        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                January 2014 Term
                                                                FILED
                                  _____________              April 23, 2014
                                                             released at 3:00 p.m.
                                   No. 13-0769               RORY L. PERRY II, CLERK
                                  _____________            SUPREME COURT OF APPEALS
                                                               OF WEST VIRGINIA


                           STATE OF WEST VIRGINIA,

                            Plaintiff Below, Respondent


                                         V.

                               DAVID M. COREY,

                            Defendant Below, Petitioner


  ____________________________________________________________________

                Appeal from the Circuit Court of Hampshire County

                       Honorable Thomas H. Keadle, Judge

                           Criminal Action No. 12-F-54


                               AFFIRMED

  ____________________________________________________________________

                              Submitted: April 8, 2014

                                Filed: April 23, 2014


Lauren M. Wilson	                                  Patrick Morrisey
Sites Law Firm	                                    Attorney General
Keyser, West Virginia	                             Christopher S. Dodrill
Attorney for Petitioner	                           Assistant Attorney General
                                                   Charleston, West Virginia
                                                   Attorneys for Respondent

The Opinion of the Court was delivered PER CURIAM.
                              SYLLABUS BY THE COURT


              1.      “Reviewing courts should grant magistrates deference when reviewing

warrants    for    probable   cause.       Such    warrants    should    be    judged    by   a

‘totality-of-the-circumstances’ test.” Syllabus point 5, State v. Thomas, 187 W. Va. 686, 421

S.E.2d 227 (1992).



              2.      “Under the Fourth Amendment to the United States Constitution and

Article III, Section 6 of the West Virginia Constitution, the validity of an affidavit for a

search warrant is to be judged by the totality of the information contained in it. Under this

rule, a conclusory affidavit is not acceptable nor is an affidavit based on hearsay acceptable

unless there is a substantial basis for crediting the hearsay set out in the affidavit which can

include the corroborative efforts of police officers.” Syllabus point 4, State v. Adkins, 176

W. Va. 613, 346 S.E.2d 762 (1986).



              3.      “Probable cause for the issuance of a search warrant exists if the facts

and circumstances provided to a magistrate in a written affidavit are sufficient to warrant the

belief of a prudent person of reasonable caution that a crime has been committed and that the

specific fruits, instrumentalities, or contraband from that crime presently may be found at a

specific location. It is not enough that a magistrate believes a crime has been committed.

The magistrate also must have a reasonable belief that the place or person to be searched will


                                               i
yield certain specific classes of items. There must be a nexus between the criminal activity

and the place or person searched and thing seized. The probable cause determination does

not depend solely upon individual facts; rather, it depends on the cumulative effect of the

facts in the totality of circumstances.” Syllabus point 3, State v. Lilly, 194 W. Va. 595, 461

S.E.2d 101 (1995).



              4.     “Although Rules 401 and 402 of the West Virginia Rules of Evidence

strongly encourage the admission of as much evidence as possible, Rule 403 of the West

Virginia Rules of Evidence restricts this liberal policy by requiring a balancing of interests

to determine whether logically relevant is legally relevant evidence. Specifically, Rule 403

provides that although relevant, evidence may nevertheless be excluded when the danger of

unfair prejudice, confusion, or undue delay is disproportionate to the value of the evidence.”

Syllabus point 9, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994).



              5.     “The determination of what is good cause, pursuant to W. Va. Code, 62­

2-1, for a continuance of a trial beyond the term of indictment is in the sound discretion of

the trial court, and when good cause is determined a trial court may, pursuant to W. Va.

Code, 62-3-1, grant a continuance of a trial beyond the term of indictment at the request of

either the prosecutor or defense, or upon the court’s own motion.” Syllabus point 2, State

ex rel. Shorter v. Hey, 170 W. Va. 249, 294 S.E.2d 51 (1981).


                                              ii
              6.     “Assignments of error that are not argued in the briefs on appeal may

be deemed by this Court to be waived.” Syllabus point 6, Addair v. Bryant, 168 W. Va. 306,

284 S.E.2d 374 (1981) .



              7.     “Prior to the entry of the verdict by a jury, a mistrial is procedurally

possible; however, declaring a mistrial after the jury verdict is rendered is improper.”

Syllabus, Vilar v. Fenton, 181 W. Va. 299, 382 S.E.2d 352 (1989).



              8.     “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.” Syllabus point 1, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995).




                                             iii
Per Curiam:

              This appeal by David M. Corey (“Mr. Corey”) was filed from a judgment of the

Circuit Court of Hampshire County sentencing him to life in prison without the possibility of

parole. The sentence was imposed after a jury convicted Mr. Corey of first degree murder.

In this appeal, Mr. Corey assigned error as follows: (1) invalid search warrant affidavit, (2)

erroneous admission of ammunition and knives, (3) denial of right to a speedy trial, (4) denial

of mistrial, and (5) insufficiency of the evidence. After a careful review of the briefs, record

submitted on appeal, and listening to the arguments of the parties, we affirm.



                                               I.


                        FACTUAL AND PROCEDURAL HISTORY


              The facts of this case show that Mr. Corey’s younger brother, Danny Corey

(“Danny”), was living at their mother’s home in Romney, West Virginia, when he was shot

on January 8, 2012, at around 8:00 p.m.1 Danny was in his bedroom on the second floor of

the home at the time of the shooting. The bullet that struck Danny was fired from a rifle

outside the home. The bullet traveled through a bedroom window, struck Danny in the back,

exited through his left upper arm, penetrated the bedroom door, and came to rest in a wall of

the upstairs hallway. At the time of the shooting, Danny’s ten-year-old niece, H.C.,2 and an


               1
                   Danny was about 49 years old, and Mr. Corey was around 52 years old.
               2
                   H.C. was Mr. Corey’s daughter.

                                               1

invalid aunt, Wanda McGuire, were also at home.3 H.C. heard the gunshot and ran up to

Danny’s room, where she found him lying on the floor and bleeding. H.C. telephoned her

grandmother, Dorothy Corey (“Ms. Corey”), at work and told her that Danny had been shot.4

Ms. Corey instructed H.C. to call 911. H.C. called 911, and an ambulance arrived and

transported Danny to a hospital where he was declared dead.



              While the police were at the home investigating the shooting, they decided to

perform gunshot residue tests5 on Mr. Corey and his older brother, Steve. Two days after the

shooting, Mr. Corey’s former girlfriend, Kathy Stonebraker, voluntarily went to the local

police and gave a statement that implicated Mr. Corey in the murder of his brother. Ms.

Stonebraker informed the police that she thought Mr. Corey had had some involvement in his

brother’s death because “[h]e talked about how much he hated him, and he said he hated him

enough to kill him.” Ms. Stonebraker also stated that Mr. Corey had hidden a gun in the

woods behind his mother’s home. According to Ms. Stonebraker, Mr. Corey was “raging




              3
               Other persons living in the home, but not there when the shooting occurred,
included Mr. Corey’s mother, Dorothy Corey, his older brother, Steve Corey, and Steve’s
girlfriend, Kendra. Steve and Kendra were at the home of friends watching a football game
when the shooting occurred. Mr. Corey’s mother was at work.
              4
                  Ms. Corey was an LPN who provided nursing services to patients in their
homes.
              5
              The gunshot residue test involved rubbing swabs across the face and hands of
Mr. Corey and Steve. The swabs would later be tested for the presence of gunshot deposits.

                                             2

mad” at his brother because he believed his brother would inherit their mother’s home when

she died.



              Immediately after Ms. Stonebraker gave her statement, the police obtained a

warrant to search Mr. Corey’s home.6 During the search of the exterior of Mr. Corey’s home

the police uncovered some brush and found a box of rifle cartridges in a bag and five collector

knives in a tin box.7 The police took the rifle cartridges, but placed the knives back under the

brush pile. After further investigation, including the receipt of a report that gunshot residue

was found on Mr. Corey’s right hand, the police arrested him on February 14, 2012. Mr.

Corey subsequently was indicted for murder by a grand jury on September 5, 2012.



              A four day jury trial was held in April 2013.8 During the trial, the State put on

evidence that the police were not able to determine the specific caliber of the bullet that killed

Danny–other than a .30 caliber rifle bullet. However, expert testimony was given that the

bullet which killed Danny had “similar design characteristics” as the bullets found at Mr.

Corey’s residence. Medical evidence indicated the bullet was fired from a rifle. The State

presented testimony from two witnesses, David Johnson and David Bridges, who indicated

               6
               Although Mr. Corey appears to have lived occasionally at his mother’s home,
he had been living in a rented house for about four months before Danny was killed.
               7
                   The cartridges and knives were located several feet apart.
               8
                   The trial was bifurcated into a guilt phase and a mercy phase.

                                                3

that in December 2011, Mr. Corey had attempted to sell them a rifle and scope, but that they

did not purchase the weapon from him.9 There was also evidence by a witness, Donald

McDaniel, who recounted a conversation he had in his home with Mr. Corey on the day

before Danny was killed. Mr. McDaniel testified that Mr. Corey stated that he was going to

kill his girlfriend, his girlfriend’s boyfriend, and Danny. When Mr. Corey made the

statement, he pulled out a pistol and showed it to Mr. McDaniel. There additionally was

testimony by Ms. Stonebraker that recounted the statement she gave the police implicating

Mr. Corey in the murder of Danny. The jury was informed through a State expert witness,

Koren Powers, that Mr. Corey had gunshot residue on his right hand on the day that Danny

was killed. The State called a witness, Brian Buracker, who testified that a few months before

Danny was shot, he heard Mr. Corey state on several occasions that he was going to kill

Danny. Mr. Buracker also testified to his observations of Mr. Corey at Danny’s funeral:

                        Q. How did David react at that Funeral?

                     A. It made me sick. It was like he was at a family reunion,
              not a funeral.

                        Q. Was he crying?

                        A. No.

                        Q. Show any emotion to you at all?

                        A. Just a smile on his face. That’s about all I got out of him.



               9
                   Mr. Johnson and Mr. Bridges worked at a bar that Mr. Corey patronized.

                                                 4

              Mr. Corey called six witnesses during his case-in-chief. However, he did not

testify. Mr. Corey did not have an alibi witness for his whereabouts at the time Danny was

killed. However, Mr. Corey did call two witnesses to show that he made a foodstamp

purchase from a convenience store approximately one hour after Danny was shot. One of Mr.

Corey’s witnesses, Robert White, testified as a gunshot residue expert. Mr. White informed

the jury that the gunshot residue found on Mr. Corey could have come from the hand of the

police officer who performed the swab test on Mr. Corey and that it was impossible to say that

the gunshot residue came from the weapon that killed Danny.



              The jury, having heard all the evidence, returned a verdict convicting Mr. Corey

of first degree murder. Immediately after the jury returned its guilty verdict, the trial court

instructed the jury on the law regarding the issue of whether Mr. Corey should receive mercy.

Both parties declined to call any witnesses and chose to present arguments only on the issue

of mercy. Thereafter, the jury returned to the jury room to consider whether Mr. Corey should

receive mercy. After its deliberations, the jury returned a verdict recommending that Mr.

Corey not receive mercy. The trial court subsequently sentenced Mr. Corey to life in prison

without the possibility of parole. Mr. Corey filed a post-conviction motion for judgment of

acquittal or new trial. The trial court entered an order on June 17, 2013, denying the post-

conviction motion. This appeal followed.




                                              5

                                              II.


                                STANDARD OF REVIEW


              The review standard for the circuit court’s order denying Mr. Corey’s post-

conviction motion for judgment of acquittal or new trial is as follows:

                     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.

Syl. pt. 3, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000). Additional review

standards are set out in the relevant sections.

                                              III.


                                        DISCUSSION


              On appeal to this Court, Mr. Corey argues that error existed as follows: (1)

invalid search warrant affidavit, (2) erroneous admission of ammunition and knives, (3) denial

of right to a speedy trial, (4) denial of mistrial and (5) insufficiency of the evidence. Each

assignment of error will be reviewed individually.




                                                  6

                            A. Invalid Search Warrant Affidavit

              The first issue raised by Mr. Corey is that the affidavit used to obtain search

warrants for his home and car was invalid.10 Mr. Corey contends that the search warrants

were invalid because the accompanying affidavit contained unreliable and uncorroborated

hearsay.



              In State v. Thomas, 187 W. Va. 686, 421 S.E.2d 227 (1992), we quoted

approvingly the standard of review of the sufficiency of a search warrant affidavit outlined

by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76

L. Ed. 2d. 2d 527 (1983):

                     [W]e have repeatedly said that after-the-fact scrutiny by
              the courts of the sufficiency of an affidavit should not take the
              form of de novo review. A magistrate’s determination of
              probable cause should be paid great deference by reviewing
              courts. A grudging or negative attitude by reviewing courts
              toward warrants, is inconsistent with the Fourth Amendment’s
              strong preference for searches conducted pursuant to a warrant;
              courts should not invalidate warrant[s] by interpreting affidavit[s]
              in a hypertechnical, rather than a commonsense, manner.

Thomas, 187 W. Va. at 694, 421 S.E.2d at 235 (quoting Gates, 462 U.S. at 236, 103 S. Ct. at

2331, 76 L. Ed. 2d 527 (internal quotations and citations omitted)). See State v. Lilly, 194




              10
               Although it is not clear from Mr. Corey’s brief, it appears that two search
warrants were issued, but each was supported by the same affidavit.

                                               7

W. Va. 595, 600 n.4, 461 S.E.2d 101, 106 n.4 (1995). This Court went on to hold in Syllabus

point 5 of Thomas:

                    Reviewing courts should grant magistrates deference
              when reviewing warrants for probable cause. Such warrants
              should be judged by a “totality-of-the-circumstances” test.

187 W. Va. 686, 421 S.E.2d 227. Finally, in Syllabus point 4 of State v. Adkins, 176 W. Va.

613, 346 S.E.2d 762 (1986), we held the following:

                     Under the Fourth Amendment to the United States
              Constitution and Article III, Section 6 of the West Virginia
              Constitution, the validity of an affidavit for a search warrant is to
              be judged by the totality of the information contained in it.
              Under this rule, a conclusory affidavit is not acceptable nor is an
              affidavit based on hearsay acceptable unless there is a substantial
              basis for crediting the hearsay set out in the affidavit which can
              include the corroborative efforts of police officers.

See State v. Kilmer, 190 W. Va. 617, 627, 439 S.E.2d 881, 891 (1993).



              Mr. Corey asserts that the decision in State v. Worley, 179 W. Va. 403, 369

S.E.2d 706 (1988), supports his contention that the search warrant affidavit was invalid. In

Worley, the defendant was convicted by a jury of first degree murder. One of the issues the

defendant raised on appeal was that the affidavit used to obtain a search warrant for his

mobile home was invalid. We determined that the affidavit was invalid to support the search

warrant because of the following:

              [T]he affidavit at issue is plainly inadequate. The sole item in
              support of the affidavit was a hearsay statement, by an unknown
              declarant, which tended to show that the deceased was last seen

                                               8

              in the company of the defendant. While hearsay may provide
              probable cause for the issuance of a search warrant, we require
              the existence of information in the affidavit to corroborate the
              hearsay statement or to vouch for the declarant’s veracity. . . .
              The factual basis for this affidavit revealed no information that
              would provide any basis for substantiating the general hearsay
              statements. It was a “bare bones” affidavit[.]

Worley, 179 W. Va. at 409-10, 369 S.E.2d at 712-13.11



              We find Worley to be distinguishable from the facts in the instant case. The

affidavit in Worley was characterized as “bare bones” because it merely provided a statement

that an unknown person saw the defendant with the victim. The affidavit in the instant case

was not a “bare bones” affidavit. The information contained in the present affidavit satisfied

our probable cause standard for issuance of a search warrant. We have explained the probable

cause standard as follows:

                      Probable cause for the issuance of a search warrant exists
              if the facts and circumstances provided to a magistrate in a
              written affidavit are sufficient to warrant the belief of a prudent
              person of reasonable caution that a crime has been committed
              and that the specific fruits, instrumentalities, or contraband from
              that crime presently may be found at a specific location. It is not
              enough that a magistrate believes a crime has been committed.
              The magistrate also must have a reasonable belief that the place
              or person to be searched will yield certain specific classes of
              items. There must be a nexus between the criminal activity and
              the place or person searched and thing seized. The probable
              cause determination does not depend solely upon individual


               11
                Ultimately, we found the search in Worley was valid because a resident gave
consent for the search.

                                              9

              facts; rather, it depends on the cumulative effect of the facts in
              the totality of circumstances.

Syl. pt. 3, State v. Lilly, 194 W. Va. 595, 461 S.E.2d 101 (1995).



              The affidavit in the instant case consisted of ten paragraphs.12 The affidavit

starts out by describing in detail how and where Danny was killed, including a description

showing that the trajectory of the bullet indicated it was fired from outside the home. The

affidavit then indicates that Ms. Stonebraker gave the Chief of the Romney Police Department

a statement implicating Mr. Corey in Danny’s death. The statement given by Ms. Stonebraker

revealed that she knew Mr. Corey for over a year. The affidavit indicated that, on several

occasions, Mr. Corey informed Ms. Stonebraker that he hated Danny for various reasons. The

affidavit revealed that “[w]hen asked, [Ms.] Stonebraker stated she believed [Mr. Corey]

could have shot his brother because of the strong anger toward him.” The affidavit described

Mr. Corey’s involvement with weapons as follows:

                      [Ms.] Stonebraker indicated she has seen [Mr. Corey] with
              a pistol and stated [Mr. Corey] has told her he has a scope. She


               12
                 It will be noted that we have held that it is improper to consider evidence
outside the “four corners” of the search warrant affidavit to determine if probable cause
existed to issue the warrant. See Syl. pt. 2, State v. Adkins, 176 W. Va. 613, 346 S.E.2d 762
(1986) (“Under Rule 41(c) of the West Virginia Rules of Criminal Procedure, it is improper
for a circuit court to permit testimony at a suppression hearing concerning information not
contained in the search warrant affidavit to bolster the sufficiency of the affidavit unless such
information had been contemporaneously recorded at the time the warrant was issued and
incorporated by reference into the search warrant affidavit.”). Consequently, our review is
limited to the evidence contained in the affidavit.

                                              10

               further indicated he keeps lots of ammunition in his house. She
               also added [Mr. Corey] has claimed he would be a really good
               sniper because he is good at sneaking around, and likes to look
               with binoculars. She further stated he hides a gun above his
               mother’s house in the woods and leaves one behind his mom’s
               house in the yard or in the woods.

Based upon all of the information contained in the affidavit, a search warrant was issued for

Mr. Corey’s home and vehicle. The warrant limited the search to weapons, ammunition,

scope, items involving sniping, and “any notes, logs, or pictures of the victim’s residence.”



               “Our review of the affidavit . . . shows that . . . [i]t is detailed and sets forth

ample grounds that establish probable cause.” State v. Bruffey, 231 W. Va. 502, ___, 745

S.E.2d 540, 551 (2013). Consequently, “[u]nder the totality of the circumstances, we believe

the facts contained in the affidavit provided the magistrate with a sufficient basis to

demonstrate probable cause for the issuance of the search warrant[s].” State v. Corbett, 177

W. Va. 397, 399, 352 S.E.2d 149, 151 (1986).



                         B. Admission of Ammunition and Knives

               The second issue raised by Mr. Corey is that the trial court committed error in

admitting evidence of the ammunition and knives found at his residence. Mr. Corey attacks

the admission of this evidence on the grounds that it was irrelevant, confusing, and

prejudicial.




                                               11

              We have indicated that “[a] trial court’s evidentiary rulings, as well as its

application of the Rules of Evidence, are subject to review under an abuse of discretion

standard.” Syl. pt. 4, State v. Rodoussakis, 204 W. Va. 58, 511 S.E.2d 469 (1998). See Syl.

pt. 2, State v. Peyatt, 173 W. Va. 317, 315 S.E.2d 574 (1983) (“Rulings on the admissibility

of evidence are largely within a trial court’s sound discretion and should not be disturbed

unless there has been an abuse of discretion.”). This Court has held also that, “[a]lthough

most rulings of a trial court regarding the admission of evidence are reviewed under an abuse

of discretion standard, an appellate court reviews de novo the legal analysis underlying a trial

court’s decision.” State v. Guthrie, 194 W. Va. 657, 680, 461 S.E.2d 163, 186 (1995)

(citations omitted).



              Rule 402 of the West Virginia Rules of Evidence provides, in part, that

“[e]vidence which is not relevant is not admissible.” Relevant evidence has been defined by

Rule 401 as evidence that tends to “make the existence of any fact that is of consequence to

the determination of the action more probable or less probable than it would be without the

evidence.” Pursuant to Rule 403, relevant evidence “may be excluded if its probative value

is substantially outweighed by the danger of unfair prejudice [or] confusion of the issues[.]”

We harmonized the principles of these three rules in Syllabus point 9 of State v. Derr, 192

W. Va. 165, 451 S.E.2d 731 (1994), as follows:

                    Although Rules 401 and 402 of the West Virginia Rules
              of Evidence strongly encourage the admission of as much

                                              12

               evidence as possible, Rule 403 of the West Virginia Rules of
               Evidence restricts this liberal policy by requiring a balancing of
               interests to determine whether logically relevant is legally
               relevant evidence. Specifically, Rule 403 provides that although
               relevant, evidence may nevertheless be excluded when the danger
               of unfair prejudice, confusion, or undue delay is disproportionate
               to the value of the evidence.



               As previously indicated, Mr. Corey has assigned error to the admission of

ammunition and knives found at his home. However, Mr. Corey has briefed only the issue

of the admission of the knives. No discussion or legal analysis was provided to explain why

the ammunition was improperly introduced. This issue was merely mentioned in the heading

of the assignment of error. Insofar as Mr. Corey failed to brief the issue of the introduction

of the ammunition, we deem that issue waived. See State v. Lockhart, 208 W. Va. 622, 627

n.4, 542 S.E.2d 443, 448 n.4 (2000) (“Assignments of error that are not briefed are deemed

waived.”).13



               Mr. Corey has argued that evidence related to knives was irrelevant and that the

probative value of such evidence was substantially outweighed by the danger of confusion and

unfair prejudice. Mr. Corey supports this contention by pointing out that Danny was killed

as a result of having been shot, not because he had been stabbed with a knife.



               13
                It will be noted that, during oral argument, counsel for Mr. Corey did not
argue that it was error to admit the ammunition.

                                              13

              The State contends that introduction of evidence regarding the knives was

relevant to show that Mr. Corey owned the ammunition that was found in the curtilage of his

home.14 To establish that Mr. Corey owned the ammunition, the State introduced evidence

that on January 10, 2012, the police found ammunition and a tin box containing five collector

knives buried under some brush in the curtilage of Mr. Corey’s home. The police removed

the ammunition, but not the knives. After the police arrested Mr. Corey on February 14, 2012,

they searched his vehicle. During the search of the vehicle, they found the tin box containing

the same five collector knives. The knives were left in the vehicle. Eventually, someone in

Mr. Corey’s family removed the knives from the car and took them to his mother’s home. The

police were alerted to this and obtained a search warrant for the knives. During the execution

of the search warrant, Ms. Corey turned the knives over to the police and stated that she

wanted the knives back because they belonged to Mr. Corey. In view of the evidence

regarding the knives, the State contended that Mr. Corey’s ownership of the knives that were

initially discovered in the curtilage of his home established that he also owned the ammunition

that was found at the same location.


               14
               During the State’s opening statement to the jury, the following was said
regarding the ammunition and knives:

                       You’re also going to hear that in the back seat of that
               vehicle was a tin box of collector’s knives, the same tin box that
               was found in his backyard. . . . It’s kind of hard to make an
               argument that you don’t know about the 30-06 ammunition that
               is buried in your backyard when something else that belongs to
               you is buried right beside it.

                                              14

              We believe that the jury could have concluded that merely because ammunition

was found in the curtilage of Mr. Corey’s rented home did not mean that he owned it or even

knew it was in the curtilage. Thus, we believe that the introduction of evidence concerning

the knives became relevant in order to prove to the jury that, because the ammunition and

knives were found together and the knives were conclusively proven to belong to Mr. Corey,

it could be reasonably inferred that the ammunition also was owned by Mr. Corey.15 We also

do not believe that the probative value of the evidence was substantially outweighed by the

danger of confusion or unfair prejudice. This evidence established a logical and clear

connection between the ammunition and the knives, and Mr. Corey’s ownership of both.

Although the evidence of the knives was prejudicial, such evidence was not unfairly

prejudicial. It has been observed that, “[b]y restricting [Rule 403] to evidence that will cause

unfair prejudice, the drafters meant to caution courts that mere prejudicial effect is not a

sufficient reason to refuse admission. Rule 403 is concerned only with unfair prejudice.”

Franklin D. Cleckley, Louis J. Palmer, Jr. and Robin Jean Davis, Vol. 1, Handbook on

Evidence for West Virginia Lawyers, § 403.02[3][b], at 1021 (5th ed. 2012). See State v.

Blevins, 231 W. Va. 135, 744 S.E.2d 245, 260 n.10 (2013) (“In weighing the probative value

and the danger of unfair prejudice, it is imperative to note that the purpose of Rule 403 is not

to exclude all evidence that results in prejudice to a defendant. It is the danger of unfair


               15
                 Of course, the relevancy of the ammunition was in the State’s evidence that
the bullet that killed Danny had “similar design characteristics” as the bullets found at Mr.
Corey’s residence.

                                              15

prejudice to which a reviewing court must be attuned.”). Consequently, evidence of the

knives was properly admitted for the jury’s consideration.



             C. Denial of Right to Speedy Trial under W. Va. Code § 62-3-1

              Mr. Corey argues that his trial did not occur in the same term of court in which

he was indicted as required by W. Va. Code § 62-3-1 (1981) (Repl. Vol. 2010). The State

does not dispute Mr. Corey’s assertion that he was not tried in the same term of court in which

he was indicted. However, the State argues that it established good cause to have the trial

continued to the next term of court.



              At the outset, we note that as a general rule, “[a] motion for continuance is

addressed to the sound discretion of the trial court, and its ruling will not be disturbed on

appeal unless there is a showing that there has been an abuse of discretion.” Syl. pt. 2, State

v. Bush, 163 W. Va. 168, 255 S.E.2d 539 (1979). In Syllabus point 2 of State ex rel. Shorter

v. Hey, 170 W. Va. 249, 294 S.E.2d 51 (1981), this Court explained that:

                     The determination of what is good cause, pursuant to
              W. Va. Code, 62-3-1, for a continuance of a trial beyond the term
              of indictment is in the sound discretion of the trial court, and
              when good cause is determined a trial court may, pursuant to
              W. Va. Code, 62-3-1, grant a continuance of a trial beyond the
              term of indictment at the request of either the prosecutor or
              defense, or upon the court’s own motion.




                                              16

It is provided under W. Va. Code § 62-3-1 that, “[w]hen an indictment is found in any county,

against a person for a felony or misdemeanor, the accused, if in custody, . . . unless good

cause be shown for a continuance [must], be tried at the same term.” This Court has

explained that the “one-term” rule of W. Va. Code § 62-3-1 does not embody a right of

constitutional dimension, but “provides a personal right to the defendant to be tried more

expeditiously than the Constitution requires.” State ex rel. Workman v. Fury, 168 W. Va. 218,

221, 283 S.E.2d 851, 853 (1981).16



              In the instant case, the record shows that Mr. Corey was indicted on September

5, 2012. Trial was set in the same term of court for December 13, 2012. However, on

December 3, 2012, the prosecutor moved the trial court to continue the trial because the

prosecutor was recovering from recent surgery. Mr. Corey filed a motion demanding the trial



               16
                This Court has distinguished between the one-term rule under W. Va. Code
§ 62-3-1 and the three-term rule under W. Va. Code § 62-3-21 (1959) (Repl. Vol. 2010). We
have held:

                      Whereas W. Va. Code 62-3-1, provides a defendant with
               a statutory right to a trial in the term of his indictment, it is
               W. Va. Code 62-3-21, rather than W. Va. Code 62-3-1, which
               is the legislative adoption or declaration of what ordinarily
               constitutes a speedy trial within the meaning of U.S. Const.,
               amend. VI, and W. Va. Const., art. III, § 14.

Syl. pt.1, State ex rel. Shorter v. Hey, 170 W. Va. 249, 294 S.E.2d 51 (1981). Thus, as
Shorter makes clear, “[t]he one-term rule is not a right of constitutional dimension[.]” State
ex rel. Murray v. Sanders, 208 W. Va. 258, 262, 539 S.E.2d 765, 769 (2000).

                                             17

take place in the term of court that he was indicted as allowed by W. Va. Code § 62-3-1. The

circuit court granted the motion to continue.



              In this appeal, Mr. Corey argues that the prosecutor’s recovery from surgery did

not establish cause to continue the trial. To support this contention, Mr. Corey points out that

the prosecutor attended fifteen hearings two days before the trial was to occur. Mr. Corey also

argues that the case could have been tried by the assistant prosecutor.



              “Upon reviewing the entire record below, there is nothing to indicate that the

State intentionally or oppressively sought to delay the trial nor is there a showing that the

delay caused any substantial prejudice to [Mr. Corey].” State v. McCartney, 228 W. Va. 315,

324, 719 S.E.2d 785, 794 (2011). Although the record does not disclose the nature of the

prosecutor’s surgery, there is no evidence showing that the prosecutor did not, in fact, have

surgery.17 In fact, Mr. Corey only questions the severity of the debilitating effects of the

surgery because the prosecutor subsequently attended several hearings. The State argues that

the level of stress in the preparation for a murder trial in which the State was going to call

over twenty witnesses, including several expert witnesses, was far greater than preparing for

routine hearings. We agree that greater mental and physical stress would ordinarily occur in



               17
                    During oral arguments, it was indicated that the prosecutor had gallbladder
surgery.

                                                18

preparing for and prosecuting a murder trial than in merely preparing for and attending

hearings. The greater demands imposed by conducting a murder trial could have had a

negative effect on the prosecutor’s recovery from surgery. Moreover, the State argues that

it was not prudent to allow the assistant prosecutor to try the case because his experience was

limited to prosecuting misdemeanor cases in magistrate court, and he had never tried a murder

case, nor any felony case. In view of the number of witnesses called in this case and the

nature of the diverse expert testimony, we agree with the State that the assistant prosecutor’s

lack of experience could have adversely impacted the quality of the prosecution.



              In view of the reason given by the prosecutor for seeking a continuance and the

absence of any prejudice to Mr. Corey, we find the circuit court did not abuse its discretion

in granting the continuance.



                                    D. Denial of Mistrial

              Mr. Corey contends that the trial court should have declared a mistrial because

a witness improperly testified that he was a felon. It has been established that “[t]he decision

to declare a mistrial, discharge the jury, and order a new trial in a criminal case is a matter

within the sound discretion of the trial court.” Syl. pt. 8, State v. Davis, 182 W. Va. 482, 388

S.E.2d 508 (1989). As we explained in State v. Williams, 172 W. Va. 295, 304, 305 S.E.2d

251, 260 (1983), “[a] trial court is empowered to exercise this discretion only when there is


                                              19

a ‘manifest necessity’ for discharging the jury before it has rendered its verdict.” See W. Va.

Code § 62-3-7 (1923) (Repl. Vol. 2010) (“[I]n any criminal case the court may discharge the

jury, when it appears . . . that there is manifest necessity for such discharge.”).



              The record in this case shows that the trial court ordered both parties to refrain

from submitting any evidence that Mr. Corey had a prior criminal record. The parties were

instructed to inform their respective witnesses not to mention Mr. Corey’s criminal history.

Mr. Corey called Samantha Corey18 as a witness in his case-in-chief. During the State’s cross-

examination of Samantha, she stated that Mr. Corey was a felon. The prosecutor immediately

stopped questioning Samantha and approached the trial court to explain that he did not know

Samantha would make the statement. After meeting with the parties at sidebar, the circuit

court gave the jury an instruction to disregard Samantha’s statement.19

               18
                    Samantha was the widow of Mr. Corey’s deceased older brother, Greg Corey.
               19
                    The trial testimony on this matter proceeded as follows:

                         PROSECUTOR: Do you know if [Mr. Corey] tried to get
                         on the lease at Valley View Apartments?

                         WITNESS: No, because he is a felon and you’re not allowed to be —

                         PROSECUTOR: Your Honor, may we have a quick sidebar?

                         THE COURT: You may. Mr. Ours?

                         [Counsel and Defendant at bench side.]

                                                                                  (continued...)

                                                20

             In this appeal, Mr. Corey contends that a mistrial should have been declared as

a result of Samantha informing the jury that he was a felon. The State contends that Mr.

Corey’s motion for mistrial was waived because it was brought untimely after the jury



             19
                  (...continued)
                         THE COURT: All right, go ahead.


                       PROSECUTOR: There is no way – this is not my

                       witness. I wasn’t trying to elicit that.


                       THE COURT: What’s that?


                       PROSECUTOR: I wasn’t trying to elicit that answer from

                       her. I don’t know if the Court wants to give a

                       cautionary instruction or what, but this wasn’t my

                       witness. I wasn’t trying to elicit that answer from

                       her.


                       THE COURT: What was her answer?


                       [FIRST DEFENSE COUNSEL]: She answered that he was a felon.


                       THE COURT: What?


                       [FIRST DEFENSE COUNSEL]: She answered that he was a felon.


                       THE COURT: She knew he was a felon?


                       [SECOND DEFENSE COUNSEL]: Wasn’t she his

                       witness yesterday? He should have instructed her.


                       THE COURT: I didn’t hear any objections.


                       [FIRST DEFENSE COUNSEL]: We didn’t really have

                       a chance to. As soon as she said it, Mr. James wanted a
                       sidebar, Your honor.

                                             21

returned its verdict. The State also contends that the error was harmless in view of the court’s

curative instruction to disregard the statement.



              The initial problem we have with this assignment of error is that Mr. Corey has

inadequately briefed the issue of a mistrial. The actual assignment of error, made by Mr.

Corey on this issue is as follows: “The Petitioner’s Previous Criminal Record Was Heard By

The Jury And A Mistrial Should Have Been Declared.” Under this assignment of error Mr.

Corey’s brief sets out one paragraph that merely recites the facts surrounding Samantha’s

statement. Mr. Corey has failed to cite to any legal authority or make any actual legal

argument as to why he was entitled to a mistrial. We have long held that “[a]ssignments of

error that are not argued in the briefs on appeal may be deemed by this Court to be waived.”

Syl. pt. 6, Addair v. Bryant, 168 W. Va. 306, 284 S.E.2d 374 (1981). See State v. LaRock, 196

W. Va. 294, 302, 470 S.E.2d 613, 621 (1996) (“Although we liberally construe briefs in

determining issues presented for review, issues which are . . . mentioned only in passing but

are not supported with pertinent authority, are not considered on appeal.”).20


               20
                 A similar problem was presented to this Court in State v. Grimes, 226 W. Va.
411, 701 S.E.2d 449 (2009). In Grimes, the defendant assigned error to, among other things,
the trial court’s denial of his motion for a mistrial. We determined that the issue could not
be addressed on appeal:

                      Inasmuch as those matters were set forth in the
               appellant’s brief in a cursory or tangential manner, they are not
               cognizable in this appeal. Covington v. Smith, 213 W. Va. 309,
                                                                                   (continued...)

                                              22

              Assuming for the sake of argument that this issue was not waived by failure to

brief, the second problem we have with this assignment of error is the absence of any

indication in the record that a motion for mistrial was ever made at the trial court level.21

Even so, the State appears to have interpreted the assignment of error to mean that Mr. Corey

was appealing a ruling by the trial court denying a post-verdict motion for mistrial. However,

the record clearly shows that Mr. Corey made a post-verdict motion for a new trial based upon

Samantha’s statement, not a post-verdict motion for mistrial.



              The distinction between a post-verdict motion for mistrial and a post-verdict

motion for a new trial is procedurally important. A post-verdict motion for a new trial is

allowed under Rule 33 of the West Virginia Rules of Criminal Procedure. However, a motion

for mistrial must be made before a verdict is returned because “[a] motion for mistrial, by its


              20
                (...continued)
               317 n. 8, 582 S.E.2d 756, 764 n. 8 (2003) (issues merely
               mentioned in passing are deemed waived). . . . With regard to
               the motions for a mistrial and a new trial, the brief filed by the
               State comments: “The appellant makes no argument factually or
               legally in his brief as to how the Circuit Court allegedly erred in
               denying these motions. The appellant does not brief these issues
               before this Court[.]”

Grimes, 226 W. Va. at 422 n.5, 701 S.E.2d at 460 n.5.
               21
                We will note that our cases have recognized that trial courts have discretion
to sua sponte declare a mistrial. See State v. Ward, 185 W. Va. 361, 407 S.E.2d 365 (1991)
(mistrial declared sua sponte); State v. Gibson, 181 W. Va. 747, 384 S.E.2d 358 (1989)
(same). However, neither Mr. Corey nor the State briefed the mistrial issue in this context.

                                              23

very nature, seeks to end the trial proceedings before a verdict is rendered in order to ensure

that the defendant may receive a fair trial.” State v. Sumlin, 637 S.E.2d 36, 37 (Ga. 2006).

This Court has held that, “[p]rior to the entry of the verdict by a jury, a mistrial is procedurally

possible; however, declaring a mistrial after the jury verdict is rendered is improper.” Syl.,

Vilar v. Fenton, 181 W. Va. 299, 382 S.E.2d 352 (1989). See Smith v. Andreini, 223 W. Va.

605, 678 S.E.2d 858 (2009); State v. Bradford, 199 W. Va. 338, 484 S.E.2d 221 (1997).

Thus, a defendant who “fails to make a timely motion for mistrial . . . waives the right to

assert on appeal that the court erred in not declaring a mistrial[.]” State v. Kays, 838 N.W.2d

366, 377 (Neb. Ct. App. 2013). See State v. Hudson, 680 N.W.2d 603, 610 (Neb. 2004)

(“When a party has knowledge during trial of irregularity or misconduct, the party must timely

assert his or her right to a mistrial. One may not waive an error, gamble on a favorable result,

and, upon obtaining an unfavorable result, assert the previously waived error.”); State v.

Alliet, No. 03-2157-CR, 2005 WL 477838, at*5 (Wis. Ct. App. Mar. 2, 2005) (“A defendant

waives his or her objection to improper final argument by failing to make a timely motion for

mistrial. The motion must be made before the jury returns its verdict.”);. Although “this rule

may occasionally seem harsh, it exists because both the trial judge and the appellate court find

it difficult, if not impossible, to determine whether the failure to move for a mistrial in a

timely manner was a tactical decision or an oversight.” Hagan v. Sun Bank of Mid-Florida,

666 So. 2d 580, 585 (Fla. Dist. Ct. App. 1996). Insofar as Mr. Corey did not make a pre­




                                                24

verdict motion for mistrial and could not make a post-verdict motion for mistrial, this issue

is not properly before this Court.22



                              E. Insufficiency of the Evidence

              The final issue raised by Mr. Corey is that the evidence was insufficient for the

jury to convict him of first degree murder.23 With regard to the standard of review applied to

challenges to the sufficiency of the evidence, this Court has explained as follows:

                      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


               22
                 Assuming, for the sake of argument, that it was error for Samantha to inform
the jury that Mr. Corey was a felon, we agree with the State that such error was harmless.
We have long held that any “[e]rror in the admission of improper testimony, subject to cure
by action of the court, is cured . . . , since the jury is presumed to follow the instructions of
the court.” Syl. pt. 2, in part, Rice v. Henderson, 140 W. Va. 284, 83 S.E.2d 762 (1954). The
record shows that Mr. Corey requested a curative instruction be given to the jury to disregard
Samantha’s statement. The trial court gave such an instruction. Nothing in the record
demonstrates that the jury disregarded the court’s curative instruction.
               23
                 Mr. Corey attempted to divide this issue into two assignments of error: factual
insufficiency and legal insufficiency. The so-called legal insufficiency assignment of error
consists of three sentences. To the extent that a separate legal insufficiency issue was set out
as an argument of error, Mr. Corey has not adequately briefed the issue for review by this
Court. “‘[I]t is . . . well settled, . . . that casual mention of an issue in a brief is cursory
treatment insufficient to preserve the issue on appeal.’” State v. Lilly, 194 W. Va. 595, 605
n.16, 461 S.E.2d 101, 111 n.16 (1995) (quoting Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.
1993)).

                                              25

              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). In State v. LaRock, 196

W. Va. 294, 470 S.E.2d 613 (1996), this Court emphasized the necessity to view all evidence

in the light most favorable to the prosecution and to resolve all evidentiary conflicts in favor

of the prosecution. LaRock provides as follows:

                     When a criminal defendant undertakes a sufficiency
              challenge, all the evidence, direct and circumstantial, must be
              viewed from the prosecutor’s coign of vantage, and the viewer
              must accept all reasonable inferences from it that are consistent
              with the verdict. This rule requires the trial court judge to
              resolve all evidentiary conflicts and credibility questions in the
              prosecution’s favor; moreover, as among competing inferences
              of which two or more are plausible, the judge must choose the
              inference that best fits the prosecution’s theory of guilt.

Syl. pt. 2, LaRock, id.



              A review of Mr. Corey’s brief shows that his insufficiency of the evidence

argument is nothing more than a contention that the evidence should be viewed in the light

most favorable to him. However, viewing the evidence as instructed by LaRock and Guthrie,

in the light most favorable to the State, we find the evidence was sufficient for the jury to find

beyond a reasonable doubt that Mr. Corey killed Danny.



              The State presented evidence to show that, within hours of Danny being killed,

both Mr. Corey and his brother, Steve, were tested for gunshot residue. The test results

                                               26

revealed Mr. Corey had gunshot residue on his right hand, but that no gunshot residue was

found on Steve. Mr. Corey presented expert testimony that suggested the gunshot residue

came from the police officer who administered the test. The jury did not believe Mr. Corey’s

expert. The State did not have the rifle that killed Danny, but presented evidence that Mr.

Corey possessed a rifle and a scope. Mr. Corey attempted to show that he did not possess a

rifle and that no evidence linked the purported rifle he had with the weapon used to kill

Danny. The jury rejected Mr. Corey’s efforts to show that he did not possess a rifle and chose

to infer that he had disposed of the murder weapon. The State presented evidence that bullets

found at Mr. Corey’s home had characteristics similar to that of the bullet that killed Danny.

Mr. Corey presented expert testimony that no evidence was introduced to show that the bullets

found at his home were actually the same as that which killed Danny. The jury rejected Mr.

Corey’s expert and concluded from the evidence that the bullets were the same. The State

presented evidence to show that, at the time Danny was killed, Mr. Corey’s whereabouts could

not be accounted for; therefore, he could have been at his mother’s home when Danny was

killed. Mr. Corey presented evidence to show that he was about two miles away from his

mother’s home, at a convenience store, approximately one hour after Danny was killed. The

jury rejected Mr. Corey’s crude attempt at establishing an alibi and chose to believe that he

could easily have killed Danny and reached the convenience store within an hour or so

afterwards. The State presented evidence to show that, for several reasons, Mr. Corey

expressed hatred for Danny. The jury rejected Mr. Corey’s efforts to show that he had no


                                             27

strong dislike of Danny. Finally, the State presented testimony from several witnesses that

Mr. Corey stated that he would kill Danny. Mr. Corey offered no evidence to rebut this

testimony.



              Although “the evidence is largely circumstantial, we have repeatedly held that

‘[t]he weight of circumstantial evidence, as in the case of direct evidence, is a question for

jury determination[.]’” State v. Biehl, 224 W. Va. 584, 588, 687 S.E.2d 367, 371 (2009)

(internal quotation marks and citation omitted). Finally, we have held that “[i]f, on a trial for

murder, the evidence is wholly circumstantial, but as to time, place, motive, means, and

conduct it concurs in pointing to the accused as the perpetrator of the crime, he may properly

be convicted.” State v. Merritt, 183 W. Va. 601, 606, 396 S.E.2d 871, 876 (1990) (internal

quotations and citations omitted). In sum, the evidence presented by the State was sufficient

for a jury to find Mr. Corey guilty beyond a reasonable doubt.



                                              IV.


                                       CONCLUSION


              In view of the foregoing, we affirm Mr. Corey’s conviction for murder in the

first degree and his sentence to life in prison without the possibility of parole.



                                                                                      Affirmed.


                                               28
