                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS



State of West Virginia,                                                                  FILED
Plaintiff Below, Respondent                                                              April 16, 2013
                                                                                    RORY L. PERRY II, CLERK
                                                                                  SUPREME COURT OF APPEALS
vs) No. 11-1494 (Kanawha County 10-F-787)                                             OF WEST VIRGINIA


Jeremy Lyle Shultz,
Defendant Below, Petitioner


                                  MEMORANDUM DECISION

        Petitioner’s appeal, by counsel L. Thompson Price, arises from the Circuit Court of
Kanawha County, wherein he was sentenced to a term of incarceration of life, with mercy, for his
conviction of kidnapping with the use of a firearm by order entered on September 22, 2011. The
State, by counsel Marland L. Turner, has filed its response, to which petitioner has filed a reply.

       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.

        Following a jury trial in February of 2011, petitioner was convicted of one count of
kidnapping with the use of a firearm, one count of first degree robbery, and one count of
conspiracy. Petitioner was thereafter sentenced to a term of incarceration of life, with mercy, for
his kidnapping conviction, a determinate term of incarceration of ten years for his robbery
conviction, and a term of incarceration of one to five years for his conspiracy conviction. Those
sentences were ordered to run consecutively. On appeal, petitioner alleges that the circuit court
erred in directing that he display his tattoos to the jury, in failing to dismiss the charge of
kidnapping, imposing a disproportionate penalty for kidnapping, and in violating his due process
rights.

        In support of his first assignment of error, petitioner argues that the circuit court failed to
weigh the probative value of the tattoo display against its prejudicial effect as required by
Syllabus Point 2 of State v. Meade, 196 W.Va. 551, 474 S.E.2d 481 (1996). According to
petitioner, he was unduly prejudiced when the jury saw his regional jail identification wristband.
Further, he argues that the witness had already identified him and therefore the confirmation of
his tattoos was cumulative and lacked probative value. Second, petitioner argues it was error to
fail to dismiss the kidnapping charge because that crime was incidental to the robbery. Third,
petitioner argues that his sentence is disproportionate because of petitioner’s age, victim

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statements, and evaluations and recommendations made in advance of sentencing. According to
petitioner, the victim was permitted to return alive without bodily harm and the appropriate
sentence should have been an indeterminate term of incarceration of ten to thirty years. Lastly,
petitioner alleges that his due process rights were violated when the circuit court failed to consider
the various punishments available under West Virginia Code § 61-2-14A.

        In response, the State argues that petitioner waived any complaint as to the direction to
reveal his tattoos by failing to object. Further, the State argues that petitioner’s counsel actually
conceded the relevance of the tattoos, that nothing in the record indicates that the circuit court
failed to weigh the appropriate factors, and that petitioner has failed to pinpoint any prejudicial
effect from the display. As to petitioner’s second assignment of error, the State argues that
dismissal of the kidnapping charge was not warranted because the State presented sufficient
evidence that the kidnapping was not necessary or incidental to the robbery in question. As to
petitioner’s third assignment of error, the State argues that the sentence for kidnapping was not
unconstitutionally disproportionate because it was within the statutory guidelines. Lastly, the
State argues that petitioner’s due process rights were not violated because the statute in question
does not provide for an enhancement beyond the statutory maximum.

        “‘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). First, the Court finds no error in the circuit court’s decision to
have petitioner display his tattoos. The record shows that petitioner’s counsel had more than one
opportunity to object to the request, which he failed to do even after the circuit court specifically
asked if there was any objection. We have previously held that “‘[o]ur general rule is that
nonjurisdictional trial error not raised in the trial court will not be addressed on appeal.’ Syllabus
Point 9, State v. Humphrey, 177 W.Va. 264, 351 S.E.2d 613 (1986).” Syl. Pt. 4, State v. Smith,
178 W.Va. 104, 358 S.E.2d 188 (1987). Further, petitioner has failed to establish any specific
prejudicial effect from the display. As such, the Court finds that petitioner has failed to establish
that the circuit court did not comply with the requirements of Syllabus Point 2 of State v. Meade,
196 W.Va. 551, 474 S.E.2d 481 (1996).

       As to petitioner’s second assignment of error, we have previously held 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
       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


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       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). Upon our review, the Court
finds that the evidence was sufficient to support petitioner’s conviction for kidnapping, especially
in light of our prior holding in State v. Miller, 175 W.Va. 616, 336 S.E.2d 910 (1985). We have
previously held that

       [i]n interpreting and applying a generally worded kidnapping statute, such as
       W.Va.Code, 61-2-14a, in a situation where another offense was committed, some
       reasonable limitations on the broad scope of kidnapping must be developed. The
       general rule is that a kidnapping has not been committed when it is incidental to
       another crime. In deciding whether the acts that technically constitute kidnapping
       were incidental to another crime, courts examine the length of time the victim was
       held or moved, the distance the victim was forced to move, the location and
       environment of the place the victim was detained, and the exposure of the victim to
       an increased risk of harm.

Syl. Pt. 2, State v. Miller, 175 W.Va. 616, 336 S.E.2d 910 (1985). Our review of the record shows
that the victim in this matter was transported for approximately five minutes from an area of
relative safety to a more secluded location where he was exposed to an increased risk of harm. As
such, we find that the kidnapping in question was not incidental to the robbery and that the
evidence was sufficient to support petitioner’s conviction.

        As to petitioner’s argument concerning his sentence for kidnapping, the Court finds no
error. Petitioner argues that he should have been entitled to a lesser sentence because of mitigating
factors found in West Virginia Code § 61-2-14A. However, we have previously held that

       [i]n order for a defendant to be sentenced for a kidnapping conviction to a term of
       years not less than twenty or a term or years not less than ten as provided in
       W.Va.Code § 61–2–14a (1965), the circuit court must make a finding that the
       victim was “returned or permitted to be returned” in addition to making findings as
       to whether the defendant inflicted bodily harm on the victim and whether ransom,
       money, or any other concession was made.

Syl. Pt. 1, State v. King, 205 W.Va. 422, 518 S.E.2d 663 (1999). The record shows that the circuit
court made none of the findings required to decrease petitioner’s sentence. As such, petitioner
was appropriately sentenced within the guidelines established in West Virginia Code § 61-2-14A,
and we have previously held that “‘[s]entences imposed by the trial court, if within statutory
limits and if not based on some [im]permissible factor, are not subject to appellate review.’
Syllabus Point 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).” Syl. Pt. 6, State v.
Slater, 222 W.Va. 499, 665 S.E.2d 674 (2008).




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       Lastly, we find no merit in petitioner’s argument that the circuit court’s application of
West Virginia Code § 61-2-14A violated his due process rights. We have previously addressed
the constitutionality of the statute in question and found that

       [o]ur kidnaping statute, W.Va.Code § 61-2-14a (1999), does not provide for the
       enhancement of a defendant’s sentence beyond the statutory maximum based on
       additional facts found by the trial judge in violation of the constitutional right to a
       trial by jury as interpreted by the United States Supreme Court in Blakely v.
       Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

Syl. Pt. 2, State v. Haught, 218 W.Va. 462, 624 S.E.2d 899 (2005). As such, we find no merit in
petitioner’s final assignment of error.

       For the foregoing reasons, the circuit court’s sentencing order is hereby affirmed.



                                                                                           Affirmed.

ISSUED: April 16, 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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