                           STATE OF WEST VIRGINIA

                         SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff below, Respondent                                            FILED
                                                                   October 19, 2017
                                                                        released at 3:00 p.m.
vs) 16-0431 (Mingo County 16-F-1)                                     RORY L. PERRY, II CLERK
                                                                    SUPREME COURT OF APPEALS
                                                                         OF WEST VIRGINIA
Ryan Christopher Bowen,
Defendant below, Petitioner


                            MEMORANDUM DECISION

       The petitioner, Ryan Christopher Bowen (hereinafter “the defendant”), appeals his
conviction for one count of grand larceny. He asserts the circuit court erred by instructing
the jury that a mistake of law is not a defense to this crime. The State of West Virginia
responds in support of the instruction and conviction.1

       After considering the parties’ written and oral arguments, as well as the record on
appeal and the applicable law, this Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision affirming the conviction is
appropriate under Rule 21 of the Rules of Appellate Procedure.

                                           I. Facts

       On August 17, 2015, Mingo County Sheriff’s Corporal Norman Mines investigated
a report that someone was in the process of stealing steel railroad tie plates belonging to the
Norfolk Southern Railroad. These tie plates had been stacked in a gravel area along railroad
tracks on property owned by the railroad company. Upon responding to the report, Corporal
Mines observed 124 tie plates piled inside the bed of a pickup truck parked at a house across
an alley from the railroad tracks. The corporal ascertained that the truck belonged to the
defendant, who was inside the house.




       1
       The petitioner is represented by attorney Paul Andrew Montgomery. The State is
represented by Assistant Attorneys General Julie A. Warren and Zachary Aaron Viglianco.

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        Upon being arrested and taken to the Sheriff’s office, and after waiving his Miranda2
rights, the defendant gave a video-recorded confession admitting that he had taken the tie
plates. During the recorded statement, the defendant said he “had no clue that they were
worth value to other people or property to other people they were just there in what I would
call an alley so I seen no harm in loading them up and was going to take them to the scrap
yard” to sell.

       The defendant was indicted on one count of grand larceny in violation of West
Virginia Code § 61-3-13(a) (2014). At his February 2016 jury trial, the State played the
video-recorded police interview. Corporal Mines testified that after he stopped recording,
the defendant added to his statement and claimed that his relative, John Tincher, had given
him permission to take the tie plates. Mr. Tincher lived in the house where the petitioner was
found and arrested. Although Corporal Mines attempted to re-start the video recorder and
have the defendant repeat this additional statement, the defendant refused because he “didn’t
want to be a rat. He didn’t want to rat anyone out.”3

       At trial, a Norfolk Southern supervisor testified that a single steel tie plate is worth
between $20 and $30 dollars; accordingly, the value of 124 steel tie plates was established
at between $2,480 and $3,720. The supervisor explained that the tie plates had been stacked
along the railroad tracks awaiting installation, and nobody at the railroad had given
permission for their removal. The defendant elected not to testify, and the defense rested its
case without calling any witnesses.

       The circuit court instructed the jury on the elements of grand larceny and the lesser-
included offense of petit larceny. With regard to grand larceny, the court instructed:

       In order to find the Defendant guilty of Grand Larceny the State must prove,
       beyond a reasonable doubt, that:

                1. The Defendant, Ryan Christopher Bowen;
                2. In Mingo County, West Virginia;
                3. On or about the 17th day of August, 2015;
                4. Did unlawfully, knowingly, intentionally, larcenously and
                feloniously steal;

       2
           Miranda v. Arizona, 384 U.S. 436 (1966).
       3
        There was no evidence at trial to suggest that Mr. Tincher was a railroad employee
or otherwise had any authority to give away the railroad company’s property. Neither the
State nor the defendant called Mr. Tincher as a witness.

                                              2

              5. Take and carry away;
              6. One Hundred twenty-four (124);
              7. Steel tie plates valued at over $1,000;
              8. That belong to Norfolk Southern Railroad;
              9. With the intent to permanently deprive;
              10. Norfolk Southern Railroad;
              11. Of the ownership thereof;
              12. Against the peace and dignity of the State of West Virginia;
              13. And in violation of West Virginia Code § 61-3-13(a).

       If after impartially considering, weighing and comparing all of the evidence
       you are convinced beyond a reasonable doubt of the truth of each of these
       elements, you may find the Defendant guilty of Grand Larceny. If, however,
       you have reasonable doubt about any one of these elements, you shall find the
       Defendant not guilty of Grand Larceny.

At the defendant’s request, the circuit court also gave a jury instruction explaining that a
mistake of fact can negate the element of intent. At the behest of the prosecutor, and over
the defendant’s objection, the court added a sentence to this instruction regarding mistake of
law. The instruction given to the jury provided:

       The Court instructs the jury that one who takes property in good faith under
       fair color or claim of title, honestly believing he or she is the owner or has a
       right to take it, is not guilty of larceny, even though he or she may be mistaken
       in such belief, since in such case the felonious intent is lacking.

       If you have a reasonable doubt whether or not the defendant had a bona fide
       claim of ownership to the specific property and therefore, had no intent to
       steal, you must find the defendant not guilty.

       However, a defendant’s mistaken belief of the law is not a defense to the crime
       committed.

        During his closing argument, the defense counsel contended that the defendant lacked
the intent necessary to commit larceny. Counsel argued that the defendant made a good faith
“mistake” after “John Tincher said [he] could” take the tie plates. After weighing the
evidence, the jury found the defendant guilty of grand larceny. At the subsequent sentencing
hearing, the circuit court imposed the statutory sentence of one to ten years in prison. The
court then immediately suspended that sentence and, instead, imposed six months to two
years at the Anthony Correctional Center for Youth.

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                                  II. Standard of Review

        Because the petitioner asserts that the jury was improperly instructed, a de novo
standard applies to our appellate review. “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).

                                       III. Discussion

        While conceding that there was sufficient evidence presented at his trial for a
reasonable jury to find him guilty of grand larceny, the defendant nonetheless asserts that his
right to due process under the West Virginia Constitution4 was violated by the circuit court’s
inclusion of a single sentence in the jury instructions: “However, a defendant’s mistaken
belief of the law is not a defense to the crime committed.” This was the sentence that, at the
State’s request, was added to the end of the defense-offered instruction addressing mistake
of fact.

       Our law regarding the review of jury instructions is well-settled. We will not dissect
instructions on appeal, but will consider the charge as a whole:

              A trial court’s instructions to the jury must be a correct statement of the
       law and supported by the evidence. Jury instructions are reviewed by
       determining whether the charge, reviewed as a whole, sufficiently instructed
       the jury so they understood the issues involved and were not mislead by the
       law. A jury instruction cannot be dissected on appeal; instead, the entire
       instruction is looked at when determining its accuracy. A trial court, therefore,
       has broad discretion in formulating its charge to the jury, so long as the charge
       accurately reflects the law. Deference is given to a trial court’s discretion
       concerning the specific wording of the instruction, and the precise extent and
       character of any specific instruction will be reviewed only for an abuse of
       discretion.




       4
       The defendant points to the due process right mandated by article III, section 10 of
the West Virginia Constitution. In his brief, he does not assert any violation of his federal
due process right.

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Syl. Pt. 4, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995); accord Syl. Pt. 15, State
v. Bradshaw, 193 W.Va. 519, 457 S.E.2d 456 (1995). Upon a review of these jury
instructions as a whole, we find no reversible error.

        The defendant contends that the “mistake of law” sentence negated the jury’s
obligation to find that he acted intentionally in order to convict him of grand larceny.5 We
disagree. The jury was very clearly instructed that grand larceny requires “knowingly” and
“intentionally” taking property belonging to the railroad company “[w]ith the intent to
permanently deprive” the railroad company of its ownership. This language was repeated
for the petit larceny instruction.6 The instructions were read aloud to the jury, and a written
copy was sent into the jury room during deliberations.

        In the alternative, the petitioner argues that the jury must have been misled by the
“mistake of law” sentence in the instructions. We find no support for this speculative
argument. Quite simply, this instruction was extraneous to the case and the deliberations.
The defendant never asserted that he was mistaken about or somehow unaware of the law of
larceny. Rather, his defense at trial was premised entirely upon a claimed mistake of fact:
he thought he could take the tie plates because he “had no clue that they were worth value
to other people[.]” In other words, the theory of his defense was that he mistakenly thought
the tie plates were abandoned property free for him to take. Unfortunately for the defense,
there was very little evidence to support this theory. Indeed, the defendant’s statement about
not wanting to “rat anyone out” could have indicated to the jury that the petitioner knew he
was stealing the tie plates. The jury was given the defense-requested instruction on mistake
of fact, and defense counsel was permitted to fully explain his theory to the jury during
closing argument. Because the defendant did not assert that he made a mistake of law, and
there was no evidence to support such an argument, the “mistake of law” instruction was
surplusage that did not affect the verdict. The instructions as a whole sufficiently instructed

       5
         Intent is a required element of both grand and petit larceny. See, e.g., State v. Kelly,
175 W.Va. 804, 808, 338 S.E.2d 405, 409 (1985) (quoting Syl. Pt. 2, State v. McCoy, 63
W.Va. 69, 59 S.E. 758 (1907)) (“‘The animus furandi, or the intent to take and deprive
another of his property, is an essential element in the crimes of robbery and larceny.’”); Syl.
Pt. 3, in part, State v. Louk, 169 W.Va. 24, 285 S.E.2d 432 (1981), overruled on other
grounds by State v. Jenkins, 191 W.Va. 87, 443 S.E.2d 244 (1994) (“To support a conviction
for larceny . . . it must be shown that the defendant took and carried away the personal
property of another against his will and with the intent to permanently deprive him of the
ownership thereof.”).
       6
         Pursuant to West Virginia Code § 61-3-13, the difference between grand larceny and
petit larceny is the value of the goods taken. The other elements of the crimes are the same.

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the jury so that they understood the issues and were not misled by the law. See Guthrie, 194
W.Va. at 663-64, 461 S.E.2d at169-70, syl. pt. 4.7

       For the foregoing reasons, we affirm.

                                                                                  Affirmed.

ISSUED: October 19, 2017

CONCURRED IN BY:

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




       7
       Although we affirm this conviction, we nonetheless take this opportunity to
discourage trial courts from the practice of including extraneous jury instructions. As we
have explained,

              [t]his Court cautions circuit courts concerning the inclusion of
       extraneous and unnecessary instructions. In the same vein, this Court cautions
       prosecutors that their zealousness must be restrained in an effort to avoid the
       inclusion of erroneous instructions. An otherwise perfectly-tried case can be
       very promptly dismantled on appeal because of the addition of an erroneous
       or misleading instruction.

State v. Roger P., No. 12-0792, 2014 WL 620483, at *5 n.7 (W.Va. Feb. 14, 2014)
(memorandum decision).

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