                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS

State of West Virginia,
Plaintiff Below, Respondent                                                           FILED
                                                                                   April 19, 2019
vs.) No. 18-0066 (Ohio County 17-F-95)                                           EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
Vincent Portman,
Defendant Below, Petitioner



                               MEMORANDUM DECISION


        Petitioner Vincent Portman, by counsel Matthew Brummond, appeals the Circuit Court of
Ohio County’s December 27, 2017, sentencing order following his conviction for failure to register
as a sex offender, second offense. Respondent State of West Virginia, by counsel Holly M.
Flanigan, filed a response. Petitioner filed a reply. On appeal, petitioner asserts that there was
insufficient evidence to support his conviction and that the circuit court erred in refusing to instruct
the jury on entrapment.

       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.

        Petitioner, a sex offender who is required to update his information in the sex offender
registry in April of each year, arrived at his local West Virginia State Police detachment to do so
between April 26 and May 1 of 2017.1 Petitioner spoke with Trooper Chad Heckler and informed
him he was there to update his registry information. Trooper Heckler asked petitioner whether he
was aware that he should make an appointment, and petitioner responded that he did not want to


        An individual who is required to register as a sex offender “shall register in person at the
        1

West Virginia State Police detachment responsible for covering the county of his or her residence,
and in doing so, provide or cooperate in providing, at a minimum,” certain statutorily enumerated
information. W. Va. Code § 15-12-2(d). Every year, even if there has been no change in the
information submitted to the registry, registrants must also “report, in the month of their birth, . . .
to the State Police detachment responsible for covering their county of registration and must
respond to all verification inquiries and informational requests.” Id. § 15-12-10.
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be set up for something. Trooper Heckler then responded, “[O]h, so the State Police are in the habit
of setting people up?” Petitioner reportedly said, “[A]ctually, yeah.”

        Trooper Heckler conducted his part of the conversation from behind a window separating
the lobby from the rest of the detachment. He noted that petitioner was irritated and agitated and
that the conversation was not going well, and he accordingly walked out to the lobby to speak with
petitioner face to face. Sergeant James Dean joined Trooper Heckler, and Sergeant Dean, who also
observed petitioner’s irritation, instructed petitioner to leave the detachment and return once his
attitude had improved. Petitioner left the detachment as instructed, but he never returned to update
his registry information.

        On June 7, 2017, Trooper Eric McFarland received a call detailing a harassment complaint
against petitioner. On that same day, Trooper McFarland called petitioner and asked him to come
to the detachment to discuss the harassment complaint, and petitioner complied. After calling
petitioner, Trooper McFarland learned that petitioner was in violation of the registry requirements.
When petitioner reported to the detachment, Trooper McFarland discussed the harassment
complaint with petitioner and then placed him under arrest for failing to update the sex offender
registry as required.2

         Petitioner was indicted on September 11, 2017, on one count of failure to register as a sex
offender, second offense. He proceeded to trial on this charge on November 7, 2017, and the jury
found him guilty. The circuit court sentenced petitioner to not less than ten nor more than twenty-
five years of incarceration, which was memorialized in its December 27, 2017, sentencing order.
It is from this order that petitioner appeals.

        Petitioner first argues on appeal that there was insufficient evidence to support his
conviction. Petitioner asserts that he appeared in April intent on updating his registration and that
his demeanor was insufficiently egregious to indicate a refusal or inability to cooperate in
providing the required information. Petitioner claims his behavior did not present an objective
safety risk, nor was he violent or combative; therefore, the evidence was insufficient to establish
that he failed to cooperate.

       Regarding a claim that the evidence at trial was insufficient to convict, this Court has stated
that

                [t]he function of an appellate court when reviewing the sufficiency of the
       evidence to support a criminal conviction is to examine the evidence admitted at
       trial to determine whether such evidence, if believed, is sufficient to convince a
       reasonable person of the defendant’s guilt beyond a reasonable doubt. Thus, the
       relevant inquiry is whether, after viewing the evidence in the light most favorable
       to the prosecution, any rational trier of fact could have found the essential elements
       of the crime proved beyond a reasonable doubt.



       2
           Petitioner was not arrested for any crime related to the alleged harassment.


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Syl. Pt. 1, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). Further,

        [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.

Id. at 663, 461 S.E.2d at 169, syl. pt. 3, in part.

        It is undisputed that petitioner was required to register as a sex offender under West
Virginia Code § 15-12-2(d), and that he was required to update the registry every April under West
Virginia Code § 15-12-10. If a lifetime registrant, such as petitioner, “knowingly provides
materially false information or . . . refuses to provide accurate information when so required by
the terms of this article [governing the sex offender registry], or . . . knowingly fails to register or
knowingly fails to provide a change in any required information,” he or she is guilty of a felony.
Id. § 15-12-8(c).

        We find that petitioner has failed to meet the “heavy burden” imposed in sufficiency of the
evidence claims. Simply, the evidence established that petitioner failed to update the registry in
April of 2017. There was also evidence that petitioner knew of his registration requirements,
having signed forms confirming his knowledge of these requirements and having correctly updated
his sex offender registry information previously, including his annual verification in 2016.
Although petitioner was instructed to leave upon presenting to the detachment in an irritated and
agitated state, petitioner never returned to update the registry, as also instructed and as required by
law. We recently made clear that a registrant’s “duty to keep the state police informed regarding
[the required registry information] is a responsibility that has been statutorily imposed on him as a
result of his sex offender status.” State v. Beegle, 237 W. Va. 692, 698, 790 S.E.2d 528, 534 (2016)
(citing W. Va. Code §§ 15-12-2, -3, -8). Instead of fulfilling his statutory duty, petitioner only
returned to the detachment at an officer’s direction in investigating a separate incident; he never
returned to update the registry. This is not a case where “the record contains no evidence . . . from
which the jury could find guilt beyond a reasonable doubt.” Guthrie, 194 W. Va. at 663, 461 S.E.2d
at 169, syl. pt. 3, in part. Accordingly, we find no merit in this assignment of error.

        Petitioner also argues that he was entitled to a jury instruction on entrapment. Petitioner
submits that the officers’ conduct in turning him away without registering him is sufficient to
warrant an instruction on entrapment because a rational fact-finder could believe that this conduct
induced petitioner to leave without registering. Petitioner claims that this failure to offer an
instruction on entrapment, despite competent evidence of inducement, intruded upon the jury’s
fact-finding role.



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        We review a circuit court’s refusal to offer a requested jury instruction under an abuse of
discretion standard. Syl. Pt. 1, State v. Hinkle, 200 W. Va. 280, 489 S.E.2d 257 (1996). “A criminal
defendant is entitled to an instruction on the theory of his or her defense if he or she has offered a
basis in evidence for the instruction, and if the instruction has support in law.” Id. at 285, 489
S.E.2d at 262 (citation omitted).

        Thus, an instruction offered by the defense should be given if the proposed
        instruction: (1) is substantively correct, (2) is not covered substantially in the charge
        actually delivered to the jury, and (3) involves an important issue in the trial so the
        trial court’s failure to give the instruction seriously impairs the defendant’s ability
        to effectively present a defense.

Id. (citation omitted). “If these prerequisites are met, the trial court abuses its discretion in refusing
the instruction ‘no matter how tenuous that defense may appear to the trial court.’” Id. (citation
omitted). But “[i]nstructions 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).

         Entrapment “occurs where the design or inspiration for the offense originates with law
enforcement officers who procure its commission by an accused who would not have otherwise
perpetrated it except for the instigation or inducement by the law enforcement officers.” Syl. Pt. 2,
in part, State v. Houston, 197 W. Va. 215, 475 S.E.2d 307 (1996).

        We find no merit to petitioner’s claim. At trial, Trooper Heckler testified that petitioner
arrived at the detachment in an irritated and agitated state. Trooper Heckler explained that “for
officer safety,” it is “not a very smart procedure to follow through” with registration when an
individual is in that state, particularly given the cramped quarters within which the registration
takes place. The equipment needed to photograph and fingerprint the sex offenders is in a small
room, and the process requires officers and sex offenders to be in close contact with one another.
Trooper Heckler further explained that

        you’re not going to put somebody in a little room with yourself, especially, you
        know, like I said, the example of me being there by myself and somebody is, you
        know, agitated or angry, whatever[.] [It] doesn’t make sense for myself to be in
        harms [sic] way or potentially somebody else in harms [sic] way or something go
        worse.

Instead, in that situation Trooper Heckler testified that he would “de[-]escalate the situation and
re-approach it a different time, different day.”

       Sergeant Dean also explained that, in asking petitioner to leave the detachment and return
once his attitude changed, Sergeant Dean had

        to consider officer safety first and foremost. We are in the LiveScan room, a
        processing room, where if – if it were an annual registration, . . . we were – would
        have a still set of fingerprints, also take photographs, I would have to sit down with

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         the person and fill out and complete the form, 270 form. So someone who is angered
         or irritated, that’s not an ideal situation, so – through my eyes that’s the best way
         to handle that, would be to ask him to leave and come back when he’s calm and we
         can do this without any further, you know, confrontation, I should say.

Although Sergeant Dean testified that petitioner’s conduct rose to a level at which he could have
been arrested, Sergeant Dean “cut him a break. The easiest way to handle this would be not to
arrest him, but just to leave, come back when you’re calm, so we can take care of this.”

        Sergeant Dean further testified that he never instructed petitioner not to return, nor did he
intend for petitioner to commit the crime of failure to register when he instructed petitioner to
return when calm. Trooper Heckler testified in like fashion:

         Q:     Okay. And when you turned away someone in the past, is that an invitation
                for them not to come back?

         A:     No, it’s not.

         Q:     An invitation for them not to fulfill their duties as a sex offender?

         A:     No, it’s not.3

        Finally, various officers with petitioner’s local State Police detachment testified that sex
offenders are not limited to regular business hours in updating the registry. Sex offenders often, if
not typically, update the registry after hours, and someone is always available at the detachment.
The detachment at which petitioner updates the registry maintains a sign-in sheet. If an officer saw
that an offender signed in on a particular date to register, but an officer was unable to update the
registry for that offender due to, for instance, being called out to an urgent matter, and the offender
subsequently returned slightly past the registration deadline, the officers afford “some leeway there
as far as, hey, they did try to come in. You know what, they did, they signed in and you take it
under discretion when you do register and they come in to register.” In sum, there was no evidence
that the officers instigated or induced petitioner’s failure to register. To the contrary, registration
may be accomplished at nearly any time of the day and petitioner was instructed to return once his
attitude changed. Despite this availability and the officers’ willingness to excuse minor instances
of noncompliance, petitioner never returned. Therefore, we find no error in the circuit court’s
conclusion that there was no basis in the evidence to warrant an instruction that the officers in any
way induced petitioner’s failure to register.

         For the foregoing reasons, we affirm the circuit court’s December 27, 2017, sentencing
order.

                                                                                            Affirmed.


         3
         Trooper Heckler and Sergeant Dean also offered testimony on the various reasons a sex
offender may be turned away from registration, which include illness, poor hygiene, drug and
alcohol intoxication, and disorderly conduct.
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ISSUED: April 19, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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