George B. Morrone III
Kenova, West Virginia
Counsel for Appellant
Rodney L. Bean
Assistant Attorney General
Charleston, West Virginia
Counsel for Appelle.
Chief Justice Workman delivered the Opinion of the Court.
1. "Among the criteria to be considered in determining
whether a position is an office or mere employment are whether the
position was created by law; whether the position was designated an
office; whether the qualifications of the appointee have been
prescribed; whether the duties, tenure, salary, bond and oath have
been prescribed or required; and whether the one occupying the
position has been constituted a representative of the sovereign."
Syl. Pt. 5, State ex rel. Carson v. Wood, 154 W. Va. 397, 175
S.E.2d 482 (1970).
2. A position of mere public employment which requires
providing service to the public and dealing with public records is
not equivalent to an officer in lawful charge of public records for
the purposes of West Virginia Code § 61-5-23 (1992).
3. "The essential predicates of a plain view warrantless
seizure are (1) that the officer did not violate the Fourth
Amendment in arriving at the place from which the incriminating
evidence could be viewed; (2) that the item was in plain view and
its incriminating character was also immediately apparent; and (3)
that not only was the officer lawfully located in a place from
which the object could be plainly seen, but the officer also had a
lawful right of access to the object itself." Syl. Pt. 3, State v.
Julius, 185 W. Va. 422, 408 S.E.2d 1 (1991).
4. "A trial court may find, as a matter of law, that a
defendant was entrapped, if the evidence establishes, to such an
extent that the minds of reasonable men could not differ, that the
officer or agent conceived the plan and procured or directed its
execution in such an unconscionable way that he could only be said
to have created a crime for the purpose of making an arrest and
obtaining a conviction." Syl. Pt. 4, State v. Knight, 159 W. Va.
924, 230 S.E.2d 732 (1976).
5. "When a defendant presents evidence of police conduct
amounting to entrapment, and the State fails to rebut that evidence
or prove defendant's predisposition to commit the crime charged, a
trial judge should direct a verdict for defendant as a matter of
law." State v. Hinkle, 169 W. Va. 271, 286 S.E.2d 699 (1982).
Workman, Chief Justice:
This case is before the Court upon the appeal of Lisa A.
Nelson from a September 12, 1991, jury conviction in the Circuit
Court of Cabell County for fraudulently secreting a public record
in violation of West Virginia Code § 61-5-23 (1992).See footnote 1 The
Appellant had been convicted on March 21, 1991, in magistrate court
of a similar charge applicable only to public officers, found in
West Virginia Code § 61-5-22 (1992).See footnote 2 The Appellant contends that
the trial court committed the following errors: 1) allowed the
Appellee to amend the warrant and charge the Appellant with a
violation of West Virginia Code § 61-5-23, in that she was clearly
exempt from any conviction thereunder because she was the person in
lawful charge of the records concealed; 2) denied the Appellant's
motion in limine made pursuant to West Virginia Rule of Evidence
403, whereby the Appellant sought to suppress any evidence of her
involvement in other wrongdoings or crimes; 3) denied the
Appellant's motion to suppress evidence seized during the
warrantless second search of her personal desk and her personal
copy of a magazine at her place of employment; 4) denied the
Appellant's motion to set aside the verdict and enter a judgment of
acquittal, or in the alternative, grant the motion for a new trial,
wherein the Appellant contended that she had established, as a
matter of law, that she had been entrapped by law enforcement
officers; 5) gave various jury instructions which either
incorrectly stated the law or were misleading. Upon review of the
briefs of the parties, the record and all other matters submitted
before the Court, we find that no error was committed and we affirm
In October 1989, the Appellant was employed as a records clerk
by the Huntington Police Department (hereinafter referred to as
HPD). In September 1990, the Appellant became the subject See footnote 3 of a
drug investigation being conducted by the Cabell County Sheriff's
Department (hereinafter referred to as Sheriff's Department). The
Sheriff's Department employed Jeffrey Terry as a confidential
informant for the drug investigation. According to Mr. Terry's
testimony at trial, he became acquainted with the Appellant prior
to being employed as a confidential informant, while he was an
inmate at the Cabell County Jail and the Appellant was a
correctional officer there.
Mr. Terry testified that in September of 1990 he agreed to
wear an electronic monitoring device while accompanying the
Appellant to purchase marijuanaSee footnote 4 at the home of Billy and Debbie
Depaul. While at the Depaul home, Mr. Terry asked the Appellant if
she could check the HPD files for outstanding warrants on Mr.
Depaul. Deputy Larry Pinkerman also testified that while
monitoring the conversation between the Appellant, Mr. Terry and
the Depauls, he heard the Appellant talk about police records, as
well as divulge information about an ongoing HPD drug
Deputy Pinkerman testified at the suppression hearing that
because of the Appellant's willingness to discuss information
regarding an ongoing HPD investigation and to release warrant
information found in HPD files, the Sheriff's Department decided to
investigate whether the Appellant would "expunge or purge" HPD
records. On October 26, 1990, Mr. Terry was once again employed by
the Sheriff's Department to aid in an investigation concerning the
Appellant's willingness to conceal information contained in Mr.
Terry's police record. Mr. Terry testified that he telephonedSee footnote 5 the
Appellant while she was at work and told her that he had applied
for a job at Service Machinery and that someone from there would be
coming to the HPD to check his police record for felony
convictions. He then asked the Appellant if she would "clean them
[the felony convictions] out for me." The Appellant agreed to Mr.
On October 29, 1990, Mr. Terry again telephoned the Appellant
to ascertain whether anyone had checked on his police record. The
Appellant indicated that no one had checked his records yet. She
also assured Mr. Terry that she would not disclose Mr. Terry's
entire criminal record to the potential employer.
Later that same day, West Virginia State Trooper Jack W. Ice,
working undercover, went into the HPD posing as Mr. Terry's
potential employer while wearing an electronic monitoring device.
Trooper Ice presented the Appellant with a criminal investigation
authorization form for the release of Mr. Terry's criminal record.
According to Trooper Ice, the Appellant proceeded to check Mr.
Terry's record and then she marked on the form under "Records
found" that Mr. Terry had "a felony B & E [Breaking and Entering]
in 1983, April."See footnote 6 Further, the Appellant told Trooper Ice that the
felony breaking and entering had either been reduced to a
misdemeanor or dropped.
Shortly after Trooper Ice departed, Mr. Terry telephoned the
Appellant. The Appellant told Mr. Terry what she had disclosed to
the potential employer. She also told Mr. Terry, "Jeff, I got my
neck stuck way, way out[,]" and that "I could lose my job over
On October 30, 1990, a search warrantSee footnote 7 was issued for
"[i]dentification and criminal record of Jeffrey A. Terry packet
number 26349." The search warrant identified the place to be
searched as "the Huntington Police Department Service Records
Division located at 330 3rd. Avenue, Huntington, Cabell County,
West Virginia[.] A two . . . story building with red brick
[f]ront[.]" The Sheriff's Department executed the warrant,
conducting a search of the Appellant's desk at the HPD, but failed
to find any incriminating evidence.
According to Lieutenant Bobby Stephens, a police officer with
the HPD and the Appellant's supervisor, approximately one and one-half hours after the Sheriff's Department conducted the initial
search of the Appellant's desk, he went to the Appellant's desk "to
separate some of her personal effects from the property of the
Police Department." The Lieutenant testified that this occurred
subsequent to the Appellant's arrest, but prior to her termination
from employment. During this inventory of the Appellant's personal
effects, Lieutenant Stephens noticed a magazine laying in an
upright file on top of the Appellant's desk. Protruding from the
magazine were papers that the officer recognized as criminal rap
sheets belonging to Mr. Terry.See footnote 8 These papers should have been in
Mr. Terry's criminal history file. These documents were the same
documents that were the subject of the earlier search conducted by
the Sheriff's Department. Lieutenant Stephens testified that he
notified the Sheriff's Department regarding the documents and
turned those documents over to that department.
The Appellant presented no evidence at trial and relied upon
the defense of entrapment.
The first assignment of error raised by the Appellant is that
the trial court erred in permitting the Appellee to amend the
warrant and charge the Appellant with violating West Virginia Code
§ 61-5-23 instead of West Virginia Code § 61-5-22. The Appellant
argues that she was clearly exempt from any conviction under West
Virginia Code § 61-5-23 since she was the person in lawful charge
of the records concealed.See footnote 9 Further, the Appellant asserts that if
this Court finds that she violated West Virginia Code § 61-5-23,
said code provision is unconstitutionally void for vagueness since
she had no notice that the nondisclosure of a criminal history
summary to a potential employer would violate the statute.See footnote 10 The
Appellee maintains that the Appellant was properly convicted
pursuant to West Virginia Code § 61-5-23 because the Appellant was
not an "officer in lawful charge" of the HPD's records, but was
instead a civilian employee of the HPD records division. See W.
Va. Code § 61-5-23.
It is helpful to examine the relevant statutory provision
involved. West Virginia Code § 61-5-23 provides, in pertinent
part, that "[i]f any person, other than an officer in lawful charge
thereof, steal, fraudulently secrete or destroy, a public record or
any part thereof, he shall be guilty of [a] misdemeanor. . . ."
(emphasis added). Thus, the question to be resolved is whether the
Appellant was a public officer in lawful charge of the HPD
records.See footnote 11 In syllabus point 5 of State ex rel. Carson v. Wood,
154 W. Va. 397, 175 S.E.2d 482 (1970), we established the following
criteria to be used in determining whether a position is a public
office or mere employment:
whether the position was created by law; whether the position was designated an office;
whether the qualifications of the appointee
have been prescribed; whether the duties,
tenure, salary, bond and oath have been
prescribed or required; and whether the one
occupying the position has been constituted a
representative of the sovereign.
According to the evidence at trial, the Appellant was employed
by the HPD as a records clerk and her job responsibilities included
handling requests made by the public and dealing with public
records. This position was not created by either the Legislature
or the Huntington City Council. See W. Va. Code § 8-14-1 to -23
(1990 & Supp. 1992); Huntington Municipal Code § 141.01 to -.17
(1990). The Appellant was a subordinate who was supervised by a
lieutenant within the HPD, and there is no indication that her job
duties were prescribed or required by law nor is there any
concomitant law which prescribes or requires tenure, salary, bond
or an oath.
This analysis leads to the conclusion that the Appellant was
not a public officer. A position of mere public employment which
requires providing service to the public and dealing with public
records is not equivalent to "an officer in lawful charge" of
public records for the purposes of West Virginia Code § 61-5-23.
Consequently, the Appellant was properly charged and tried pursuant
to West Virginia Code § 61-5-23.
The Appellant's next assignment of error concerns whether the
trial court erred in permitting the State to introduce in evidence
the Appellant's involvement in other crimes or wrongdoings. The
Appellant asserts that her constitutional right to a fair trial was
denied when the State was permitted to introduce evidence of a drug
transaction which occurred between the Depauls and the Appellant
and the Appellant's agreement to ascertain if any outstanding
warrants existed for Mr. Depaul. The State maintains that the
admission of this evidence was proper because it furnished part of
the context of the crime for which the Appellant was being tried;
it was necessary for a full presentation of the State's case; and
it was necessary to counter the Appellant's entrapment defense.See footnote 12
West Virginia Rule of Evidence 404(b) provides:
Other Crimes, Wrongs, or Acts. --
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake or accident.
Accord Syl. Pt. 2, State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
Additionally, in Edward Charles L. we stated that West
Virginia Rule of Evidence 404(b) was an "'inclusive rule' in which
all relevant evidence involving other crimes or acts is admitted
at trial unless the sole purpose for the admission is to show
criminal disposition." Id. at 647, 398 S.E.2d at 129 (citing
United States v. Masters, 622 F.2d 83, 86 (4th Cir. (1980)). This
Court relied upon the Masters decision in adding to that inclusive
list evidence of other crimes, wrongs, or acts which "'"furnishes
part of the context of the crime" or is necessary to a "full
presentation" of the case, [or is] . . . "part of the res gestae of
the crime charged."'" Edward Charles L., 183 W. Va. at 648, 398
S.E.2d at 130 (quoting Masters, 622 F.2d at 86); see State v.
Gilbert, 184 W. Va. 140, 146-47, 399 S.E.2d 851, 858 (1990).
A review of the record indicates that the introduction of
evidence of the Appellant's involvement in the drug transaction and
her subsequent agreement to check into outstanding warrants on Mr.
Depaul, along with her willingness to release information
concerning an ongoing HPD drug investigation were necessary to a
full presentation of the State's case to the jury. The record
reveals that the State did not introduce this evidence to show that
the Appellant had a bad character and was acting in conformity
therewith, but rather to show how the police made a determination
to target the Appellant for the investigation surrounding the
concealment of the HPD records and also to counter the Appellant's
entrapment defense by demonstrating the Appellant's predisposition
to commit the crime charged. See W. Va. R. Evid. 404(b).
Finally, the record is clear that, prior to introducing the
evidence in dispute, the trial court conducted the proper in camera
hearing established by this Court in syllabus point 3 of State v.
Dolin, 176 W. Va. 688, 347 S.E.2d 208 (1986), overruled in part on
other grounds, Edward Charles L., 183 W. Va. at 643, 398 S.E.2d at
125. The trial court also gave an extensive cautionary instruction
to the jury which limited its consideration of the collateral acts
and crimes. See 176 W. Va. at 690, 347 S.E.2d at 210, Syl. Pt. 9.
Therefore, we conclude that no error was committed by the
trial court in allowing the State to introduce the evidence of the
Appellant's collateral acts and crimes.
The next issue centers on the inventory the Appellee made on
her desk, and the removal of the arrest record from her personal
property (the magazine). The Appellant maintains that since this
second searchSee footnote 13 was of the Appellant's personal property and was
without a warrant, it was unconstitutional. Further, the Appellant
asserts that no exceptions to the warrant requirement, such as the
plain view doctrine, existed at the time of a search. The
Appellee, however, argues that: 1) Lieutenant Stephens' gathering
of the Appellant's personal belongings from her desk did not
constitute a search; 2) the Appellant had no privacy interest in
the surface of her desk; and 3) even if Lieutenant Stephens has
seized the HPD records from the Appellant's desk during a search,
the seizure would have been permissible under the plain view
The Appellant relies heavily upon the decision reached in
United States v. Blok, 188 F.2d 1019 (D.C. Cir. 1951) for the
proposition that this type of warrantless search of the Appellant's
desk was unconstitutional. In Blok, the defendant was arrested for
petty larceny. The police conducted a warrantless search of the
Defendant's desk assigned to her use in the government office where
she worked. The desk was first searched without the defendant
being present and was again searched in her presence. Id. at 1019.
The police found incriminating evidence in the desk which was used
to convict the defendant. Id. at 1020. The defendant disclaimed
ownership of the evidence found. Id.
The Blok court found that the search of the defendant's desk was unreasonable due to the "appellee's exclusive right to use the desk assigned to her." Id. at 1021. But the Blok court also stated that "[h]er [the defendant's] official superiors might reasonably have searched the desk for official property needed for official use."See footnote 14 Id.
We find the Appellants' reliance on Blok as being dispositive of the issue to be misplaced. In this case, the Appellant's private property was not the subject of the inventory, nor did the Appellant have any reasonable expectation of privacy in the criminal record, which is after all a public record. Thus, there was actually no necessity for the investigatory officers to obtain a search warrant for the public document and the Appellant does not have standing to challenge the search, much less an inventory. See People v. Duvall, 170 Mich. App. 701, 428 N.W.2d 746, appeal denied, 431 Mich. 888, 447 N.W.2d 152 (1988) (upholding warrantless seizure of public documents from deputy sheriff's desk during unannounced investigation into deputy sheriff's processing of bond money because deputy sheriff lacked reasonable expectation of privacy in government property seized); see also Rakas v. Illinois,
439 U.S. 128 (1978) (stating that one must have legitimate
expectation of privacy in object of search in order to object to
search); State v. Tadder, 173 W. Va. 187, 313 S.E.2d 667 (1984)
(upholding warrantless search of vehicle where defendant, as a
passenger, had no property or possessory interest in items searched
and seized and did not suffer any invasion of a legitimate
expectation of privacy).
Moreover, in syllabus point 3 of State v. Julius, 185 W. Va.
422, 408 S.E.2d 1 (1991), this Court held that:
The essential predicates of a plain view
warrantless seizure are (1) that the officer
did not violate the Fourth Amendment in
arriving at the place from which the
incriminating evidence could be viewed; (2)
that the item was in plain view and its
incriminating character was also immediately
apparent; and (3) that not only was the
officer lawfully located in a place from which
the object could be plainly seen, but the
officer also had a lawful right of access to
the object itself.
Obviously, when the Lieutenant saw the criminal rap sheet sticking out of the magazine which was clearly laying in an upright file on top of the Appellant's desk, his seizure of that rap sheet comported with the criteria for a plain view warrantless seizure as set forth by this Court in Julius. See id. at 424, 408 S.E.2d at 3.
Thus, we find that the Appellant's supervisor's discovery of
the magazine containing official HPD records was constitutional,
even had the matter seized not been a public record. Accordingly
we affirm the trial court's denial of the Appellant's motion to
suppress the incriminating evidence discovered.
The Appellant argues that the trial court should have
concluded that entrapment existed as a matter of law and granted
her motion to set aside the verdict and enter judgment of
acquittal, or in the alternative, granted a motion for a new trial.
The Appellee maintains that the evidence at trial did not support
a finding by the trial court that entrapment as a matter of law was
This Court held in syllabus point 4 of State v. Knight, 159 W.
Va. 924, 230 S.E.2d 732 (1976) that:
A trial court may find, as a matter of
law, that a defendant was entrapped, if the
evidence establishes, to such an extent that
the minds of reasonable men could not differ,
that the officer or agent conceived the plan
and procured or directed its execution in such
an unconscionable way that he could only be
said to have created a crime for the purpose
of making an arrest and obtaining a
However, in the syllabus of State v. Hinkle, 169 W. Va. 271,
286 S.E.2d 699 (1982), we held that a trial court should conclude
that the defendant was entrapped and direct a verdict for the
defendant as a matter of law "[w]hen a defendant presents evidence
of police conduct amounting to entrapment, and the State fails to
rebut that evidence or prove defendant's predisposition to commit
the crime charged. . . ."
The evidence in this case simply does not meet the criteria
set forth in the Knight decision for finding entrapment as a matter
of law. 159 W. Va. at 925, 230 S.E.2d at 733. On the contrary,
the evidence indicates that the Appellant was originally the target
of a drug investigation. During that investigation the Appellant
indicated her willingness to check outstanding warrants for a drug
dealer, and to reveal information regarding an ongoing drug
investigation to which she was privy as a result of her HPD
employment. While the record reflects her willingness to check for
outstanding warrants was initially prompted by the confidential
informant, it is also clear that the Sheriff's Department did not
"conceive the plan and procure or direct its execution in
such an unconscionable way that . . . [the officers] could only be
said to have created a crime for the purpose of making an arrest
and obtaining a conviction. . . ." 159 W. Va. at 932, 230 S.E.2d
at 737. Thus, reasonable minds could have differed as to whether
the law enforcement officer's conduct constituted entrapment as a
matter of law. See id.; see also State v. Taylor, 175 W. Va. 685,
337 S.E.2d 923 (1985). Further, even if the Appellant presented
some evidence of entrapment, the evidence reveals that the State
certainly rebutted the evidence by proving the Appellant's
predisposition to commit the crime charged. See Hinkle, 169 W. Va.
at 271, 286 S.E.2d at 700, syllabus.
Finally, the Appellant makes several assignments of error
regarding the jury instructions given by the trial court. The
first error involves State's instruction number one which was:
The Court instructs the jury that if you
believe the defendant, LISA NELSON, while
employed by the Huntington Police Department
as a civilian employee unlawfully, willfully,
fraudulently and with intent, did secrete and
remove the criminal history summary from a
person authorized and having the right to
inspect the same or any part thereof, then you
should find the defendant, LISA NELSON, guilty
of charges against her.
The Appellant argues that this instruction does not advise the jury that the person who is in lawful charge of the records is exempt from conviction under this particular code section. Based upon our determination on the applicability of West Virginia Code § 61-5-23 to this case, we find this assignment of error to be without merit. Moreover, the Appellant never raised an objection before the trial court to this instruction based upon the error now alleged before this Court. Thus, the Appellant failed to properly preserve this error before the trial court. See W. Va. R. Evid. 103(a)(1); W. Va. R. Crim. P. 30.
The second instructional error concerns State's instruction
number two: "The Court instructs the jury that a criminal history
summary is a public record as a matter of law." The Appellant
argues that the criminal history summary at issue in this case is
not a public record but a compilation of public and "non-public"
information used by law enforcement agencies. The Appellee asserts
that the instruction was in accordance with the law and we agree.
The term "public record" is defined within the Freedom of
Information Act,See footnote 15 West Virginia Code § 29B-1-2(4) (1986), as "any
writing containing information relating to the conduct of the
public's business, prepared, owned and retained by a public body."
According to this legislative definition, the nature of a "public
record" is not based upon public availability as asserted by the
Appellant, but rather it is based upon whether a public body
prepares, owns and retains the record. Moreover, the Legislature
specifically exempted the public records of law enforcement
agencies dealing with "the detection and investigation of crime and
the internal records and notations of such law-enforcement agencies
which are maintained for internal use in matters relating to law
enforcement" from the Freedom of Information Act disclosure
requirements. W. Va. Code § 29B-1-4(4) (1986). Such an exemption
would be unnecessary if the criminal history summary was not a
public record. Thus, the criminal history summary in this case was
a public record, and the trial court was correct in giving an
instruction to that effect to the jury.
The third instructional error involves State's instruction
The Court instructs the jury that there
is nothing improper in the use, by the
Sheriff's Department, of decoys, undercover
agents and informants, to invite the exposure
of willing criminals and to present an
opportunity to one willing to commit a crime.
If you believe the Sheriff's Department did nothing more than afford an opportunity for the commission of the crime charged against LISA NELSON, entrapment has not occurred.
The Appellant asserts that the above-mentioned instruction cited non-binding law from a neighboring jurisdictionSee footnote 16 as authoritative, and the instruction was misleading, cumulative, and, essentially directed a verdict in the State's favor. In contrast, the Appellee argues that the trial court's instructions, when read in their entirety, properly stated the law regarding the entrapment defense.
This Court has previously stated in State v. Basham, 159 W.
Va. 404, 223 S.E.2d 53 (1976), that "[i]t is perfectly proper for
police officers to afford opportunities for the commission of crime
without thereby prejudicing the subsequent prosecution of the
person who commits the offense." Id. at 412, 223 S.E.2d at 58,
accord State v. Maynard, 170 W. Va. 40, 289 S.E.2d 714 (1982). The
instruction given in the instant case was consistent with this
previous decision reached by this Court and with general principles
of the law on entrapment. Further, the trial court also gave
Defendant's instruction number one to the jury which set forth the
defense of entrapment and the burden of proof for entrapment.
Therefore, we find no error was committed by the trial court.
Finally, the Appellant argues that the trial court erred in
giving an amended Defendant's instruction number two instead of
giving the entire instruction which was proposed as follows:
The Court instructs the jury that a law
enforcement agent or informant's appeal to
sympathy may constitute entrapment where it
generates a motive for committing the offense
other than ordinary intent. Therefore, if you
should find that Lisa A. Nelson's motive for
committing the offense alleged was generated
by a law enforcement agent or informant's
appeal to her sympathy, then it is your duty
to find her not guilty.
The trial court amended the instruction by deleting the entire second sentence. We find no error in such modification. Furthermore, the Appellee contends that the Appellant did not specifically object to this alleged error, thereby waiving it.
Based upon the foregoing, we affirm the decision of the
Circuit Court of Cabell County.
Footnote: 1West Virginia Code § 61-5-23 provides:
If any person, other than an officer in lawful charge thereof, steal, fraudulently secrete or destroy, a public record or any part thereof, he shall be guilty of [a] misdemeanor, and, upon conviction, shall be confined in jail not more than one year and be fined not exceeding one thousand dollars. (emphasis added).
Footnote: 2West Virginia Code § 61-5-22 provides that:
If any clerk of a court, or other public officer, fraudulently make a false entry, or erase, alter or destroy any record in his keeping and belonging to his office, or shall wilfully secrete any such record from any person having the right to inspect the same, he shall be guilty of a misdemeanor, and, upon conviction, shall be confined in jail not more than one year and be fined not exceeding one thousand dollars; and, in addition thereto, he shall forfeit his office and be forever incapable of holding any office of honor, trust or profit in this State.
Footnote: 3There is no explanation in the record as to why the Appellant became the subject of the drug investigation.
Footnote: 4It is undisputed that the Appellant purchased marijuana. Moreover, the Appellant pleaded guilty to the charge involving the purchase of marijuana. This conviction is not the subject of this appeal.
Footnote: 5The various telephone conversations between the Appellant and Mr. Terry were recorded and introduced in evidence at trial.
Footnote: 6It is undisputed that Mr. Terry's criminal record actually indicated that he had four felony convictions between 1983 and 1987 including daytime burglary, two counts of burglary and grand larceny along with the breaking and entering which was disclosed.
Footnote: 7According to the testimony of the Appellant's supervisor, Lieutenant Bobby Stephens, an arrest warrant for the Appellant had already been issued and executed prior to the arrival of the Sheriff's Department to execute the search warrant.
Footnote: 8According to Lieutenant Stephens' testimony, the following records regarding Mr. Terry were discovered within the Appellant's magazine: the criminal history; the criminal jacket file; the booking and fingerprinting sheet; the personal description and family history; and the arrest-booking report. All the records were introduced in evidence at trial.
Footnote: 9It is important to note that while the Appellant initially objected to the amendment from West Virginia Code § 61-5-22 to West Virginia Code § 61-5-23, the Appellant's counsel subsequently withdrew the objection stating:
I think given the fact that the Court or
the Prosecutor could certainly recharge Ms.
Nelson [the Appellant] under the separate
statute by either filing a new warrant or by
filing an Information and . . . we don't feel
after discussing it and looking at the statute
there are any additional elements that need to
be proven that would require additional
preparation, we would not object at this time
to the amendment.
Thus, the Appellant agreed that the Appellant could be properly charged pursuant to West Virginia Code § 61-5-23. Further, the Appellant did not argue that she was exempt from that statute before the trial court. This Court could have determined that the Appellant did not properly preserve this error at the trial court level and therefore, may have viewed this objection as having been it waived. See W. Va. R. Evid. 103 (a)(1). It is only because this issue may arise in future cases that we address it.
Footnote: 10We summarily dismiss the Appellant's alternative argument that West Virginia Code § 61-5-23 is unconstitutionally vague. The statute is clearly "'set out with sufficient definiteness to give a person of ordinary intelligence fair notice that his contemplated conduct is prohibited by the statute.'" State v. DeBerry, 185 W. Va. 512, 516, 408 S.E.2d 91, 95, cert. denied, 112 S. Ct. 592 (1991) (quoting Syl. Pt. 1, in part, State v. Flinn, 158 W. Va. 111, 208 S.E.2d 538 (1974)).
Footnote: 11If the Appellant was a public officer in lawful charge of public records, she should have been charged pursuant to West Virginia Code § 61-5-22. See supra note 2.
Footnote: 12In the syllabus of State v. Hinkle, 169 W. Va. 271, 286 S.E.2d 699 (1982), this Court held that "[w]hen a defendant presents evidence of police conduct amounting to entrapment, and the State fails to rebut that evidence or prove defendant's predisposition to commit the crime charged, a trial judge should direct a verdict for defendant as a matter of law." The introduction of this evidence by the State certainly tended to prove the "defendant's predisposition to commit the crime charged." Id.
Footnote: 13Although the Appellant uses the word "search" with all its constitutional implications, we note that the testimony reflected that the inventory was not done in aid of further execution of the earlier search.
Footnote: 14In O'Conner v. Ortega, 480 U.S. 709 (1987), the United States Supreme Court held that a public employer may conduct a work-related search, which is not criminal in nature, of a public employee's office, desk and file cabinets, as long as the search is "for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct," and the search satisfies "the standard of reasonableness under all the circumstances." Id. at 725-26.
Footnote: 15See W. Va. Code § 29B-1-1 to -7 (1986 & Supp. 1992).
Footnote: 16At the conclusion of the instruction, the State cited McCoy v. Commonwealth, 9 Va. App. 277, 385 S.E.2d 628 (1989) as supporting authority for the instruction.