                            STATE OF WEST VIRGINIA 

                          SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                        FILED
                                                                               October 19, 2018
vs.) No. 17-0611 (Wyoming County 14-F-176)                                      EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA 
James Marshall Green,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner James Marshall Green, by counsel Thomas H. Evans III, appeals the Circuit
Court of Wyoming County’s June 12, 2017, order sentencing him to ten years of incarceration
following his second-degree murder conviction. Respondent State of West Virginia, by counsel
Benjamin F. Yancey III, filed a response. On appeal, petitioner contends that the circuit court
erred in denying his motions for judgment of acquittal, that this State’s murder statute is
unconstitutional, and that the circuit court committed reversible error in failing to declare a
mistrial.

        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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        On August 6, 2014, Charity Lester drove Jesse Graybeal and his brother, Ernie Cline, to
Margaret Broyles’s home so that Mr. Graybeal could speak with Ms. Broyles about cutting her
lawn and, because he did not have running water at his home, to get fresh water for his dogs
from an outside spigot. Ms. Broyles permitted Mr. Graybeal to obtain water from the spigot, and
he had done so many times before. As he was getting the water, petitioner, who was assisting
Ms. Broyles with her bills, exited her home. Mr. Graybeal assured petitioner that he was
permitted to get the water. After getting the water, Mr. Graybeal attempted to enter into Ms.
Broyles’s home to discuss cutting her lawn. Petitioner then pulled a gun from his pocket, cocked
it, and pointed it at Mr. Graybeal’s chest. Mr. Graybeal threw his hands up and asked petitioner,
“hey, man[,] what is your problem?” Mr. Graybeal grabbed petitioner’s arm and attempted to
wrest the gun from petitioner. Petitioner shot Mr. Graybeal. At the same time, Mr. Cline, who
had been waiting in Ms. Lester’s car, exited the car and ran toward his brother. Petitioner shot
Mr. Cline four times. Mr. Cline ultimately died from the bullet wounds. Mr. Graybeal survived.

       On October 7, 2014, petitioner was indicted on one count of first-degree murder of Mr.
Cline and one count of attempted murder of Mr. Graybeal. Petitioner’s trial commenced on June

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14, 2016. On June 23, 2016, the jury found petitioner guilty of second-degree murder, but
acquitted him of the attempted murder charge. The circuit court sentenced petitioner to ten years
of incarceration for his second-degree murder conviction on November 7, 2016. For purposes of
an appeal, the court entered a resentencing order on June 12, 2017. It is from this order that
petitioner appeals.

        Petitioner’s first argument on appeal is that the circuit court erred in denying his motions
for judgment of acquittal at the close of the State’s case-in-chief and at the conclusion of all the
evidence. Petitioner contends that the evidence supported his theory that he acted in self-defense
and without malice. Accordingly, petitioner argues, on the one hand, that the State proved
nothing more than voluntary manslaughter, but also claims that the State “failed to prove [that
petitioner] possessed the specific intent to kill necessary to maintain a conviction for [v]oluntary
manslaughter or second[-]degree murder.”

      This Court applies a de novo standard of review to appeals from rulings on a motion for
judgment of acquittal:

       The trial court’s disposition of a motion for judgment of acquittal is subject to our
       de novo review; therefore, this Court, like the trial court, must scrutinize the
       evidence in the light most compatible with the verdict, resolve all credibility
       disputes in the verdict’s favor, and then reach a judgment about whether a rational
       jury could find guilt beyond a reasonable doubt.

State v. LaRock, 196 W.Va. 294, 304, 470 S.E.2d 613, 623 (1996). Regarding our review of a
claim alleging insufficiency of the evidence, this Court has held that

                [t]he 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). Further,

       [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.

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Id. at 663, 461 S.E.2d at 169, Syl. Pt. 3, in part.

        With respect to petitioner’s argument that the State failed to prove malice, we have stated
that “[m]alice, express or implied, is an essential element of murder in the second degree, and if
absent the homicide is of no higher grade than voluntary manslaughter.” Syl. Pt. 2, State v.
Clayton, 166 W.Va. 782, 277 S.E.2d 619 (1981). Furthermore,

        [w]hether malice exists in a particular case is usually a question for the jury, and
        although in perfectly clear cases, the courts have held that the evidence was not
        sufficient to show malice even where the jury had found to the contrary, yet
        malice is a subjective condition of mind, discoverable only by words and conduct,
        and the significance of the words and conduct of an accused person, whenever
        there can be doubt about such significance, addresses itself peculiarly to the
        consideration of the jury.

Syl. Pt. 1, State v. Evans, 172 W.Va. 810, 310 S.E.2d 877 (1983) (citation omitted). Proving
malice typically involves “the presentation of evidence of circumstances surrounding the
killing,” and such circumstances can include the intentional use of a deadly weapon, the conduct
and words of the defendant, and “evidence of ill will or a source of antagonism between the
defendant and the decedent.” Id. at 813, 310 S.E.2d at 879.

        At petitioner’s trial, Mr. Graybeal testified that he did not threaten petitioner in any way.
Rather, he testified that he assured petitioner that he was permitted to obtain water from Ms.
Broyles’s spigot and asked him where Ms. Broyles was. Without provocation, petitioner pulled a
gun, pointed it at Mr. Graybeal, shot Mr. Graybeal, and shot and killed Mr. Cline, who only
approached petitioner in an effort to help Mr. Graybeal. The jury found that this evidence of
petitioner’s intentional use of a deadly weapon without justification was sufficient to support its
determination that petitioner acted with malice, and not in defense of himself.1 Based on the
evidence presented at trial, we concur with the jury’s finding and conclude that this is not a
“perfectly clear case” where the evidence was not sufficient to show malice. Id. at 811, 310
S.E.2d at 878, Syl. Pt. 1. Additionally, “if one voluntarily does an act, the direct and natural
tendency of which is to destroy another’s life, it fairly may be inferred, in the absence of

                                                                    
        1
         We also note that “[i]t is peculiarly within the province of the jury to weigh the evidence
upon the question of self-defense, and the verdict of a jury adverse to that defense will not be set
aside unless it is manifestly against the weight of the evidence.” Syl. Pt. 2, State v. Whittaker,
221 W.Va. 117, 650 S.E.2d 216 (2007). In addition to the fact that the evidence outlined above
undermines petitioner’s claim of self-defense, we also observe that he fails to identify any
evidence from the record that supports his assertion that he acted in self-defense or that the
shooting was accidental. In fact, petitioner’s brief lacks even a single citation to the record. For
the additional reasons that petitioner has failed to identify evidence that supports his claim and
file a brief that is compliant with Rule 10 of the West Virginia Rules of Civil Procedure, his
claim must fail.



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evidence to the contrary, that the destruction of that other’s life was intended.” LaRock, 196
W.Va. at 305, 470 S.E.2d at 624. Thus, we find no merit to petitioner’s assertion concerning an
intent to kill. As a result, the circuit court did not err in denying petitioner’s motions for
judgment of acquittal.

        Petitioner’s second argument is that West Virginia Code § 61-2-1 is unconstitutionally
vague. Petitioner claims that the statute “fails to delineate what conduct is prohibited by said
statute with ‘sufficient definiteness to give a person of ordinary intelligence fair notice that his
contemplated conduct is prohibited by statute and to provide adequate standards for
adjudication.’”

       West Virginia Code § 61-2-1 provides that

       [m]urder by poison, lying in wait, imprisonment, starving, or by any willful,
       deliberate and premediated killing, or in the commission of, or attempt to commit,
       arson, kidnapping, sexual assault, robbery, burglary, breaking and entering,
       escape from lawful custody, or a felony offense of manufacturing or delivering a
       controlled substance as defined in article four, chapter sixty-a of this code, is
       murder of the first degree. All other murder is murder of the second degree.

We have previously decided that this statute is not unconstitutionally vague:

       [I]t is clear that West Virginia Code § 61-2-1 is constitutional, as it plainly sets
       forth the prohibited conduct; that is to say, individuals are prohibited from
       committing murder. While the statute in question is brief, it is abundantly clear
       that any murder not described as first-degree murder constitutes second-degree
       murder.

State v. Payne, No. 15-0582, 2016 WL 6835733, *6 (W.Va. Nov. 21, 2016)(memorandum
decision). Accordingly, this claim has no merit.

        Finally, petitioner assigns as error the circuit court’s failure to declare a mistrial.
Petitioner argues that the State “overused” speculation and conjecture during its opening
statement and closing argument. Petitioner claims that the State portrayed him “as a violent
individual who shot two individuals as they approached him on a porch, while ignoring the fact
that the [p]etitioner is a 120[-]pound man being approached and jumped by two young men with
extensive criminal records.” Petitioner also claims that the jury heard evidence regarding a
statement he made that was previously suppressed. Lastly, petitioner asserts that a juror
contacted the prosecuting attorney by telephone during the trial, but “despite the unusual direct
contact, the trial continued.” Petitioner failed to object or move for a mistrial, but contends that
the errors are subject to a plain error analysis.

       We decline to address the claims within petitioner’s final assignment of error. Rule 10(c)
of the West Virginia Rules of Appellate Procedure requires a petitioner’s argument to “contain
appropriate and specific citations to the record on appeal, including citations that pinpoint when
and how the issues in the assignments of error were presented to the lower tribunal. The Court

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may disregard errors that are not adequately supported by specific references to the record on
appeal.” Petitioner’s brief is devoid of citations to the record. Additionally, petitioner fails to
quote any specific instance of conjecture or speculation in the State’s opening statement or
closing argument, fails to explain how “it appears the jury improperly relied on the conjecture[,]”
fails to quote instances where suppressed evidence purportedly was admitted,2 and fails to
substantiate his assertion that “it appears that either an outside influence or improper
compromise verdict was reached in this case” following juror contact with the prosecutor.3
Petitioner’s “skeletal arguments,” which are nothing more than assertions, fail to preserve his
claims. State, Dep’t of Health and Human Res. ex rel. Robert Michael B. v. Robert Morris N.,
195 W.Va. 759, 765, 466 S.E.2d 827, 833 (1995) (citation omitted). Indeed, “Judges are not like
pigs, hunting for truffles buried in briefs.” Id. (citation omitted).

       For the foregoing reasons, the circuit court’s June 12, 2017, resentencing order is hereby
affirmed.

                                                                                         Affirmed.

ISSUED: October 19, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Paul T. Farrell sitting by temporary assignment
Justice Tim Armstead
Justice Evan H. Jenkins

Justice Allen H. Loughry II suspended and therefore not participating
 




                                                                   
       2
         On this point, we note that petitioner admits that “the lower court did its best to prevent
the State from suborning improper and unduly prejudicial evidence[.]”
       3
        The State asserts that it “made a conscious effort to find any information in the appendix
record to verify” petitioner’s improper juror contact claim, but it “was unable to find any such
information.”



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