                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS



State of West Virginia,
Plaintiff Below, Respondent                                                 FILED
                                                                        November 3, 2016
                                                                              released at 3:00 p.m.
vs) No. 15-0684 (Fayette County Case Number 15-M-AP-2)                      RORY L. PERRY, II CLERK

                                                                          SUPREME COURT OF APPEALS

                                                                               OF WEST VIRGINIA

Scott A. Neal,

Defendant Below, Petitioner



                               MEMORANDUM DECISION

              Mr. Scott A. Neal (hereinafter “the Petitioner”), by counsel Brandon Steele,
Esq., appeals his conviction for brandishing a deadly weapon, subsequent to a bench trial in
the Circuit Court of Fayette County, West Virginia. Respondent State of West Virginia, by
counsel Patrick Morrisey, Esq., and Shannon Kiser, Esq., filed a response to the Petitioner’s
appeal. The Petitioner contends his conviction should be reversed because his actions
constituted self-defense in response to his assailants.

              Having thoroughly reviewed the appendix record, the parties’ briefs and oral
arguments, the applicable law, and all other matters before the Court, 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 West Virginia
Rules of Appellate Procedure.

                             I. Factual and Procedural History

              On February 11, 2015, Susan Showalter and her mother, Debbie Showalter,
attended a mediation in Fayette County Family Court concerning the custody and placement
of Susan Showalter’s minor son. The father of the child is Steve Neal, the Petitioner’s
brother. Steve Neal failed to attend the mediation, and the Showalters thereafter drove to his
home, entered the home uninvited,1 and attempted to remove the minor child. Upon
discovering the Showalters in his home, Steve Neal attempted to physically prevent them


       1
       Susan Showalter stated that Vickie Jones, the Family Court Clerk, had told her that
she could go to the Neal residence and try to remove her child.

                                              1

from removing the child. The Petitioner, who had been living with his brother for four
months, was awakened by the altercation and exited his bedroom to discover his brother
fighting with Susan Showalter over the minor child.

              Susan Showalter testified that the Petitioner held her by the throat up against
a wall and pushed her into a storm door, breaking the glass door and causing lacerations on
her arms. Debbie Showalter also explained that she hit the Petitioner with an aluminum mop
handle to prevent further harm to her daughter as the Petitioner was attacking her. The
Petitioner explained the event somewhat differently, stating that the fighting was in close
proximity to the front doorway and that Susan Showalter was inadvertently pushed into the
door. The Petitioner contends that Susan Showalter struck him in the face and head-butted
him while her mother attacked him with the mop handle. He ultimately obtained knives from
the kitchen to compel the Showalters to leave the premises.2

              Debbie Showalter called 9-1-1while still at the residence and informed the
operator that the Petitioner had “gotten knives.” Debbie Showalter and Susan Showalter
thereafter waited outside the home for the arrival of law enforcement. Deputy Richie
Callison of the Fayette County Sheriff’s Department arrived and interviewed the Petitioner,
Steve Neal, Debbie Showalter, and Susan Showalter. Deputy Callison arrested Susan
Showalter for trespassing, battery, and domestic battery; Debbie Showalter for assault;3 Steve
Neal for domestic battery; and the Petitioner for brandishing.4

             On May 5, 2015, the Petitioner was convicted, following a Fayette County
Magistrate Court bench trial, of the misdemeanor offense of brandishing a deadly weapon,




       2
        The parties disagree regarding the types of knives the Petitioner obtained from the
kitchen. Susan Showalter claims the knives were steak knives. Debbie Showalter simply
described them as a “handful of knives,” and the Petitioner claims the knives were butter
knives.
       3
      Debbie Showalter testified at trial that she had pled “no contest” and that Susan
Showalter had “pled guilty to domestic battery and no contest to the other two” charges.
       4
         Deputy Callison testified that the Petitioner told him “that it was basically over when
he went and got the knife in the kitchen.” Further, Deputy Callison said the Petitioner
“turned to face them [the Showalters], stated some type of statement saying that he was going
to get them out of there, realized he was wrong and dropped the knife.”

                                               2

in violation of West Virginia Code § 61-7-11 (2014).5 He was sentenced to a $50.00 fine and
assessed court costs. No jail time was imposed. On May 21, 2015, the Petitioner appealed
his conviction to the Circuit Court of Fayette County.6

              The appellate trial7 commenced on June 16, 2015, with Deputy Callison, Susan
Showalter, and Debbie Showalter testifying for the State. At the close of the State’s case,
the Petitioner moved the circuit court to dismiss8 the action based upon the theory of
self-defense. The circuit court denied that motion, finding that although the Showalters had
entered the Neal home without permission, the Petitioner’s self-defense argument was not
credible. The circuit court noted the size differences between the women and the men,
recognizing that the Petitioner “appears to be a good-sized individual that could have easily
handled the witness, Susan Showalter.”9

               During presentation of the defense, counsel for the Petitioner attempted to call
the Petitioner’s girlfriend, Ashley Hudson, as a witness. She was also in the home at the time


       5
           West Virginia Code § 61-7-11 provides:

             It shall be unlawful for any person armed with a firearm or other deadly
       weapon, whether licensed to carry the same or not, to carry, brandish or use
       such weapon in a way or manner to cause, or threaten, a breach of the peace.
       Any person violating this section shall be guilty of a misdemeanor, and, upon
       conviction thereof, shall be fined not less than fifty nor more than one
       thousand dollars, or shall be confined in the county jail not less than ninety
       days nor more than one year, or both.
       6
        According to the “Order Scheduling Bench Trial,” entered May 21, 2015, notice of
the scheduled trial was sent to the Petitioner. On the scheduled trial date of June 3, 2015,
however, the Petitioner did not appear at the bench trial because he had not received notice
at the address he had placed on his appeal documents from magistrate court. Thus, the trial
was rescheduled for June 16, 2015.
       7
       See W.Va. Code § 50-5-13(d) (2016) (permitting appeal of criminal proceeding from
magistrate court for new trial in circuit court).
       8
       Although the motion was identified as a motion “to dismiss,” it is more properly
characterized as a motion for judgment of acquittal.
       9
      Testimony indicated that the Petitioner’s brother was approximately 6’1” or 6’2” and
weighed approximately 300 pounds. The Petitioner was 6’3” and weighed 198 pounds.

                                              3

of the incident, but she had not testified in magistrate court. The State objected, based upon
Ms. Hudson’s absence on a witness list prior to the hearing. Despite the Petitioner’s
assertion that the trial had not been properly noticed, as more fully discussed below, the
circuit court prohibited the offered testimony based upon the absence of Ms. Hudson’s
testimony during the magistrate trial on this matter.

              By order dated June 25, 2015, the circuit court held that “the State has proven
beyond a reasonable doubt that the Petitioner committed the misdemeanor offense of
brandishing a deadly weapon on February 11, 2015, and he is adjudged guilty of the same.”
The Petitioner appeals to this Court.

                                  II. Standard of Review

             “This Court applies a de novo standard of review to the denial of a motion for
judgment of acquittal based upon the sufficiency of the evidence.” State v. Juntilla, 227
W.Va. 492, 497, 711 S.E.2d 562, 567 (2011) (citing State v. LaRock, 196 W.Va. 294, 304,
470 S.E.2d 613, 623 (1996)); accord State v. Minigh, 224 W.Va. 112, 124, 680 S.E.2d 127,
139 (2009). We apply the following standard for reviewing a judgment entered after a bench
trial:

                     “In reviewing challenges to the findings and conclusions
              of the circuit court made after a bench trial, a two-pronged
              deferential standard of review is applied. The final order and
              the ultimate disposition are reviewed under an abuse of
              discretion standard, and the circuit court’s underlying factual
              findings are reviewed under a clearly erroneous standard.
              Questions of law are subject to a de novo review.” Syllabus
              Point 1, Public Citizen, Inc. v. First Nat. Bank in Fairmont, 198
              W.Va. 329, 480 S.E.2d 538 (1996).

Syl. Pt. 1, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).

             Addressing the standard for challenges to the sufficiency of the evidence, this
Court explained as follows in syllabus point three of State v. Guthrie, 194 W.Va. 657, 461
S.E.2d 163 (1995):

                     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

                                              4

              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.

In syllabus point one of Guthrie, we held:

                      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.

194 W.Va. at 658, 461 S.E.2d at 164.

              Employing these standards as guidance, we address the arguments of the
parties.

                                       III. Discussion

                                       A. Self-Defense

               The Petitioner first contends that the circuit court improperly denied his motion
for acquittal based upon the State’s failure to meet the burden of proof beyond a reasonable
doubt. He maintains that the evidence is insufficient to sustain his conviction because he
acted in self-defense. In that vein, he argues that the circuit court misapplied the standard
for self-defense set forth in State v. Phelps, 172 W.Va. 797, 310 S.E.2d 863 (1983), by
limiting self-defense to those situations where the Petitioner would be in danger of “serious
bodily injury or death.” The Petitioner argues that the court should have permitted an
argument of self-defense where an unlawful intruder threatens imminent physical violence

                                               5

and the occupant reasonably believes deadly force is necessary. In syllabus point five of
Phelps, this Court explained:

                       “The occupant of a dwelling is not limited in using
               deadly force against an unlawful intruder to the situation where
               the occupant is threatened with serious bodily injury or death,
               but he may use deadly force if the unlawful intruder threatens
               imminent physical violence or the commission of a felony and
               the occupant reasonably believes deadly force is necessary.’
               Syl. Pt. 2, State v. W.J.B., 166 W.Va. 602, 276 S.E.2d 550
               (1981).

                  Thus, in order to prevail on a claim of self-defense, the occupant of a dwelling
must show a reasonable apprehension of imminent peril. The existence of reasonable
apprehension must be determined by the trier of fact; in the case of a bench trial, the trier of
fact is the trial court. “This Court confers great deference to credibility determinations made
following a bench trial because the circuit court has viewed the demeanor of the witnesses.”
In re J.S., 233 W.Va. 394, 408, 758 S.E.2d 747, 761 (2014); see also Guthrie, 194 W.Va. at
669 n.9, 461 S.E.2d at 175 n.9 (“An appellate court may not decide the credibility of
witnesses . . . as that is the exclusive function and task of the trier of fact.”). Moreover, in
syllabus point one of State v. Schaefer, 170 W.Va. 649, 295 S.E.2d 814 (1982), this Court
held:

               “It is peculiarly within the province of the jury to weigh the
               evidence upon the question of self-defense, and the verdict of a
               jury adverse to that defense will not be set aside unless it is
               manifestly against the weight of the evidence.” Syllabus Point
               5, State v. McMillion, 104 W.Va. 1, 138 S.E. 732 (1927).

                Addressing the Petitioner’s argument regarding self-defense, the circuit court
evaluated the question of whether the Petitioner had reason to brandish the knives and found
that the Petitioner could not have reasonably perceived any danger, due to the extreme size
and physical advantage the men enjoyed over the two women during the physical altercation
in the home. Further, the trial court concluded that although the Petitioner did not initiate the
altercation between Ms. Showalter and the Petitioner’s brother, the Petitioner was clearly the
aggressor once he became involved. The trial court found that the Petitioner was therefore
not entitled to utilize the affirmative defense of self-defense in this particular instance.

             This Court, viewing the evidence in the light most favorable to the State,
concludes that a rational trier of fact could have found beyond a reasonable doubt that the

                                                6

Petitioner did not act in self-defense. The most convincing evidence suggesting an act of
self-defense consisted of the Petitioner’s testimony that he was assaulted by Susan Showalter.
However, a fair reading of the record could also compel the conclusion that this domestic
altercation essentially consisted of combat by all four adults. In assessing the credibility of
the witnesses, a task well within the discretion of the trial court in this bench trial, the
Petitioner was found to be less credible on the issue of self-defense. The trial court
specifically stated: “But his [the Petitioner’s] testimony, I find not to be credible, I find not
to be believable.” Further, the order specifies that “[t]he Court finds the defendant’s
testimony regarding the events to not be credible.” A trial court must assess credibility and
draw reasonable inferences from the evidence; this Court perceives nothing in the record that
would require us to substitute our judgment for that of the trial court. Accordingly, we must
reject the Petitioner’s argument in this regard.10

                      B. Brandishing Charge Requires Breach of Peace

                The Petitioner also contends the trial court erred in failing to make a specific
finding that he “breached the peace” by brandishing the knives.11 According to the
Petitioner, the Showalters initially breached the peace by unlawfully trespassing into the
home, starting a physical altercation, and assaulting the Petitioner with a broom handle.
Consequently, the Petitioner argues it was impossible for him to have “breached” the peace
when it had already been breached by the Showalters. In response, the State contends the
facts clearly demonstrate that the Petitioner brandished knives against unarmed women over
whom he held a significant size advantage. Further, the State argues that any failure by the
trial court to specifically state that the Petitioner breached the peace was harmless, based
upon the clarity of the record.

               Reviewing the evidence in a light most favorable to the State, it appears that
the Petitioner entered the room and became the aggressor in the fight after he was awakened
by the scuffle. He pushed Susan Showalter against a wall and shoved her through a glass

       10
         We note that the Petitioner also contends the trial court erred in finding that he was
not a resident of the home. Based upon our review of the evidence and the trial court’s
rulings, we find this to be harmless, in light of the trial court’s finding that the Petitioner had
no reasonable apprehension of imminent harm and was therefore not engaged in the act of
self-defense when he brandished the knives. Thus, his residency at his brother’s home is not
determinative.
       11
       The statute under which the Petitioner was charged and convicted, West Virginia
Code § 61-7-11, provides that the Petitioner must have brandished or used “a weapon in a
way or manner to cause, or threaten, a breach of the peace.”

                                                7

storm door. When Debbie Showalter heard her daughter’s cries for help, she grabbed an
aluminum mop handle and jabbed the Petitioner in an effort to help Susan Showalter free
herself from the broken door. The Petitioner then took the mop handle away from Debbie
Showalter. As Debbie Showalter called the police, the Petitioner went to the kitchen to
obtain the knives, and he escalated the altercation. Debbie Showalter reported the
Petitioner’s act of obtaining knives to the 911 operator, and the Petitioner thereafter dropped
the knives.

               Upon thorough review of the chronology of the physical altercation, this Court
finds no error in the trial court’s conclusion that the Petitioner violated West Virginia Code
§ 61-7-11 by brandishing the knives “in a way or manner to cause, or threaten, a breach of
the peace.” We consequently find no merit to the Petitioner’s contentions on this issue.

                                 C. Attempt to Call Witness

               The Petitioner also argues the trial court erred by preventing him from calling
Ms. Ashley Hudson as a witness. Ms. Hudson was his girlfriend and was also in the house
at the time of the incident. Although the Petitioner did not call Ms. Hudson as a witness in
the magistrate court trial, he attempted to call her in the circuit court trial. He contends that
her testimony could have corroborated his statements, aiding in proving his assertions
regarding self-defense.

              The State objected to the calling of Ms. Hudson as a witness, arguing that the
Petitioner had not provided a witness list or otherwise notified the State of his intention to
call her. Moreover, she had not been called as a witness in the magistrate court bench trial.
The Petitioner asserted that he failed to notify the State of his intention to call Ms. Hudson
only because neither the State nor the trial court had notified his defense counsel of the trial
date. Defense counsel had inadvertently learned of the trial the day immediately prior to the
date it was scheduled.12

       12
         Prior to the appellate hearing in this matter, the State participated in an ex parte
conversation with the trial judge regarding removal of the Petitioner’s counsel due to the fact
that the Petitioner’s sentence in magistrate court did not include confinement in jail and was
limited to a fine. Thus, pursuant to West Virginia Code § 29-21-2 (2013), the Petitioner
would no longer qualify for court-appointed counsel. In State ex rel. Kees v. Sanders, 192
W.Va. 602, 453 S.E.2d 436 (1994), this Court held that the statute does not entitle a
defendant to publicly funded legal representation in an appeal from a conviction in which a
jail sentence was not imposed. Id. at 606, n.10, 453 S.E.2d at 440, n.10. When the circuit
court ordered a bench trial set for June 3, 2015, it did not notice counsel for the Petitioner.
                                                                                   (continued...)

                                               8

               On appeal, the State argues Ms. Hudson would not have been permitted to
testify, regardless of whether she had been included in a witness list. The State relies upon
West Virginia Code § 50-5-13(d) (2016), arguing that it prohibits introduction of testimony
that was not presented in the magistrate court below. Specifically, that section provides:

                         In the case of an appeal of a criminal proceeding tried
                  without a jury, the party seeking the appeal shall file with the
                  circuit court a petition for appeal and trial de novo. The
                  exhibits, together with all papers and requests filed in the
                  proceeding, constitute the exclusive record for appeal and shall
                  be made available to the parties.

W.Va. Code § 50-5-13(d). In State ex rel. Collins v. Bedell, 194 W.Va. 390, 460 S.E.2d 636
(1995), this Court explained that on appeal of a conviction in magistrate court, “the circuit
court takes on the role of a reviewing court, not unlike this Court, rather than a trial court.
. . .” Id. at 395, 460 S.E.2d at 641.

               This Court agrees with the State that Ms. Hudson could not be called as a
witness in the appeal to circuit court. The Petitioner did not object and acquiesced at the time
the circuit court ruled that Ms. Hudson would not be permitted to testify because she did not
testify at the magistrate court level.13 Consequently, the alleged error was not properly




       12
            (...continued)
               Counsel for the Petitioner learned of the scheduled trial on the day immediately
prior to trial when he telephoned the circuit court secretary to inquire about whether the
matter had been set for a hearing. Upon learning of the scheduled trial date, counsel for the
Petitioner immediately informed the circuit court that he would continue to represent the
Petitioner pro bono. Thus, the Petitioner did not lose his counsel, and he did not move for
a continuance. Significantly, he did not assign any error in this Court to the ex parte
communication, the attempt to remove his counsel, or the lack of notice to his counsel.
       13
        The State maintains that because Ms. Hudson had not been called as a witness in the
underlying magistrate court trial, her previously unheard testimony would have been
improper for purposes of appeal to the circuit court. West Virginia Code § 50-5-13(d) does
not expressly refer to “witness testimony” on appeal from magistrate court to circuit court,
by confining the “exclusive record for appeal” to the “exhibits, together with all papers and
requests filed in the proceeding,” but the statute does appear to limit new evidence to be
included on appeal.

                                                 9

preserved for appeal to this Court.14

                                        IV. Conclusion

              Based upon the foregoing, this Court affirms the Petitioner’s conviction and
sentence.

                                                                                      Affirmed.




ISSUED: November 3, 2016



CONCURRED IN BY:

Chief Justice MENIS E. KETCHUM

Justice ROBIN JEAN DAVIS

Justice MARGARET L. WORKMAN

Justice ALLEN H. LOUGHRY II


DISSENTING:

Justice BRENT D. BENJAMIN





       14
         The Petitioner’s arguments regarding failure to notify his counsel of the trial date are
well-founded; however, the circuit court’s basis for Ms. Hudson’s exclusion was her absence
as a witness in the magistrate court trial. Thus, the difficulties occasioned by the failure to
notify defense counsel of the trial date, while troubling, are not relevant to the fact that Ms.
Hudson could not have been called as a witness on appeal. Moreover, the Petitioner did not
assign error to the trial court’s failure to notify his counsel of the scheduled trial date.

                                               10

