State's
evidence that trees on the Swierkos property were cut, the evidence is devoid
of suggestion that the Appellant had any knowledge that he had entered upon
the Swierkos property.
Moreover, even the proof of
knowledge would not have satisfied the statutory element of malice. There is
no indication that the Appellant had any malicious intent in cutting the trees
on the Swierkos property. The Appellant committed no act which could be interpreted
as surreptitious or covert. He posted a sign with his name and logging number,
as required. He timbered what is alleged to be the Swierkos property in the
same manner he timbered the Reilley property, openly and thoroughly, rather
than choosing only highly- valued timber, as might be expected of someone intentionally
and maliciously timbering land without the owner's consent. The Appellant did
not open new logging roads and simply cleared and utilized existing logging
roads, as instructed by the Reilleys.
The Appellant consulted the
Reilleys on numerous occasions with regard to portions of the boundary lines
when he was uncertain about their exact location. He consistently expressed
his belief that he had a right to be on the property he was logging. He did not even remove the logs he had cut. The State presented no evidence of
malice toward Mr. Swierkos, intent to enter Mr. Swierkos' land, or malicious
removal of the timber. At best, the State's evidence could potentially have
convinced a jury that the Appellant negligently entered upon the lands of another
and failed to notice surveyor markings or misinterpreted them as markings for
trees which were to be removed.
Based upon the foregoing,
we conclude that the evidence was insufficient to convince a reasonable
person of the defendant[s'] guilt beyond a reasonable doubt See
Syl. pt. 1, in part, Guthrie, 194 W. Va. at 663, 461 S.E.2d at 169. We
find that the record contains no evidence, regardless of how it is weighed,
from which a jury could find guilt beyond a reasonable doubt. Id.
at 663, 461 S.E.2d at 169, Syl. Pt. 3, in part.