| Teresa C. Monk, Esq.|
Spencer, West Virginia
Attorney for the Appellant
| Darrell V. McGraw, Jr., Esq.
Colleen A. Ford, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellee
2. Generally, the sufficiency of an indictment is reviewed de novo. An indictment need only meet minimal constitutional standards, and the sufficiency of an indictment is determined by practical rather than technical considerations. Syl. pt. 2, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996).
3. In order for an indictment for larceny to be sufficient in law, it must identify with specificity the particular items of property which are the subject of the charge by specifically describing the property, unless the property is incapable of identification as in cases involving fungible goods, United States currency or comparable articles. Syl. pt. 5, State ex rel. Day v. Silver, 210 W.Va. 175, 556 S.E.2d 820 (2001).
4. Where objections were not shown to have been made in the trial court, and the matters concerned were not jurisdictional in character, such objections will not be considered on appeal. Syl. pt. 1, State Road Commission v. Ferguson, 148 W.Va. 742, 137 S.E.2d 206 (1964).
This case is before this Court upon the appeal of Matthew S. Flanders from his convictions in the Circuit Court of Roane County, West Virginia, by a jury, of three counts of breaking and entering a building other than a dwelling, two counts of larceny, one count of possession of a controlled substance with intent to deliver and five counts of conspiracy. The convictions arose from the allegations of the State that Flanders and others engaged in a crime spree in and about Spencer, West Virginia, following a Fourth of July celebration. Pursuant to orders of the Circuit Court of Roane County entered on March 12, 2004, and April 9, 2004, Flanders was sentenced to an aggregate term in the penitentiary of not less than 3 nor more than 25 years and directed to pay restitution to the crime victims. The record indicates that Flanders is currently incarcerated in the St. Marys Correctional Center in St. Marys, West Virginia.
This Court has before it the petition for appeal, all matters of record and the briefs of counsel. The appellant assigns as error the Circuit Court's denial of his motion challenging the sufficiency of the indictment and the Circuit Court's admission in evidence of a written statement given to the police by an individual named Robert Shaffer, Jr. Upon careful consideration, however, this Court concludes that those assignments are without merit. Consequently, the orders entered by the Circuit Court on March 12, 2004, and April 9, 2004, are affirmed.
on the other hand, testified at trial and denied any involvement in the events
in question. Specifically, the appellant stated that he watched the fireworks
in Spencer with his girlfriend, Sara Stotts, and that, thereafter, they spent
the evening together at the appellant's residence. Similar testimony was given
during the trial by Ms. Stotts. Consequently, an instruction upon the defense
of alibi was included by the Circuit Court in its charge to the jury.
As indicated above, the jury found appellant Flanders guilty of three counts of breaking and entering a building other than a dwelling, two counts of larceny, one count of possession of a controlled substance with intent to deliver and five counts of conspiracy. The appellant was sentenced to an aggregate term in the penitentiary of not less than 3 nor more than 25 years and directed to pay restitution. (See footnote 2) The appellant's convictions may be summarized in relation to the events of July 4 and 5, 2002, as follows: (1) with regard to the Cain Veterinary Clinic, one count of breaking and entering a building other than a dwelling, one count of petit larceny relating to the taking of the vials of ketamine, the cash box and the money therein, one count of possession of ketamine with intent to deliver and three counts of conspiracy, (2) with regard to Spencer Lanes bowling alley, one count of breaking and entering a building other than a dwelling and (3) with regard to Reid's Auto Sales, one count of breaking and entering a building other than a dwelling, one count of grand larceny relating to the taking of the vehicles, the keys and two dealer plates, and two counts of conspiracy.
In January 2004, the Circuit Court denied the appellant's motion for a new trial. Subsequently, this appeal was granted.
of West Virginia, art. III, § 14, provides the accused with the right to
be fully and plainly informed of the character and cause of the accusation. As
this Court recognized in State v. Wade, 174 W.Va. 381, 384, 327 S.E.2d
142, 146 (1985), the requirements of that provision have been implemented in
Rule 7(c)(1) of the West Virginia Rules of Criminal Procedure. Pursuant to that
Rule, an indictment shall be a plain, concise and definite written statement
of the essential facts constituting the offense charged. The West Virginia
Rules of Criminal Procedure have been in effect since 1981.
In syllabus point 6 of State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999), this Court held:
An indictment is sufficient under Article III, § 14 of the West Virginia Constitution and W.Va. R. Crim. P. 7(c)(1) if it (1) states the elements of the offense charged; (2) puts a defendant on fair notice of the charge against which he or she must defend; and (3) enables a defendant to assert an acquittal or conviction in order to prevent being placed twice in jeopardy.
Syl. pt. 2, State ex rel. Day v. Silver, 210 W.Va. 175, 556 S.E.2d 820 (2001). Moreover, as this Court observed in syllabus point 2 of State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996): Generally, the sufficiency of an indictment is reviewed de novo. An indictment need only meet minimal constitutional standards, and the sufficiency of an indictment is determined by practical rather than technical considerations. Syl. pt. 2, State v. Palmer, 210 W.Va. 372, 557 S.E.2d 779 (2001); syl. pt. 7, State v. Bull, 204 W.Va. 255, 512 S.E.2d 177 (1998).
Here, the appellant was charged in Count 4 with grand larceny concerning the items taken from Reid's Auto Sales. An examination of Count 4 reveals that it substantially followed the provisions of the statute under which the appellant was charged, W.Va. Code, 61-3-13(a) (1994). See, n. 3, supra. Although the value of each of the vehicles was set forth as approximations, Count 4 began with the allegation, consistent with W.Va. Code, 61-3- 13(a) (1994), that the appellant committed simple larceny of goods or chattels of the value of one thousand dollars or more. Moreover, alleging that the appellant intended to permanently deprive Reid's Auto Sales of the items, Count 4 then described the vehicles, setting forth the make, model and year of each vehicle and its approximate value. In the latter regard, the record indicates that all of the vehicles sold at Reid's Auto Sales were used, rather than new, vehicles. Count 4 concluded by stating that the various items taken from Reid's Auto Sales totaled $14,400.00.
In its ruling, the Circuit Court expressed the opinion that, if one vehicle of approximate value had been the only item taken, a dismissal might have been warranted. The Circuit Court concluded, however, that, in view of the allegation that multiple vehicles
were among the items taken, Count 4 was sufficient to withstand the motion to dismiss. This Court agrees and finds the Criss case cited by the appellant not to be dispositive in these circumstances. In the more recent case of State ex rel. Day v. Silver, supra, this Court held in syllabus point 5:
In order for an indictment for larceny to be sufficient in law, it must identify with specificity the particular items of property which are the subject of the charge by specifically describing the property, unless the property is incapable of identification as in cases involving fungible goods, United States currency or comparable articles.
For the above reasons, this Court concludes that Count 4 sufficiently set forth the elements of grand larceny, put the appellant on notice of the charges against him and did not violate his protections against double jeopardy. Therefore, the appellant's assignment of error concerning Count 4 and the corresponding conspiracy charge in Count 11 is without merit.
Mr. Sergent: * * * We would move to read to the jury the contents in its entirety of State's Exhibit no. 49.
The Court: You want to offer that as evidence?
Mr. Sergent: Yes, your Honor.
The Court: And this is the statement of Robert Shaffer, Jr.
Mr. Sergent: The statement of Robert Allen Shaffer, Jr.
The Court: Is there an objection?
Ms. Monk: No objection.
The Court: Without objection, the Court will order admitted into evidence the statement of Robert Shaffer, Jr. [.]
After the August 1, 2002, statement of Shaffer to the police was read to the jury, the State rested its case. The appellant now asserts that the Circuit Court committed error in admitting the statement because Shaffer's equivocal testimony at trial, in fact, undermined the statement's validity and precluded the State from establishing a proper foundation for its admission. In the opinion of this Court, however, that assertion is deprived of significance by the failure to preserve the issue for appeal. (See footnote 5)
Rule 103(a) of the West Virginia Rules of Evidence provides that error may not be predicated upon the admission of evidence unless a substantial right of the party is affected and a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context [.] In this case, the August 1, 2002, statement given by Shaffer to the police, recounting appellant Flanders' acknowledgment of involvement in the crimes charged, was used by the State during Shaffer's testimony each time he stated that he could not remember the conversation with the appellant. As indicated above, no objection thereto was raised by the appellant to Shaffer's testimony.
Thereafter, an objection was made during the in camera discussion during which the Circuit Court determined the statement to be admissible as a recorded recollection. As shown above, however, that objection was not pursued when the State moved for the statement's admission. The Circuit Court, thus, noted that the statement would be admitted in evidence without objection. Nor could the admission of Shaffer's statement be considered plain error (See footnote 6) or overly prejudicial. Shaffer was called by the State near the end of its case-in-chief, and his statement to the police, which he consistently attempted to disavow before the jury, followed the testimony of Samuel McClung who implicated the appellant in each of the charges. Moreover, the kettle found in the appellant's bedroom, which contained a powder residue identified as ketamine, had already been admitted in evidence.
In syllabus point 1 of State Road Commission v. Ferguson, 148 W.Va. 742, 137 S.E.2d 206 (1964), this Court held: Where objections were not shown to have been made in the trial court, and the matters concerned were not jurisdictional in character, such objections will not be considered on appeal. Syl. pt. 9, State v. Shrewsbury, 213 W.Va. 327, 582 S.E.2d 774 (2003); syl. pt. 7, State v. Carey, 210 W.Va. 651, 558 S.E.2d 650 (2001); syl. pt. 1, State v. Simons, 201 W.Va. 235, 496 S.E.2d 185 (1997); syl. pt. 10, State v. Satterfield, 193 W.Va. 503, 457 S.E.2d 440 (1995). Here, no objection to the August 1, 2002, statement was made during Shaffer's testimony, and a subsequent objection was not pursued upon specific inquiry by the Circuit Court at the time the statement was admitted into evidence. Consequently, this Court declines to grant relief with regard to this assignment of error. (See footnote 7)