                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


State of West Virginia,                                                            FILED
                                                                                  June 7, 2013
Plaintiff Below, Respondent                                                  RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 12-0530 (Fayette County 11-F-38)                                       OF WEST VIRGINIA



Scott C. Palmer,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
       Petitioner Scott C. Palmer, by counsel Nancy S. Fraley, appeals the Circuit Court of
Fayette County’s sentencing order entered on March 26, 2012. Respondent State of West
Virginia, by the office of the Attorney General, 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.

        Petitioner admitted to ingesting alcohol and LSD at a party on September 21, 2010. He
states that afterward, he felt that everyone around him, including those he could not see, were
trying to kill him and thus he needed to hide. He confronted the victim in front of her home, and
the victim quickly closed and locked her front door. Petitioner broke a window and entered the
house. The victim fled and called the police. When the police arrived, they found petitioner
covered in blood and threatening to kill all of the officers, although he was later determined to be
unarmed. He admitted to taking LSD and was subdued by officers. He had trailed blood
throughout the house after purposely breaking a coffee mug and attempting to slit his wrists with
the broken pieces, and had ransacked the home, including the victim’s purse and closets. After he
was read his Miranda rights, he admitted to breaking into the house in an attempt to flee people
who were chasing him. Petitioner was taken to the hospital and the home was searched.

       Petitioner was indicted on one count of burglary and one count of misdemeanor
destruction of property during the January of 2011 term of court. Petitioner moved to dismiss the
indictment for failure to name the specific crime petitioner entered the home to commit, but the
motion was denied. On August 23, 2011, a jury trial was held. At the conclusion of the State’s
case, petitioner moved for a judgment of acquittal based on the State’s failure to prove that he
broke into and entered the home with the intent to commit a crime therein. The State argued in
response that it had no duty to prove which crime petitioner had intended to commit, but only
that he entered the home with the intent to commit a crime. The evidence was clear that

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petitioner had gone through many parts of the home and the court denied the motion. Defense
Expert Dr. Ralph S. Smith testified that petitioner was not criminally responsible due to a
substance-induced psychotic disorder, secondary to LSD usage. The defense renewed the motion
for judgment of acquittal at the close of all evidence, and this motion was again denied. The jury
found petitioner guilty on both counts. Petitioner was sentenced on March 1, 2012, to one to
fifteen years of incarceration on the daytime burglary count and one year in the regional jail for
the destruction of property count, to be served concurrently.

        On appeal, petitioner presents four assignments of error. First, he argues that the circuit
court erred in not dismissing the indictment for daytime burglary because it failed to allege the
specific crime he intended to commit when he broke into and entered the residence. Second, he
argues that the court erred in denying his instruction regarding voluntary intoxication because the
intoxication impaired his ability to form the requisite intent. Third, petitioner argues that the trial
court erred in denying his motion for judgment of acquittal once uncontested expert testimony
was offered which established that petitioner lacked criminal responsibility and had a diminished
capacity to form intent. Finally, petitioner argues that the State failed to present evidence of any
specific intent to commit a crime and, therefore, there was insufficient evidence to convict him
of burglary.

        “‘The Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse
of discretion standard, unless the order violates statutory or constitutional commands.’ Syl. Pt. 1,
in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).” Syl. Pt. 1, State v. James, 227
W.Va. 407, 710 S.E.2d 98 (2011). As to the indictment, this Court has stated:

       “[D]ismissal of [an] indictment is appropriate only ‘if it is established that the
       violation substantially influenced the grand jury's decision to indict’ or if there is
       ‘grave doubt’ that the decision to indict was free from substantial influence of
       such violations.” Bank of Nova Scotia v. United States, 487 U.S. 250, 261-62, 108
       S.Ct. 2369, 101 L.Ed.2d 228, 238 (1988) (citing United States v. Mechanik, 475
       U.S. 66, 78, 106 S.Ct. 938, 945, 89 L.Ed.2d 50 (1986) (O'Connor, J.,
       concurring)).

Syl. Pt. 6, State ex rel. Pinson v. Maynard, 181 W.Va. 662, 383 S.E.2d 844 (1989). Moreover,
“[i]n reviewing the evidence for sufficiency to support the indictment, the court must be certain
that there was significant and material evidence presented to the grand jury to support all
elements of the alleged criminal offense.” Syl. Pt. 7, Pinson, 181 W.Va. 662, 383 S.E.2d 844.
Petitioner herein was indicted on one count of burglary. The relevant statute reads as follows:

       Burglary shall be a felony and any person convicted thereof shall be confined in
       the penitentiary not less than one nor more than fifteen years. If any person shall,
       in the nighttime, break and enter, or enter without breaking, or shall, in the
       daytime, break and enter, the dwelling house, or an outhouse adjoining thereto or
       occupied therewith, of another, with intent to commit a crime therein, he shall be
       deemed guilty of burglary.

W.Va. Code § 61-3-11(a). The State argues that the statute does not require a specific crime, but

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only requires the general intent to commit any crime and that the circuit court therefore did not
err in declining to dismiss the indictment. Under the facts of this case, we agree and find no error
in the circuit court’s refusal of the motion to dismiss the indictment as there was sufficient
evidence to support refusal of the motion to dismiss.

        Petitioner’s next argument regards the failure to give an instruction on voluntary
intoxication. “As a general rule, the refusal to give a requested jury instruction is reviewed for an
abuse of discretion. By contrast, the question of whether a jury was properly instructed is a
question of law, and the review is de novo.” Syl. Pt. 1, State v. Hinkle, 200 W.Va. 280, 489
S.E.2d 257 (1996). “‘Instructions must be based upon the evidence and an instruction which is
not supported by evidence should not be given.’ Syl. pt. 4, State v. Collins, 154 W.Va. 771, 180
S.E.2d 54 (1971).” Syl. Pt. 3, State v. Leonard, 217 W.Va. 603, 619 S.E.2d 116 (2005). The
State notes that there were multiple instructions regarding intent to commit the crime, and argues
that petitioner’s expert even opined that “usual intoxication” was not a factor in this case. Rather,
petitioner was arguing that he suffered a psychosis from the LSD injection as opposed to a
normal intoxication. Under the facts of this case, this Court finds that the jury was sufficiently
instructed. The instruction requested by petitioner on voluntary intoxication did not conform to
the evidence presented. However, the jury was sufficiently instructed that petitioner had to form
the requisite intent, beyond a reasonable doubt, in order to be convicted of burglary.

        Petitioner next argues that based on his lack of criminal responsibility and his diminished
capacity, he could not form the requisite criminal intent required for burglary. Petitioner argues
that his expert offered evidence that he was not sane at the time of the crime and therefore his
motion for judgment of acquittal should have been granted. This Court has found that:

       “‘There exists in the trial of an accused a presumption of sanity. However, should
       the accused offer evidence that he was insane, the presumption of sanity
       disappears and the burden of proof is on the prosecution to prove beyond a
       reasonable doubt that the defendant was sane at the time of the offense.’ Syl. pt. 2,
       State v. Milam, 163 W.Va. 752, 260 S.E.2d 295 (1979).” Syllabus point 6, State v.
       McWilliams, 177 W.Va. 369, 352 S.E.2d 120 (1986).

Syl. Pt. 7, State v. Lockhart, 208 W.Va. 622, 542 S.E.2d 443 (2000). A review of the record in
the present case does not show that petitioner’s expert presented sufficient evidence to overcome
the presumption of sanity. We have previously held that “[a] motion for judgment of acquittal
challenges the sufficiency of the evidence.” State v. Houston, 197 W.Va. 215, 229, 475 S.E.2d
307, 321 (1996) (citing Franklin D. Cleckley, 2 Handbook on West Virginia Criminal Procedure
292 (2d ed.1993)). To that end, we note that

       “[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

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       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. 5, State v. Broughton, 196 W.Va. 281, 470 S.E.2d 413 (1996). Moreover, even if the
petitioner presented sufficient evidence to overcome the presumption of sanity, the issue was
presented to the jury upon proper instructions and the State prevailed. Upon our review, the
Court finds no error in the circuit court’s denial of petitioner’s motion for judgment of acquittal.

        Lastly, petitioner challenges the sufficiency of the evidence regarding his intent to
commit a crime in the victim’s home. Specifically, he argues that no evidence was presented to
show that he intended to commit a crime in the home. The State argues in response that it was
not required to prove that petitioner intended to commit a specific crime, but only had to put
forth evidence that petitioner intended to commit some crime in the home. A review of the
record shows that the evidence herein was sufficient to sustain a burglary conviction. Petitioner
ransacked the home and went through the victim’s closets, belongings, and purse. Viewing the
evidence in the light most favorable to the prosecution, a reasonable jury could have inferred that
petitioner intended to commit a crime inside the home but for the police arriving. Therefore, we
find no error in petitioner’s conviction on one count of burglary.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.

ISSUED: June 7, 2013

CONCURRED IN BY:

Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis




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