                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



State of West Virginia,
                                                                                   FILED
                                                                                   May 17, 2013
Plaintiff Below, Respondent                                                   RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA
vs) No. 12-0346 (Wood County 08-F-190)

James Paul Bryan,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
       Petitioner James Paul Bryan, by counsel Courtney L. Ahlborn, appeals his conviction for
second degree robbery. The State of West Virginia, by counsel the Office of the Attorney
General, filed its response to which petitioner replied. Petitioner requests that the jury verdict be
reversed and that he be released from incarceration.

       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 February 13, 2007, petitioner allegedly entered the Dollar General Store in
Parkersburg, West Virginia, picked up a few items, and proceeded to the cash register at closing
time. One employee began to lock the front door while another employee, Yvonne Bauldridge,
began ringing up petitioner’s items. The State contends that petitioner reached into his pocket,
acted as though he had a weapon, and told Ms. Bauldridge that he was robbing the store. Ms.
Bauldridge gave petitioner money from the cash drawer, and petitioner demanded that the other
employee unlock the door so that he could exit. The husband of the employee who locked and
unlocked the door was waiting in the parking lot in his car during the robbery. That employee
yelled to her husband, “That guy just robbed us!” The husband went after petitioner and jumped
into petitioner’s car. The car hit the side of the building, and he fled the scene. During the
investigation, the police prepared a six man photographic lineup to show the witnesses. Ms.
Bauldridge was unable to make an identification from the lineup, but both the other employee
and that employee’s husband identified petitioner.

         Petitioner was indicted in 2008 for one count of robbery in the second degree. Joseph P.
Albright Jr. was appointed to represent petitioner, and Mr. Albright represented him during the
trial in March of 2010. That trial resulted in a mistrial due to a hung jury. New counsel was
appointed, and a second trial was held on April 27 and 28, 2011. At the conclusion of that trial,
petitioner was convicted of robbery in the second degree. Petitioner was sentenced to not less
                                                 1

than five nor more than eighteen years of incarceration with a credit of three hundred and thirty
two days.

        On appeal, petitioner asserts three assignments of error. Petitioner first argues that the
indictment violated petitioner’s rights, and claims that the trial court erred by denying his motion
for judgment of acquittal. The indictment states that petitioner committed the offense of robbery
in the second degree “by unlawfully, intentionally, and feloniously taking and carrying away
United States Currency, of some value, from the person or presence of Yvonne Bauldridge by
placing Yvonne Bauldridge in fear of bodily injury with intent to steal said money and with the
intent to permanently deprive the owner of said money, against the peace and dignity of the
State.” At the close of the State’s case-in-chief, petitioner moved for judgment of acquittal
pursuant to Rule 29 of the West Virginia Rules of Criminal Procedure. Petitioner argued that
under the language of the indictment, the State had to prove that Yvonne Bauldridge was the
owner of the money but failed to do so. The evidence presented at trial showed that the Dollar
General Corporation was the owner of the money taken. Due to the circuit court’s denial of the
motion for judgment of acquittal, petitioner contends he is at risk of double jeopardy.

        The State responds by asserting that the issue framed by petitioner on appeal is different
from the issue presented below. The State argues that at the close of the State’s case-in-chief,
petitioner attacked the sufficiency of the evidence to prove the allegations in the indictment.
Petitioner’s motion was based on the ground that the proof did not match the allegations
contained in the indictment. At that time, petitioner claimed that while the indictment alleged
that he did take currency from Ms. Bauldridge, the proof failed to establish that the currency
belonged to Ms. Bauldridge, as it belonged to Dollar General. The State asserts that petitioner’s
argument is misleading, as the indictment alleged that the money was taken from the person or
presence of Ms. Bauldridge, rather than being owned by Ms. Bauldridge. The State further
argues that the circuit court, the State, petitioner, and the jury all knew what the charge was:
petitioner held up a store by forcing a clerk to hand over the cash.

        “Generally, the sufficiency of an indictment is reviewed de novo.” Syl. Pt. 2, in part,
State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996). “An indictment is sufficient under
Article III, §14 of the West Virginia Constitution and W.Va. R.Crim.P. 7(c)(1) if it (1) states the
elements of the offense charged; (2) puts a defendant on fair notice of the charge against which
he or she must defend; and (3) enables a defendant to assert an acquittal or conviction in order to
prevent being placed twice in jeopardy.” Syl. Pt. 6, State v. Wallace, 205 W.Va. 155, 517 S.E.2d
20 (1999). “The sufficiency of a criminal indictment is measured in practical, commonsense
terms by whether it meets these basic constitutional requirements. ‘No particular form of words
is required . . . so long as the accused is adequately informed of the nature of the charge and the
elements of the offense are alleged.’ State v. Hall, 172 W.Va. 138, 143-44, 304 S.E.2d 43, 48
(1983); see also [State v.] Manns, 174 W.Va. [793] at 799, 329 S.E.2d [865] at 872 (1985).”
Wallace at 161, 26. The indictment in this case is sufficiently clear to inform petitioner of the
crime with which he was charged and later convicted. We find the circuit court did not err in
denying petitioner’s motion for judgment of acquittal.

        Petitioner’s second assignment of error is the claim that his rights were violated by the
State’s alleged failure to preserve and timely produce evidence. Based upon that claim, petitioner

                                                 2

asserts that the circuit court erred in denying petitioner’s motion to dismiss. In support of this
argument, petitioner asserts that the State failed to preserve the original case file, including the
original photo lineup and any notes taken by the officers during the photo lineup identifications.
Petitioner claims that throughout the trial, questions arose regarding the procedure used to allow
witnesses to make an out-of-court identification using the photo lineup. Petitioner also asserts
that he was prejudiced in his preparation for trial because he was not made aware the original file
had been lost or an original color photo lineup existed until the retired investigating officer
testified during trial. The failure to disclose this evidence is alleged by petitioner to be a violation
of Brady v. Maryland, 373 U.S. 83 (1963).

        The State argues that petitioner’s assignment of error is essentially a spoliation of
evidence issue. The State concedes that during the four year interval between indictment and trial
that the police lost the file containing the original photo array shown to witnesses and the notes
and/or forms related to those photo lineups. The State, however, contends that petitioner cannot
meet the test set forth in Syllabus Point 2, State v. Osakalumi, 194 W.Va. 758, 461 S.E.2d 504
(1995). This assertion is based on the fact that there is nothing in the record that infers bad faith
on the part of the State, and there is no suggestion of gross negligence. The State asserts that the
photo lineup is of little importance because all three eyewitnesses identified petitioner at trial.
Petitioner also had the opportunity to cross-examine the witnesses about the missing originals
and to argue his missing evidence theory to the jury. Thus, the State argues that petitioner failed
to demonstrate how he was prejudiced by the loss of the original photo array.

       “This Court’s standard of review concerning a motion to dismiss an indictment is,
generally, de novo.” Syl. Pt. 2, in part, State v. Elswick, 225 W.Va. 285, 693 S.E.2d 38 (2010).
“[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve
potentially useful evidence does not constitute a denial of due process of law.” Osakalumi, 194
W.Va. at 764, 461 S.E.2d at 510. As previously set forth by this Court:

        When the State had or should have had evidence requested by a criminal
        defendant but the evidence no longer exists when the defendant seeks its
        production, a trial court must determine (1) whether the requested material, if in
        the possession of the State at the time of the defendant’s request for it, would have
        been subject to disclosure under either West Virginia Rule of Criminal Procedure
        16 or case law; (2) whether the State had a duty to preserve the material; and (3) if
        the State had a duty to preserve the material, whether the duty was breached and
        what consequences should flow from the breach. In determining what
        consequences should flow from the State’s breach of its duty to preserve
        evidence, a trial court should consider (1) the degree of negligence or bad faith
        involved; (2) the important of the missing evidence considering the probative
        value and reliability of secondary or substitute evidence that remains available;
        and (3) the sufficiency of the other evidence produced at the trial to sustain the
        conviction.

Syl. Pt. 2, Id.




                                                   3

        In this case, petitioner had available to him, both prior to and during the trial, a black and
white copy of the photo lineup. All of the eyewitnesses who had examined the photo lineup were
available to testify at trial, as were the police officers who were present for the photo lineups.
The eyewitnesses also identified petitioner in the courtroom during trial. There is nothing in the
record that suggests the State engaged in any bad faith conduct related to the photo lineup, as it
appears the original lineup was simply misplaced during the four year period. We, therefore, find
that the degree of negligence in failing to produce the original photo lineup was small, the
missing photo lineup was not of great importance, and the other evidence produced at trial was
sufficient to sustain the conviction. Based on these findings, the circuit court did not err in
denying petitioner’s motion to dismiss relative to the photo lineup.

        Petitioner’s final assignment of error on appeal is the circuit court’s denial of petitioner’s
request that the identification testimony of the eyewitnesses be suppressed based on the
procedures used during the out-of-court witness identifications. Petitioner contends that the
identification procedures used by police were highly suggestive. He claims that officers basically
told the witnesses that the suspect was in the lineup, and the officers’ testimony regarding the
lineup was inconsistent. Petitioner is critical of the fact that one eyewitness signed a form
relating to the photo after she identified the photo, while another witness signed his own,
handwritten form. The State argues that petitioner’s argument was not supported by a scintilla of
evidence. Everyone involved in the photo lineup process testified that the police in no way
suggested whose photograph should be selected. The State asserts that nothing in the record
gives rise to an inference that the photo lineup and/or the procedures utilized by the police were
suggestive. The State also points to the fact that Ms. Bauldridge was unable to make an
identification from the photo lineup because she believed that the photos in that lineup looked
nearly identical.

       In State v. Lilly, 194 W.Va. 595, 461 S.E.2d 101 (1995), this Court explained the
       standard of review of a circuit court’s ruling on a motion to suppress is a two-tier
       standard: “[W]e 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. When we review the denial of a
       motion to suppress, we consider the evidence in the light most favorable to the
       prosecution.” Lilly, 194 W.Va. at 600, 461 S.E.2d at 106 (internal citations and
       footnote omitted).

State v. McGill, No. 11-1386, 2013 WL 1113493 (W.Va. March 12, 2013), at *2. Petitioner
argues that the out-of-court identification was so tainted that the State’s witnesses should have
been precluded from identifying him in front of a jury.

       In determining whether an out-of-court identification of a defendant is so tainted
       as to require suppression of an in-court identification a court must look to the

                                                  4

       totality of the circumstances and determine whether the identification was
       reliable, even though the confrontation procedure was suggestive, with due regard
       given to such factors as the opportunity of the witness to view the criminal at the
       time of the crime, the witness' degree of attention, the accuracy of the witness'
       prior description of the criminal, the level of certainty demonstrated by the
       witness at the confrontation, and the length of time between the crime and the
       confrontation.

Syl. Pt. 3, State v. Casdorph, 159 W.Va. 909, 230 S.E.2d 476 (1976), vacated on other grounds
as stated in State v. Persinger, 169 W.Va. 121, 286 S.E.2d 261 (1982). In this instance, the two
witnesses testified regarding the circumstances surrounding their out-of-court identification. One
witness testified that she was unable to identify petitioner in the photo lineup. However, she was
able to identify petitioner in court. In consideration of the totality of the circumstances, the
identifications were reliable. We, therefore, find that when viewing the evidence in the light most
favorable to the prosecution, the circuit court’s denial of petitioner’s request to suppress the
identification testimony of the eyewitnesses was not clearly erroneous.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.


ISSUED: May 17, 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




                                                5

