                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

State of West Virginia,

Plaintiff Below, Respondent                                                       FILED

                                                                                  April 12, 2013
                                                                             RORY L. PERRY II, CLERK
vs) No. 11-1775 (Mercer County 11-F-43)                                    SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA

John Victor Davis,
Defendant Below, Petitioner

                              MEMORANDUM DECISION
       Petitioner John Victor Davis, by counsel R. Thomas Czarnik and Phillip Scantlebury,
appeals his conviction for malicious assault and kidnapping. The State, by counsel Andrew W.
Mendelson, filed a summary response to which petitioner replied.

       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.

      Sometime after midnight on November 1, 2010, petitioner attacked his former girlfriend,
Angela Hood (the “victim”), in her trailer after he learned she was dating another man.

       Petitioner was indicted and tried on charges of kidnapping, malicious assault, and petit
larceny.

        At trial, the victim testified as follows: As she was sleeping in a recliner in her living
room, petitioner attacked her. Petitioner pushed, shoved, hit, and shook her. Petitioner also
knocked her to the ground and tried to crush her skull by kneeling on her face. She repeatedly
tried to use her cell phone to dial 911 but petitioner kept her from doing so by force. Her seven­
year-old daughter, who was in the living room at the time, ran out of the trailer to seek help.
Petitioner then prevented the victim from leaving the trailer despite her pleas to be able to leave
so she could find her daughter. As a result of the approximately hour-long attack, her cheek was
lacerated; blood was flowing from her ear; her lip was “busted”; some of her teeth had cut into
her gums; and her elbow, chest, legs, and wrists were bruised.

      On June 21, 2011, a jury convicted petitioner of malicious assault and kidnapping, with a
recommendation of mercy.

        On August 24, 2011, petitioner was sentenced to not less than two nor more than ten
years in prison for malicious assault. However, the circuit court deferred sentencing on the
kidnapping charge pending briefs by the parties regarding whether the kidnapping was incidental
to the malicious assault and whether the then-recent passage of “Celena’s Law,” codified at West
                                                1

Virginia Code § 61-2-14g and which created the misdemeanor crime of unlawful restraint,
allowed petitioner to elect to be sentenced under that statute. Ultimately, the circuit court found
that the kidnapping was not incidental to the malicious assault conviction and that West Virginia
Code § 61-2-14g did not apply to the facts of the case.

        On November 8, 2011, the circuit court sentenced petitioner to life in prison with the
possibility of parole on the kidnapping conviction. The court ordered petitioner’s kidnapping
sentence to run consecutively to his sentence for malicious assault.

       On appeal, petitioner first argues that the grand jury erred in returning a true bill indicting
him for kidnapping because the State entered no evidence showing that petitioner used a weapon
or that he restrained Ms. Hood with the intent of demanding ransom, as required by West
Virginia Code § 61-2-14a (1999),1 the section in effect at the time of petitioner’s crime.

       Pursuant to State v. Adams, 193 W.Va. 277, 284, 456 S.E.2d 4, 11 (1995), “[t]his Court
reviews indictments only for constitutional error and prosecutorial misconduct.” Here, petitioner
does not assert that the grand jury was biased against him or motivated by any constitutionally
impermissible factors, nor does petitioner claim prosecutorial misconduct in his brief on appeal.
As for petitioner’s allegation that the State presented insufficient evidence to the grand jury to
support the issuance of a true bill, in Adams, we stated as follows:

          “Generally speaking, the finding by the grand jury that the evidence is sufficient
          is not subject to judicial review.” I Franklin D. Cleckley, Handbook on West
          Virginia Criminal Procedure Grand Jury and Indictments I-651 (2d ed. 1993).
          Cases are legion supporting the proposition that a defendant may not challenge a
          facially valid indictment returned by a legally constituted grand jury on the basis
          that the evidence presented to the grand jury was legally insufficient. See United
          States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); Costello
          v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956).

Adams, 193 W.Va. at 284, 456 S.E.2d at 11. Given that petitioner was convicted of kidnapping
beyond a reasonable doubt by a jury, it is somewhat irregular that on appeal petitioner argues
sufficiency of the evidence before the grand jury. Accordingly, we decline to disturb the circuit
court’s decision on this matter.

1
    West Virginia Code § 61-2-14a (1999) stated,

          [a]ny person who, by force, threat, duress, fraud or enticement take, confine,
          conceal, or decoy, inveigle or entice away, or transport into or out of this state or
          within this state, or otherwise kidnap any other person, or hold hostage any other
          person for the purpose or with the intent of taking, receiving, demanding or
          extorting from such person, or from any other person or persons, any ransom,
          money or other thing, or any concession or advantage of any sort, or for the
          purpose or with the intent of shielding or protecting himself, herself or others
          from bodily harm or of evading capture or arrest after he or she or they have
          committed a crime shall be guilty of a felony and, upon conviction, shall be
          punished by confinement by the division of corrections for life. . . .
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        Petitioner next argues that the trial court erred in convicting him of kidnapping because
the State did not prove that petitioner restrained the victim for the purpose of preventing her from
reporting alleged domestic violence to the authorities.

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

Syl. Pt. 1, State v. Juntilla, 227 W.Va. 492, 711 S.E.2d 562 (2011). We have also stated that

                 “[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. To the extent that our prior cases are
         inconsistent, they are expressly overruled.” Syl. pt. 3, State v. Guthrie, 194 W.Va.
         657, 461 S.E.2d 163 (1995).

Syl. Pt. 2, State v. McFarland, 228 W.Va. 492, 721 S.E.2d 62 (2011). Having reviewed the
evidence at trial as set forth in the appendix record and having considered the parties’ arguments
in this regard, we find that, viewed in the light most favorable to the State, any rational juror
could have found that the prosecution proved the elements of kidnapping, pursuant to West
Virginia Code § 61-2-14a (1999), beyond a reasonable doubt.

        Petitioner’s third argument is that the grand jury improperly charged him with malicious
assault because, pursuant to West Virginia Code § 61-2-9(a)2 and “case law,” a defendant must
use a weapon or intend to maim, disfigure, or kill the victim. Petitioner argues that that the State

2
    West Virginia Code § 61-2-9(a) provides that

         [i]f any person maliciously shoot, stab, cut or wound any person, or by any means
         cause him bodily injury with intent to maim, disfigure, disable or kill, he shall,
         except where it is otherwise provided, be guilty of a felony and, upon conviction,
         shall be punished by confinement in the penitentiary not less than two nor more
         than ten years. If such act be done unlawfully, but not maliciously, with the intent
         aforesaid, the offender shall be guilty of a felony and, upon conviction, shall, in
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presented no evidence to the grand jury showing that petitioner used a weapon to assault Ms.
Hood or that he intended to maim, disfigure, or kill Ms. Hood.

        As with petitioner’s true bill for kidnapping, petitioner alleges no constitutional error or
prosecutorial misconduct in regard to his indictment for malicious assault. Thus, as before, we
decline to disturb the circuit court’s decision on this matter. As for petitioner’s argument that, to
sustain an indictment for malicious assault, the State must show that a defendant used a weapon
or intended to maim, disfigure, or kill the victim, we turn to petitioner’s next assignment of error.

        Petitioner’s fourth argument is that the circuit court erred in sustaining petitioner’s
conviction for malicious assault because the State failed to prove that petitioner used a weapon to
assault Ms. Hood. Petitioner further argues that the State’s disregard of the definition of
malicious assault was so egregious that he should be awarded a new trial.

        Petitioner appears to base his argument regarding the allegedly required use of a weapon
on State v. Gibson, 67 W.Va. 548, 68 S.E. 295 (1910), in which the Court stated “[t]o constitute
a ‘wound,’ within the meaning of [the malicious wounding statute in effect in 1906], an injury
must have been inflicted with a weapon other than any of those with which the human body is
provided by nature, and must include a complete parting or solution of the external or internal
skin.” Id. at 548, 68 S.E.2d at 295 (emphasis added). To the extent that petitioner relies on
Gibson, his reliance is misplaced. In State v. Coontz, 94 W.Va. 59, 117 S.E. 701 (1923), decided
thirteen years after Gibson, the Court stated that wounds caused by fists may sustain a conviction
for malicious assault. Id. at 59, 117 S.E.2d at 701-02. Coontz has not been overruled. In the
instant case, the evidence at trial as set forth in the appendix record shows that petitioner
repeatedly struck Ms. Hood with his hands. In viewing this evidence in the light most favorable
to the prosecution, we find that the State presented evidence, that if believed by the jury, was
sufficient to sustain petitioner’s conviction for malicious assault. As such, we find no error.

        Petitioner’s fifth argument is that the circuit court failed to instruct the jury regarding the
then newly-enacted misdemeanor crime of unlawful restraint, West Virginia Code § 61-2-14g.
Petitioner contends that the Legislature recognized the over-breadth of West Virginia’s
kidnapping statute, West Virginia Code § 61-2-14a, and, in response, passed West Virginia Code
§ 61-2-14g. Petitioner argues that the new law was intended to be a lesser-included offense of
kidnapping and comports with the facts in the case at bar.

       When a petitioner challenges a circuit court’s instruction to a jury, our law is clear:

       Typically, this Court refuses to consider instructional error on appeal unless an
       objection was made at trial.

               As a general rule, no party may assign as error the giving of an
               instruction unless he objects thereto before the arguments to the
               jury are begun, stating distinctly as to the instruction the matter to

       the discretion of the court, either be confined in the penitentiary not less than one
       nor more than five years, or be confined in jail not exceeding twelve months and
       fined not exceeding five hundred dollars.
                                                 4
               which he objects and the grounds of his objection; and ordinarily
               only grounds thus assigned in the trial court will be considered on
               appeal of the case to this Court. Syl. pt. 6, State v. Davis, 153
               W.Va. 742, 172 S.E.2d 569 (1970).

Tracy v. Cottrell ex rel. Cottrell, 206 W.Va. 363, 376, 524 S.E.2d 879, 892 (1999). See also Syl.
Pt. 1, Roberts v. Powell, 157 W.Va. 199, 207 S.E.2d 123 (1973) (“A party may only assign error
to the giving of instructions if he objects thereto before arguments to the jury are begun stating
distinctly the matter to which he objects and the grounds of his objection.”). Nothing in the
record indicates that petitioner asked for an instruction to be read to the jury regarding the
misdemeanor crime of unlawful restraint. Nor does petitioner argue plain error. Hence, we find
no error.

        Petitioner’s sixth and last argument concerns the circuit court’s failure to give a self-
defense instruction where petitioner’s trial counsel failed to offer such an instruction. Petitioner
claims that the evidence showed that he was entitled to a self-defense instruction and that the
circuit court’s failure to give such an instruction was plain error.

              “On an appeal to this Court the appellant bears the burden of showing that
       there was error in the proceedings below resulting in the judgment of which he
       complains, all presumptions being in favor of the correctness of the proceedings
       and judgment in and of the trial court.” Syllabus Point 2, Perdue v. Coiner, 156
       W.Va. 467, 194 S.E.2d 657 (1973).

Syl. Pt. 1, White v. Haines, 215 W.Va. 698, 601 S.E.2d 18 (2004). Petitioner fails to list the
elements of a plain error analysis or to argue how the circuit court’s alleged failure to give a self-
defense instruction comports with those elements. We find no error.

       For the foregoing reasons, we affirm.

                                                                                           Affirmed.


ISSUED: April 12, 2013

CONCURRED IN BY:

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

DISSENTING:

Justice Menis E. Ketchum



                                                  5

No. 11-1775 – State of West Virginia v. John Victor Davis


Ketchum, Justice, dissenting:

              I agree that the defendant should have been severely punished (2 to 10 years) for

beating up his former girlfriend. However, I believe the judge should have applied Celena’s Law

(W.Va. Code §61-2-14g) and given the defendant additional punishment for unlawful restraint

rather than sentencing the defendant to life imprisonment for kidnapping.




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