                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia,                                                           FILED
Plaintiff Below, Respondent                                                    April 10, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 14-0658 (Fayette County 14-F-68)
                                                                               OF WEST VIRGINIA


Paul E. Horne,

Defendant Below, Petitioner



                              MEMORANDUM DECISION
        Petitioner Paul E. Horne, by counsel Christopher S. Moorehead, appeals the order of the
Circuit Court of Fayette County denying his motion for judgment notwithstanding the verdict or
for a new trial entered on June 12, 2014. Respondent State of West Virginia, by counsel Roger L.
Lambert, filed a response. Following a jury trial, petitioner was convicted of conspiracy to
commit a felony, burglary, and petit larceny.

        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.

        Petitioner was indicted in January of 2014, for the felony offenses of conspiracy to
commit a felony and burglary, and for petit larceny, a misdemeanor. The West Virginia State
Police Report of Criminal Investigation, upon which the indictment was based, states that on
May 28, 2013, petitioner, Carl Walker, Jr., and Tex Koch conspired to burglarize the residence
of an individual who was incarcerated; that Walker forcibly entered the residence while
petitioner and Koch waited in a nearby vehicle; that after Walker returned to the vehicle with
several firearms taken from the residence, petitioner advised Walker that the firearms were not
worth much money and to return to the residence to obtain more firearms; that Walker then went
back into the residence and returned to the vehicle with additional firearms; that Walker then
took the firearms to his residence and at some point reconnected with petitioner and Koch. Law
enforcement retrieved five firearms from petitioner, Walker, and Koch. Walker was the first to
be arrested and gave the police a recorded statement describing the crimes. Thereafter, petitioner
and Koch gave recorded statements as well. Petitioner denied knowing that Walker was stealing
guns from the residence, but indicated that he would help sell them. In addition, the police
secured a statement from a neighbor of the burglarized residence who saw Walker leave the
residence with firearms and place them into the vehicle driven by petitioner.



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        The case proceeded to a jury trial on April 29, 2014. Petitioner was found guilty of the
three charges in the indictment – conspiracy to commit a felony, burglary, and petit larceny – and
was sentenced to consecutive terms of one to five years in prison and one to fifteen years in
prison, with a six-month prison sentence for petit larceny to run concurrently with the sentences
for the two felonies. Petitioner filed a motion for judgment notwithstanding the verdict or for a
new trial, which the circuit court denied by order entered June 12, 2014. Petitioner now appeals
to this Court.

       On appeal, petitioner raises three assignments of error. First, he argues that the circuit
court interfered with the trial and unfairly assisted the prosecution. In support, petitioner
references three instances during his trial where he alleges that the court improperly questioned
witnesses and interjected improper comments in the presence of the jury that exceeded the
bounds of impartiality. In Syllabus Points 1 and 2 of State v. Farmer, 200 W.Va. 507, 490 S.E.2d
326 (1997), we held as follows:

       1.     A trial court must exercise its sound discretion when questioning a witness
       pursuant to Rule 614(b) of the West Virginia Rules of Evidence. This Court will
       review a trial court's questioning of a witness under the abuse of discretion
       standard. To the extent the issue involves an interpretation of the Rule 614(b) as a
       matter of law, however, our review is plenary and de novo.

       2.       “A trial judge in a criminal case has a right to control the orderly process
       of a trial and may intervene into the trial process for such purpose, so long as such
       intervention does not operate to prejudice the defendant's case. With regard to
       evidence bearing on any material issue, including the credibility of witnesses, the
       trial judge should not intimate any opinion, as these matters are within the
       exclusive province of the jury.” Syl. Pt. 4, State v. Burton, 163 W.Va. 40, 254
       S.E.2d 129 (1979).

        The first instance of improper judicial interference that petitioner references occurred
during the State’s questioning of Walker, who was required by his plea agreement to testify
against petitioner. He was the first witness called by the State. After the first few questions from
the assistant prosecutor, it became apparent that Walker was reluctant to testify and provided
only vague answers. The circuit court stated the following:

               THE COURT: Well, Mr. Walker, you know, you know why you’re here.

               WITNESS: Yes, sir.

               THE COURT: You’ve given a statement.

               WITNESS: Yes.

              THE COURT: Now, this lawyer shouldn’t have to drag things out of you.
       If you know something about this case, spit it out. If you don’t then that’s fine



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       too. But, now, listen to the question and try to respond to it as best you can. All
       right, go ahead and ask him the question.

Petitioner argues that the circuit court essentially scolded Walker to testify consistent with his
statement, which Walker then did by indicating that he took five guns from the residence and
placed four into petitioner’s vehicle.

        Petitioner argues that the second instance of improper interference occurred when the
court assisted the State again during Walker’s testimony by having Walker identify petitioner as
the person who told him to return to the residence to get bigger barreled guns. Petitioner states
that the court took over the questioning and made sure that Walker identified petitioner by the
type of shirt he was wearing at the trial.

         The final instance of alleged improper assistance to the State by the court centered on an
alleged threat that petitioner made to Walker during their transport from the Southern Regional
Jail to the courthouse for the trial. Once the assistant prosecutor became aware of the threat, he
requested a conference with the court outside of the presence of the jury. He then advised the
court that on the ride to court in the same van, petitioner impliedly threatened harm to Walker
should Walker testify against him.1 The assistant prosecutor requested that the two men be
transported back to the jail in separate vans and that Walker be placed in protective custody. In
addition, over petitioner’s objection, the court allowed the State to recall Walker, who had been
excused as a witness, to testify to petitioner’s threats.2 Petitioner contends that these three
instances demonstrate that the court lost its impartiality during the trial and that a new trial is
warranted.

        Upon our review of the record, we do not find the three instances cited by petitioner
demonstrate that the circuit court lost its impartiality. With respect to telling Walker to “spit it
out,” the court did not instruct Walker how to testify; it merely was admonishing the witness to
get to the point, which the court has the inherent power to do when dilatory conduct causes a lag
in the proceedings. With respect to assisting the State in having Walker identify petitioner, the
record shows that the State had already elicited testimony that petitioner was in the courtroom
wearing a blue shirt. The court’s interjection merely supplemented this questioning by having
Walker testify that it was a blue plaid shirt.

        In Syllabus Point 3 of State v. Thompson, 220 W.Va. 398, 647 S.E.2d 834 (2007), we
held that

              [w]here a defendant on appeal in a criminal case asserts that a trial court's
       questioning of witnesses and comments prejudiced the defendant's right to present
       evidence and jeopardized the impartiality of the jury, this Court upon review will

       1
       Walker testified that petitioner said he better not testify against him or “it wouldn’t be
good when he got home.”
       2
         By the court’s direction, this testimony did not reveal that the two men were being
transported from jail at the time of the threat.
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       evaluate the entire record to determine whether the conduct of the trial has been
       such that jurors have been impressed with the trial judge's partiality to one side to
       the point that the judge's partiality became a factor in the determination of the jury
       so that the defendant did not receive a fair trial.

        In Thompson, the State propounded seventy-eight questions over four witnesses, many of
which related to the witnesses’ credibility. In the present case, the circuit court interjected only a
few non-substantive questions to a single witness. We note that petitioner primarily focuses his
argument not on the number of questions the court asked, but on the court’s permitting the State
to recall Walker to testify that petitioner threatened him should he testify. In this respect, we find
no abuse of discretion. The transcript of Walker’s initial testimony reveals that he was vague and
non-responsive, so much so that the court had to instruct him to “spit it out.” When the court
later learned that Walker’s reluctance may have been due to petitioner’s threat, it was not an
abuse of discretion for the court to allow the jury to hear Walker testify about that threat.
Importantly, the court was careful to keep the jury from hearing that the threat occurred on the
way from the jail. The court began the questioning by asking Walker one question -- “did you
arrive at court this morning with the defendant?” -- then turned the examination over to the
assistant prosecutor to elicit the exact nature of the threat. Petitioner’s counsel then cross-
examined Walker. We see no error in allowing the State to recall Walker for this purpose.

        Petitioner’s second assignment of error is that the circuit court erred by permitting the
State to argue that petitioner was an accessory before the fact/principal in the second degree,
while the indictment alleged principal in the first degree. Petitioner alleges that he was denied
notice of the State’s theory. Petitioner relies on State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20
(1999), to argue that an indictment must allege all of the elements of the offense charged,
including accomplice liability. Petitioner argues that Silver modified our prior holdings in State
v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980) and State v. Fortner, 182 W.Va. 345, 387
S.E.2d 812 (1989), that an indictment need not charge accomplice liability.

       This Court rejected petitioner’s argument in State v. Legg, 218 W.Va. 519, 525, 625
S.E.2d 281, 287 (2005), where we stated that

       [b]ecause Petry and its progeny should put all defendants in West Virginia on
       constructive notice that an aiding and abetting instruction may be requested, even
       in the absence of an indictment thereon, we do not believe that the policies behind
       State v. Wallace are disregarded by upholding the rule established in Petry.

        Petitioner focuses solely on the indictment; he fails to recognize that he was put on notice
of the State’s accomplice liability theory in discovery. The police report and Walker’s statement
made it clear that Walker was the one who was alleged to have broken into the house and to have
brought the guns to petitioner waiting in the car. Additionally, during jury selection, the assistant
prosecutor told the jury panel that the State’s theory would be accessory before the fact,
described the theory, and asked if anyone on the panel could not judge the case with that theory
in mind. Therefore, petitioner was on actual notice of the State’s theory.




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        Notice notwithstanding, petitioner cannot show prejudice. At trial, petitioner argued that
he lacked the criminal intent necessary for the convictions; his defense was that, while he
accepted the firearms from Walker, he did not know that Walker burglarized the home or that the
guns were stolen. This defense would be the same regardless of which theory the State pursued.
Accordingly, the circuit court did not error in permitting the State to present an accessory before
the fact/principal in the second degree theory against petitioner.

       Petitioner’s final assignment of error is that there was insufficient evidence to sustain his
convictions. We have held that

               [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. To the extent that our prior cases are
       inconsistent, they are expressly overruled.

Syl. Pt. 3, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

        Petitioner argues that Walker’s testimony initially did not implicate petitioner in any
conspiracy related to stealing guns. Ultimately, Walker testified that he broke into the residence,
took five guns, and put four of them in petitioner’s car, but that the guns were not wrapped in
anything. Petitioner also contends that the neighbor testified that she saw Walker carrying guns
wrapped up in a sheet, contrary to Walker’s testimony. Additionally, her testimony contradicts
Walker’s with regard to the number of trips Walker made in and out of the residence. Petitioner
argues that Walker’s testimony does not reveal a plan to steal guns; rather, Walker merely told
petitioner he could get some guns from his neighbor. Petitioner argues that the jury acted on
speculation that there was a plan to burglarize the residence.

        Upon our review of the record, we find there was sufficient evidence to sustain
petitioner’s convictions. The testimony revealed that petitioner told Walker that he could sell the
guns in order to have money with which to buy drugs; that Walker told petitioner where they
could obtain guns to sell – from a neighbor who was incarcerated; and that when Walker brought
several guns to petitioner, who was waiting in a nearby car, petitioner advised Walker that those
guns were not worth much money and to go back to the residence to find guns with bigger
barrels because they are more valuable. There is sufficient evidence that petitioner knew Walker
was burglarizing the home in order to get guns to sell. As for the inconsistencies between the
testimony of Walker and the eyewitness neighbor, this Court has held that matters of witness
credibility and resolving inconsistencies in testimony are within the sole province of the jury. See
State v. Houston, 197 W.Va. 215, 475 S.E.2d 307 (1996). Therefore, we see no basis to disturb
the jury’s verdict in this matter.

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      For the foregoing reasons, we affirm the circuit court’s “Order Denying Defendant’s
Motion for Judgment Notwithstanding the Verdict or For a New Trial” entered on June 12, 2014.

                                                                                   Affirmed.

ISSUED: April 10, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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