                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,                                                            FILED
Plaintiff Below, Respondent                                                     November 22, 2013
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 12-1293 (Berkeley County 11-F-208)                                     OF WEST VIRGINIA



Thomas A. Grantham Jr.,
Defendant Below, Respondent


                              MEMORANDUM DECISION
        Petitioner Thomas A. Grantham Jr., by counsel B. Craig Manford, appeals his
convictions and sentences for second degree murder, attempted murder, and malicious assault as
set forth in the Circuit Court of Berkeley County’s sentencing order entered on September 14,
2012. Respondent State of West Virginia, by counsel Christopher C. Quasebarth, responds in
support of the convictions and sentences.

       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 is appropriate under Rule 21 of the
Rules of Appellate Procedure.

                                I. Facts and Procedural History

        The State asserted that on the night of April 22 and into the early morning of April 23,
2011, petitioner and Co-Defendant James Cross were at a bar in Martinsburg. They were seen at
the bar by fellow patrons Sharenna Gonzalez, Sheron Yates, and Shameeka Yates, and by bar
employee Daniel Derito. Derito also identified petitioner and Cross on video surveillance taken
at the bar that night.

        Derito testified that after the bar closed, he broke up a verbal dispute between petitioner
and Cross and two other males. Gonzalez and Sheron Yates testified that while outside the bar,
they witnessed a verbal dispute between Cross and another man, Jacques Taylor. There was
testimony that Cross flicked a cigarette into the face of Taylor’s friend, Andre Jackson.
Gonzalez, who was not drinking that night, testified that she and Cross got into Cross’s car
where Gonzalez tried to calm Cross down. Gonzalez testified that she got out of the car when
petitioner got in.

       The State’s witnesses testified that petitioner and Cross then left together, with petitioner
driving. Taylor and Jackson followed in a car driven by Taylor. Gonzalez and the Yateses

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followed in a third vehicle that was driven by Gonzalez. There was testimony that petitioner
pulled into a gas station, followed by the other vehicles. Angry words were exchanged between
the occupants of the petitioner/Cross vehicle and the Taylor/Jackson vehicle. The Taylor/Jackson
vehicle pulled out of the gas station followed by the petitioner/Cross vehicle and the
Gonzalez/Yates vehicle. The Taylor/Jackson vehicle turned into an apartment complex and
headed up a hill toward the back of the complex. The petitioner/Cross vehicle and the
Gonzalez/Yates vehicle stopped in a parking area to turn around. The petitioner/Cross vehicle
pulled out of the parking area. Gonzalez testified that she tried to follow but her vehicle was
almost struck by the Taylor/Jackson vehicle being driven in reverse down the road out of the
complex.

        The three cars came to a stop. Gonzalez and the Yateses testified that petitioner and Cross
exited their vehicle and ran to the Taylor/Jackson vehicle, with petitioner going to the driver’s
side (Taylor) and Cross going to the passenger’s side (Jackson). Taylor testified at trial that he
rolled down his window to speak but was immediately stabbed in the neck, chest, arms, and
shoulder. At trial, Gonzalez and the Yateses identified petitioner as the perpetrator who stabbed
Taylor. Meanwhile, Cross was repeatedly stabbing Jackson. The women exited their vehicle and
observed the altercation. The women testified that petitioner and Cross then ran back to their car,
with petitioner knocking Shameeka Yates down as he ran past her. They testified that as
petitioner was driving away, he attempted to run down Jackson.

       The 911 center was called at approximately 3:18 a.m. on April 23. Taylor survived, but
Jackson collapsed and died from his injuries.

        The next day, April 24, which was Easter Sunday, petitioner called his cousin to explain
that he was en route to her home in Cincinnati and needed her address. The cousin testified that
she had previously invited petitioner to attend her daughter’s birthday party on April 27, but he
had not told her he was coming. Petitioner, accompanied by Cross, arrived at the cousin’s home
and stayed in the bedroom of the cousin’s sons. Police later searched this bedroom and found
tote bags with four knives and two false identification cards, including a West Virginia
identification card that had petitioner’s photograph but a false name. Police also searched a home
in Martinsburg where petitioner frequently resided, finding two box cutters hidden in a cigar box
with petitioner’s real identification card, and a butcher knife in a bedroom.

        When questioned by police after the crime, Sheron Yates did not refer to petitioner by
name but only as the “black male.” However, Sheron later identified petitioner in a police photo
array. Shameeka Yates was unable to identify petitioner in the photo array, but identified him at
trial. Taylor gave conflicting information to police and initially said that he was not sure if his
assailant was male or female. At trial, Taylor was unable to identify his assailant other than to
say that it was an African-American male whom he had seen at the bar that night. At trial,
Gonzalez identified petitioner as an assailant.

       Petitioner did not testify at trial but asserted an alibi defense. His lawyer argued that some
other man, not petitioner, was in the car with Cross at the time of the physical altercation. The
defense presented testimony from petitioner’s neighbor William Golden that around 3:00 a.m. on
April 23, Golden saw petitioner standing on their street. Golden testified that he heard a car pull

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up and when he went back outside, petitioner was gone and a Mercedes was leaving. The defense
also presented testimony from petitioner’s friend Darnell Carey that he saw petitioner get
dropped off by a Mercedes at 3:10 a.m. and then get into a black Cadillac.

        Petitioner and Cross were jointly indicted and tried. Petitioner was convicted of second
degree murder, attempted murder, and malicious assault. He was acquitted of a conspiracy
charge. He was sentenced to the statutory terms of incarceration, to run consecutively, for a total
of forty-three to fifty-three years in prison.

       This is petitioner’s direct appeal of his convictions and sentences.

                                           II. Discussion

                                        A. Co-Defendant

        Petitioner raises two assignments of error pertaining to his joint trial with Co-Defendant
Cross: that it was error for the circuit court to deny petitioner’s motion to sever their trials, and
that it was error to prohibit petitioner’s counsel from commenting upon Mr. Cross’s silence
during closing argument. Because his arguments on these two assignments of error overlap, we
will address them together.

         Rule 14(b) of the West Virginia Rules of Criminal Procedure provides, “[i]f the joinder
of defendants in an indictment, an information, or a consolidation for trial appears to prejudice a
defendant or the State, the Court may sever the defendants' trials, or provide whatever other
relief that justice requires.” We have held that a trial court’s ruling on a severance motion is
considered under an abuse of discretion standard. Syl. Pt. 3, State v. Hatfield, 181 W.Va. 106,
380 S.E.2d 670 (1989) (considering a motion for severance of offenses filed under W.Va. R.
Crim. P. 14(a)); Syl. Pt. 1, State v. Rash, 226 W.Va. 35, 697 S.E.2d 71 (2010) (same). We review
a trial court’s evidentiary rulings under the same standard. Syl. Pt. 4, State v. Rodoussakis, 204
W. Va. 58, 511 S.E.2d 469 (1998) (“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.”)

        Petitioner argues that he was prejudiced by the joint trial. According to petitioner, the
State’s evidence showed Cross to be the more culpable of the two, including that Cross was
involved in the fight at the bar and Cross’s victim died. Moreover, Cross’s car was present at the
scene of the crime, while petitioner was relying upon an alibi defense. Petitioner says that he had
a reason to be in Cincinnati the next day, while Cross did not. Furthermore, petitioner complains
that he was unable to call Cross to the stand to force Cross, in front of the jury, to invoke his
Fifth Amendment right to remain silent. Petitioner argues that his lawyer could have then
commented upon Cross’s silence during closing argument. Petitioner asserts that this would have
been helpful to his case because Cross is the only witness who knows for certain whether
petitioner was the co-perpetrator.

       Upon a review of the record and the parties’ arguments, we find no merit to petitioner’s
arguments. The evidence against both co-defendants was inextricably intertwined and arose from
the same act or transaction, and the co-defendants did not put on conflicting defenses. The desire

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to draw an inference from the co-defendant’s silence was not grounds to defeat this joinder. The
Fourth Circuit Court of Appeals held that “[i]t is axiomatic that a defendant's failure to testify
cannot be used to draw an inference of guilt. Similarly, a co-defendant's failure to testify cannot
be used to draw an inference of innocence on behalf of the complaining defendant. See United
States v. Marquez, 449 F.2d 89, 93 (2d Cir.1971).” United States v. Najjar, 300 F.3d 466, 475
(4th Cir. 2002). Thus, the circuit court did not abuse its discretion in denying the motion to sever
or in prohibiting comments upon Cross’s silence during closing argument.

                                   B. In-Court Identifications

        Next, petitioner argues that the circuit court should have excluded as unreliable the
witnesses’ in-court identification of him as a perpetrator. As set forth above, a trial court’s
evidentiary rulings are reviewed under an abuse of discretion standard. Syl. Pt. 4, Rodoussakis,
204 W. Va. at 61, 511 S.E.2d at 472 (1998). Furthermore, when a criminal defendant asserts that
an in-court identification was tainted by an out-of-court identification, this Court “must look to
the totality of the circumstances and determine whether the identification was reliable[.]” Syl. Pt.
5, in part, State v. Myers, 229 W.Va. 238, 728 S.E.2d 122 (2012) (quoting Syl. Pt. 3, in part,
State v. Casdorph, 159 W.Va. 909, 230 S.E.2d 476 (1976).

        Petitioner argues that both Sheron and Shameeka Yates were intoxicated on the night in
question, and that Shameeka was unable to identify petitioner in a photo array the next day. He
argues that although Sheron identified his photo in the array, she had met him a month earlier
and thus already knew what he looked like. Petitioner also suggests that the officer who showed
Sheron the array influenced her choice. He argues that Sheron, Shameeka, and Gonzalez were
too far away from the altercation to see the perpetrator clearly. He complains that Taylor could
not identify his assailant immediately after the crimes, but at trial testified that his assailant was
an African-American male whom Taylor had seen at the bar that night.

        Upon a careful consideration of petitioner’s and the State’s arguments, we find no abuse
of discretion in the circuit court’s admission of the in-court identification testimony. All three
women saw petitioner at the bar, followed behind the other cars, and testified to seeing the
attack. They were able to observe petitioner and Cross over an extended period of time.
Gonzalez had not been drinking that night and was close to petitioner when petitioner got into
Cross’s car at the bar. Petitioner knocked one of the women down as he ran back to Cross’s car,
thus they were certainly close enough to identify him. Moreover, the reliability of the
identification testimony is supported by the testimony of bar employee Derito, who knew both
petitioner and Cross; broke up a verbal altercation between them and two other males after the
bar closed that night; and observed petitioner and Cross leaving in a car, with petitioner driving.
The witnesses were subject to cross-examination and any weaknesses or conflict in their
testimony goes to the weight of the evidence, not to its admissibility.

                                C. Admission of Other Evidence

       In three assignments of error that he argues together, petitioner asserts that the circuit
court admitted evidence in violation of Rules 401 and 403 of the West Virginia Rules of
Evidence. Rule 401 provides that “‘[r]elevant evidence’ means evidence having any tendency to

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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.” Rule 403 provides that
“[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
We review a trial court’s evidentiary rulings and application of the Rules of Evidence under an
abuse of discretion standard. Syl. Pt. 4, Rodoussakis, 204 W. Va. at 61, 511 S.E.2d at 472 (1998).

       Flight evidence: Petitioner argues that it was error for the court to admit evidence of his
Cincinnati trip as flight evidence and evidence of guilt. He asserts that he had a reasonable
explanation for his visit—a family birthday party—and while in Cincinnati he did not act as if he
were in hiding. He argues that although he had a fake identification card with him, the card was
two years old and thus was not obtained to assist in this alleged flight.

       This Court has previously written on the admissibility of flight evidence:

              “‘In certain circumstances evidence of the flight of the defendant will be
       admissible in a criminal trial as evidence of the defendant's guilty conscience or
       knowledge. Prior to admitting such evidence, however, the trial judge, upon
       request by either the State or the defendant, should hold an in camera hearing to
       determine whether the probative value of such evidence outweighs its possible
       prejudicial effect.’ Syl. Pt. 6, State v. Payne, 167 W.Va. 252, 280 S.E.2d 72
       (1981).” Syl. Pt. 7, Acord v. Hedrick, 176 W.Va. 154, 342 S.E.2d 120 (1986).

Syl. Pt. 14, State v. Jessie, 225 W.Va. 21, 689 S.E.2d 21 (2009).

       We find no merit to petitioner’s arguments. His trip out-of-state was in close proximity to
the crimes, petitioner’s cousin did not know he was coming, he was three days early for the
birthday party, and his explanation does not explain why Cross went along with him. The circuit
court held an in camera hearing and properly ruled that the relevance of the evidence was not
substantially outweighed by any unfair prejudicial effect. It was for the jury to weigh the
evidence and petitioner’s explanation.

       Autopsy photos: Next, petitioner argues that it was error to admit gruesome autopsy
photos depicting victim Jackson, particularly a photo showing bowels protruding from Jackson’s
body. Petitioner argues that the medical examiner’s testimony rendered the photos unnecessary.
The State responds that the photos were printed in black and white so as to minimize their
graphic effect, and that the photos were relevant to prove malice.

        Rules 401 and 403 apply to the admissibility of photographs. “As to the balancing under
Rule 403, the trial court enjoys broad discretion. The Rule 403 balancing test is essentially a
matter of trial conduct, and the trial court’s discretion will not be overturned absent a showing of
clear abuse.” Syl. Pt. 10, in part, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994); Syl. Pt. 6,
in part, State v. Mongold, 220 W.Va. 259, 647 S.E.2d 539 (2007). We find no clear abuse of
discretion in the admission of these photographs. The severity of the victim’s abdominal injury
showed that the stabbing was intentional and inflicted with malice.

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        Knives/Box Cutters: Next, petitioner asserts that it was unfairly prejudicial to allow the
State to offer testimony about knives found in the bedroom where he stayed in his cousin’s
Cincinnati home, and about box cutters and a butcher knife found in the Martinsburg home
where he frequently stayed. He argues that the State failed to prove a nexus between any of these
items and the crimes; that the sheer number of knives found, without more, inflamed the jury;
and this evidence was offered to improperly bridge a gap in the State’s evidence because the
murder weapon was never found. The State responds that this case concerned stabbings, thus the
possession and use of knives by the co-defendants was a material fact in the case.

       Upon a careful consideration of the record and the parties’ arguments, we cannot
conclude that the circuit court abused its discretion in admitting testimony about the knives and
box cutters. However, even if the admission of this testimony was error, it was harmless beyond
a reasonable doubt. The test for harmless error is as follows:

               Where improper evidence of a nonconstitutional nature is introduced by
       the State in a criminal trial, the test to determine if the error is harmless is: (1) the
       inadmissible evidence must be removed from the State's case and a determination
       made as to whether the remaining evidence is sufficient to convince impartial
       minds of the defendant's guilt beyond a reasonable doubt; (2) if the remaining
       evidence is found to be insufficient, the error is not harmless; (3) if the remaining
       evidence is sufficient to support the conviction, an analysis must then be made to
       determine whether the error had any prejudicial effect on the jury.

Syl. Pt. 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979). In petitioner’s case, removal of
the evidence about the knives and box cutters would still leave a plethora of evidence sufficient
to convict petitioner beyond a reasonable doubt. In light of the other, extensive evidence, we
cannot conclude that this evidence had a prejudicial effect.

                                 D. Sufficiency of the Evidence

       Petitioner argues that the evidence at trial was insufficient to prove beyond a reasonable
doubt that he committed these crimes. In addition to his alibi evidence, petitioner asserts that Mr.
Taylor was shown to be the true aggressor. He also argues that the eyewitnesses were impeached
or were unreliable.

       We review a sufficiency of the evidence argument under the following framework:

                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.

Syl. Pt. 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). Viewing the evidence in this

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case in the light most favorable to the prosecution, we easily conclude that a rational trier of fact
could have found the essential elements of second degree murder, attempted murder, and
malicious wounding were proven beyond a reasonable doubt. There were multiple eyewitnesses
at trial who saw petitioner at the bar, saw petitioner in the car with Cross, and who saw petitioner
and Cross commit the crimes. There was no dispute that Taylor and Jackson were stabbed
multiple times and that Jackson died from his wounds. There was also flight evidence, which, as
discussed above, is admissible to show guilt. Petitioner’s alibi defense and any inconsistencies in
the testimony were presented to the jury, and we have no grounds to second-guess the jury’s
decision.

                                E. Concerted Action Instruction

        Petitioner argues that it was error for the circuit court to give the following concerted
action instruction to the jury:

               A person who is the absolute perpetrator of a crime is a principal in the
       first degree. A person who is actually or constructively present at the scene of a
       crime at the same time as the criminal act of the absolute perpetrator, who acts
       with shared criminal intent, contributing to the criminal act of the absolute
       perpetrator, is an aider and abettor, and a principal in the second degree, and as
       such may be criminally liable for the criminal act as if he were the absolute
       perpetrator of the crime. Actual physical presence at the scene of the criminal act
       is not necessary where the aider and abettor was constructively present at a
       convenient distance at the time and place of the criminal act, acting in concert
       with the absolute perpetrator. However, you are cautioned that merely witnessing
       a crime without intervention therein does not make a person a party to its
       commission unless his interference was a duty, and his non-interference was
       designed by him and operated as an encouragement to or for protection of the
       absolute perpetrator of the criminal act.

Petitioner acknowledges that this instruction is consistent with Syllabus Point 11 of State v.
Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989): “[u]nder the concerted action principle, a
defendant who is present at the scene of a crime and, by acting with another, contributes to the
criminal act, is criminally liable for such offense as if he were the sole perpetrator.”

        However, petitioner argues that the instruction should have included more language from
our discussion in the Fortner opinion. He asserts that the instruction should have required the
State to prove that he “knowingly intended to assist, encourage, or facilitate the design of the
criminal actor.” Id., 182 W.Va. at 356, 387 S.E.2d at 823. We disagree. The language which
petitioner cites from the discussion in Fortner was used to help explain the intent requirement for
an aider and abettor. We conclude that the circuit court sufficiently addressed the intent
requirement in its instruction. The circuit court covered this issue by instructing that there must
be more than mere presence; an aider and abettor must “act[] with shared criminal intent,
contributing to the criminal act of the absolute perpetrator[.]” The circuit court’s instruction was
a correct statement of the law.



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        Petitioner also suggests that there was no showing of any shared intent between himself
and Mr. Cross, therefore a concerted action instruction should not have been given. We easily
reject this argument. The State asserted, and based upon their verdict, the jury found, that
petitioner and Cross ran toward a vehicle together, attacking and severely stabbing their victims.
The only difference is that petitioner’s victim survived his severe stabbing wounds, while
Cross’s victim died. Under the facts of this case, there was sufficient evidence for the court to
instruct the jury on a concerted action theory.

                                   F. Consecutive Sentences

       Finally, petitioner contends that the circuit court abused its discretion when imposing his
sentences. The circuit court ordered petitioner to be incarcerated in prison for the statutory terms
for each of his crimes: a determinate term of forty years for second degree murder pursuant to
West Virginia Code § 61-2-3; an indeterminate term of one to three years for attempted murder
pursuant to West Virginia Code § 61-11-8(2); and an indeterminate term of two to ten years for
malicious assault pursuant to West Virginia Code § 61-2-9(a). The circuit court ordered the
sentences to be run consecutively. Pursuant to West Virginia Code § 61-11-21, sentences for two
or more convictions shall be consecutive unless the sentencing court orders them to run
concurrently.

        “The Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse
of discretion standard, unless the order violates statutory or constitutional commands.” Syl. Pt. 1,
in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997). Moreover, “[s]entences imposed
by the trial court, if within statutory limits and if not based on some [im]permissible factor, are
not subject to appellate review.” Syl. Pt. 4, State v. Goodnight, 169 W. Va. 366, 287 S.E.2d 504
(1982). Petitioner does not assert that any impermissible factor was considered when imposing
sentence. Indeed, although he assigns error regarding his sentences, he fails to include any
argument in support thereof in his brief. Given the severity of the crimes, and the lack of any
indication that the circuit court relied upon an impermissible factor, we find no abuse of
discretion in petitioner’s sentences.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.

ISSUED: November 22, 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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