                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS


                                                                                     FILED
State of West Virginia,                                                              June 28, 2013
Plaintiff Below, Respondent                                                     RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
vs) No. 12-0701 (Ohio County 12-F-20)

Harold Wayne Nice
Defendant Below, Petitioner


                                  MEMORANDUM DECISION

       Petitioner Harold Wayne Nice, by counsel, Jason D. Parmer, appeals the Circuit Court of
Ohio County’s order entered May 7, 2012, sentencing him to consecutive sentences of one to ten
years of incarceration for breaking and entering and one to five years of incarceration for
conspiring to commit breaking and entering. The State, by counsel Andrew D. Mendelson, filed a
response in support of the circuit court’s order. Petitioner’s counsel filed this appeal pursuant to
Anders v. California, 386 U.S. 738 (1967).

       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.

        On December 6, 2011, petitioner and a co-defendant were stopped by policeafter being
spotted walking quickly in the vicinity of a building alarm going off. The officers stopped and
frisked the co-defendant but found no weapons and proceeded to look in petitioner’s backpack for
weapons. No weapons were found in the backpack, but the officer found a pry bar, a pair of
gloves, and a hacksaw. Petitioner and his co-defendant were arrested on unrelated warrants and,
after further investigation, were charged with breaking and entering, and conspiracy to commit
breaking and entering. Petitioner’s co-defendant entered into a plea agreement and agreed to
testify against petitioner. Petitioner was indicted by a grand jury on January 9, 2012, on both
charges. At the suppression hearing on February 9, 2012, petitioner moved to suppress the
evidence taken from the backpack, but since there was no affirmative evidence that petitioner did
not give consent, the circuit court denied the motion.

        At trial, on March 22, 2012, petitioner’s co-defendant testified against petitioner, stating
that they entered the building with the intent to steal items therefrom. At trial, the arresting officer
claimed that petitioner had given consent to search the backpack and, while there was no record

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of petitioner granting consent, petitioner never testified at trial or at the suppression hearing; thus,
the officer’s testimony regarding consent was uncontroverted. The State also introduced evidence
at trial regarding tracks at the site of the burglary matching the defendants’ shoes, despite
assurances from the prosecutor that no expert testimony would be taken regarding whether the
shoes match. The defense did not object to the testimony. Finally, a home confinement officer
from Brooke County testified regarding the validity of data from a GPS ankle bracelet that the co­
defendant was wearing on the night of the burglary. The testimony was admitted without the
officer being certified as an expert; however, the defense did not challenge the home confinement
officer’s qualifications or object to the testimony.

        “‘The action of a trial court in admitting or excluding evidence in the exercise of
        its discretion will not be disturbed by the appellate court unless it appears that
        such action amounts to an abuse of discretion.’ Syl. Pt. 6, State v. Kopa, 173
        W.Va. 43, 311 S.E.2d 412 (1983).” Syllabus Point 1, State v. Nichols, 208 W.Va.
        432, 541 S.E.2d 310 (1999).

Syl. Pt. 1, State v. Morris, 227 W.Va. 76, 705 S.E.2d 583 (2010).

        Petitioner first argues that there was no evidence in police reports from the night of the
arrest that the backpack search was voluntary, and that the only testimony was from the arresting
officer stating that he asked for permission to search the bag and was granted permission. We find
that the testimony that the search was consensual was uncontroverted and, therefore, the circuit
court did not abuse its discretion in admitting contents of the backpack into evidence.

         Second, petitioner argues that this Court has not addressed whether shoe identification
from tracks requires expert testimony in order to be admissible, nor the level of expertise required
to testify as to the reliability of GPS tracking software. Because the defense objected to neither
the shoeprint nor the GPS testimony, this Court applies the plain error analysis. “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. Because the co-defendant’s uncontroverted testimony
was that he and petitioner acted in concert to break into the building, we find that the testimony
regarding the footprints and GPS did not affect the outcome of the proceedings below and does
not fall under the plain error doctrine.

        The Court has carefully considered the merits of each of petitioner’s arguments as set
forth in his brief. The circuit court did not abuse its discretion in convicting petitioner for
breaking and entering and conspiracy to commit breaking and entering.

        For the foregoing reasons, we affirm.

                                                                                               Affirmed.


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ISSUED: June 28, 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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