                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


State of West Virginia, Plaintiff Below,                                                FILED
Respondent                                                                            April 13, 2015
                                                                                   RORY L. PERRY II, CLERK
                                                                                 SUPREME COURT OF APPEALS
vs) No. 14-0758 (Ohio County 12-F-79)                                                OF WEST VIRGINIA


Robert W. Holpp, Defendant Below,
Petitioner


                               MEMORANDUM DECISION
        Petitioner Robert W. Holpp, by counsel Justin M. Hershberger, appeals the Circuit Court
of Ohio County’s June 16, 2014, order resentencing him to an enhanced recidivist term of
incarceration of four to ten years following his conviction of one count of malicious assault. The
State, by counsel Julie A. Warren, filed a response. On appeal, petitioner alleges that the circuit
court erred (1) in admitting his custodial statement without first holding an in camera hearing,
and (2) that the evidence was insufficient to support his conviction.

        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.

        In September of 2012, an Ohio County Grand Jury returned a superseding indictment
against petitioner on one count of malicious assault, alleging that petitioner beat his girlfriend
and caused bodily injury. The grand jury also indicted petitioner on one count of retaliation
against a witness, alleging that petitioner threatened to injure his girlfriend if she testified against
him. Prior to trial, petitioner requested notice from the State as to its intention to use evidence of
his other crimes, wrongs, or acts under Rule 404(b) of the West Virginia Rules of Evidence. The
State then moved to admit evidence that petitioner was previously convicted of unlawful assault
against the same victim. At a pretrial hearing, the victim testified that petitioner was previously
convicted for a 2007 assault upon her that resulted in facial fractures. She further testified that
petitioner beat her again on December 22, 2011. Ultimately, the circuit court granted petitioner’s
motion to exclude evidence of his prior conviction, but did allow the victim to testify that
petitioner had beaten her in the past to explain her delay in reporting the most recent incident due
to her fear of repercussions.

       Petitioner’s jury trial commenced in October of 2012. During trial, the State introduced
evidence from Deputy Michael Warren of the Ohio County Sheriff’s Department. Deputy
Warren responded to calls of a fight at a bar in Triadelphia, West Virginia, involving petitioner

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and ultimately arrested him. As petitioner was led to the deputy’s vehicle, he stated that “[i]f this
costs me my job, I’ll go back to prison.” Just prior to the deputy’s trial testimony, petitioner
moved to exclude this statement. The State argued that it was a voluntary, spontaneous statement
made by petitioner that had previously been disclosed to him through the police report. As such,
the circuit court permitted the statement into evidence.

        Ultimately, the jury found petitioner guilty of malicious assault but acquitted him of the
charge of retaliation against a witness. Petitioner moved for judgment of acquittal or a new trial,
arguing there was insufficient evidence to establish that he intended to maim, disfigure, or kill
the victim, but the circuit court denied the motion. The State then filed a recidivist information
against petitioner. At the subsequent recidivist trial, the jury found that petitioner was the same
individual who had previously been found guilty of unlawful assault in 2007. The circuit court
then sentenced petitioner to an enhanced term of incarceration of four to ten years. A resulting
order resentencing petitioner is the order now on appeal.

        “‘A trial court’s evidentiary rulings, as well as its application of the Rules of Evidence,
are subject to review under an abuse of discretion standard.’ Syl. Pt. 4, State v. Rodoussakis, 204
W.Va. 58, 511 S.E.2d 469 (1998).” Syl. Pt. 6, State v. Anderson, 233 W.Va. 75, 754 S.E.2d 761
(2014). Upon our review, the Court finds no error in the circuit court admitting petitioner’s
statement to police without first holding an evidentiary hearing. To be clear, petitioner argues on
appeal that the circuit court “had a mandatory duty to hold a hearing outside the presence of the
jury” and that this alone constitutes reversible error. The Court, however, disagrees.

       Petitioner incorrectly relies upon our prior case law directing that circuit courts have a
mandatory duty to hear evidence regarding confessions outside the jury’s presence in order to
determine whether or not they were voluntarily made. See Syl. Pt. 1, State v. Fortner, 150 W.Va.
571, 148 S.E.2d 669 (1966). However, petitioner’s argument ignores our subsequent holdings,
including our direction that “Syllabus Point 1 of State v. Fortner, 150 W.Va. 571, 148 S.E.2d
669 (1966), is overruled to the extent that it states that the failure to hold an in camera hearing on
the voluntariness of a confession ‘constitutes reversible error.’” Syl. Pt. 2, in part, State ex rel.
White v. Mohn, 168 W.Va. 211, 283 S.E.2d 914 (1981). This Court then set forth the following
standard:

               “Where there is a failure to hold an in camera hearing on the defendant’s
       inculpatory statements, we recognize under Jackson v. Denno, 378 U.S. 368, 84
       S.Ct. 1774, 12 L.Ed.2d 908 (1964), that the case will not be reversed for a new
       trial on this basis alone. Instead, it will be remanded for a voluntariness hearing
       before the trial court. If the trial court finds the statements are voluntary the
       verdict will stand. If, on the other hand, he finds the statements to be involuntary,
       the verdict will be set aside unless the trial court determines that this
       constitutional error is harmless beyond a reasonable doubt.” Syllabus Point 5,
       State v. Clawson, 165 W.Va., 270 S.E.2d 659 (1980).

Id. at Syl. Pt. 1. While it is true that the circuit court did not hold an in camera hearing regarding
petitioner’s statement, the Court finds that reversal is not warranted in light of the fact that the



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statement is not inclupatory and the fact that petitioner does not challenge that the statement was
voluntarily made.

        As noted above, the applicable standard requires only that an in camera hearing be
conducted in regard to a defendant’s inclupatory statement. In the present matter, petitioner
simply stated that “[i]f this costs me my job, I’ll go back to prison.” Upon our review, the Court
finds that this statement is not inclupatory as it does not incriminate him in regard to the crime
for which he was arrested. Moreover, the standard set forth above requires that in instances
where an inculpatory statement is admitted without an in camera hearing, that the matter be
remanded for a voluntariness hearing. Such a remand is unnecessary in this matter, given that
petitioner has presented no evidence that his statement was not voluntarily made. Because
petitioner’s statement was neither inculpatory nor made involuntarily, the Court finds no error in
the circuit court’s decision not to hold an in camera hearing prior to its admission into evidence.

       As to petitioner’s assignment of error that the evidence was insufficient to support his
conviction, the Court finds no merit to this argument. We have previously held as follows:

               “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. To the extent that our prior cases are
       inconsistent, they are expressly overruled.” Syl. Pt. 3, State v. Guthrie, 194 W.Va.
       657, 461 S.E.2d 163 (1995).

Syl. Pt. 4, McBride v. Lavigne, 230 W.Va. 291, 737 S.E.2d 560 (2012). Upon our review, the
Court finds no error in this regard. Petitioner erroneously argues that “[b]ecause there was no
permanent disability or disfigurement [to the victim] and no evidence of an intent to produce the
same,” then the evidence was insufficient to establish that he possessed the requisite “intent to
maim, disfigure, disable or kill” necessary for a conviction of malicious assault under West
Virginia Code § 61-2-9. However, this argument fails for two reasons. The first is that actual
permanent injury is not required to sustain a conviction of malicious assault; only an intent to
inflict the same.

        Second, we have previously held that “[u]nder our malicious wounding statute,
W.Va.Code [§] 61–2–9, evidence of the extent of an injury is admissible since under the statute
the State must show that the defendant inflicted the injury with an intent to produce a permanent
disability or disfiguration.” Syl. Pt. 5, State v. Scotchel, 168 W.Va. 545, 285 S.E.2d 384 (1981).
Contrary to petitioner’s assertion that no evidence established his intent to main, disfigure,
disable, or kill the victim, the jury heard ample evidence in this regard. This included the
victim’s account of the incident wherein she described petitioner using both an open and closed

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fist to hit her in the back of the head and in the face, and the fact that after she escaped the
vehicle, petitioner dragged her back to continue the physical altercation. The victim described
injuries to her entire body, including two black eyes and a bloody nose. Moreover, the victim’s
mother testified that one of the victim’s eyes was swollen shut, and that she had bite marks and
lacerations on her face, choke marks around her neck, and bruising over her entire body. The
jury further saw photographs of these injuries. Importantly, petitioner provided no evidence to
rebut the severity of these injuries, aside from his parents’ testimony that they did not notice any
of the victim’s injuries after the altercation. As addressed above, the severity of the victim’s
injuries is admissible to establish the requisite intent for a charge of malicious assault, and we
find that the evidence in the present matter was sufficient to support petitioner’s conviction for
that crime.

       For the foregoing reasons, the circuit court’s June 16, 2014, resentencing order is hereby
affirmed.


                                                                                         Affirmed.

ISSUED: April 13, 2015

CONCURRED IN BY:

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




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