                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,                                                            FILED
Plaintiff Below, Respondent                                                    November 3, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 13-1214 (Wood County 13-F-102)                                         OF WEST VIRGINIA


Matthew Depew,

Defendant Below, Petitioner



                              MEMORANDUM DECISION
       Petitioner Matthew Depew, by counsel Courtney L. Ahlborn, appeals the jury verdict and
sentencing order related to his convictions for robbery and conspiracy to commit robbery.
Respondent the State of West Virginia, by counsel Derek A. Knopp, filed a response.

        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.

        On May 2, 2013, Amber Nicole Pickens met Homer Wilson in the Quincy Hill area of
Wood County.1 When they met, Ms. Pickens got in the car with Mr. Wilson. Shortly thereafter,
petitioner approached the car and struck Mr. Wilson through the driver side window.2 Ms.
Pickens and petitioner returned to their car and left the scene. While petitioner denies the
allegation, the State contends that during the beating, Mr. Wilson heard a female voice say to get
Mr. Wilson’s wallet and that he felt someone going through his pockets. During the altercation
between Mr. Wilson and petitioner, witness Alex Moles called 911 and a notice was issued for
law enforcement officers to be on the lookout for the vehicle described by the witness.
Approximately fifteen minutes later, petitioner and Ms. Pickens were found inside the same
vehicle for which the notice was issued. Petitioner and Ms. Pickens were taken into custody and

       1
         Ms. Pickens claims that Mr. Wilson contacted her to solicit sex, while Mr. Wilson
claims that someone called him and asked him to meet petitioner concerning some rental
properties he owned.
       2
          Ms. Pickens claims that petitioner heard her yelling for help and that petitioner’s action
in striking Mr. Wilson allowed her to escape. However, the State claims that Ms. Pickens was in
the car for less than a minute when petitioner ran over to the car and began striking Mr. Wilson
without provocation.
                                                 1

charged with first degree robbery and conspiracy to commit first degree robbery by unlawfully,
intentionally stealing or attempting to steal, take or carrying away a wallet and keys from the
person or presence of Mr. Wilson, by committing violence to Mr. Wilson.

        Petitioner and Ms. Pickens were tried before a jury between August 13 and 15, 2013. At
the conclusion of the trial, petitioner was found guilty of both counts in the indictment – robbery
and conspiracy to commit robbery.3 He was sentenced to a term of incarceration of twenty-four
years for robbery in the first degree and a period of not less than one nor more than five years of
incarceration for conspiracy to commit robbery, said sentences to run concurrently. Petitioner
appeals his convictions and sentences.

        On appeal, petitioner asserts seven assignments of error. First, petitioner argues that the
trial court erred in admitting his statement over his objection because petitioner was under the
influence of marijuana at the time the statement was given. As part of that assignment of error,
he contends that the circuit court erred in finding that petitioner’s statement was freely and
voluntarily given. Petitioner argues that after being taken into custody and placed in handcuffs,
he was taken to the Parkersburg Police Department. At that time, Detective Eichorn went over
the rights form with petitioner, and that form reflects that petitioner admitted smoking two
marijuana “blunts” at approximately 10:00 a.m. on the morning of May 2, approximately three
hours prior to the interview.4 On August 1, 2013, the circuit court held a hearing on the State’s
motion to conduct an in camera hearing regarding the voluntariness of petitioner’s statement.
During the hearing, Detective Eichorn testified that petitioner admitted to smoking the marijuana
blunts but that the marijuana usage did not impact petitioner’s mental state or ability to
understand the detective’s questions. On cross-examination, the detective was questioned about
portions of petitioner’s statement, including his response that “[m]aybe something’s not
registering, but not like completely forget.” Petitioner asserts that his capacity for self-
determination was critically impaired due to the influence of marijuana, so the circuit court erred
in finding petitioner’s statement was freely and voluntarily made and allowing the admission of
the statement at trial.

        It is well-settled in West Virginia that “[t]he State must prove, at least by a
preponderance of the evidence, that confessions or statements of an accused which amount to
admissions of part or all of an offense were voluntary before such may be admitted into the
evidence of a criminal case.” State v. Blackburn, 233 W.Va. 362, __, 758 S.E.2d 566, 572 (2014)
(quoting State v. Starr, 158 W.Va. 905, 216 S.E.2d 242 (1975)). Petitioner’s “claim of
intoxication may bear upon the voluntariness of a defendant’s confession, but, unless the degree
of intoxication is such that it is obvious that the defendant lacked the capacity to voluntarily and
intelligently waive his rights, the confession will not be rendered inadmissible.” Syl. Pt. 1, in
part, State v. Hall, 174 W.Va. 599, 328 S.E.2d 206 (1985). During the in camera hearing,
       3
         Petitioner and Ms. Pickens were tried jointly. Ms. Pickens was also found guilty of
robbery and conspiracy to commit robbery. However, she filed a separate appeal of her
convictions and sentence in Case No. 13-1213.
       4
        According to the urban vernacular, a “blunt” is a cigar that is hollowed out and filled
with marijuana.
                                               2

Detective Eichorn testified that he had encountered individuals in the past that were under the
influence of marijuana and that he had received training to aid him in determining whether
someone was under the influence. He also testified that petitioner did not exhibit any signs of
being under the influence at the time of his statement. When asked about petitioner’s
forgetfulness, Detective Eichorn testified that petitioner was attempting to avoid the question
rather than having trouble remembering. While he was first evasive, petitioner later admitted to
being under the bridge and striking Mr. Wilson. The circuit court had a complete video recording
of the interview available to it in order to determine whether petitioner was under the influence
or displayed signs of intoxication. The circuit court recognized that just because an individual
has used marijuana does not mean they are intoxicated or incapable of giving a statement. Based
on the record before this Court, we find no error in the circuit court’s conclusion that petitioner
knowingly and intelligently waived his constitutional rights and that his confession was not
rendered inadmissible by virtue of intoxication.

         Petitioner’s second assignment of error is that the circuit court erred by finding
petitioner’s statement admissible, as the police violated the prompt presentment rule under West
Virginia Code § 62-1-5(a). Petitioner asserts that he was arrested at approximately 12:30 p.m.,
but he was taken to the police department for questioning rather than directly to the Magistrate
Court of Wood County. During the August 1, 2013, in camera hearing, Detective Eichorn
testified that petitioner had been placed in handcuffs and transported to the police department in
a police vehicle. Detective Eichorn testified that when they were taken to the police station,
petitioner and Ms. Pickens were the only suspects. Petitioner argues that he was taken to the
police station after being placed under arrest for the sole purpose of obtaining a statement or
confession.

        While it is true that “[t]he delay in taking a defendant to a magistrate may be a critical
factor [in the totality of circumstances making a confession involuntary and hence inadmissible]
where it appears that the primary purpose of the delay was to obtain a confession from the
defendant[,]” based upon our review of the record, it appears there was no violation of the
prompt presentment rule in the instant case. Syl. Pt. 13, in part, State v. Newcomb, 223 W.Va.
843, 679 S.E.2d 675 (2009) (quoting Syl. Pt. 6, State v. Persinger, 169 W.Va. 121, 286 S.E.2d
261 (1982); Syl. Pt. 1, State v. Guthrie, 173 W.Va. 290, 315 S.E.2d 397 (1984)). Further,
“[o]rdinarily the delay in taking an accused who is under arrest to a magistrate after a confession
has been obtained from him does not vitiate the confession under our prompt presentment rule.”
Syl. Pt. 14, in part, Newcomb, 223 W.Va. at 848, 679 S.E.2d at 680. Contrary to petitioner’s
argument, the circuit court found that petitioner was not under arrest when he was taken to the
police station, as Detective Eichorn lacked sufficient information to arrest petitioner and charge
him with robbery at that time. Detective Eichorn testified that petitioner was initially brought in
for questioning as a suspect in the case, but he was not arrested until after he gave his statement.
While the detective had spoken with Mr. Wilson and Ms. Pickens prior to obtaining a statement
from petitioner, Mr. Wilson was not able to provide the name of the male involved in the
incident and Ms. Pickens did not implicate petitioner in her statement. Thus, petitioner failed to
demonstrate that the sole purpose for taking him to the police department was to obtain a
confession. “‘The action of a trial court in admitting or excluding evidence in the exercise of its
discretion will not be disturbed by the appellate court unless it appears that such action amounts

                                                 3

to an abuse of discretion.’ Syllabus Point 1, State v. Calloway, 207 W.Va. 43, 528 S.E.2d 490
(1999).” Newcomb, 223 W.Va. at 851, 679 S.E.2d at 683. Therefore, we find that the circuit
court did not abuse its discretion regarding petitioner’s statement and his challenge under the
prompt presentment rule.

        Petitioner’s third assignment of error is that the circuit court erred in denying his motion
for a mistrial during the presentation of the State’s case, as Ms. Pickens’ statement was admitted
into evidence without a prior in camera hearing to determine the voluntariness of the same in
violation of petitioner’s right to due process and against self-incrimination. Prior to trial, the
State made a motion to determine the admissibility of Ms. Pickens’ statement to Detective
Eichorn wherein she provided an incorrect cellular telephone number. However, the State
withdrew the motion and indicated that it did not intend to admit that statement in its case-in­
chief. During the trial, the State asked Detective Eichorn whether he typically inquired as to
phone numbers from people he arrests. He was then asked whether he asked that question of Ms.
Pickens, and he responded that he did ask her for her phone number but that she did not give him
her correct phone number. Immediately thereafter, Ms. Pickens’ counsel objected, the circuit
court sustained the objection, and the circuit court instructed the jury to disregard the question
and answer. Petitioner argues that because the voluntariness and admissibility of Ms. Pickens’
statement was never determined with an in camera hearing, the matter should be remanded for
such hearing. He essentially argues that because the jury was informed that Ms. Pickens was
untruthful, the jury was given the impression that both Ms. Pickens and petitioner were
untruthful.

       As set forth above, it is the State’s burden to prove that confessions or statements of an
accused that amount to admissions were voluntary before they may be admitted into the
evidence. Blackburn, 223 W.Va. at __, 758 S.E.2d at 572. In addition,

               [w]here there is a failure to hold an in camera hearing on the defendant’s
       inculpatory statements, we recognize under Jackson v. Denno, 378 U.S. 368 . . .
       (1964), that the case will not be reversed for a new trial on this basis alone.
       Instead, it will be remanded for a voluntariness hearing before the trial court. If
       the trial court finds the statements are voluntary the verdict will stand. If, on the
       other hand, he finds the statements to be involuntary, the verdict will be set aside
       unless the trial court determines that this constitutional error is harmless beyond a
       reasonable doubt.

Syl. Pt. 5, State v. Clawson, 165 W.Va. 588, 270 S.E.2d 659 (1980) (overruled on other grounds
in Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993)). Based upon our review of the
testimony at issue, it does not appear that the State intended to offer Ms. Pickens’ statement
made to Detective Eichorn. Instead, the detective offered information related to the statement
without being questioned about that statement. Further, Ms. Pickens’ failure to provide a correct
telephone number does not constitute a confession or admission to the crimes for which she and
petitioner were tried and convicted. The circuit court promptly sustained Ms. Pickens’ objection
to the statement, and the circuit court directed the jury to disregard the statement. Therefore, we


                                                 4

find that the detective’s testimony does not constitute grounds to remand for a voluntariness
hearing concerning Ms. Pickens’ statement.

         Petitioner’s fourth assignment of error is that the circuit court erred in allowing Officer
Blatt to be called as a witness because he was not identified on the State’s witness list. Petitioner
argues that he filed his request for discovery of the names and addresses of the State’s witnesses
pursuant to Rule 16 of the West Virginia Rules of Criminal Procedure in June of 2013, but the
list provided by the State did not include Officer Blatt. “The threshold inquiry is to ‘take into
account the reasons why disclosure was not made, the extent of the prejudice, if any, to the
opposing party, the feasibility of rectifying that prejudice by a continuance [or recess if the trial
has begun], and any other relevant circumstances.’” State v. Miller, 178 W.Va. 618, 625, 363
S.E.2d 504, 511 (1987) (quoting 2 Fed. Prac. & Proc. Crim. § §260 (4th ed.)). The State admits
that it failed to disclose Officer Blatt as a witness; however, it argued before the lower court that
Officer Blatt’s supplement was disclosed in discovery and that the supplement revealed that
Officer Blatt responded to the area of the traffic stop and remained there until the vehicle was
secured.5 The circuit court found that while Officer Blatt should have been listed on the witness
list, the supplement provided to petitioner contained Officer Blatt’s name and sufficiently
identified his areas of testimony. The circuit court further found that it was no surprise to
petitioner that he and Ms. Pickens were stopped in the car at issue and arrested and that as long
as the testimony was limited to what was contained within the supplement, Officer Blatt would
be allowed to testify. Because the circuit court limited Officer Blatt’s testimony to the material
disclosed to petitioner prior to the trial, we find that the circuit court did not err in finding that
petitioner failed to show the surprise or prejudice necessary to prevent Officer Blatt from
testifying.

        Petitioner’s fifth assignment of error relates to evidence he sought to introduce against
Mr. Wilson pursuant to Rule 404(b) of the West Virginia Rules of Evidence. Petitioner and Ms.
Pickens sought to introduce testimony from more than five witnesses regarding Mr. Wilson’s
alleged habit of soliciting women for sexual favors. Petitioner argues that the same is relevant
because Mr. Wilson sought to solicit sexual favors from Ms. Pickens on the date of the incident.
The circuit court held an in camera hearing wherein it heard testimony from numerous witnesses
that Mr. Wilson had propositioned the witnesses and others for sexual acts. Ultimately, the
circuit court permitted a single witness, Charles Canady, to testify at the trial that Mr. Wilson
confided in him that he was not meeting Ms. Pickens to show her an apartment, as he claimed to
police, but that he was attempting to solicit her. Mr. Canady also testified about Mr. Wilson’s
habit of driving around to look for women.

              Where an offer of evidence is made under Rule 404(b) of the West
       Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West
       Virginia Rules of Evidence, is to determine its admissibility. Before admitting the
       evidence, the trial court should conduct an in camera hearing as stated in State v.
       Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and
       5
          The parties and the trial transcript simply refer to “the supplement” and “his
supplement” without providing the name or form of this supplement. In addition, the supplement
does not appear in the record before this Court.
                                                 5

       arguments of counsel, the trial court must be satisfied by a preponderance of the
       evidence that the acts or conduct occurred and that the defendant committed the
       acts. If the trial court does not find by a preponderance of the evidence that the
       acts or conduct was committed or that the defendant was the actor, the evidence
       should be excluded under Rule 404(b). If a sufficient showing has been made, the
       trial court must then determine the relevancy of the evidence under Rules 401 and
       402 of the West Virginia Rules of Evidence and conduct the balancing required
       under Rule 403 of the West Virginia Rules of Evidence. . . .

Syl. Pt. 2, in part, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994). Further, “we
review for an abuse of discretion the trial court’s conclusion that ‘other acts’ evidence is more
probative than prejudicial under Rule 403 [of the West Virginia Rules of Evidence.]” State v.
LaRock, 196 W.Va. 294, 310-11, 470 S.E.2d 613, 629-30 (1996). In the instant matter, the circuit
court held the required in camera hearing. However, it did not find the testimony from all of the
proposed witnesses to be relevant under the requisite balancing test. Based on the record before
this Court, we find that the circuit court did not abuse its discretion in permitting Mr. Canady to
testify regarding Mr. Wilson’s alleged prior bad acts and intentions on the date of the incident
while prohibiting the admission of the additional “bad acts” evidence from the other proposed
witnesses.

        Petitioner’s sixth assignment of error relates to the lack of authentication of Ms. Pickens’
cellular phone records. Petitioner argues that the State attempted to authenticate Ms. Pickens’
phone records by eliciting testimony from Detective Eichorn regarding the subpoena that was
executed to obtain the records. Petitioner contends that the records were not certified and the
custodian of the records did not testify, so he was prejudiced by their admission.6

               [T]he trial court judge is required only to find that a reasonable juror could
       find in favor of authenticity or identification before the evidence is admitted. The
       trier of fact determines whether the evidence is credible. Furthermore, a trial
       judge’s ruling on authenticity will not be disturbed on appeal unless there has
       been an abuse of discretion. . . .

Syl. Pt. 1, in part, State v. Jenkins, 195 W.Va. 620, 466 S.E.2d 471 (1995). During the trial,
Detective Eichorn verified Ms. Pickens’ phone number from the records and identified calls in
May of 2013 between Ms. Pickens and Mr. Wilson. Following this testimony, the State moved
for the admission of the phone records. It was not until that time that either petitioner or Ms.
Pickens objected due to a lack of proper foundation. The circuit court overruled that objection,
expressing concern over the timing of that objection and the admission of the records without a
representative of the phone company testifying. The court looked to the fact that no one objected
when the testimony regarding the records began. At that point, defense counsel essentially
conceded that because there was no objection during the testimony, the testimony was
admissible. Based on the record before us, we cannot conclude that the circuit court abused its
discretion in admitting these records.

       6
           At trial, Ms. Pickens did not dispute that the records at issue pertain to her phone
number.
                                                 6

        Finally, petitioner alleges that right to due process was violated, as he was not convicted
of the crime with which he was charged. He contends that the lower court abused its discretion
when it substantially changed the language of the indictment after the presentation of evidence at
trial without a motion from the State or petitioner. In the indictment, petitioner was charged with
robbery and conspiracy to commit robbery of Mr. Wilson’s keys and wallet. However, the circuit
court amended the jury instructions to refer only to Mr. Wilson’s wallet. Petitioner contends that
because both wallet and keys were listed in the indictment, both are essential elements that must
be proved beyond a reasonable doubt in order to withstand a motion for directed verdict and
sustain a conviction. Petitioner, therefore, argues that the removal of “and keys” was a direct
amendment of the indictment after the State’s presentation of its case. Such amendment is only
permissible when “the amendment is not substantial, is sufficiently definite and certain, does not
take the defendant by surprise, and any evidence the defendant had before the amendment is
equally available after the amendment.” State v. Adams, 193 W.Va. 277, 281, 456 S.E.2d 4, 8
(1995). He argues that even without the circuit court’s direct amendment to the indictment,
petitioner was prejudiced by a constructional amendment to the indictment, as the evidence and
the jury instruction varied materially and prejudicially from the charge in the indictment. While
petitioner argues that it is reversible error for a trial court to give an instruction that permits the
jury to convict a defendant of a crime for which the defendant was not indicted, that is not what
occurred in this matter. State v. Blankenship, 198 W.Va. 290, 294-95, 480 S.E.2d 178, 182-83
(1996).

        In Blankenship, we held that the petitioner in that matter was not misled, subjected to any
added burden of proof, or in any way prejudiced by that circuit court’s correction of the year of a
prior conviction. Id. at 297, 480 S.E.2d at 185. Similarly, petitioner in the instant matter was not
subjected to any added burden of proof and, despite his argument to the contrary, cannot
demonstrate any prejudice based on the change in the jury instruction to remove “and keys.”
Because the instruction given by the circuit court properly conformed to the evidence and did not
add any charges to those set forth in the indictment, we find that the circuit court did not err in
conforming the jury instruction to the evidence.

       For the foregoing reasons, we affirm.
                                                                                            Affirmed.

ISSUED:

CONCURRED IN BY:

Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:

Chief Justice Robin Jean Davis

                                                  7

