                             STATE OF WEST VIRGINIA 

                           SUPREME COURT OF APPEALS


State of West Virginia,                                                           FILED
Plaintiff Below, Respondent
                                                                              October 12, 2018
                                                                               EDYTHE NASH GAISER, CLERK
vs.) No. 17-0610 (Wood County 16-F-100)                                        SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA 

Phillip Harvey Wise,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner Phillip Harvey Wise, by counsel George J. Cosenza, appeals the Circuit Court
of Wood County’s June 26, 2017, order denying his motion for a new trial following the
imposition of a recidivist life sentence upon his conviction of being a prohibited person in
possession of a firearm and misdemeanor assault. The State of West Virginia, by counsel Robert
L. Hogan, filed a response in support of the circuit court’s order. On appeal, petitioner argues
that the circuit court erred in denying his motion for a new trial because the State’s primary
witness “was a completely unreliable witness” and presented false testimony at his trial.

        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.

        In February of 2016, petitioner picked up his ex-wife (“the victim”) and took her to his
home so they could discuss their relationship. According to the victim, petitioner “[b]asically . . .
wanted [her] to admit that [she] had been cheating on him.” Once they arrived at the home,
petitioner began questioning the victim regarding her alleged infidelity, which she denied.
According to the victim, this conversation lasted approximately fifteen minutes and “was a good
talk” highlighted by petitioner’s calm demeanor. During this conversation, the victim testified
that petitioner produced the drug Adderall, and that she snorted some because petitioner made
her.

        Eventually, petitioner instructed the victim to go to the basement, where he told her to put
on a harness and lie down with her hands tied behind her back on a seat that had been removed
from a van. According to the victim, petitioner did not physically force her to do this, but his
request made her nervous and she felt like things “would have been worse” if she had not
complied. At this point, the victim indicated that the “seat [got] flipped somehow” which
resulted in her “hanging off it[.]” The victim testified that petitioner waterboarded her by putting
a rag over her face and pouring water over it. Petitioner then resumed questioning the victim

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about alleged infidelities and any other lies he believed she may have told him during their
relationship. When the victim maintained that she had not cheated on petitioner, he resumed
waterboarding her several more times. Eventually, in order to make petitioner stop, the victim
told petitioner that she had cheated on him. Upon this admission, petitioner ceased his actions
and took the victim back upstairs.

        Once upstairs, although calm, petitioner again questioned the victim about incidents that
occurred during their marriage. At some point during this conversation, petitioner and the victim
engaged in sexual intercourse. According to the victim, she used the sexual encounter “to . . .
make [petitioner] calm down” and as a means of protecting herself and gain control of the
situation. Afterward, the victim indicated that petitioner needed cigarettes and that if he did not
have them “it would agitate him.” So, according to her testimony, the victim left in petitioner’s
van to obtain more cigarettes, although she indicated that if she had not returned in five minutes
she “would have gotten in trouble” with petitioner. The victim further testified that she did not
alert anyone at the gas station where she purchased the cigarettes that anything was wrong
because she was afraid of petitioner and that if she caused him to get into trouble she “would
suffer for it.”

        Upon returning to the home, petitioner eventually forced the victim to shave her head.
When she began to comply, the two became involved in an altercation that resulted in petitioner
shooting the victim with a crossbow. In total, the victim testified that petitioner shot her with the
crossbow seven times on the night in question. According to the victim, petitioner also shot her
in the foot with a .22 caliber rifle. At various points, petitioner also forced the victim into a trunk
and locked her therein. In fact, petitioner left the victim in the trunk overnight. The following
day, petitioner let the victim out of the trunk when she began screaming upon waking.
Thereafter, petitioner fell asleep on the couch, still brandishing the rifle. While petitioner slept,
the victim snuck out of the home and fled on foot. When she eventually encountered an
employee of a nearby business, the victim indicated that her stepson accidentally shot her. Once
an ambulance and police arrived, however, the victim eventually recounted the true series of
events. Law enforcement then responded to petitioner’s home and apprehended him attempting
to flee on foot. The victim was transported to a hospital to receive treatment. While at the
hospital, the victim tested positive for the substances amphetamine and THC.

       In March of 2016, as it relates to the instant appeal, petitioner was indicted on one count
of malicious assault, one count of unlawful restraint, and one count of being a prohibited person
in possession of a firearm.1

         In February and March of 2017, petitioner’s three-day jury trial was held. During the
trial, the victim testified to the above-described events. The State also presented testimony from
the arresting officer, Mike Brown of the Parkesburg Police Department. Additional testimony
came from an officer who secured petitioner’s home after the arrest and found no one else in the
home at the time; an evidence technician who observed a large amount of blood, .22 caliber
ammunition, a spent .22 caliber shell casing, and a partially disassembled .22 caliber rifle,

                                                            
              1
       The indictment also charged petitioner with two counts of first-degree sexual abuse and
one count of sexual abuse by a custodian that are not related to the current appeal.
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including a missing stock and trigger mechanism, in petitioner’s home; and a forensic analyst,
who testified to the presence of gunshot residue on petitioner’s right hand.

        In his defense, petitioner attacked the victim’s credibility by addressing her multiple
versions of events given to witnesses and the police and a prior incident in which she filed a
police report against petitioner, but later recanted. Petitioner also focused on testimony from a
medical doctor, who indicated that the victim’s wounds appeared to be caused by a blunt
instrument, due to the shallow nature of the puncture wounds, and could have been caused by
something other than a bolt or arrow. At the conclusion of the trial, the jury found petitioner
guilty of misdemeanor assault, a lesser-included offense of malicious assault, and being a
prohibited person in possession of a firearm. The jury acquitted petitioner of the count of
unlawful restraint. Petitioner thereafter filed a motion for a new trial.

          In March of 2017, the State filed a recidivist information against petitioner, to which he
later pled guilty after reserving the right to appeal the underlying convictions addressed herein.
In May of 2017, the circuit court held a sentencing hearing. After finding that petitioner was
previously convicted of two felonies, the circuit court sentenced petitioner to a term of life in
prison for his conviction of being a prohibited person in possession of a firearm. The circuit
court also sentenced petitioner to one year in the regional jail for his conviction of misdemeanor
assault. In June of 2017, the circuit court entered an order denying petitioner’s motion for a new
trial. It is from the order denying his motion for a new trial that petitioner appeals.

       This Court has previously established the following standard of review:

               “In reviewing challenges to findings and rulings made by a circuit court,
       we apply a two-pronged deferential standard of review. We review the rulings of
       the circuit court concerning a new trial and its conclusion as to the existence of
       reversible error under an abuse of discretion standard, and we review the circuit
       court’s underlying factual findings under a clearly erroneous standard. Questions
       of law are subject to a de novo review.” Syllabus point 3, State v. Vance, 207
       W.Va. 640, 535 S.E.2d 484 (2000).

Syl. Pt. 2, State v. White, 228 W.Va. 530, 722 S.E.2d 566 (2011). Upon our review, the court
finds no error in the circuit court’s denial of petitioner’s motion for a new trial.

         On appeal, petitioner argues that he “is serving a life sentence as the result of the
fabrications and manipulation of” the victim. He further urges this Court “to make it clear that
serial liars have no place in our legal system.” Citing Franklin v. McBride, 226 W.Va. 375, 701
S.E.2d 97 (2009), petitioner argues that the presentation of false testimony that has a material
effect on a trial entitles a defendant to a new trial. We note, however, that petitioner ignores the
specific holding in that case.

               In order to obtain a new trial on a claim that the prosecutor presented false
       testimony at trial, a defendant must demonstrate that (1) the prosecutor presented
       false testimony, (2) the prosecutor knew or should have known the testimony was
       false, and (3) the false testimony had a material effect on the jury verdict.

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Id. at 376, 701 S.E.2d at 98, Syl. Pt. 2. On appeal, petitioner fails to specifically identify any
evidence that he believes was materially false, let alone present any evidence that shows such
materially false evidence was presented.2 Instead, petitioner appears to challenge the credibility
of the victim.

        Specifically, petitioner argues that the victim previously recanted allegations against him
in another matter; initially told a witness and law enforcement a different version of events,
including that her stepson accidentally shot her; and falsely testified at the preliminary hearing
that she had not used any controlled substances at the time of the incident.3 This Court has held
that a basis for questioning a witness’s credibility is insufficient to establish that the testimony is
false. See id. at 381, 701 S.E.2d at 103 (holding that “an assertion [that the State’s witnesses had
motives to lie] is legally insufficient to sustain a claim that the State presented false testimony”);
State v. Brown, 210 W.Va. 14, 27, 552 S.E.2d 390, 403 (2001) (holding that defendant failed to
establish that the State’s evidence was actually false and, instead, simply demonstrated that
“State’s witnesses were disreputable persons who had reasons to lie”). Not only is this evidence
insufficient to establish that the testimony petitioner complains of was materially false, the jury
was presented with these attacks on the victim’s credibility and still convicted petitioner. As this
Court has routinely held, credibility determinations are not appropriate for appellate review. See
Syl. Pt. 2, State v. Martin, 224 W.Va. 577, 687 S.E.2d 360 (2009) (“The jury is the trier of the
facts and in performing that duty it is the sole judge as to the weight of the evidence and the
credibility of the witnesses.” (internal quotations and citation omitted)); State v. Guthrie, 194
W.Va. 657, 669, 461 S.E.2d 163, 175 (1995) (It is well established that “appellate review is not a
device for this Court to replace a jury’s finding with our own conclusion. On review, we will not
weigh evidence or determine credibility”); id. at 669 n.9, 461 S.E.2d at 175 n.9 (“An appellate
court may not decide the credibility of witnesses or weigh evidence as that is the exclusive
function and task of the trier of fact . . . . It is for the jury to decide which witnesses to believe or
disbelieve. Once the jury has spoken, this Court may not review the credibility of the
witnesses.”). Accordingly, we find the circuit court did not err in denying petitioner’s motion for
a new trial.


                                                            
              2
         Petitioner alleges that at the preliminary hearing in this matter, the victim testified that
she had not used any controlled substances at or around the time of the incident in question.
However, the record shows that a drug screen conducted while the victim was being treated for
her injuries was positive for amphetamine and THC. At petitioner’s trial, the victim testified that
petitioner forced her to snort Adderall, an amphetamine, during the incident in question and that
she smoked THC in the days just prior to the event. While the testimony from the preliminary
hearing contradicts the victim’s testimony at trial and the evidence of her drug screen, this fact
does not establish that any materially false testimony was presented at trial.
              3
         In support of this argument, petitioner also relies on State v. Beck, 167 W.Va. 830, 286
S.E.2d 234 (1981), to argue that “[i]n cases involving sexual offenders, a conviction may be
overturned if the testimony of the victim is inherently incredible.” Not only does petitioner fail to
identify what testimony is “inherently incredible,” but he also ignores the fact that he was not
convicted of a sexual offense. Accordingly, this case is not applicable to the instant appeal.
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       For the foregoing reasons, we affirm.

                                                                         Affirmed.

ISSUED: October 12, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Paul T. Farrell sitting by temporary assignment
Justice Tim Armstead
Justice Evan H. Jenkins

Justice Allen H. Loughry II suspended and therefore not participating.
 




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