                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia, Plaintiff Below,                                         FILED
Respondent                                                                  November 24, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
vs) No. 13-1263 (Fayette County 13-F-116)                                     OF WEST VIRGINIA


Tramaine Burks, Defendant Below,
Petitioner


                              MEMORANDUM DECISION
        Petitioner Tramaine Burks, by counsel Duane Rosenlieb Jr., appeals the Circuit Court of
Fayette County’s sentencing order entered on November 4, 2013, following his conviction of
fleeing from an officer, second offense driving while revoked for DUI, speeding, and failing to
stop at a stop sign. The State of West Virginia, by counsel Julie Warren, filed a response. On
appeal, petitioner argues (1) that the phrase “reckless indifference” in West Virginia Code § 61-5­
17(f) is unconstitutionally vague; and (2) that the circuit court erred in admitting opinion
testimony to satisfy the State’s burden to prove an element of a crime.

        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 decision is appropriate under Rule
21 of the Rules of Appellate Procedure.

        On October 7, 2013, petitioner was driving northbound on U.S. Route 19 towards
Beckley, West Virginia. Patrolman J.R. Pack of the Oak Hill Police Department was on patrol and
observed petitioner driving towards him at a high rate of speed. Patrolman Pack’s radar displayed
that petitioner was traveling at 75 miles per hour (“mph”) in a 55 mph zone. Patrolman Pack
crossed the median, proceeded after petitioner, caught up with him, and initiated his emergency
lights and siren. Petitioner proceeded up the exit ramp and ran through a stop sign at the end of
the exit ramp. Petitioner then proceeded to drive towards a night club, again failing to stop at a
stop sign. Upon entering the parking lot at the night club, petitioner drove through the parking lot
and attempted to turn back onto the main road, at which time he was stopped by Patrolman
Michael Grose of the Oak Hill Police Department.

       Following a jury trial on August 20, 2013, petitioner was convicted of one count each of
felony fleeing from an officer, second offense driving while revoked for driving under the


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influence, speeding, and failing to stop at a stop sign.1 By order entered on October 7, 2013, the
circuit court sentenced petitioner to one to five years in the penitentiary and a $1,000 fine for
fleeing from a police officer, in violation of West Virginia Code § 61-5-17(f); six months and a
$1,000 fine for second offense driving while revoked, in violation of West Virginia Code § 17B­
4-3(b); a $100 fine for speeding in violation of West Virginia Code § 17C-6-1; and a $100 fine
for failing to stop at a stop sign in violation of West Virginia Code § 17C-12-5. The circuit court
ordered that the sentences run concurrently. In November of 2013, petitioner was resentenced for
purposes of filing this appeal.

        On appeal, petitioner raises two assignments of error. First, petitioner argues that West
Virginia Code § 61-5-17(f),2 is unconstitutionally vague because the term “reckless indifference”
is not defined within Chapter 61 of the West Virginia Code and, thus, is open to subjective
interpretations. Petitioner also argues that “reckless indifference” involves an action that results in
serious consequences. “‘Where the issue on an appeal from the circuit court is clearly a question
of law . . . involving an interpretation of a statute, we apply a de novo standard of review.’ Syl. Pt.
1, in part, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).” Syl. Pt. 2,
Thomas v. Morris, 224 W.Va. 661, 687 S.E.2d 760 (2009). Further, we have previously held that
“‘[a] criminal statute must be set out 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.’ Syl. Pt. 1, State v. Flinn, 158 W.Va. 111, 208 S.E.2d 538
(1974).” Syl. Pt. 7, State v. James, 227 W.Va. 407, 710 S.E.2d 98 (2011). Upon our review of
West Virginia Code § 61-5-17(f), the Court finds that it sets out with sufficient definiteness the
conduct that is criminalized. A plain reading of the statute clearly informed petitioner that if he
fled from police and endangered the safety of others, then he could be charged for felony fleeing.
“A term which is widely used and which is readily comprehensible to the average person without
further definition or refinement need not have a defining instruction.” Syl. Pt. 2, State v. Bartlett,
177 W.Va. 663, 355 S.E.2d 913 (1987). The testimony revealed that petitioner was traveling at a
high rate of speed on a public road and that he failed to stop at two stop signs while trying to
avoid the police. Petitioner’s intentional conduct endangered the safety of the other motorists, his
three passengers, innocent bystanders, and created the potential for a serious accident. The use of


       1
        Petitioner was also indicted on the offense of carrying a deadly weapon without a license.
That charge was subsequently dismissed.
       2
           West Virginia Code § 61-5-17(f) states that

                [a] person who intentionally flees or attempts to flee in a vehicle from a
                law-enforcement officer, probation officer or parole officer acting in his or
                her official capacity after the officer has given a clear visual or audible
                signal directing the person to stop, and who operates the vehicle in a
                manner showing a reckless indifference to the safety of others, is guilty of
                a felony and, upon conviction thereof, shall be fined not less than $1,000
                nor more than $2,000 and shall be imprisoned in a state correctional
                facility not less than one nor more than five years.

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the term “reckless indifference” in West Virginia Code 61-5-17(f) is not unconstitutionally vague
and the evidence clearly demonstrated that petitioner’s actions were prohibited by the statute.

        Second, petitioner argues that the circuit court erred in allowing Patrolmen Pack and
Grose to give opinion testimony in violation of Rule 701 of the West Virginia Rules of Evidence.3
Petitioner argues that the State was allowed to prove the element of “reckless indifference”
through the opinion testimony of Officer Pack. Although trial counsel for petitioner failed to
object to the testimony of Officer Pack, petitioner argues that plain error applies in this instance.
“To trigger application of the ‘plain error’ doctrine, there must be (1) an error; (2) that is plain; (3)
that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation
of the judicial proceedings.” Syl. Pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).
Moreover, a plain error must affect “the outcome of the proceedings in the circuit court . . .,” in
order for the error to be reversible. Id., Syl. Pt. 9, in part. For the reasons set forth below, we
conclude there was no plain error.

       Rule 701 of the West Virginia Rules of Evidence provides as follows:

       If the witness is not testifying as an expert, his or her testimony in the form of
       opinions or inferences is limited to those opinions or inferences which are (a)
       rationally based on the perception of the witness and (b) helpful to a clear
       understanding of the witness’ testimony or the determination of a fact in issue.

This Court has held the following with respect to lay testimony:

                In order for a lay witness to give opinion testimony pursuant to Rule 701
       of the West Virginia Rules of Evidence (1) the witness must have personal
       knowledge or perception of the facts from which the opinion is to be derived; (2)
       there must be a rational connection between the opinion and the facts upon which
       it is based; and (3) the opinion must be helpful in understanding the testimony or
       determining a fact in issue.

Syl. Pt. 2, State v. Nichols, 208 W.Va. 432, 541 S.E.2d 310 (1999), modified on other grounds by
State v. McCraine, 214 W.Va. 188, 588 S.E.2d 177 (2003).

        A review of the record before us indicates that the police officer’s testimony was not
expert in nature, but was lay opinion testimony under Rule 701. Both Officers provided testimony
regarding the circumstances surrounding the apprehension of petitioner that they personally
observed. Patrolman Pack’s testimony provided firsthand knowledge regarding petitioner’s
driving behavior during the police pursuit. Additionally, Patrolman Grose testified that petitioner
pulled into the parking lot of a night club while patrons were standing outside and that the
patrons’ safety was in danger. Their testimony did not require any specialized expertise to testify
        3
         We note that Rule 701 was amended in 2014, with an effective date of September 2,
2014. All references to provisions of Rule 701 in this memorandum decision will be based upon
the rule as it existed during the prosecution of this case.

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to these matters, as the testimony was rationally based on their own observations during the
pursuit of petitioner’s vehicle. For these reasons, the circuit court did not error in admitting the
testimony of either Patrolmen Pack or Grose.

       For the foregoing reasons, we affirm.


                                                                                         Affirmed.

ISSUED: November 24, 2014

CONCURRED IN BY:

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




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