                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia, Plaintiff Below,
                                                                                      FILED
Respondent                                                                        January 11, 2016
                                                                                 RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
vs) No. 15-0236 (Mercer County 14-M-AP-25-DS)                                      OF WEST VIRGINIA


Everson D. Finley, Defendant Below,
Petitioner


                              MEMORANDUM DECISION

        Petitioner Everson D. Finley, by counsel Ryan D. Hamady, appeals the Circuit Court of
Mercer County’s February 19, 2015, order affirming petitioner’s conviction for domestic battery,
in violation of West Virginia Code § 61-2-28(a). The State of West Virginia, by counsel
Jonathan E. Porter, filed its response in support of the circuit court’s order. On appeal, petitioner
argues that the circuit court erred in relying on evidence that was not introduced at trial in
violation of his constitutional right to confront a witness.

        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 June of 2013, petitioner was arrested for domestic battery and domestic assault. The
criminal complaint indicates that petitioner was arguing with Francis Cook about rekindling their
relationship, at which point he struck Ms. Cook with a broom stick in the thigh and then “got on
top of her and struck her in the face.” Petitioner was released on bail.

        In July of 2014, petitioner appeared before the Magistrate Court of Mercer County.
Following a trial, petitioner was found guilty of domestic battery, in violation of West Virginia
Code § 61-2-28(a). Petitioner was acquitted of the charge of domestic assault. The magistrate
imposed a sentence of a $100 fine plus court costs. On September 11, 2014, petitioner appealed
the magistrate court’s decision to the Circuit Court of Mercer County. The circuit court held a
bench trial on February 11, 2015, finding that there “[were] inconsistencies in defense witnesses’
testimony and that defendant is guilty of Domestic Battery[.]” By order entered February 19,
2015, the circuit court reimposed the penalty previously imposed upon petitioner in magistrate
court. It is from this order that petitioner now appeals.




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        In considering petitioner’s appeal, we apply the following standard of review:

               In reviewing challenges to findings and rulings made by a circuit court, we
       apply a two-pronged deferential standard of review. We will review the rulings of
       the circuit court concerning a new trial and its conclusion as to the existence of
       reversible error under an abuse of discretion standard, and we review the circuit
       court’s underlying factual findings under a clearly erroneous standard, whereas
       questions of law are subject to a de novo review.

Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).

        On appeal, petitioner argues that the circuit court impermissibly relied on his arrest
warrant in violation of petitioner’s constitutional right to confront the police officer responsible
for drafting the warrant. We disagree. Contrary to petitioner’s argument, a review of the record
reveals that the circuit court did not admit petitioner’s arrest warrant as evidence during the
underlying appeal or improperly rely upon the arrest warrant in rendering its decision. During the
bench trial, the circuit court heard conflicting testimony from petitioner, two members of
petitioner’s family that witnessed the incident, and the victim regarding the underlying events.
We have long held that credibility determinations made following a bench trial are entitled to
great deference. See State v. Guthrie, 194 W.Va. 657, 669 n. 9, 461 S.E.2d 163, 175 n. 9 (1995)
(“An appellate court may not decide the credibility of witnesses . . . as that is the exclusive
function and task of the trier of fact.”).
        In this case, the parties presented conflicting testimony as to the events that occurred in
June of 2013. Ms. Cook testified that petitioner hit her in the legs with a broom and then got on
top of her and hit her in the face. Petitioner’s witnesses testified that they did not observe
petitioner strike Ms. Cook. However, the circuit court heard conflicting testimony from
petitioner’s witnesses regarding the location of the incident, and petitioner’s mother’s role in
intervening in the argument. Petitioner’s sister testified that she woke up their mother to
intervene, while the mother testified that she was awake and intervened on her own volition. As
explained above, this Court will not decide credibility of witnesses or the weight of evidence.
We find that the circuit court herein properly considered the witnesses and evidence and found
that petitioner’s witnesses’ testimony “is not credible. It’s not believable[.]” As such, the circuit
court properly found that the evidence presented before it supported the finding that “[petitioner]
was guilty of ‘Domestic Battery.’” Therefore, we find no merit to petitioner’s appeal.
       For the foregoing reasons, we find no error in the circuit court’s February 19, 2015, order
and we hereby affirm the same.

                                                                                          Affirmed.

ISSUED: January 11, 2016




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CONCURRED IN BY:

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




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