                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS



State of West Virginia,                                                            FILED
Plaintiff Below, Respondent                                                        June 28, 2013
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
vs) No. 12-1057 (Clay County 11-F-22)                                           OF WEST VIRGINIA


Brent Boggs,
Defendant Below, Petitioner

                                 MEMORANDUM DECISION

        Petitioner Brent Boggs’s appeal, filed by counsel Wayne King, arises from an order
entered August 2, 2012, in the Circuit Court of Clay County, in which petitioner was sentenced
to serve one year in jail. This sentence followed petitioner’s misdemeanor conviction for
destruction of property. The State, by counsel Marland Turner, filed a response in support of the
circuit court’s decision. Petitioner thereafter filed a reply.

       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.

        In May of 2012, a jury convicted petitioner of the misdemeanor charge of destruction of
property and acquitted him of felony escape. This conviction arose after the Clay County Sheriff
was notified that petitioner’s home incarceration monitoring device had been broken. Petitioner
was taken into custody shortly thereafter. Following petitioner’s misdemeanor conviction, the
circuit court sentenced him to one year in jail. From this order, petitioner appeals.

        Petitioner raises three assignments of error. First, petitioner argues that the circuit court
erred when it failed to dismiss the first count of his indictment, felony escape. Petitioner argues
that because he was on home confinement as a condition of bond, he did not have a custodial
relationship with the Clay County Sheriff, as required by West Virginia Code § 61-5-10. As
indicated above, the jury acquitted petitioner of the felony escape charge. The issue is, therefore,
moot and need not be addressed herein. See State v. Clements, 175 W.Va. 463, 334 S.E.2d 600
(1985). We find no error in this regard.

       Second, petitioner argues that the circuit court erred when it failed to remand his
misdemeanor charge of destruction of property to magistrate court. Petitioner asserts that the
magistrate court retained original jurisdiction over this misdemeanor offense. We disagree. Our
review of the record indicates that after the charge was dismissed in magistrate court without
proceeding to trial, the State filed an indictment in circuit court that included this offense.


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Petitioner was thereafter indicted by the grand jury and the matter moved forward in circuit court
by jury trial. Therefore, the circuit court clearly had jurisdiction in this matter.

        Third, petitioner argues that the circuit court erred when it defined “prima facie” to the
jury when exhibits presented by the State mentioned the term “prima facie.” In particular,
petitioner points to State’s Exhibit 5, which is a copy of the Clay County Sheriff’s Department
Rules of Home Confinement Program. The fifth condition listed on this document uses the term
“prima facie” in describing activities that may constitute “prima facie evidence” that petitioner
has violated home confinement. Such activities described include the loss of a receiving signal or
failure by petitioner to return home before the proper time. Petitioner argues that providing this
definition could have led the jurors to believe that they did not have to find guilt beyond a
reasonable doubt. Our review of the record provides that the circuit court used Black’s Law
Dictionary to define “prima facie” to the jury, upon its request. A copy of the submitted jury
instructions further provides that the circuit court instructed the jury of the State’s burden to
prove its case beyond a reasonable doubt. There is no evidence that indicates that the jury gave
unreasonable weight to the term “prima facie” with regard to the charge for which petitioner was
ultimately acquitted. Accordingly, we find no reversible error.

       For the foregoing reasons, we affirm.


                                                                                       Affirmed.

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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