                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                       FILED
                                                                              October 23, 2017
vs) No. 16-1169 (Morgan County 16-F-6)                                           RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
Steven W. Funt,

Defendant Below, Petitioner



                              MEMORANDUM DECISION
         Petitioner Steven W. Funt, by counsel Matthew D. Brummond, appeals the Circuit Court
of Morgan County’s November 22, 2016, order sentencing him to a lifetime term of
incarceration with the possibility of parole after serving fifteen years, and to a six-month term of
incarceration to run concurrently with the lifetime sentence. The State of West Virginia, by
counsel Gordon L. Mowen III, filed a response in support of the circuit court’s order. Petitioner
filed a reply. On appeal, petitioner argues that the circuit court erred by admitting evidence of his
previous recidivist proceeding to establish his identity and by failing to rule on his
proportionality motion.

       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 order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.

        In January of 2016, petitioner was indicted by a Morgan County grand jury on a
multicount indictment, including charges of grand larceny and breaking and entering. During the
pretrial proceedings, petitioner was informed by the circuit court that, if found guilty of a felony
during these proceedings, he faced a life sentence under the recidivist statute, West Virginia
Code § 61-11-18.

        In August of 2016, following petitioner’s two-day jury trial, he was convicted of breaking
and entering, a felony, and petit larceny, a misdemeanor. Following petitioner’s conviction, the
State filed a second recidivist information against him that alleged that he had been previously
convicted of five felonies in 1997, 2004, and 2006. Petitioner filed a motion in which he argued
that the imposition of a life sentence under the recidivist statute would be disproportionate to his
criminal conduct and requested a jury trial on the recidivist information. During the pretrial
proceedings, petitioner objected to the State’s request to introduce documents and elicit
testimony regarding his previous criminal proceedings: a conviction for grand larceny in 1997, a
conviction for grand larceny in 2004, and three convictions for breaking and entering in 2006.

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The State sought to introduce petitioner’s first recidivist conviction in 2006 and related evidence
establishing that petitioner was, in fact, the same person who was convicted of three felonies in
2006. The State introduced charging, sentencing, and commitment documents to show that
petitioner’s name, birthdate, and social security number were consistent across the 1997, 2004,
and 2006 predicate offenses and the 2016 underlying proceedings. The State also presented the
testimony of police, correctional, and probation officers who stated under oath that they
recognized petitioner as the same individual they interacted with during the predicate offenses.
The circuit court ruled that such evidence was admissible. The recidivist jury convicted
petitioner and found that he was the same person who had committed the predicate offenses.

        Following his conviction in the recidivist trial, in November of 2016, petitioner renewed
his motion to dismiss the recidivist enhancement or, in the alternative, requested that the circuit
court impose a five-year enhancement instead of a lifetime enhancement. Petitioner again argued
that the lifetime recidivist sentence violated the constitutional principle that punishments be
proportionate to the crimes committed. After considering the parties’ arguments and petitioner’s
lengthy criminal history, the circuit court denied petitioner’s motion and sentenced him to a
lifetime term of incarceration with the possibility of parole after serving fifteen years for the
breaking and entering conviction and a six-month term of incarceration for the petit larceny
conviction. The circuit court then ordered that petitioner’s sentence for the petit larceny
conviction run concurrently to his recidivist sentence for the breaking and entering conviction. A
sentencing order memorializing petitioner’s sentence was entered on November 22, 2016, and it
is from this order that petitioner appeals.

        Petitioner argues first that the circuit court erred by admitting a sentencing and conviction
order from petitioner’s 2006 recidivist proceeding to prove his identity for the predicate offenses.
Petitioner speculates that the information “posed a substantial risk that the jurors would rely
upon the prior jury’s fact-finding rather than conducting their own.” Petitioner also contends that
the evidence of his prior recidivist proceeding is not relevant to prove his identity in the current
recidivist proceeding. We disagree.

        Petitioner’s assignment of error is an evidentiary challenge. Rule 401 of the West
Virginia Rules of Evidence provides that “[e]vidence is relevant if it has any tendency to make a
fact more or less probable than it would be without the evidence; and the fact is of consequence
in determining the action.” Further, we have held that the decision to admit or exclude evidence
under Rule 403 of the West Virginia Rules of Evidence “is essentially a matter of trial conduct,
and the trial court’s discretion will not be overturned absent a showing of clear abuse. As to the
balancing under Rule 403, the trial court enjoys broad discretion.” Syl. Pt. 10, in part, State v.
Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).

         Here, petitioner’s previous recidivist conviction and the resulting orders were relevant to
prove that an individual with the same name as petitioner had previously been convicted of
felonies in three separate criminal proceedings. We have previously established that the State
cannot ask the circuit court to take judicial notice of an individual’s identity during a recidivist
trial, and that the State must prove identity “beyond a reasonable doubt.” State v. Barlow, 181
W.Va. 565, 571, 262 S.E.2d 530, 536 (1989). We have also held that “[t]he particular method of
proof of identity varies, but it consists typically of some combination of authenticated records,

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photographs, fingerprints, and oral testimony.” State v. Vance, 164 W.Va. 216, 226, 262 S.E.2d
423, 429 (1980). Although the State introduced a conviction and sentencing order that stated that
a Steven W. Funt had been convicted of felonies, “the mere proof of identity of names between
the defendant and the person named in the prior conviction records fails to establish identity in a
recidivist proceeding.” Id. at 164 W.Va. at 226, 262 S.E.2d at 429. The State was still required to
prove that the individual convicted of felonies in 1997, 2004, and 2006 was the same individual
convicted in the 2006 recidivist proceeding. As such, the State elicited testimony from police and
probation officers who interacted with petitioner during the predicate offense proceedings. The
State also introduced the previous recidivist conviction order showing that petitioner and the
individual convicted in that proceeding shared the same birthdate and social security number,
and were the same individual. Finally, petitioner admitted at the underlying recidivist trial that he
was the same individual convicted of the predicate offenses in 1997, 2004, and 2006, and the
2016 underlying proceedings. As such, we find no error in the circuit court’s admission of
petitioner’s previous recidivist proceeding as evidence to establish his identity.

        Next, petitioner argues that the circuit court failed to rule on his proportionality motion.
Petitioner contends that the West Virginia Constitution requires that a life recidivist sentence be
proportionate to the underlying crimes.1 He also contends that “nothing in the record justifies the
[circuit] court’s refusal to hear [p]etitioner’s motion.” We disagree. Contrary to petitioner’s
argument, the record on appeal indicates that the circuit court explicitly considered the
proportionality of petitioner’s lifetime recidivist sentence after petitioner filed his recidivist pre­
trial motions. The court heard the parties’ arguments on the issue, requested additional briefing,
and ultimately denied petitioner’s pre-trial motion. The circuit court noted on the record that this
Court “upheld the imposition of the life recidivism after three felonies on property crimes.”
Following petitioner’s current recidivist conviction, he renewed his previous motion at a post­
trial hearing and the circuit court again denied petitioner’s motion on the record and by order
entered on November 22, 2016.

        Moreover, West Virginia Code § 61-11-18(c) provides that “[w]hen it is determined . . .
that such person shall have been twice before convicted in the United States of a crime
punishable by confinement in a penitentiary, the person shall be sentenced to be confined in the
state correctional facility for life.” The purpose of the recidivist statute has been well-established:
“The primary purpose of our recidivist statutes, [West Virginia Code § 61-11-18] and [West
Virginia Code § 61-11-19], is to deter felony offenders, meaning persons who have been
convicted and sentenced previously on a penitentiary offense, from committing subsequent

       1
           Article 3, § 5 of the West Virginia Constitution provides that

       [e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and
       unusual punishment inflicted. Penalties shall be proportioned to the character
       and degree of the offence. No person shall be transported out of, or forced to leave
       the state for any offence committed within the same; nor shall any person, in any
       criminal case, be compelled to be a witness against himself, or be twice put in
       jeopardy of life or liberty for the same offense.

(Emphasis added).
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felony offenses.” Syl. Pt 3, State ex rel. Appleby v. Recht, 213 W.Va. 503, 583 S.E.2d 800
(2002). This Court has articulated a test for application of the life recidivist statute:

               The appropriateness of a life recidivist sentence under our constitutional
       proportionality provision found in Article III, Section 5, will be analyzed as
       follows: We give initial emphasis to the nature of the final offense which triggers
       the recidivist life sentence, although consideration is also given to the other
       underlying convictions. The primary analysis of these offenses is to determine if
       they involve actual or threatened violence to the person since crimes of this nature
       have traditionally carried the more serious penalties and therefore justify
       application of the recidivist statute.”

Syl. Pt. 7, State v. Beck, 167 W.Va. 830, 286 S.E.2d 234 (1981). Petitioner’s most recent offense,
and the one triggering the recidivist life sentence, was breaking and entering. He was previously
convicted twice for grand larceny. Both of these crimes are crimes that justify the application of
the recidivist statute. Further, as to the underlying offenses involved in this case, we have already
upheld the imposition of a life sentence under the recidivist statute in cases where the underlying
felonies were grand larceny and breaking and entering. See State v. Oxier, 179 W.Va. 431, 369
S.E.2d 866 (1988) (imposition of a life sentence upheld where defendant’s most recent
conviction was for breaking and entering and the underlying felonies consisted of two breaking
and entering convictions and a grand larceny conviction); see also Vance, 164 W.Va. at 223-225,
262 S.E.2d at 428. Therefore, we find that petitioner’s most recent convictions for breaking and
entering and grand larceny were crimes that involved the threat of harm or violence. Thus, the
circuit court’s imposition of a recidivist life sentence pursuant to West Virginia Code § 61-11-18
did not violate the proportionality doctrine as prohibited by the West Virginia Constitution.

        For the foregoing reasons, the circuit court’s November 22, 2016, order sentencing
petitioner is hereby affirmed.


                                                                                          Affirmed.

ISSUED: October 23, 2017

CONCURRED IN BY:

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




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