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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2005 Term
State of West Virginia
Plaintiff Below, Appellee
Ronnie Lynn Legg,
Defendant Below, Appellant
Appeal from the Circuit Court of Greenbrier County
Hon. James J. Rowe, Judge
Case No. 03-F-88(R)
Submitted: September 21, 2005
Filed: November 21, 2005
Darrell V. McGraw, Jr. Douglas
H. Arbuckle, Esq.
Dawn E. Warfield Attorney
Deputy Attorney General
Charleston, West Virginia
Attorneys for Appellee
JUSTICE STARCHER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
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. Syllabus
Point 2, State v. Miller
, 197 W.Va. 588, 476 S.E.2d 535 (1996); Syllabus
Point 3, State v. Wallace
, 205 W.Va. 155, 517 S.E.2d 20 (1999).
general indictment as a principal in the first degree shall be sufficient to
sustain a conviction as an aider and abettor or as an accessory before the fact. Syllabus
Point 1, in part, State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980);
Syllabus Point 1, State v. Ashcraft, 172 W.Va. 640, 309 S.E.2d 600 (1983).
a defendant in a criminal trial can demonstrate that he or she has suffered actual
prejudice as a result of the prosecution's mid-trial decision to pursue a conviction
as a principal in the second degree (aider and abettor) of the crime charged,
the trial court should grant any necessary and appropriate remedies; remedies
may include continuances, the right to recall witnesses, or other actions that
will alleviate any unfair prejudice.
appellant, Ronnie Lynn Legg (Mr. Legg), was convicted by a jury in
the Circuit Court of Greenbrier County, West Virginia, of the felony of Wrongful
Removal of Timber _ More Than $1,000.00. W.Va. Code, 61-3-52 .
Following his conviction, Mr. Legg moved for a new trial on the basis that the
indictment was insufficient and the jury was wrongly instructed. Mr. Legg's motion
for a new trial was denied and he was sentenced to one to two years in the penitentiary.
The sentence was then suspended, and Mr. Legg was placed on home confinement.
It is from this conviction that Mr. Legg now appeals.
Legg principally contends that the circuit court erred when it instructed the
jury that they could find Mr. Legg guilty as a principal in the second degree,
or aider and abettor. We conclude that the circuit court did not
err in giving the aiding and abetting instruction, and that this instruction
did not invalidate Mr. Legg's indictment. We uphold Mr. Legg's conviction and
affirm the circuit court in its refusal to grant Mr. Legg's motion for a new
trial. (See footnote 1)
Facts & Background
July 20, 2002, Ronnie Legg joined his friend, Clinton Bucky
Holland, on a farm owned by Holland's father. Legg and Holland were employed
by David Hunter, who ran a timbering business. On the day in question, Mr.
Holland had rented a skid-steerer and a skidder from Mr. Hunter in order to
do some work on his father's road. Mr. Holland also rented a chainsaw, telling
Hunter that he planned to cut down some trees on his father's property. After
joining Mr. Holland on the Holland property, Mr. Legg used the chainsaw to
cut down two red oak trees that were growing on Josh Bruner's property, which
adjoined the Holland property. (See
footnote 2) After the trees were felled, Holland helped Legg
skid the trees over to the Holland property. The two men cut the trees into
logs and took them to Jayfor Lumber, where
Mr. Legg was paid $1,624.50, by check.
weeks later, Conservation Officer C. R. Johnson was contacted regarding the theft
of the two trees from the Bruner property, close to the boundary line shared
with the Holland property. Officer Johnson obtained the names of Ronnie Legg
and Bucky Holland from Jayfor Lumber, and proceeded to take a statement from
Mr. Holland. On the basis of this statement, the State obtained an indictment
against Mr. Legg.
was indicted in June 2003 for the felony offense of Wrongful Removal of
Timber _ More Than $1,000.00. The indictment alleged that Mr. Legg entered
upon the Bruner property and cut down two red oak trees that were valued over
at $1,000.00, in violation of W.Va. Code, 61-3-52 . The indictment
made no mention of Mr. Legg
acting as a principal in the second degree, or of any involvement in the crime
by any other parties.
Mr. Legg did not deny cutting down the trees but insisted that he only did so
at Mr. Holland's request. Mr. Legg testified that he believed the trees belonged
to Holland's father. Mr. Legg further admitted that the check from Jayfor Lumber
had been made out to him, but said that it was only because he had previously
done business with the company, and thus had paperwork on file. Mr. Holland had
not sold trees to the company before, and the two men did not want to have to
wait for Holland to fill out the appropriate forms. However, Mr. Legg testified
that after cashing the check, all the money went to Mr. Holland, who then paid
Legg $100.00 for his help. Mr. Hunter,
from whom Mr. Holland rented the chainsaw and skidder, testified that Holland
gave him $400.00 in cash shortly after the trees had been sold, as payment for
who testified for the State prior to Mr. Legg's testimony, repeatedly invoked
his 5th Amendment rights, but the prosecution was able to admit his
prior statement to Officer Johnson as a statement against interest made by an
unavailable witness, and this ruling is not challenged on appeal. (See
resting its case, the prosecution requested an instruction on aiding and abetting. The
State had not made any mention of the involvement of another party during
its opening statements. It appears
that the State decided to pursue a conviction based on this alternative theory
only after Mr. Holland testified.
Standard of Review
has assigned several points of error in this appeal. First, Mr. Legg asks this
Court to review the sufficiency of the indictment. We have held that [g]enerally,
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. Syllabus
Point 2, State v. Miller
, 197 W.Va. 588, 476 S.E.2d 535 (1996); Syllabus
Point 3, State v. Wallace
, 205 W.Va. 155, 517 S.E.2d 20 (1999).
also asks this Court to review the circuit court's instructions to the jury on
finding Mr. Legg guilty as a principal in the second degree. [T]he question
of whether a jury was properly instructed is a question of law, and the review
is de novo. Syllabus Point 1, in part, State v. Brooks, 214
W.Va. 562, 591 S.E.2d 120 (2003).
we are asked to review the circuit court's order denying Mr. Legg's motion for
a new trial. In State v. Vance, we said:
reviewing challenges to findings and rulings made by a circuit court, we apply
a two-pronged deferential standard of review. We review the rulings of the
circuit court concerning a new trial and its conclusion as to the existence
of reversible error under an abuse of discretion standard, and we review the
circuit court's underlying factual findings under a clearly erroneous standard.
Questions of law are subject to a de novo
Syllabus Point 3, State v. Vance, 207 W.Va. 640, 535
S.E.2d 484 (2000).
Validity of the Indictment and Issuance of the Aiding and
his appeal, Mr. Legg advances two intertwined arguments in which he contends
that the circuit court violated his rights by allowing the jury to be instructed
that they could find him guilty as either a principal in the first degree or
as a principal in the second degree. Mr. Legg argues that because he was indicted
only as a principal in the first degree, then either the indictment was insufficient
or the jury instructions were improper.
1. Validity of the Indictment
Legg asserts that, under the doctrine of State v. Wallace, 205 W.Va.
155, 517 S.E.2d 20 (1999), the indictment for Wrongful Removal of Timber
_ More than $1,000.00 was insufficient to support his conviction. Mr.
Legg does not contend that the indictment is invalid on its face, but rather
that the indictment became invalid when the State requested and received
instructions allowing the jury to convict Mr. Legg as either a principal
in the first degree or as an aider and abettor.
v. Wallace, we held that in order for an indictment to be sufficient under
art. III, § 14 of the West Virginia Constitution and Rule 7(c)(1)
of the West Virginia
Rules of Criminal Procedure, the indictment must (1) state the elements
of the offense charged; (2) put the defendant on fair notice against the charges
which he or she must defend; and (3) enable a defendant to assert an acquittal
or conviction in order to prevent being placed twice in jeopardy. Id. at
Syllabus Point 6. We further stated that an [a]ssessment of the
facial sufficiency of an indictment is limited to its 'four corners,' and,
because supplemental pleadings cannot cure an otherwise invalid indictment,
courts are precluded from considering evidence from sources beyond the charging
instrument. Id. at Syllabus Point 2. Mr. Legg contends that because
he was indicted only as a principal in the first degree and not as an aider
and abettor, the indictment did not set forth all of the elements of the offense,
and did not put him on fair notice of all of the charges against which he had
this argument, Mr. Legg discounts the well-established law surrounding convictions
based on aiding and abetting. W.Va. Code, 61-11-6  provides that [i]n
the case of every felony, every principal in the second degree, and every accessory
before the fact, shall be punishable as if he were the principal in the first
degree. . . . Thus, there is no legal distinction between a conviction
as a principal in the first degree and a conviction as an aider and abettor;
the punishment is the same for each. Based on this logic, and in order to prohibit
defendants from successfully defending against an indictment by proving that
they were an aider and abettor rather then the principal in the first degree
(or vice versa), we have explicitly declared that the inclusion of separate language
indictment charging aiding and abetting is not required. State v. Petry,
166 W.Va. 153, 273 S.E.2d 346 (1980).
v. Petry we held that the prior common law rule requiring that aiders
and abettors or accessories before the fact be indicted as such is abolished
and, hereafter, a general indictment as a principal in the first degree shall
be sufficient to sustain a conviction as an aider and abettor or as an accessory
before the fact. Id. at Syllabus Point 1.
subsequently found that aiding and abetting instructions are proper in cases
in which, although the defendant was not indicted as an aider and abettor, the
evidence adduced at trial was sufficient to support an aiding and abetting conviction. E.g., State
v. Duncan, 179 W.Va. 391, 395, 369 S.E.2d 464, 468 (1988); State v. Reedy,
177 W.Va. 406, 415; 352 S.E.2d 158, 168 (1986).
we have held that the determination of whether a defendant acted as a principal
in the first degree or second degree is a question of fact that should be determined
by a jury. State v. Ashcraft, 172 W.Va. 640, 646-47, 309 S.E.2d 600, 607
(1983). We therefore have found that it may be appropriate for the prosecution
to proceed on both alternate theories during trial, in order to allow the question
to be put to the jury. Id.
to reconcile these holdings with the issue in this case, Mr. Legg urges this
Court to find that State v. Wallace, supra, modifies State v.
Petry. In Wallace we considered whether or not the omission of the
term burglariously was fatal to an indictment for burglary. We found
that the adoption of Rule 7(c)(1) of the West Virginia Rules of
Criminal Procedure liberalized West Virginia's pleading requirements, and
that as long as an indictment adequately informs the accused of the nature
of the charge and the elements of the offense, the omission of a particular
term will not be fatal to an indictment. Wallace, 205 W.Va. at 161-62,
517 S.E.2d at 26-27. Wallace was not a case about the inclusion or exclusion
of aiding and abetting language in an indictment, and we do not
believe that Wallace was intended to transform our well-settled law
in this area.
is correct that jury instructions on aiding and abetting include an additional
required factual finding that is not included in the instructions on being a
principal in the first degree; namely, that the defendant assisted another party
or parties in the illegal act. However, while this may appear to be inconsistent
with Wallace, which requires that all elements of the crime be set forth
in the indictment, we decline to hold that Petry and its progeny have
been modified by Wallace. Instead, we look to the policies behind these
two rules to ensure that justice is not compromised by our current approach.
above, Petry and the cases that follow it were designed to eliminate the
miscarriage of justice that occurs when a defendant is acquitted of a crime in
which they were indicted as either a principal in the first degree or a principal
in the second degree, but where the evidence adduced at trial shows that the
defendant was involved in the other capacity. Because the punishment is the same
for both types of involvement, we have found that it is absurd to allow a defendant
to successfully defend against a charge of being a principal in the first degree
by proving that he or she was, in fact, an aider and abettor. See
Petry, 166 W.Va. at 158, 273 S.E.2d at 350.
we referred to this common law indictment requirement as an
anachronistic technicality which allowed the guilty to go free. 172 W.Va.
at 646, 309 S.E.2d at 606. We have further found that the nature of a defendant's
involvement in a crime may not be fully evident until witnesses have been examined
and cross-examined during the trial. Petry
,166 W.Va. at 158, 273 S.E.2d
at 350. Thus, we decline to return to the outdated common law rule that principals
in the second degree must be indicted as such. (See
as pointed out by Mr. Legg, the rule of State v. Wallace also has a strong
policy foundation. By requiring that all elements of a charge be set forth in
the indictment, we attempt to ensure that a defendant is given adequate notice
to prepare a defense against the crimes charged. Article III, § 14 of the West
Virginia Constitution says that in all criminal trials, the accused
shall be fully and plainly informed of the character and cause of the accusation. In
Syllabus Point 1 of State v. Furner, 161 W.Va. 680, 245 S.E.2d
618 (1978), we said that an indictment
must clearly state[ ] the nature and cause of the accusation against
a defendant, enabling him to prepare his defense and plead his conviction as
a bar to later prosecution for the same offense. Therefore, there is
at least theoretical merit to Mr. Legg's argument that when the State asked
for the instruction on aiding and abetting only after they finished putting
on their case, Mr. Legg was handicapped in adequately defending against an
In Petry we
found that eliminating the requirement that a defendant be indicted as an aider
and abettor did not impinge upon a defendant's right to be fully informed of
the charges against him, because [w]e believe that the defendant's right
to be fully informed of the crime charged in the indictment under W.Va.Const.,
art. III, sect. 14 will be fully protected, particularly in light of our liberalized
rules on criminal discovery . . . . 166 W.Va. at 155, 273 S.E.2d at 348.
Because Petry and its progeny should put all defendants in West Virginia
on constructive notice that an aiding and abetting instruction may be
requested, even in the absence of an indictment thereon, we do not believe that
the policies behind State v. Wallace are disregarded by upholding the
rule established in Petry.
2. Prejudice Suffered by the Addition of
the Aiding and Abetting Instruction
, we recognize the possibility that, in absence of actual
of the prosecution's intention to pursue a theory of and conviction
for aiding and abetting, a defendant might, in a given case, be unfairly prejudiced
by the prosecution's request for an aiding and abetting instruction after the
trial has begun. In situations in which
actual prejudice does occur, the defendant should be afforded an appropriate
remedy. (See footnote
other jurisdictions that allow a defendant to be convicted as a principal in
the second degree after having been indicted only in the first degree provide
some protection to the defendant by examining whether or not the giving of that
instruction will prejudice the defendant. In U.S. v. Smith, the court
well established rule in this and other circuits is that a defendant
may be indicted for the commission of a substantive crime and convicted of
aiding and abetting its commission although not named in the indictment as
an aider and abettor. . . . An aiding and abetting jury instruction is
appropriate where the prosecution makes it known that it intends to proceed
on a theory of aiding and abetting and the evidence so warrants. . . . A principal
purpose of the first requirement is to avoid unfair surprise to the defendant.
727 F.2d 214, 217-18 (2nd Cir. 1984) (internal citations omitted).
a similar line of reasoning, the court in Giraud v. U.S., 348 F.2d 820,
822 (9th Cir. 1965) found that issuing instructions on aiding and
abetting did not prejudice a defendant who was put on notice of the State's intentions,
when the opening statement of the prosecution to the jury sufficiently
apprised the defense of the modus operandi that the prosecution expected
to prove. Thus,
in determining whether or not prejudice has occurred, it is important that the
trial court examine whether or not the defendant was, or should have been, aware
of the State's intentions, even in absence of actual notice.
no West Virginia cases make this rule explicit, in State v. Ashcraft we
do discuss the potential for prejudice due to unfair surprise. In Ashcraft,
the defendant sought to require the State to specify whether they planned to
prosecute the defendant as a principal in the first degree or in the second degree.
172 W.Va. at 646, 309 S.E.2d at 606. In finding that the prosecution was not
required to divulge the requested information, we also recognized that the appellant
could not legitimately claim prejudicial surprise as a result of not knowing
upon which theory the State planned to proceed. Id. The very fact that
the defendant requested such information prior to the trial shows that the defense
was aware that the State might proceed on the alternative theory.
additional support for this approach in West Virginia's case law regarding amendments
to indictments. In State v. Adams, we said [a]n indictment may be
amended by the circuit court, provided the amendment is not substantial, is sufficiently
definite and certain, does not take the defendant by surprise, and any evidence
the defendant had before the amendment is equally available after the amendment. Syllabus
Point 2, in part, 193 W.Va. 277, 465 S.E.2d 4 (1995).
that Rule 7(e) of the West Virginia Rules of Criminal Procedure is applicable
to amendments of indictments as well as amendments of informations. Adams,
193 W.Va. at 282, 465 S.E.2d at 9. Rule 7(e) states The Court may permit
an information to be amended at any time before verdict or finding if no additional
or different offense is charged and if substantial rights of the defendant
are not prejudiced. In Adams, we defined prejudice as surprise
or lack of adequate notice. 193 W.Va. at 282, 465 S.E.2d at 9. While we failed
to find prejudice or other problems with the proposed amendment in Adams,
that case and Rule 7(e) make it clear that an amendment to an indictment should
not be allowed where prejudice occurs.
because we do not consider the addition of an aiding and abetting instruction
to be an amendment to an indictment, such a strict rule with regard to the decision
to allow such an instruction is not required. Rather than denying such an instruction,
in the event that prejudice may occur, the trial court should take necessary
steps to remedy any prejudice; for example, by granting a continuance or permitting
the recall of witnesses. It is conceivable that a new trial may be an appropriate
remedy if the prejudice cannot be cured otherwise.
to the element of unfair surprise, we believe that several other factors may
be considered for the purpose of determining whether or not a defendant has suffered
actual prejudice due to the prosecution's belated injection of an alternative
theory upon which a conviction may be based. These factors may include but are
not limited to (1) whether or not the defendant can show that he or she might
have framed his or her defense differently in light of the alternative theory;
(2) whether or not the defense presented was
sufficient to defend against both alternative theories; and (3) whether or
not the defendant took steps to remedy the prejudice _ by, for example, requesting
a continuance or asking that witnesses be recalled.
applying these factors to the instant case, we find that Mr. Legg did not demonstrate
that he suffered actual prejudice.
Mr. Legg's defense was that, when he cut down the trees on Mr. Bruner's property,
he did not have the appropriate mens rea to be found guilty of the felony
of Wrongful Removal of Timber _ More Than $1,000.00. (W.Va. Code,
61-3-52(a) says that in order to be found guilty of this crime, the person who
cut down the timber must have acted willfully and maliciously and with
intent to do harm.) In his defense, Mr. Legg told the jury, in essence, Yes,
I did cut down the trees, but I did not know that the trees belonged to Mr. Bruner,
and instead I believed that they belonged to Mr. Holland. Thus, Mr. Legg
essentially claimed that he did not cut down the trees maliciously or with
intent to do harm.
jury instructions, the court made clear that to find Mr. Legg guilty as an aider
and abettor, the jury must find that Mr. Legg had the same criminal intent as
the person acting as the principal in the first degree. Therefore, had the jury
believed Mr. Legg's version of the events, they could not have found him guilty
as either a principal in the first degree or as an aider and abettor.
defense is analogous to the facts of State v. Walker, a case in which
the State initially proceeded against the defendant on a theory of premeditated
murder, but then decided at the end of the trial to seek jury instructions
on felony murder and the underlying felony of arson. 188 W.Va. 661, 425 S.E.2d
616 (1992). The defendant appealed, claiming, among other things, that this
change in theory precluded him from raising a possible defense. Id.
However, the defendant in Walker had offered an alibi defense at trial.
[W]e fail to see how he [the defendant] was harmed by the
State's election to charge him only with felony murder. He defended both the
arson charge and the premeditated murder charge, with an alibi defense. Although
Mr. Walker could have been prejudiced had he chosen to make a self-defense
claim (or some other justifiable homicide defense where he would have had to
admit the killing), Mr. Walker was not deprived of the opportunity to raise
any defenses nor was he tricked into admitting something as a defense.
188 W.Va. at 667, 425 S.E.2d at 622. Because an alibi defense and a lack of mens
defense are similar in that both would apply regardless of the theory
of the State, we find the reasoning in Walker
to be persuasive here.
Mr. Legg has failed to provide us with any examples of how he would have proceeded
differently during the trial, had he known of the State's intention to ask for
the aiding and abetting instruction. Mr. Legg suggests that because the State
did not announce its intention until after all its witnesses had been called,
Mr. Legg was deprived of cross-examining the State's witnesses on this additional
theory. However, because Mr. Legg provided us with no examples of how he would
have proceeded differently, we decline to
find that actual prejudice occurred. See State v. DeVerney, 592
N.W.2d 837, 847 (Minn. 1999).
at the point when Mr. Legg learned of the State's intention to request the aiding
and abetting instruction, Mr. Legg could have requested that the circuit court
permit him to recall the State's witnesses, so that he could reexamine them in
light of the new theory. He did not do so. Therefore, Mr. Legg did not attempt
to remedy the prejudice that he now claims tainted the trial.
Mr. Legg did not request a continuance after learning of the State's intention
to present an alternative theory of the case. While there is little precedent
in West Virginia on this issue, research shows that other states commonly find
that a continuance is appropriate in this type of situation.
v. Gonzales, the defendant was charged with first-degree murder. 56 P.3d
969, 971 (Utah App. 2002). After the prosecution rested its case, it requested
an instruction allowing the jury to find the defendant guilty as an accomplice
to murder. Id. The Utah Court of Appeals determined that although the
instruction was proper in that case, had the State changed its theory of the
case, then a continuance should be granted in order to allow the defendant to
tailor his defense to meet the State's amended theory. Id. at 973. See
also, Todd v. State, 566 N.E.2d 67 ( Ind. App. 1991) (a pre-trial
amendment did not cause prejudice where the trial court issued a five week continuance); State
v. Purdom, 725 P.2d 622 (Wash. 1986) (a continuance must be granted when
the amendment occurs the day
before the trial is to start). Thus, if Mr. Legg had been able to demonstrate
to the trial judge that he needed time to re-prepare his defense in light of
the State's requested instructions, it may have been proper for the circuit
court to grant him a continuance. But none was requested.
reasons discussed above, we now hold that where a defendant in a criminal trial
can demonstrate that he or she has suffered actual prejudice as a result of the
prosecution's mid-trial decision to pursue a conviction as a principal in the
second degree (aider and abettor) or the crime charged, the trial court should
grant any necessary and appropriate remedies; remedies may include continuances,
the right to recall witnesses, or other actions that will alleviate any unfair
prejudice. If such trial remedies are insufficient to cure the prejudice, a mistrial
may be declared and a new trial awarded. However, in examining the instant case,
we fail to find evidence that Mr. Legg suffered actual prejudice, and thus decline
to order that he receive a new trial.
Prosecution May Pursue Multiple Theories of the Case
an extension of his previous arguments, Mr. Legg contends that the State should
have been required to choose the theory upon which it wished to proceed prior
to the issuance of jury instructions. As discussed above, we have previously
held that the prosecution does not have to choose between alternate theories,
and that whether a defendant acted as a principal in the first or second degree
is a question of fact for the jury to decide. Ashcraft
, 172 W.Va. at
646-47, 309 S.E.2d at 607; State v. Duncan
, 179 W.Va. 391, 395-96,
396 S.E.2d 464, 468-69 (1988). Thus, we find that the circuit court properly
allowed the instructions on both principal in the first degree and principal
in the second degree to be given to the jury.
Defect in the Verdict Form
jury verdict form used in this case provided three options for the jury to
choose among: (1) Guilty of Wrongful Removal of Timber _ More Than $1,000.00,
(2) Guilty of Wrongful Removal of Timber _ Less Than $1,000.00, or (3) Not
Guilty. The jury selected option number one, thus convicting Mr. Legg of Wrongful
Removal of Timber _ More Than $1,000.00. From the verdict form, it is
impossible to tell whether or not the jury concluded that Mr. Legg was a principal
in the first degree or second degree. (See
long held that when a defendant is prosecuted on multiple, separate charges,
a jury verdict should distinguish between the charges so that the defendant knows
the charge upon which he was convicted. E.g., State v. Taft, 143
W.Va. 365, 366, 102 S.E.2d 152, 154 (1958);State v. Gargiliana , 138 W.Va.
376, 386, 76 S.E.2d 265, 270 (1953).
we do not agree with Mr. Legg's contention in the instant case that the jury
was instructed on two separate felonies, with different elements of proof.
Rather, as explained above, one felony charge was at issue, and there were
two separate methods of proof upon which Mr. Legg could be convicted of that
felony. Therefore it was not
necessary to provide separate options on the jury form for two separate charges.
question remains, however, whether or not Mr. Legg was entitled to be informed
of which theory the jury relied upon in convicting him.
Point 5 of Stuckey v. Trent, a murder case in which the prosecution proceeded
upon theories of first degree murder and felony murder, we held that a jury form
does not have to distinguish between murder in the first degree and felony murder,
as long as the State does not proceed against the defendant upon the underlying
felony. 202 W.Va. 498, 505 S.E.2d 417 (1998). If it is not reversible error to
fail to distinguish between the two theories of a prosecution's case on a jury
verdict form in a first-degree murder trial, then it is difficult to imagine
that such failure to distinguish would constitute reversible error in the instant
the punishment for the felony of Wrongful Removal of Timber _ More than
$1,000 remains the same whether the defendant acted as the principal in
the first degree or as the aider and abettor, we do not believe that the verdict
form was inadequate. (See
Evidence of the Boundary Line
Legg argues that there was insufficient evidence offered at trial to prove
the actual location of the boundary line between the Holland and Bruner properties,
required under State v. Williams, 209 W.Va. 25, 543 S.E.2d 306 (2000).
We do not find it necessary to reach this issue, because Mr. Legg did not properly
preserve this issue for appeal.
did not raise this issue during the trial and did not raise this issue in his
motion for a new trial; nor did he raise this issue in his petition for appeal
to this Court. Mr. Legg raises this issue for the first time in his appellate
brief. This Court has repeatedly declined to hear issues on appeal that were
not developed, although the opportunity existed, at the trial court level. As
a general rule, proceedings of trial courts are presumed to be regular, unless
the contrary affirmatively appears upon the record, and errors assigned for the
first time in an appellate court will not be regarded in any matter of which
the trial court had jurisdiction or which might have been remedied in the trial
court if objected to there. Syllabus Point 17, State v. Thomas,
157 W.Va. 640, 203 S.E.2d 445 (1974). In Syllabus Point 2 of State v. Salmons,
203 W.Va. 561, 509 S.E.2d 842 (1998), we wrote As a general matter, a defendant
may not assign as error, for the first time on direct appeal, an issue that could
have been presented initially for review by the trial court on a post-trial motion. Finally,
in Dean v. WV Dept. of Motor Vehicles, we declined to consider an issue
raised for the first time in the appellant's brief filed in support of his petition
to this Court. 195 W.Va. 70, 464 S.E.2d 589 (1995). Thus, with regards to whether
or not the boundary line in this case was properly established during trial,
we find that the issue was not properly raised for decision by this Court.
the reasons discussed above, this Court does not find that the circuit court
abused its discretion in denying Mr. Legg's motion for a new trial. We therefore
affirm the December 2, 2003 order of the Circuit Court of Greenbrier County.
Mr. Legg also assigns as
error the trial court's rulings relating to boundary evidence and the verdict
While Mr. Legg contends
on appeal that the actual location of the boundary line was never established,
it is clear from the record that all parties conceded during the trial that
the two trees were, in fact, growing on Mr. Bruner's property.
Mr. Holland's facially suspicious involvement in the events at issue, no
charges were brought against Mr. Holland.
In holding that
an indictment as a principal in the second degree is not necessary for a conviction
as such, West Virginia is aligned with federal law and the law of many states.
In Muhammad v. Commonwealth
619 S.E.2d 16, 67 (Va. 2005), Justice
Agee wrote in his concurrence: The common law classification of criminal
perpetrators that distinguished between principals in the first and second
degree has become of limited significance in modern times. Nearly all jurisdictions
have enacted provisions . . . which erase the distinction between principals
of the first and second degree by treating both categories of criminal actors
as principals in the first degree for purposes of indictment, trial, conviction,
and punishment. See
, Owens v. State
, 161 Md.App.
91, 867 A.2d 334 (2005); State v. Contreras
, 268 Neb. 797, 688 N.W.2d
580 (2004); U.S. v. Osborne
, 286 F.Supp.2d 891 (E.D. Tenn. 2003); Hollins
, 799 So.2d 118 (Miss. Ct. App. 2001); State v. Bunyea
44 Or. App. 611, 606 P.2d 685 (1980); State v. DeFoe
38 (Minn. 1979); Albritton v. State
, 32 Fla. 358, 13 So. 955 (1893).
As discussed infra
appropriate relief may take several forms. For example, a trial court may grant
a continuance to allow the defendant to prepare for the change in theory by
the state, a trial court may permit prosecution witnesses to be recalled in
order to allow appropriate cross-examination by the defense, or, where no other
remedies exist, a trial court may be justified in granting a new trial to the
defendant. As also discussed infra
, the lack of pre-trial notice to
Mr. Legg in the instant case did not cause him prejudice, and permitting the
jury to consider the aider and abettor instruction was not error.
Because of the significant
gaps in the record, we are not persuaded by the State's argument that Mr. Legg
waived this issue at trial.
While we decline to reverse
Mr. Legg's conviction on the basis of the jury verdict form in the instant
case, circuit courts are encouraged to use jury verdict forms that are fashioned
in such a way that a convicted defendant and their counsel may be clearly apprised
as to the particular theory upon which the jury relied.