                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS

State of West Virginia,
Plaintiff Below, Respondent                                                        FILED
                                                                               October 23, 2017
vs.) No. 16-1105 (Marshall County 16-F-51)                                        RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
Scott Butler,

Defendant Below, Petitioner



                              MEMORANDUM DECISION
        Petitioner Scott Butler, by counsel John R. Anderson, appeals the Circuit Court of
Marshall County’s October 26, 2016, order denying his post-trial motion for judgment of
acquittal and sentencing him following his burglary and conspiracy to commit burglary
convictions. Respondent State of West Virginia, by counsel Sarah B. Massey, filed a response.
On appeal, petitioner contends that the circuit court erred in failing to grant his motion for
judgment of acquittal because there was insufficient evidence to convict him of these crimes.

        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.

        The evidence at petitioner’s trial showed that, on April 18, 2016, petitioner, Selena
Siburt, and two other individuals went grocery shopping. On the way home from the grocery
store, Ms. Siburt indicated that she missed her son. Her son had been with his father, Zachary
Henry, and the four passed by Mr. Henry’s home on their way back from the grocery store. Ms.
Siburt decided to go to Mr. Henry’s home to see her son.

        Sharry Hinerman, Mr. Henry’s natural grandmother and adoptive mother, was outside of
the home smoking a cigarette as the car in which petitioner, Ms. Siburt, and the others were
riding drove past. Ms. Hinerman, along with Ms. Hinerman’s husband and her granddaughter,
were staying with Mr. Henry for the week. Ms. Siburt’s son and Mr. Henry were not at the home.

        Ms. Hinerman finished her cigarette around the same time that petitioner, Ms. Siburt, and
the others turned back to Mr. Henry’s home. Ms. Siburt and petitioner exited the car and headed
toward Mr. Henry’s home on foot, while the others remained in the car. Petitioner testified that
he accompanied Ms. Siburt because he was concerned about her and the potential for an
argument with Mr. Henry over their son. Ms. Hinerman entered the home and was attempting to
shut the screen door when petitioner pulled it from her hand. After petitioner had taken hold of

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the screen door, Ms. Hinerman attempted to shut the inside door, but petitioner and Ms. Siburt
pushed into it. Although Ms. Hinerman testified that she attempted to shut the door “with all that
[she] could,” petitioner and Ms. Siburt pushed open the door with such force that they knocked
Ms. Hinerman backwards and entered the home.

        Once inside the home, Ms. Siburt began looking for her son. Petitioner remained by Ms.
Hinerman and shouted to Ms. Siburt to look in various areas of the home for her son. Ms.
Hinerman told Ms. Siburt and petitioner to leave and that Ms. Siburt’s son was not in the home,
but neither Ms. Siburt nor petitioner listened. As Ms. Siburt was searching the home, petitioner
grew more “irrational” and “was hollering things and telling [Ms. Siburt] to go ahead and go
there in the house to look for [her son].” Ms. Hinerman tossed her cell phone to her
granddaughter and instructed her to call the police. Petitioner then struck Ms. Hinerman in the
back of her head, causing her to “hit the floor.” Ms. Hinerman continued to tell them to leave the
home, and Ms. Siburt told petitioner to leave also. Ms. Hinerman believed that, at this point, Ms.
Siburt “knew [petitioner] had done something wrong.” After confirming for themselves that Ms.
Siburt’s son was not at the home, petitioner and Ms. Siburt left.

        Not long after petitioner and Ms. Siburt left, the police arrived at Mr. Henry’s home. Ms.
Hinerman described the vehicle in which petitioner and Ms. Siburt arrived, and upon locating a
vehicle matching that description, petitioner and Ms. Siburt were placed under arrest. Petitioner
was indicted on three counts: burglary, conspiracy to commit burglary, and battery. At the
conclusion of petitioner’s trial, he was found guilty of the burglary and conspiracy to commit
burglary charges. Petitioner moved for judgment of acquittal. The circuit court denied this
motion and sentenced him to not less than one year nor more than fifteen years for the burglary
conviction and not less than one year nor more than five years for the conspiracy to commit
burglary conviction. The sentences were ordered to run consecutively. It is from this order that
petitioner appeals.

        On appeal, petitioner contends that the circuit court erred in failing to grant his motion for
judgment of acquittal on the burglary and conspiracy charges because, to establish his guilt, the
State was required to prove that petitioner intended to batter Ms. Hinerman before entering the
home and that Ms. Siburt reached an agreement with him to batter Ms. Hinerman before entering
the home. An individual is guilty of burglary if he or she “shall, in the daytime, break and enter,
the dwelling house . . . of another, with intent to commit a crime therein[.]” W.Va. Code § 61-3­
11(a). “In order for the State to prove a conspiracy under W.Va. Code, 61-10-31(1), it must show
that the defendant agreed with others to commit an offense against the State and that some overt
act was taken by a member of the conspiracy to effect the object of that conspiracy.” Syl. Pt. 9,
in part, State v. Bouie, 235 W.Va. 709, 776 S.E.2d 606 (2015) (internal quotations and citations
omitted). Petitioner contends that the State argued and the jury was instructed that the crime
petitioner purportedly intended to commit during the burglary was a battery and that the
conspiracy to commit burglary charge similarly was predicated on the intent to commit a battery
within the home. Petitioner argues that the evidence does not establish beyond a reasonable
doubt that petitioner intended to commit a battery within the home because, at the time he struck
Ms. Hinerman, Ms. Siburt knew that her son was not in the home. Further, after striking Ms.
Hinerman, Ms. Siburt instructed petitioner to leave the home, “appear[ing] to feel that the battery
was something that [petitioner] had done wrong[.]”

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      This Court applies a de novo standard of review to appeals from rulings on a motion for
judgment of acquittal:

        The trial court’s disposition of a motion for judgment of acquittal is subject to our
        de novo review; therefore, this Court, like the trial court, must scrutinize the
        evidence in the light most compatible with the verdict, resolve all credibility
        disputes in the verdict’s favor, and then reach a judgment about whether a rational
        jury could find guilt beyond a reasonable doubt.

State v. LaRock, 196 W.Va. 294, 304, 470 S.E.2d 613, 623 (1996). Regarding a claim that the
evidence at trial was insufficient to convict, this Court has stated that

                 [t]he 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). Further,

        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.

Id. at 663, 461 S.E.2d at 169, Syl. Pt. 3, in part.

        Viewing the evidence in the light most favorable to the State, we find that there was
sufficient evidence from which the jury could find petitioner guilty of burglary and conspiracy to
commit burglary. Petitioner only challenges the sufficiency of the evidence relative to the intent
element. The intent element is an essential element of the crime of burglary; “[i]t is well settled,
however, that such intent may be inferred by the jury from the facts and circumstances of the
case.” Syl. Pt. 3, in part, State v. Ocheltree, 170 W.Va. 68, 289 S.E.2d 742 (1982). “Intent is the
purpose formed in a person’s mind which may, and often must, be inferred from the facts and
circumstances in a particular case. The state of mind of an alleged offender may be shown by his
acts and conduct.” Id. at 72, 289 S.E.2d at 746 (internal quotations and citation omitted). Here,
petitioner accompanied Ms. Siburt into the home out of concern that things could turn

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contentious between Ms. Siburt and Mr. Henry. In entering the home, petitioner pulled the screen
door from Ms. Hinerman and began pushing on the front door with Ms. Siburt. The two pushed
so forcefully into the home that Ms. Hinerman was knocked backwards. Any rational trier of fact
could find that petitioner entered the home with the intent to do whatever was necessary to find
Ms. Siburt’s son, including harm Ms. Hinerman.

       Similarly, we find sufficient evidence to support petitioner’s conspiracy to commit
burglary conviction.

       The agreement to commit an offense is the essential element of the crime of
       conspiracy – it is the conduct prohibited by the statute. The agreement may be
       inferred from the words and actions of the conspirators, or other circumstantial
       evidence, and the State is not required to show the formalities of an agreement.

State v. Less, 170 W.Va. 259, 265, 294 S.E.2d 62, 67 (1981) (citation omitted). Here, petitioner
joined Ms. Siburt in walking to Mr. Henry’s home to retrieve Ms. Siburt’s son, when their other
companions remained in the car. He joined her out of concern that she may need protection. As
set forth above, the two opposed Ms. Hinerman’s efforts to keep them from entering the home,
pushed through Mr. Henry’s door so forcefully that Ms. Hinerman was knocked backwards, and
entered Mr. Henry’s home. As also set forth above, the evidence supported the conclusion that
they intended to retrieve Ms. Siburt’s son by any means necessary. As such, the circuit court did
not abuse its discretion in denying petitioner’s motion for judgment of acquittal.

        For the foregoing reasons, the circuit court’s October 26, 2016, order denying his post­
trial motion for judgment of acquittal and sentencing him 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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