                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



State of West Virginia,                                                            FILED
                                                                                  June 24, 2013
Plaintiff Below, Respondent                                                  RORY L. PERRY II, CLERK

                                                                           SUPREME COURT OF APPEALS

vs) No. 12-0438 (Cabell County 10-F-253)                                       OF WEST VIRGINIA




Jesse Aaron Blevins,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
       Petitioner Jesse Aaron Blevins, by counsel A. Courtenay Craig and John A. Proctor,
appeals the Circuit Court of Cabell County’s sentencing order entered on March 21, 2012, after
he was found guilty of one count of voluntary manslaughter and one count of concealment of a
dead body. Respondent State of West Virginia, by counsel Benjamin Yancey III, has filed a
response.

       This Court has considered the parties= briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        On July 27, 2009, petitioner, his ex-girlfriend Elizabeth Cotton, and their minor child
attended a party at the home of David Frye. Later that evening, Frye returned all three to
petitioner’s father’s home, where petitioner was staying. After putting their son to bed, petitioner
and Cotton began to argue over his alleged infidelity.1 He later claimed she attacked him with
her fists and he struck back. He then claimed she grabbed a knife from her purse and attempted
to stab him. Petitioner states that he retreated to the bathroom but Cotton followed him, so he
pulled a knife from his pocket and stabbed Cotton in the neck, killing her. Petitioner then cleaned
up the crime scene, wrapped Cotton’s body in trash bags and hid her body under the house.
Petitioner threw the knife in the sewer, then took his son to his mother’s home.

       The next evening petitioner told Frye that he killed Cotton and buried her under the
house. Petitioner then asked Frye to help him dispose of the body. Instead, Frye called the police
and told them about petitioner’s confession. Officers took Frye to identify the home where

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         Petitioner claims that Cotton was a violent person, committing fourteen acts of violence
in the two years before her death. Petitioner claims he was the victim in nine of those. He also
claims six of the victims were police officers, and that she was arrested for pulling a knife and
trying to stab a romantic rival only two weeks before her death.
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petitioner was residing. Officers announced themselves and knocked on the door. When
petitioner came to the door, he was asked by the police to exit the home. Petitioner was then
questioned and Cotton’s body was found under the home. As soon as petitioner indicated Cotton
was dead, the questioning ceased. Petitioner claims that he was not free to leave, and was not
given Miranda rights prior to being asked where Cotton was. Moreover, the body was found
prior to a search warrant being obtained.

       Petitioner was indicted on September 19, 2009, on one count of murder and one count of
concealment of a deceased human body. Petitioner later filed a motion to suppress his initial
statements to the police, and the motion was denied. The prosecutor’s office filed a “nolle
prosequi” motion which was granted on August 10, 2010. Petitioner was re-indicted on both
counts and all previous motions and rulings were transferred to the new case.

        On October 21, 2011, a Rule 404(b) hearing was held on the State’s four notices
regarding its intent to introduce 404(b) evidence. This evidence included numerous acts of
violence by petitioner against Cotton from October of 2007 through November of 2008; an
injury inflicted by petitioner upon Cotton on April 26, 2008; a specific altercation wherein
petitioner punched holes in Cotton’s wall, urinated on her floor, spat on her, and hit her several
times on December 2, 2007; an April 9, 2008, incident wherein petitioner struck Cotton, slashed
her tires and broke her windshield; a verbal altercation on June 29, 2008; a February of 2009
incident wherein petitioner injured Cotton’s lip and blackened her eye; a March of 2009 incident
wherein petitioner threatened Cotton’s life and threatened to take their son; and a May of 2009
incident wherein petitioner physically abused and raped Cotton. The court preliminarily ruled
that the acts of violence and threats toward Cotton could be introduced. However, prior to the
trial, most of the evidence was disallowed based on hearsay and prejudice. Trial began on
January 18, 2012. Petitioner was convicted of voluntary manslaughter and concealment of a
deceased human body. He was sentenced to fifteen years on the first charge, and one to five
years on the second, to run consecutively.

        Petitioner first argues that the circuit court erred when it failed to suppress: (a)
petitioner’s initial statement to the police; (b) evidence taken as a result of the illegal search of
his father’s residence; and, (c) his subsequent confession, all of which were said to be fruit of the
poisonous tree. Petitioner argues that he was effectively under arrest when approximately fifteen
police officers descended on his father’s home, and that he was questioned about Cotton’s
whereabouts without being given proper Miranda warnings.

       This Court has noted as follows:

       “When reviewing a ruling on a motion to suppress, an appellate court should
       construe all facts in the light most favorable to the State, as it was the prevailing
       party below. Because of the highly fact-specific nature of a motion to suppress,
       particular deference is given to the findings of the circuit court because it had the
       opportunity to observe the witnesses and to hear testimony on the issues.
       Therefore, the circuit court’s factual findings are reviewed for clear error.”
       Syllabus point 1, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996).



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Syl. Pt. 13, State v. White, 228 W.Va. 530, 722 S.E.2d 566 (2011). Moreover,

       By employing a two-tier standard, we first review a circuit court’s findings of fact
       when ruling on a motion to suppress evidence under the clearly erroneous
       standard. Second, we review de novo questions of law and the circuit court’s
       ultimate conclusion as to the constitutionality of the law enforcement action.
       Under the clearly erroneous standard, a circuit court’s decision ordinarily will be
       affirmed unless it is unsupported by substantial evidence; based on an erroneous
       interpretation of applicable law; or, in light of the entire record, this Court is left
       with a firm and definite conviction that a mistake has been made. See State v.
       Stuart, 192 W.Va. 428, 452 S.E.2d 886, 891 (1994). When we review the denial
       of a motion to suppress, we consider the evidence in the light most favorable to
       the prosecution.

State v. Lilly, 194 W.Va. 595, 600, 461 S.E.2d 101, 106 (1995). Upon consideration of the above
standard of review, this Court finds no error in the circuit court’s denial of petitioner’s motion to
suppress his statements, the search, and his confession. As the State notes, the Court must first
determine if petitioner was subjected to a custodial interrogation, and then must determine if
there were exigent circumstances for the interrogation. This Court has stated that “the
determination of whether a person was subjected to custodial interrogation for purposes of
Miranda requires a consideration of the totality of the circumstances.” Damron v. Haines, 223
W.Va. 135, 141, 672 S.E.2d 271, 277 (2008). Moreover, “the Miranda safeguards were never
intended to apply to the typical ‘on-the-scene’ investigation.” Id. Miranda warnings “are not
required where a suspect is simply taken into custody, but rather only where a suspect in custody
is subjected to interrogation.” Syl. Pt. 3, in part, Damron.

       “The factors to be considered by the trial court in making a determination of
       whether a custodial interrogation environment exists, while not all-inclusive,
       include: the location and length of questioning; the nature of the questioning as it
       relates to the suspected offense; the number of police officers present; the use or
       absence of force or physical restraint by the police officers; the suspect’s verbal
       and nonverbal responses to the police officers; and the length of time between the
       questioning and formal arrest.” Syllabus Point 2, State v. Middleton, 220 W.Va.
       89, 640 S.E.2d 152 (2006).

Syl. Pt. 4, Damron. Additionally, “‘[o]ther factors relevant to the determination of whether a
custodial interrogation occurred include ‘the nature of the interrogator, the nature and condition
of the suspect, the time and length of the questioning, the nature of the questioning-accusatory or
investigatory, [and] the focus of the investigation at the time of questioning[.]’ Moore v. Ballone,
488 F.Supp. 798, 805 (E.D.Va.1980).” Damron, 223 W.Va. at 141, 672 S.E.2d at 277. At the
time petitioner gave his initial statement to the police, there was an ongoing emergency based on
the statement that there was a dead body under the house and that petitioner intended to throw
the body into the Ohio River. Because of these exigent circumstances, petitioner was asked a few
short questions concerning the whereabouts of the victim. These questions were purely
investigatory rather than accusatory and were not designed to incriminate petitioner. Even if
petitioner had been in custody, these questions did not amount to an interrogation.

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        At the time police entered petitioner’s father’s home after they were told that Cotton was
dead, they did not know with certainty whether Cotton was dead or alive, whether her body
remained there, whether petitioner was in the process of destroying evidence, or whether
petitioner’s son was in the house. All of these exigent circumstances permitted entry without a
warrant.

       “An officer, with authority to conserve the peace, may, without a warrant, arrest
       any person who he, upon probable cause, believes has committed or is committing
       a felony, though it afterwards appears that no felony was actually perpetrated.”
       Syllabus Point 2 State v. Duvernoy, 156 W.Va. 578, 195 S.E.2d 631 (1973).

Syl. Pt. 2, State v. Drake, 170 W.Va. 169, 291 S.E.2d 484 (1982). Moreover, “[p]robable cause
to make an arrest without a warrant exists when the facts and circumstances within the
knowledge of the arresting officer are sufficient to warrant a prudent man in believing that an
offense has been committed.” Syl. Pt. 1, Id. (quoting Syl. Pt. 7, State v. Craft, 165 W.Va. 741,
272 S.E.2d 46 (1980)). Additionally, when determining reasonable suspicion, “one must examine
the totality of the circumstances, which includes both the quantity and quality of the information
known by the police.” Syl. Pt. 2, State v. Legg, 207 W.Va. 686, 536 S.E.2d 110 (2000) (quoting
Syl. Pt. 2, State v. Stuart, 192 W.Va. 428, 452 S.E.2d 886 (1994)). Prior to petitioner’s arrest, the
police spoke to both Frye and petitioner to verify that Cotton was dead and that her body was
underneath petitioner’s father’s home. This Court has explained that “[e]xigent circumstances
exist where there is a compelling need for the official action and there is insufficient time to
secure a warrant, police may then enter and search private premises. . . without obtaining a
warrant.” State v. Kendall, 219 W.Va. 686, 692, 639 S.E.2d 778, 784 (2006). Moreover,

       Exigent circumstances may exist in many situations: three well recognized
       situations are when police reasonably believe (1) their safety or the safety of
       others may be threatened, (2) quick action is necessary to prevent the destruction
       of potential evidence, or (3) immediate action is necessary to prevent the suspect
       from fleeing.

Id. Finally, this Court has explained that the reasonable suspicion “should be analyzed from the
perspective of the police officers at the scene; an inquiring court should not ask what the police
could have done but whether they had, at the time, a reasonable belief that there was a need to
act without a warrant.” Syl. Pt. 7, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996). After the
officers made a protective sweep of the house and found the body, all officers were ordered out
of the house and the house was secured, so that a warrant could then be obtained to make a full
search. Considering all of the above, the police conducted a proper warrantless entry and search
based on the emergency. Therefore, the motion to suppress was properly denied.

        Petitioner next argues that the circuit court erred when it allowed the prosecution to
question petitioner regarding Rule 404(b) evidence it had previously excluded when the defense
did not open the door to such evidence and the error prejudiced petitioner. The State responds
that the evidence was properly admitted in response to petitioner being allowed to introduce a
plethora of past acts of the victim’s alleged violence and, even if the evidence was improperly

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admitted, this amounts to harmless error.

       This Court has found:

       Where an offer of evidence is made under Rule 404(b) of the West Virginia Rules
       of Evidence, the trial court, pursuant to Rule 104(a) of the West Virginia Rules of
       Evidence, is to determine its admissibility. Before admitting the evidence, the trial
       court should conduct an in camera hearing as stated in State v. Dolin, 176 W.Va.
       688, 347 S.E.2d 208 (1986). After hearing the evidence and arguments of counsel,
       the trial court must be satisfied by a preponderance of the evidence that the acts or
       conduct occurred and that the defendant committed the acts. If the trial court does
       not find by a preponderance of the evidence that the acts or conduct was
       committed or that the defendant was the actor, the evidence should be excluded
       under Rule 404(b). If a sufficient showing has been made, the trial court must
       then determine the relevancy of the evidence under Rules 401 and 402 of the
       West Virginia Rules of Evidence and conduct the balancing required under Rule
       403 of the West Virginia Rules of Evidence. If the trial court is then satisfied that
       the Rule 404(b) evidence is admissible, it should instruct the jury on the limited
       purpose for which such evidence has been admitted. A limiting instruction should
       be given at the time the evidence is offered, and we recommend that it be repeated
       in the trial court’s general charge to the jury at the conclusion of the evidence.

Syl. Pt. 2, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994). The circuit court properly
considered the evidence in question under Rule 404(b) prior to trial and chose to exclude the
same. However, at trial, some evidence of petitioner’s alleged violence against Cotton was
admitted. As the State points out, much more damaging evidence concerning petitioner’s
propensity for violence against Cotton was admitted with no objection, and petitioner was
permitted to put on evidence of Cotton’s violence against him. Therefore, we find that the
admission of the evidence of which petitioner now complains is harmless error. The test for
harmless error is as follows:

       “Where improper evidence of a nonconstitutional nature is introduced by the State
       in a criminal trial, the test to determine if the error is harmless is: (1) the
       inadmissible evidence must be removed from the State’s case and a determination
       made as to whether the remaining evidence is sufficient to convince impartial
       minds of the defendant’s guilt beyond a reasonable doubt; (2) if the remaining
       evidence is found to be insufficient, the error is not harmless; (3) if the remaining
       evidence is sufficient to support the conviction, an analysis must then be made to
       determine whether the error had any prejudicial effect on the jury.” Syl. Pt. 2,
       State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979), cert. denied, 445 U.S. 904,
       100 S.Ct. 1081, 63 L.Ed.2d 320 (1980).

Syl. Pt. 10, State v. Mills, 219 W.Va. 28, 631 S.E.2d 586 (2005). Even if the evidence
complained of had not been admitted, the remaining evidence was sufficient for a conviction.
This evidence consists of, among other things: petitioner’s concealment of the body, his disposal



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of the knife and cleaning of the crime scene, and his admission to Frye. Any prejudicial effect
from this evidence was de minimus and did not result in an unfair trial.

        Petitioner also argues that the circuit court erred when it failed to allow petitioner to
introduce 911 tapes of petitioner calling the police about Cotton, clearly describing an ongoing
emergency, when Cotton was heard in the background causing a disturbance. This Court has
held, “‘[r]ulings on the admissibility of evidence are largely within a trial court’s sound
discretion and should not be disturbed unless there has been an abuse of discretion.’ State v.
Louk, 171 W.Va. 639, [643,] 301 S.E.2d 596, 599 (1983).” Syl. Pt. 1, State v. Kaufman, 227
W.Va. 537, 711 S.E.2d 607 (2011) (internal citations omitted). A review of the record shows that
petitioner testified to the incident in the 911 tapes at great length. Moreover, at least one of the
911 tapes was played during petitioner’s father’s testimony. Because of other statements on the
tapes, including statements of 911 dispatchers and police officers, the tapes could not be played
in their entirety. Therefore, this Court finds no error in the circuit court’s ruling disallowing the
introduction of the 911 tapes.

        Finally, petitioner argues that there was insufficient evidence to overcome his claim of
self-defense and the State failed to offer an alternative theory of Cotton’s death. This Court has
held as follows:

       “‘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 163 (1995).” Syl. Pt. 1, State v. Juntilla, 227
       W.Va. 492, 711 S.E.2d 562 (2011).

Syl. Pt. 8, State v. Stone, 229 W.Va. 271, 728 S.E.2d 155 (2012).

       “‘A 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.’ Syl. Pt. 3, in part, State v. Guthrie,
       194 W.Va. 657, 461 S.E.2d 163 (1995).” Syl. Pt. 2, State v. Juntilla, 227 W.Va.
       492, 711 S.E.2d 562 (2011).

Syl. Pt. 9, Stone. In relation to self-defense, “[o]nce there is sufficient evidence to create a

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reasonable doubt that the killing resulted from the defendant acting in self-defense, the
prosecution must prove beyond a reasonable doubt that the defendant did not act in self-
defense.” Syl. Pt. 4, State v. Kirtley, 162 W.Va. 249, 252 S.E.2d 374 (1978). Furthermore,

       “‘When one without fault himself is attacked by another in such a manner or
       under such circumstances as to furnish reasonable grounds for apprehending a
       design to take away his life, or to do him some great bodily harm, and there is
       reasonable grounds for believing the danger imminent, that such design will be
       accomplished, and the person assaulted has reasonable ground to believe, and
       does believe, such danger is imminent, he may act upon such appearances and
       without retreating, kill his assailant, if he has reasonable grounds to believe, and
       does believe, that such killing is necessary in order to avoid the apparent danger;
       and the killing under such circumstances is excusable, although it may afterwards
       turn out, that the appearances were false, and that there was in fact neither design
       to do him some serious injury nor danger, that it would be done. But of all this the
       jury must judge from all the evidence and circumstances of the case.’ Syl. Pt. 7,
       State v. Cain, 20 W.Va. 679 (1882).” Syl. Pt. 6, Feliciano v. 7-Eleven, Inc., 210
       W.Va. 740, 559 S.E.2d 713 (2001).

Syl. Pt. 4, State v. Dinger, 218 W.Va. 225, 624 S.E.2d 572 (2005). A review of the record shows
that the evidence was sufficient to support petitioner’s voluntary manslaughter conviction. The
evidence showed that petitioner stabbed Cotton in the neck; Cotton also suffered blunt force
trauma to her head and face; and, petitioner had no knife wounds to his body, despite his claim
that Cotton was attacking him. The jury heard all of the evidence and made the determination
that petitioner was guilty of voluntary manslaughter and was not acting in self-defense.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: June 24, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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