                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



Robert C. Copson, Jr.,
                                                                                    FILED
                                                                                  March 29, 2013
Plaintiff Below, Petitioner                                                   RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA
vs) No. 11-1238 (Kanawha County 08-C-1440)

West Virginia State Police and
Ret. Col. D.L. Lemmon, former Superintendent
of the West Virginia State Police,
Defendants Below, Respondents


                              MEMORANDUM DECISION
         Petitioner Robert C. Copson, Jr., by counsel, Richard A. Monahan, appeals the verdict in
the trial in this matter and the Circuit Court of Kanawha County’s denial of his motion for new
trial on July 28, 2011. The West Virginia State Police and Retired Colonel D.L. Lemmon, by
counsel, Gary E. Pullin and Wendy E. Greve, have filed their response. Petitioner seeks reversal
of the circuit court’s denial of his motion for a new trial and remand for such new 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 is appropriate under Rule 21 of the Revised Rules of Appellate
Procedure.

        Petitioner worked as a State Trooper for twelve years, including as an undercover officer.
During his employment, the West Virginia State Police received a tip that petitioner was using
and cultivating marijuana. The State Police initiated an internal investigation regarding these
allegations. On October 11, 2007, petitioner appeared at the State Police detachment as
instructed for the collection of a hair sample. However, he left the detachment and returned with
his State Police equipment, placed it in the hallway, and respondents contend that petitioner
orally resigned to his first line supervisor. He then wrote his resignation letter which was sent via
facsimile to Colonel Lemmon. Colonel Lemmon accepted petitioner’s resignation, and petitioner
was notified of such acceptance. Petitioner claims he did not formally submit the resignation
letter and that he did not resign. He also claims he was not given an exit interview as required
under the Standard Operating Procedure of the West Virginia State Police. He, therefore, claims
he was discharged from employment on October 11, 2007. Petitioner did submit a hair sample to
a certified lab on October 15, 2007, and the results were negative for any drugs, including
marijuana. The results of that drug test were sent to Colonel Lemmon. Petitioner claims that
respondents refused to permit him to file a grievance contesting his discharge due to the alleged
resignation.
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        Petitioner filed a complaint and petition for writ of mandamus on July 25, 2008, seeking
an order from the circuit court requiring the West Virginia State Police to permit him to file a
grievance contesting his discharge. The relief requested includes reinstatement as a trooper, back
pay, attorney’s fees and costs, a jury trial, and general relief. A trial was held between February
14, 2011, and February 23, 2011. At the conclusion of the trial, the jury found for respondents on
all issues. On May 20, 2011, petitioner filed a motion for new trial. Following oral argument on
that motion, the circuit court entered its July 28, 2011, order denying that motion.

        On appeal, petitioner raises seven assignments of error, including alleged errors related to
jury selection, the verdict form, rulings on objections during trial, and the exclusion of certain
evidence.

       Petitioner first argues that the verdict is against the clear weight of the evidence.
Respondents contend that the evidence proved and the jury determined that petitioner resigned
and that respondents accepted that resignation. In addressing this issue, this Court has previously
found:

       “In determining whether there is sufficient evidence to support a jury verdict the
       court should: (1) consider the evidence most favorable to the prevailing party; (2)
       assume that all conflicts in the evidence were resolved by the jury in favor of the
       prevailing party; (3) assume as proved all facts which the prevailing party’s
       evidence tends to prove; and (4) give to the prevailing party the benefit of all
       favorable inferences which reasonably may be drawn from the facts proved.”
       Syllabus Point 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983).

Syl. Pt. 3, Fredeking v. Tyler, 224 W.Va. 1, 680 S.E.2d 16 (2009).

       [W]e are cognizant that in determining whether a valid claim has been
       established, the assessment of evidence and testimony is, of course, within the
       province of the trier of fact, and that we, as an appellate court, owe great
       deference to the verdict. Furthermore, we recognize that evidence is sufficient if a
       rational trier of fact could have found the essential elements of the claim by a
       preponderance of the evidence based on the evidence presented at trial.

Hutchison v. City of Huntington,198 W. Va. 139, 157, 479 S.E.2d 649, 667 (1996). This Court
finds that under these standards, the verdict rendered by the jury is not against the clear weight of
the evidence presented during the trial of this matter.

       Petitioner also asserts that one of the potential jurors should have been stricken for cause
and that the circuit court erred by refusing to strike that juror. Petitioner’s motion to strike was
based on a potential juror’s employment which required some interaction with one of the officers
who testified as a witness for respondents. Petitioner used one of his peremptory challenges to
remove that potential juror from the jury panel. Respondents argue that the circuit court properly
exercised its discretion in denying the request to strike. This Court recently found:



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       A prospective juror’s eligibility to serve is not ordinarily to be determined by an
       isolated remark or answer to a single question. Rather, when confronted with a
       challenge for cause, the trial court should base its decision on the entire voir dire
       examination and the totality of the circumstances. The trial court is in the best
       position to evaluate a prospective juror’s qualifications, and the trial court’s
       decision on this issue will be affirmed absent an abuse of discretion.

Syl. Pt. 8, Messer v. Hampden Coal Co., LLC, 229 W.Va. 97, 727 S.E.2d 443 (2012). Therefore,
under the facts of this case and the totality of the circumstances, this Court finds that the trial
court did not abuse its discretion in denying petitioner’s request to strike.

        Petitioner next argues that the court committed reversible error in adopting the
respondents’ verdict form and refusing petitioner’s verdict form and/or proposed changes to
respondents’ verdict form. Petitioner contends that his verdict form permitted the jury to
expressly consider and address each of the theories and issues of liability advanced by him and
that it would aid the parties in understanding the exact findings of the jury for appeal purposes.
Petitioner also contends that respondents’ proposed verdict form did not include interrogatories
expressly addressing each of the petitioner’s claims and theories; therefore, it was incomplete
and inconsistent with the instructions to be given by the court and could have led to jury
confusion. Respondents state that the verdict form conformed to the facts and evidence
developed at trial and that for alternative theories to be submitted to the jury, evidence must be
submitted to support each theory. “Generally, this Court will apply an abuse of discretion
standard when reviewing a trial court’s decision regarding a verdict form.” Syl. Pt. 4, Perrine v.
E.I. du Pont de Nemours and Co., 225 W.Va. 482, 694 S.E.2d 815 (2010); see also, Adkins v.
Foster, 195 W.Va. 566, 466 S.E.2d 417 (1995) (applying an abuse of discretion standard in
reviewing a verdict form and related instructions). Under the circumstances of this case and
based upon a review of the verdict form, we cannot conclude the circuit court abused its
discretion in submitting this verdict form to the jury.

        Petitioner also asserts that the court committed reversible error in sustaining respondents’
objections to petitioner’s counsel’s attempt in his closing argument to explain and reconcile the
verdict form with the court’s instructions of law and the petitioner’s theories of liability. The
next argument asserted by petitioner is that the court committed reversible error in refusing to
permit petitioner to offer any evidence, argument or instructions concerning damages and in
construing petitioner’s pleadings as a petition for a writ of mandamus. Petitioner further contends
that the court committed reversible error in sustaining leading-question objections made by
respondents when petitioner was examining adverse or hostile witnesses in petitioner’s case-in­
chief. The Respondents argue that the lower court properly ruled on each of these matters.

       “‘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.’ Syllabus point 4, State v.
Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).” Syl. Pt. 11, State v. White, 228 W.Va. 530,
722 S.E.2d 566 (2011). In addition, this Court has found:

       “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

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       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).

Syl. Pt. 1, State v. Kennedy, 229 W.Va. 756, 735 S.E.2d 905 (2012). Under these standards and
the facts of the instant case, it is evident that the lower court did not abuse its discretion in its
rulings relative to these assignments of error.

        Petitioner’s final assignment of error is his contention that the court committed reversible
error in sustaining respondents’ objections to one of petitioner’s proposed jury instructions and
overruling petitioner’s objections to two of respondents’ proposed instructions. Each of the
proposed instructions relate to the laws pertaining to resignations. Petitioner argues that his
proposed instructions are a correct statement of law while respondents’ instructions were not.
Respondents argue the opposite. “As a general rule, the refusal to give a requested jury
instruction is reviewed for an abuse of discretion. By contrast, the question of whether a jury was
properly instructed is a question of law, and the review is de novo.” Syl. Pt. 1, State v. Hinkle,
200 W.Va. 280, 489 S.E.2d 257 (1996). “‘Instructions must be based upon the evidence and an
instruction which is not supported by evidence should not be given.’ Syl. pt. 4, State v. Collins,
154 W.Va. 771, 180 S.E.2d 54 (1971).” Syl. Pt. 3, State v. Leonard, 217 W.Va. 603, 619 S.E.2d
116 (2005).

       6. The formulation of jury instructions is within the broad discretion of a circuit
       court, and a circuit court’s giving of an instruction is reviewed under an abuse of
       discretion standard. A verdict should not be disturbed based on the formulation of
       the language of the jury instructions so long as the instructions given as a whole
       are accurate and fair to both parties.

       7. “‘“‘Instructions must be read as a whole, and if, when so read, it is apparent
       they could not have misled the jury, the verdict will not be disturbed, through [sic]
       one of said instructions which is not a binding instruction may have been
       susceptible of a doubtful construction while standing alone.’ Syl. Pt. 3, Lambert v.
       Great Atlantic & Pacific Tea Company, 155 W.Va. 397, 184 S.E.2d 118 (1971).”
       Syllabus Point 2, Roberts v. Stevens Clinic Hospital, Inc., 176 W.Va. 492, 345
       S.E.2d 791 (1986).’ Syllabus Point 3, Lenox v. McCauley, 188 W.Va. 203, 423
       S.E.2d 606 (1992).” Syllabus Point 6, Michael v. Sabado, 192 W.Va. 585, 453
       S.E.2d 419 (1994).

Syl. Pts. 6 & 7, Tennant v. Marion Health Care Foundation, Inc., 194 W. Va. 97, 459 S.E.2d 374
(1995). Under the facts of this case, this Court finds that the circuit court did not abuse its
discretion in selecting which jury instructions posed by the petitioner and respondents were
proper.

       For the foregoing reasons, we affirm.



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                                       Affirmed.

ISSUED: March 29, 2013

CONCURRED IN BY:

Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

NOT PARTICIPATING:

Chief Justice Brent D. Benjamin




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