       IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                              September 2013 Term

                                                               FILED

                                                         September 26, 2013

                                  No. 12-0534               released at 3:00 p.m.
                                                            RORY L. PERRY II, CLERK
                                                          SUPREME COURT OF APPEALS
                                                              OF WEST VIRGINIA



                        STATE OF WEST VIRGINIA,

                         Plaintiff Below, Respondent



                                      V.

                        JOSEPH FREDERICK HORN,

                         Defendant Below, Petitioner




              Appeal from the Circuit Court of McDowell County

                 Honorable Rudolph J. Murensky, II, Judge

                        Criminal Action No. 10-F-8-M


                                  AFFIRMED



                        Submitted: September 11, 2013

                          Filed: September 26, 2013


Thomas H. Evans, III                       Patrick Morrisey
Thomas Hanna Evans, PLLC                   Attorney General
Oceana, West Virginia                      Scott Johnson
Attorney for the Petitioner                Senior Assistant Attorney General
                                           Charleston, West Virginia
                                           Attorneys for the Respondent


JUSTICE DAVIS delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT




              1.     “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

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.”

Syllabus point 3, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000).



              2.     “When a criminal defendant undertakes a sufficiency challenge, all the

evidence, direct and circumstantial, must be viewed from the prosecutor’s coign of vantage,

and the viewer must accept all reasonable inferences from it that are consistent with the

verdict. This rule requires the trial court judge to resolve all evidentiary conflicts and

credibility questions in the prosecution’s favor; moreover, as among competing inferences

of which two or more are plausible, the judge must choose the inference that best fits the

prosecution’s theory of guilt.” Syllabus point 2, State v. LaRock, 196 W. Va. 294, 470

S.E.2d 613 (1996).



              3.      “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


                                               i
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.” Syllabus point 1, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995).



              4.      “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.” Syllabus point 3, State v. Guthrie, 194 W. Va.

657, 461 S.E.2d 163 (1995).



              5.       “Although premeditation and deliberation are not measured by any

particular period of time, there must be some period between the formation of the intent to


                                              ii
kill and the actual killing, which indicates the killing is by prior calculation and design. This

means there must be an opportunity for some reflection on the intention to kill after it is

formed.” Syllabus point 5, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995).



              6.      “In considering the constitutionality of a legislative enactment, courts

must exercise due restraint, in recognition of the principle of the separation of powers in

government among the judicial, legislative and executive branches. Every reasonable

construction must be resorted to by the courts in order to sustain constitutionality, and any

reasonable doubt must be resolved in favor of the constitutionality of the legislative

enactment in question. Courts are not concerned with questions relating to legislative policy.

The general powers of the legislature, within constitutional limits, are almost plenary. In

considering the constitutionality of an act of the legislature, the negation of legislative power

must appear beyond reasonable doubt.” Syllabus point 1, State ex rel. Appalachian Power

Co. v. Gainer, 149 W. Va. 740, 143 S.E.2d 351 (1965).



              7.     “‘A criminal statute must be set out with sufficient definiteness to give

a person of ordinary intelligence fair notice that his contemplated conduct is prohibited by

statute and to provide adequate standards for adjudication.’ Syllabus Point 1, State v. Flinn,

158 W. Va. 111, 208 S.E.2d 538 (1974).” Syllabus point 1, State v. Bull, 204 W. Va. 255,

512 S.E.2d 177 (1998).


                                               iii
               8.      “W. Va. Code § 61-2-1 (1991) enumerates three broad categories of

homicide constituting first degree murder: (1) murder by poison, lying in wait, imprisonment,

starving; (2) by any wilful, deliberate and premeditated killing; and (3) in the commission

of, or attempt to commit, inter alia, arson, sexual assault, robbery or burglary.” Syllabus

point 6, State v. Davis, 205 W. Va. 569, 519 S.E.2d 852 (1999).



               9.    “[Q]uestions of law and interpretations of statutes and rules are subject

to a de novo review.” Syllabus point 1, in part, State v. Duke, 200 W. Va. 356, 489 S.E.2d

738 (1997).



               10.    The second category of first degree murder described in W. Va. Code

§ 61-2-1 (1991) (Repl. Vol. 2010) as “[m]urder . . . by any willful, deliberate and

premeditated killing” is not unconstitutionally vague and does not violate United States

Constitution Amendment XIV, Section 1, or West Virginia Constitution Article III, Section

10.



               11.    “When reviewing a ruling on a motion to suppress, an appellate court

should construe all facts in the light most favorable to the State, as it was the prevailing party

below. Because of the highly fact-specific nature of a motion to suppress, particular

deference is given to the findings of the circuit court because it had the opportunity to


                                               iv
observe the witnesses and to hear testimony on the issues. Therefore, the circuit court’s

factual findings are reviewed for clear error.” Syllabus point 1, State v. Lacy, 196 W. Va.

104, 468 S.E.2d 719 (1996).



              12.    “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 to an abuse of discretion.” Syllabus point 1, State v. Calloway, 207

W. Va. 43, 528 S.E.2d 490 (1999).



              13.     “A law enforcement officer acting outside of his or her territorial

jurisdiction has the same authority to arrest as does a private citizen and may make an

extraterritorial arrest under those circumstances in which a private citizen would be

authorized to make an arrest.” Syllabus point 2, State ex rel. State v. Gustke, 205 W. Va. 72,

516 S.E.2d 283 (1999).



              14.    Under the common law, a private citizen is authorized to arrest another

person who the private citizen believes has committed a felony.




                                              v
             15.    A police officer acting beyond his or her territorial jurisdiction retains

power as a private citizen to make an arrest when a felony has been committed and the

officer has reasonable grounds to believe the person arrested has committed the crime.




                                            vi
Davis, Justice:

              The petitioner herein and defendant below, Joseph Frederick Horn (hereinafter

“Mr. Horn”), by the circuit court’s order dated February 21, 2012, was sentenced following

his jury convictions for the offenses of “Murder in the First Degree” and “Arson in the First

Degree.”1 Before this Court, Mr. Horn appeals the circuit court’s denial of his post-trial

motions. In his argument, Mr. Horn assigns four errors: (1) the evidence was insufficient

to support the jury verdict; (2) W. Va. Code § 61-2-1 (1991) (Repl. Vol. 2010)2 is

unconstitutionally vague; (3) the trial court failed to suppress the introduction of illegally

obtained evidence; and (4) the trial court erred when it denied his post-trial motions. Based

upon the parties’ written briefs and oral arguments, the appendix record designated for our

consideration, and the pertinent authorities, we affirm.



                                              I.


                     FACTUAL AND PROCEDURAL HISTORY


              On June 15, 2009, Michael Rife (hereinafter “decedent”) was murdered in his

home in McDowell County, West Virginia. When decedent’s body was found, a small fire

              1
               The lower court sentenced Mr. Horn to confinement for the remainder of his
natural life for his conviction for “Murder in the First Degree” and, with the jury’s
recommendation of mercy, noted that Mr. Horn shall be eligible for parole in fifteen years.
Also, Mr. Horn was sentenced to a period of five years incarceration for the “Arson in the
First Degree” conviction, with both sentences to be served concurrently.
              2
              For the relevant language and discussion regarding W. Va. Code § 61-2-1
(1991) (Repl. Vol. 2010), see Section III.B., Discussion, infra.

                                              1

was burning under his bed. The fire burned out without causing any harm, and the cause of

death was multiple stab wounds.



              The location of decedent’s home was on the border between the Virginia and

West Virginia boundary. When decedent’s body was found, a call was placed to 911. The

call was dispatched through Virginia. When the Virginia police arrived at decedent’s home,

they realized they were in West Virginia and, therefore, notified the West Virginia police.

The Virginia officers left the scene when the West Virginia police arrived at the decedent’s

home and began their investigation.



              During their work at the crime scene, the West Virginia officers learned that

Mr. Horn had been with decedent earlier that evening. The officers sought to question Mr.

Horn and located him nearby at decedent’s neighbor’s house. When the West Virginia

officers asked to speak to Mr. Horn, he came out of the home. The West Virginia officers

saw that Mr. Horn had dried blood in his ear, which led to their observation that there also

was blood on Mr. Horn’s waistband and on his boots. Upon looking through the window of

Mr. Horn’s truck, they also observed blood on the steering wheel of Mr. Horn’s vehicle.



              When Mr. Horn was asked about the blood in his ear, he immediately attempted

to wipe it away. Additionally, Mr. Horn was scuffing the top of his boots with the heel of


                                             2

the opposite foot, leading the officers to believe he was trying to destroy the evidence of

blood on the boots. The West Virginia officers handcuffed Mr. Horn and placed him in the

police cruiser. They also removed his boots as evidence. Although the officers initially

believed the neighbor’s house was located in West Virginia, the owner of the house informed

the officers that the house was in Virginia. The West Virginia officers then summoned the

Virginia police.



              Mr. Horn was arrested by the Virginia police upon their arrival. Warrants were

obtained to search Mr. Horn and his truck. The Virginia officers seized Mr. Horn’s

blood-stained clothing and transported him to jail in Virginia. Ultimately, Mr. Horn waived

extradition and was returned to West Virginia.



              On February 16, 2010, Mr. Horn was indicted on three counts: murder in the

first degree, robbery in the first degree,3 and arson in the first degree. A suppression hearing

was held June 6, 2011, during which the trial court discussed at length whether Mr. Horn’s

arrest was admissible under a theory of “fresh pursuit.”           The circuit court further

hypothesized that the West Virginia police properly arrested Mr. Horn under the same theory

as would apply to an arrest executed by a private citizen. Ultimately, the trial court denied

Mr. Horn’s motion to suppress the evidence.


              3
                  The robbery charge was dismissed.

                                               3

             Following a December 6, 2011, jury trial, Mr. Horn was convicted of “Murder

in the First Degree” and “Arson in the First Degree.” The jury recommended mercy in

sentencing on the murder conviction. On February 21, 2012, the trial court denied Mr.

Horn’s post-trial motions and sentenced him to life in prison with a recommendation of

mercy for the murder conviction and to a determinate term of five years in prison for the

arson conviction, both sentences to run concurrently. This appeal followed.



                                           II.


                              STANDARD OF REVIEW


             On appeal, Mr. Horn sets forth various assignments of error that involve

different standards of review. The applicable standards will be addressed in the pertinent

sections of this Opinion. As a general matter, however, we have held that,

                    [i]n 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 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). Mindful of these

applicable standards, we now examine the individual issues presented in this appeal.




                                            4

                                              III.


                                        DISCUSSION


              Mr. Horn assigns four errors on appeal: (1) the evidence was insufficient to

support the jury verdict; (2) W. Va. Code § 61-2-1 is unconstitutionally vague; (3) the trial

court failed to suppress the introduction of illegally obtained evidence; and (4) the trial court

erred when it denied the post-trial motions. Each alleged error will be addressed separately.



                              A. Insufficiency of the Evidence

              Mr. Horn’s first assignment of error relates to the sufficiency of the evidence.

Mr. Horn argues that the trial court erred in denying his requests for judgment of acquittal

because the State failed to present evidence of each statutory element of murder pursuant to

W. Va. Code § 61-2-1.4 Specifically, Mr. Horn avers that there was no evidence proving that

he committed murder, and, even if the evidence proved murder, it failed to show any

premeditation and/or malice, which he claims are required elements under the statute for first




              4
                 We note that Mr. Horn also asserted that the evidence was insufficient to
support his arson conviction under W. Va. Code § 61-3-1 (1997) (Repl. Vol. 2010).
However, Mr. Horn’s brief failed to develop this issue. “Although we liberally construe
briefs in determining issues presented for review, issues which are not raised, and those
mentioned only in passing but are not supported with pertinent authority, are not considered
on appeal.” State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996), citing State
v. Lilly, 194 W. Va. 595, 605 n.16, 461 S.E.2d 101, 111 n.16 (1995) (“casual mention of an
issue in a brief is cursory treatment insufficient to preserve the issue on appeal”). Therefore,
we determine that the argument in regard to the arson statute was abandoned because it was
not fully briefed; accordingly, the issue will not be addressed by this Court.

                                               5

degree murder. Conversely, the State offers that sufficient circumstantial evidence was

introduced to sustain Mr. Horn’s convictions.



                We have instructed that

                       [w]hen a criminal defendant undertakes a sufficiency
                challenge, all the evidence, direct and circumstantial, must be
                viewed from the prosecutor’s coign of vantage, and the viewer
                must accept all reasonable inferences from it that are consistent
                with the verdict. This rule requires the trial court judge to
                resolve all evidentiary conflicts and credibility questions in the
                prosecution’s favor; moreover, as among competing inferences
                of which two or more are plausible, the judge must choose the
                inference that best fits the prosecution’s theory of guilt.

Syl. pt. 2, State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996). When a circuit court’s

ruling on a sufficiency challenge is appealed to this Court, we are guided by the principle that

                        [t]he 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). We have cautioned,

however, 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

                                                6

              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, Guthrie, 194 W. Va. 657, 461 S.E.2d 163.



              Mr. Horn was charged with murder “by any willful, deliberate and

premeditated killing[.]” To sustain a conviction for this category of first degree murder, it

is essential that “the State produce[ ] evidence that the homicide was a result of malice

. . . and was deliberate and premeditated [.]” Syl. pt. 3, in part, State v. Hatfield, 169 W. Va.

191, 286 S.E.2d 402 (1982). As previously stated, one of Mr. Horn’s specific complaints

was that the evidence failed to prove premeditation. This Court has had previous occasion

to discuss the premeditation element of first degree murder:

                      Although premeditation and deliberation are not
              measured by any particular period of time, there must be some
              period between the formation of the intent to kill and the actual
              killing, which indicates the killing is by prior calculation and
              design. This means there must be an opportunity for some
              reflection on the intention to kill after it is formed.

Syl. pt. 5, Guthrie, 194 W. Va. 657, 461 S.E.2d 163. Furthermore,

              [t]he duration of that period cannot be arbitrarily fixed. The time
              in which to form a deliberate and premeditated design varies as

                                               7

              the minds and temperaments of people differ and according to
              the circumstances in which they may be placed. Any interval of
              time between the forming of the intent to kill and the execution
              of that intended, is sufficient to support a conviction for first
              degree murder.

Syl. pt. 6, in part, Guthrie, 194 W.Va. 657, 461 S.E.2d 163.



              Mr. Horn also contends that the requisite element of malice was not proved.

This Court previously has expressed that

              “[m]ethods for proving malice cannot be definitely prescribed
              because it is a subjective attitude, State v. Gunter, 123 W. Va.
              569, 17 S.E.2d 46 (1941); however, (malice) may be inferred
              from the intentional use of a deadly weapon, State v. Brant,
              W. Va., 252 S.E.2d 901 (1979).” State v. Ferguson, 270 S.E.2d
              166, 170 (1980)[, overruled on other grounds, State v. Kopa,
              173 W. Va. 43, 311 S.E.2d 412 (1983)].

State v. Slonaker, 167 W. Va. 97, 101, 280 S.E.2d 212, 215 (1981). Accord Syl. pt. 3, State

v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996) (“A jury may infer malice and intent to kill

from the use of a deadly weapon in circumstances not affording the defendant excuse,

provocation, or justification.”). “A jury instruction about malice should be, that it is not

essential that malice should have existed for any length of time before the killing, but it is

sufficient if malice springs into the mind before the accused did the killing.” Syl. pt. 2,

Slonaker, 167 W. Va. 97, 280 S.E.2d 212.




                                              8

              Applying these principles to the present case, this Court determines that

sufficient evidence existed to support the jury’s conviction of Mr. Horn for first degree

murder. At trial, the evidence showed that decedent was murdered by multiple stabbings,

which leads to a permissible inference that his death was caused by intentional, malicious,

and deliberate conduct. Further, after decedent was killed, Mr. Horn arrived shirtless at a

nearby house. When Mr. Horn was taken into custody, his clothing was stained with blood

that later was determined to be decedent’s blood. While in a police cruiser, Mr. Horn told

the officer that he was in decedent’s house when an unknown person entered and knocked

Mr. Horn unconscious. Mr. Horn surmised that this unknown person killed decedent.

However, Mr. Horn had no explanation for the reason that he left decedent’s home without

calling the police or seeking medical assistance. Nor did he promulgate how decedent’s

blood was found on his clothes. Taking into account the manner of decedent’s death, Mr.

Horn’s behavior that night, and the evidence found on Mr. Horn’s clothes, a jury could

determine that the circumstances were proved beyond a reasonable doubt. Thus, we find that

the evidence, taken in the light most favorable to the prosecution, was sufficient to support

the first degree murder conviction, and we will not disturb the jury’s decision in this regard.




                                              9

                       B. W. Va. Code § 61-2-1 (1991) (Repl. Vol. 2010)

              Next, Mr. Horn argues that W. Va. Code § 61-2-15 is unconstitutional as void

for vagueness. In so asserting, he sets forth that the statute violates Article III, § 10 of the

West Virginia Constitution6 and the Fourteenth Amendment of the United States

Constitution.7 Conversely, the State opines that the statute is constitutional in that it puts a

reasonable person on notice of the elements thereof. Moreover, the State asserts that Mr.

Horn points to no specific language in the statute, cites to no authority for his claim of

unconstitutional vagueness, and otherwise fails to discuss his claim.



              In particular to the current case, wherein Mr. Horn asserts a statute has

constitutional infirmities, we have explained that

                     [i]n considering the constitutionality of a legislative
              enactment, courts must exercise due restraint, in recognition of
              the principle of the separation of powers in government among


              5
                Mr. Horn also has asserted that W. Va. Code § 61-3-1 is unconstitutional. As
occurred with the insufficiency of the evidence argument regarding the arson statute, Mr.
Horn has failed to brief the issue. The argument in regard to the constitutionality of the arson
statute was likewise abandoned because it was not briefed; therefore, it will not be addressed
by this Court. See State v. Lilly, 194 W. Va. 595, 605 n.16, 461 S.E.2d 101, 111 n.16 (1995)
(“casual mention of an issue in a brief is cursory treatment insufficient to preserve the issue
on appeal”).
              6
               Art. III, sec. 10 of the West Virginia Constitution provides that “[n]o person
shall be deprived of life, liberty, or property, without due process of law, and the judgment
of his peers.” This provision is a corollary to the applicable provision of the Fourteenth
Amendment of the United States Constitution.
              7
                  See note 6, supra.

                                              10

              the judicial, legislative and executive branches. Every
              reasonable construction must be resorted to by the courts in
              order to sustain constitutionality, and any reasonable doubt must
              be resolved in favor of the constitutionality of the legislative
              enactment in question. Courts are not concerned with questions
              relating to legislative policy. The general powers of the
              legislature, within constitutional limits, are almost plenary. In
              considering the constitutionality of an act of the legislature, the
              negation of legislative power must appear beyond reasonable
              doubt.

Syl. pt. 1, State ex rel. Appalachian Power Co. v. Gainer, 149 W. Va. 740, 143 S.E.2d 351

(1965). Accord Syl. pt. 3, Willis v. O’Brien, 151 W. Va. 628, 153 S.E.2d 178 (1967)

(“When the constitutionality of a statute is questioned every reasonable construction of the

statute must be resorted to by a court in order to sustain constitutionality, and any doubt must

be resolved in favor of the constitutionality of the legislative enactment.”). This Court also

has observed that “[t]here is a presumption of constitutionality with regard to legislation.”

Syl. pt. 6, in part, Gibson v. West Virginia Dep’t of Hwys, 185 W. Va. 214, 406 S.E.2d 440

(1991).



              More pointed to the issue of constitutional vagueness, the law is settled that

“‘[a] criminal statute must be set out with sufficient definiteness to give a person of ordinary

intelligence fair notice that his contemplated conduct is prohibited by statute and to provide

adequate standards for adjudication.’ Syllabus Point 1, State v. Flinn, 158 W. Va. 111, 208

S.E.2d 538 (1974).” Syl. pt. 1, State v. Bull, 204 W. Va. 255, 512 S.E.2d 177 (1998). See

also Syl. pt. 1, State ex rel. Myers v. Wood, 154 W. Va. 431, 175 S.E.2d 637 (1970) (“There

                                              11

is no satisfactory formula to decide if a statute is so vague as to violate the due process

clauses of the State and Federal Constitutions. The basic requirements are that such a statute

must be couched in such language so as to notify a potential offender of a criminal provision

as to what he should avoid doing in order to ascertain if he has violated the offense provided

and it may be couched in general language.”).



              It follows that the language of the statute must be clear so that an ordinary

person has fair notice of what acts must be avoided. The applicable statute in the present

case, W. Va. Code § 61-2-1, states:

                     Murder by poison, lying in wait, imprisonment, starving,
              or by any willful, deliberate and premeditated killing, or in the
              commission of, or attempt to commit, arson, kidnapping, sexual
              assault, robbery, burglary, breaking and entering, escape from
              lawful custody, or a felony offense of manufacturing or
              delivering a controlled substance as defined in article four,
              chapter sixty-a of this code, is murder of the first degree. All
              other murder is murder of the second degree.

                     In an indictment for murder and manslaughter, it shall not
              be necessary to set forth the manner in which, or the means by
              which, the death of the deceased was caused, but it shall be
              sufficient in every such indictment to charge that the defendant
              did feloniously, willfully, maliciously, deliberately and
              unlawfully slay, kill and murder the deceased.

In Syllabus point 5 of State v. Sims, 162 W. Va. 212, 248 S.E.2d 834 (1978), this Court

explained: “W. Va. Code, 61-2-1, was not designed primarily to define the substantive

elements of the particular types of first degree murder, but rather was enacted to categorize


                                             12

the common law crimes of murder for the purpose of setting degrees of punishment.”

Previously, when we have had occasion to review this statute, we have reiterated that

“W. Va. Code § 61-2-1 (1991) enumerates three broad categories of homicide constituting

first degree murder: (1) murder by poison, lying in wait, imprisonment, starving; (2) by any

wilful, deliberate and premeditated killing; and (3) in the commission of, or attempt to

commit, inter alia, arson, sexual assault, robbery or burglary.” Syl. pt. 6, State v. Davis, 205

W. Va. 569, 519 S.E.2d 852 (1999).



              As a general rule of statutory interpretation, we have held that “questions of

law and interpretations of statutes and rules are subject to a de novo review.” Syl. pt. 1, in

part, State v. Duke, 200 W. Va. 356, 489 S.E.2d 738 (1997). In our analysis of statutes, we

have explained that the first step is to identify the intent expressed by the Legislature in

promulgating the provision at issue. “The primary object in construing a statute is to ascertain

and give effect to the intent of the Legislature.” Syl. pt. 1, Smith v. State Workmen’s Comp.

Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975). Then, we study the particular language

used by the Legislature. “Where the language of a statute is clear and without ambiguity the

plain meaning is to be accepted without resorting to the rules of interpretation.” Syl. pt. 2,

State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968). See also Syl. pt. 5, State v. General

Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353

(1959) (“When a statute is clear and unambiguous and the legislative intent is plain, the


                                              13

statute should not be interpreted by the courts, and in such case it is the duty of the courts not

to construe but to apply the statute.”); Syl. pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d

488 (1951) (“A statutory provision which is clear and unambiguous and plainly expresses the

legislative intent will not be interpreted by the courts but will be given full force and

effect.”).



               “In the absence of any definition of the intended meaning of words or terms

used in a legislative enactment, they will, in the interpretation of the act, be given their

common, ordinary and accepted meaning in the connection in which they are used.” Syl. pt.

1, Miners in Gen. Group v. Hix, 123 W. Va. 637, 17 S.E.2d 810 (1941), overruled on other

grounds by Lee-Norse Co. v. Rutledge, 170 W. Va. 162, 291 S.E.2d 477 (1982). Importantly,

                        [i]t is the duty of a court to construe a statute according
               to its true intent, and give to it such construction as will uphold
               the law and further justice. It is as well the duty of a court to
               disregard a construction, though apparently warranted by the
               literal sense of the words in a statute, when such construction
               would lead to injustice and absurdity.

Syl. pt. 2, Click v. Click, 98 W. Va. 419, 127 S.E. 194 (1925).



               Mr. Horn argues that the statute is unconstitutional for vagueness because it

fails to delineate what conduct is prohibited. Specifically, Mr. Horn asserts that the “statute

makes absolutely no reference or any attempt to describe what criminal conduct must be

committed by a person in order to violate said statute.” Mr. Horn has attacked the

                                               14

constitutionality of W. Va. Code § 61-2-1 in a general manner, without discussion as to the

particular prong of the statute that is applicable herein. However, the indictment is a part of

the appendix record, and our review indicates that Mr. Horn was accused of “feloniously,

unlawfully, maliciously, willfully, deliberately and premeditatedly, kill, slay and murder one

Michael A. Rife, in violation of West Virginia Code 61-2-1, as amended, against the peace

and dignity of the State.” Thus, based upon our review of the criminal charges and a liberal

construction of Mr. Horn’s argument, we infer that his argument regarding the

constitutionality of the statute is in regards to the category applicable to the facts of this case,

i.e., the second prong regarding murder “by any willful, deliberate and premeditated

killing[.]”



               Our analysis necessarily turns to the phrase at issue in this case: “willful,

deliberate and premeditated killing[.]” To determine the sufficiency of this phrase, we need

to affix meaning to the words contained therein. Encompassing all of the terms, it has been

stated that

               a jury must consider the circumstances in which the killing
               occurred to determine whether it fits into the first degree
               category. Relevant factors include the relationship of the
               accused and the victim and its condition at the time of the
               homicide; whether plan or preparation existed either in terms of
               the type of weapon utilized or the place where the killing
               occurred; and the presence of a reason or motive to deliberately
               take life. No factor is controlling. Any one or all taken together
               may indicate actual reflection on the decision to kill. This is


                                                15

              what our statute means by “willful, deliberate and premeditated
              killing.”

Guthrie, 194 W. Va. at 675 n.23, 461 S.E.2d at 181 n.23. The term “willful” has been used

to characterize intentional conduct as distinguished from accidental or merely negligent

conduct. See State v. Pearis, 35 W. Va. 320, 322, 13 S.E. 1006, 1007 (1891) (recognizing

that general criminal intent is established by showing that defendant willfully and knowingly

did the unlawful act). See also Syl. pt. 6, in part, Guthrie, 194 W.Va. 657, 461 S.E.2d 163

(“[A] trial court should instruct the jury that murder in the first degree consists of an

intentional, deliberate, and premeditated killing.” (emphasis added)).



              Having reiterated the intentional conduct required by the statute, we now turn

to the definitions of deliberate and premeditated.

              The terms “deliberate” and “premeditated” have not often been
              defined in our cases but do carry a certain degree of definitional
              overlap. . . . To be guilty of this form of first degree murder the
              defendant must not only intend to kill but in addition he must
              premeditate the killing and deliberate about it. It is not easy to
              give a meaningful definition of the words “premeditate” and
              “deliberate” as they are used in connection with first degree
              murder. Perhaps the best that can be said of “deliberation” is
              that it requires a cool mind that is capable of reflection, and of
              “premeditation” that it requires that the one with the cool mind
              did in fact reflect, at least for a short period of time before his
              act of killing. . . . . The intention may be finally formed only as
              a conclusion of prior premeditation and deliberation.

See State v. Hatfield, 169 W. Va. 191, 200-01, 286 S.E.2d 402, 409 (1995) (footnotes and

internal quotations and citations omitted). Accord State v. Dodds, 54 W. Va. 289, 297–98,

                                              16

46 S.E. 228, 231 (1903) (“The next ingredient of the crime is that it must be deliberate. To

deliberate is to reflect, with a view to make a choice. If a person reflects, though but for a

moment before he acts, it is unquestionably a sufficient deliberation within the meaning of

the statute. The last requisite is that the killing must be premeditated. To premeditate is to

think of a matter before it is executed. The word, premeditated, would seem to imply

something more than deliberate, and may mean that the party not only deliberated, but had

formed in his mind the plan of destruction.”). As a final note in regard to the statute’s use

of the word “killing,” we observe that,

                     [u]nder our decisions, the corpus delicti consists in cases
              of felonious homicide, of two fundamental facts: (1) the death;
              and (2) the existence of criminal agency as a cause thereof. The
              former must be proved either by direct testimony or by
              presumptive evidence of the strongest kind, but the latter may be
              established by circumstantial evidence or by presumptive
              reasoning upon the facts and circumstances of the case.

Syl. pt. 6, State v. Beale, 104 W. Va. 617, 141 S.E. 7 (1927).



              A review of our State’s legal precedents leads to the conclusion that the terms

of murder under the second category have been defined sufficiently. Moreover, to the extent

that Mr. Horn’s argument can be interpreted as meaning that he was not on notice of the

specific acts that are statutorily prohibited, we have recognized that the statute does not set

forth proscribed acts. See Syl. pt. 5, State v. Sims, 162 W. Va. 212, 248 S.E.2d 834 (1978)

(“W. Va. Code, 61-2-1, was not designed primarily to define the substantive elements of the


                                              17

particular types of first degree murder, but rather was enacted to categorize the common law

crimes of murder for the purpose of setting degrees of punishment.”). The second category

of murder under the statute sets forth the mental state of a defendant that must be proved by

the State to attain a conviction. The statute is sufficiently definite to give a person of

ordinary intelligence fair notice that his or her contemplated killing is prohibited by statute.



              As a final comment, we point out that the constitutionality of W. Va. Code

§ 61-2-1 has been discussed on various occasions, but in regards to the third classification

of murder in the statute. When afforded the opportunity, we expressly declared that the

felony murder portion of the statute was constitutional. See Syl. pt. 3, State ex rel. Peacher

v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977) (“W. Va. Code, 61–2–1 does not

violate the due process clause of our federal and state constitutions. It requires the State to

prove, in order to sustain a first degree murder conviction in a felony-murder case, that

defendant committed or attempted to commit the named felony and that he committed murder

incidental thereto.”).



              Taking into account the aforementioned, we now hold that the second category

of first degree murder contained in W. Va. Code § 61-2-1 (1991) (Repl. Vol. 2010) as

“[m]urder . . . by any willful, deliberate and premeditated killing” is not unconstitutionally




                                              18

vague and does not violate the United States Constitution Amendment XIV, Section 1, or the

West Virginia Constitution Article III, Section 10.



                              C. Illegally Obtained Evidence

              Mr. Horn sought to suppress certain evidence, specifically his statements and

his clothing, by arguing that they were the product of an illegal arrest. Contrary to Mr.

Horn’s arguments, the State explains that the trial court acknowledged that the West Virginia

officers may have been acting inadvertently as private citizens when they detained Mr. Horn.

Importantly, as urged by the State, the West Virginia officers were acting under exigent

circumstances and a good faith belief that they were situated continually in the State of West

Virginia, and they immediately sought Virginia police involvement when they learned they

were in Virginia.



              While the facts are clear that police forces from two separate states were

involved in this case and, further, that Mr. Horn was at least detained by the West Virginia

police until the Virginia police could arrive and execute an arrest, a review of the transcript

of the suppression hearing reveals that Mr. Horn’s argument relates to the actions of the West

Virginia police. To be clear, Mr. Horn also maintains that the arrest by the Virginia police

was unlawful, but his reasoning is that the illegality stemmed from the fact that it occurred

after the allegedly improper arrest by the West Virginia police while they were located within


                                              19

the State of Virginia. The State counters that the blood on Mr. Horn’s ear gave the West

Virginia officers probable cause (1) to believe that Mr. Horn was involved in decedent’s

murder and (2) to detain Mr. Horn so that they could preserve evidence prior to the arrival

of the Virginia police. The State additionally sets forth that any statements made by Mr.

Horn were properly admissible.



              The lower court held a hearing on June 6, 2011, and denied Mr. Horn’s

requests to suppress evidence. Regarding the objects confiscated, the circuit court stated

from the bench that the police officers

              seized all these items pursuant to what I consider to be a legal
              search warrant. So as far as suppressing any of those items - ­
              the boots, the pants, the waistline, the steering wheel and the ear
              blood, and the underwear, as far as search and seizure is
              concerned, I’m not going to suppress any of that.

The circuit court’s ruling was based on its reasoning that the Virginia police, when

summoned, legally arrested Mr. Horn and executed the appropriate search warrants. In

response to Mr. Horn’s assertions regarding the allegedly illegal arrest, the circuit court

suggested that the West Virginia police may properly be viewed as executing an arrest by a

private citizen.



              Moving on to consider Mr. Horn’s statements, the circuit court found that the

first statement about the blood on Mr. Horn’s ear was admissible because it was during a


                                              20

non-custodial conversation when the police were searching for information. A recorded

statement was determined to be admissible based on the circuit court’s decision that Mr.

Horn was properly advised of his Miranda rights.8 Finally, statements made by Mr. Horn

to West Virginia police during his transport from the State of Virginia to the State of West

Virginia were found to be admissible on the basis that the officers read Mr. Horn his

Miranda rights at the outset of the car trip.



              Thus, the lower court determined that the physical evidence seized, as well as

the verbal statements made by Mr. Horn, were all admissible. In our appellate review, we

are guided as follows:

                      When reviewing a ruling on a motion to suppress, an
              appellate court should construe all facts in the light most
              favorable to the State, as it was the prevailing party below.
              Because of the highly fact-specific nature of a motion to
              suppress, particular deference is given to the findings of the
              circuit court because it had the opportunity to observe the
              witnesses and to hear testimony on the issues. Therefore, the
              circuit court’s factual findings are reviewed for clear error.

Syl. pt. 1, State v. Lacy, 196 W. Va. 104, 468 S.E.2d 719 (1996). Specifically regarding

searches, we have explained that,

                     [i]n contrast to a review of the circuit court’s factual
              findings, the ultimate determination as to whether a search or
              seizure was reasonable under the Fourth Amendment to the


              8
                  See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).

                                                21

               United States Constitution and Section 6 of Article III of the
               West Virginia Constitution is a question of law that is reviewed
               de novo. Similarly, an appellate court reviews de novo whether
               a search warrant was too broad. Thus, a circuit court’s denial of
               a motion to suppress evidence will be affirmed unless it is
               unsupported by substantial evidence, based on an erroneous
               interpretation of the law, or, based on the entire record, it is
               clear that a mistake has been made.

Syl. pt. 2, id. With particular applicability to the admission of a defendant’s statements, we

have stated that “[t]he 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 to an abuse of discretion.” Syl. pt. 1, State v. Calloway, 207 W. Va. 43,

528 S.E.2d 490 (1999).



               While the parties herein use different terms to describe the conduct of the West

Virginia police while in the State of Virginia, it is clear that the actions of the West Virginia

police force are the beginning point of our analysis. Mr. Horn refers to the actions as an

illegal arrest, while the State uses the term detainer. We note that “[a]n arrest is the detaining

of the person of another by any act or speech that indicates an intention to take him into

custody and that subjects him to the actual control and will of the person making the arrest.”

Syl. pt. 1, State v. Muegge, 178 W. Va. 439, 360 S.E.2d 216 (1987), overruled on other

grounds by State v. Honaker, 193 W. Va. 51, 454 S.E.2d 96 (1994). Factually, Mr. Horn was

hand-cuffed and placed in a police cruiser by the West Virginia officers, and his boots were

seized to preserve evidence. These actions occurred about twenty feet over the state line, in

                                               22

the State of Virginia, by West Virginia police officers. The West Virginia officers originally

thought they were situated in the State of West Virginia; however, the property owner alerted

them to the fact that they were in the State of Virginia. After detaining Mr. Horn, the West

Virginia officers contacted the Virginia police who arrested Mr. Horn and got a warrant for

his boots and other items.



              Based on the facts, the circuit court did not suppress the evidence, theorizing

that the officers had a good faith belief that they were located within the State of West

Virginia, and, upon learning differently, the lower court reasoned that the officers executed

a citizen’s arrest to prevent the destruction of evidence until the Virginia authorities arrived

and arrested Mr. Horn.



              This Court has had previous occasion to address extra-territorial arrests by

police officers. In Syllabus point 2 of State ex rel. State v. Gustke, 205 W. Va. 72, 516

S.E.2d 283 (1999), we held that “[a] law enforcement officer acting outside of his or her

territorial jurisdiction has the same authority to arrest as does a private citizen and may make

an extraterritorial arrest under those circumstances in which a private citizen would be

authorized to make an arrest.” In Gustke, a law enforcement officer witnessed the

commission of a misdemeanor DUI, and we held that the officer’s arrest of the defendant,

outside of the officer’s proper jurisdiction, was legal in that the officer was in the position


                                              23

as a private citizen. See Syl. pt. 3, Gustke, id. (“Under the common law, a private citizen is

authorized to arrest another who commits a misdemeanor in his or her presence when that

misdemeanor constitutes a breach of the peace.”).



              Thus, Gustke answers the question whether a police officer can make an arrest

outside of his or her jurisdiction, and specifically approves such an arrest in the case of a

misdemeanor that occurred in the officer’s presence. Turning to the case presently before

this Court, however, we note two factual distinctions: the instant case involves a felony, and

that felony was committed outside the presence of the police officers. Gustke holds that a

police officer may make an arrest outside of his or her applicable jurisdiction as long as a

private citizen could have effectuated such arrest. However, Gustke did not address whether

a private citizen, and, by application, a police officer in an extraterritorial situation, may

make an arrest in the case of a felony committed outside the presence of the citizen. We have

addressed this specific issue in the realm of a police officer within his or her jurisdiction and

held that “[t]he right to arrest in public without a warrant, based on probable cause that the

person has or is about to commit a felony, is the general if not universal rule in this country.”

Syl. pt. 4, State v. Howerton, 174 W. Va. 801, 329 S.E.2d 874 (1985). However, as

previously stated, an officer acting outside of his or her jurisdiction has the same arrest

powers as a private citizen.




                                               24

               In that regard, this Court has stated, in Allen v. Lopinsky, 81 W. Va. 13, 94 S.E.

369 (1917), that “ [a] private person cannot justify an arrest made without a warrant, by

himself, or by an officer at his instance, for a misdemeanor or a felony, unless the felony has

been actually committed.” Moreover, we have been directed to look to the law of the forum

of the arrest in determining whether a citizen’s arrest was proper. See Muegge, 178 W.Va.

439, 442, 360 S.E.2d 216, 219, overruled on other grounds (“a peace officer who makes an

arrest while in another jurisdiction does so as a private person, and may only act beyond his

[or her] bailiwick to the extent that the law of the place of arrest authorizes such individuals

to do so[.]” (citations omitted)). In this regard, it is conceded that the West Virginia police

action that constituted an arrest occurred in Virginia. Relying on Virginia law, it has been

found that a police officer “acting beyond his territorial jurisdiction . . . nonetheless retained

power as a private citizen to make an arrest when . . . the felony had actually been committed

and he had reasonable grounds for believing the person arrested had committed the crime.”

Tharp v. Commonwealth, 221 Va. 487, 270 S.E.2d 752 (1980).                      Accord Hall v.

Commonwealth, 12 Va. App. 559, 389 S.E.2d 921 (1990). Based on the foregoing, we adopt

the reasoning set forth in Virginia’s case law, which is based on the common law, and

comports with our decisions as to arrests by a private citizen. Thus, we hold that, under the

common law, a private citizen is authorized to arrest another person who the private citizen

believes has committed a felony. Further, we hold that a police officer acting beyond his

territorial jurisdiction retains power as a private citizen to make an arrest when a felony


                                               25

actually has been committed and the officer has reasonable grounds for believing the person

arrested has committed the crime. Applying the foregoing to the present case, we find that

a private citizen could have effected a citizen’s arrest of Mr. Horn in the State of Virginia.

It follows that an officer outside of his or her jurisdictional territory has the same rights as

a private citizen. Thus, the arrest was lawful and did not provide a basis for the exclusion

of the physical evidence or the statements of Mr. Horn.9




               9
                In his fourth and final argument, Mr. Horn rests on three reasons to support
his allegation that the trial court erred in denial of his motion for a new trial. First, he asserts
that the State made improper remarks to the jury and the jury was improperly influenced by
the same, Second, Mr. Horn argues that the State mentioned, in both its opening and closing
statements, a previously-suppressed knife. Third, he contends that there was an outside
influence or an improper compromise verdict that influenced the jury. Finding all of these
issues to be without merit, we also point out that, “[a]lthough we liberally construe briefs in
determining issues presented for review, issues which are not raised, and those mentioned
only in passing but are not supported with pertinent authority, are not considered on appeal.”
State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996). In his arguments, Mr.
Horn sets forth the aforementioned grounds, but his arguments are cursory, unsupported by
the facts and law, lack citation to the record, and contain no legal anaylsis. Moreover, to the
extent that the comments regarding the suppressed knife were error, we find it to be harmless
error. Therefore, the circuit court did not err in denying the motions for a new trial.

                                                26

                                           IV.


                                    CONCLUSION


              Based on the foregoing, the circuit court’s order dated February 21, 2012,

sentencing Mr. Horn following his jury convictions for the offenses of “Murder in the First

Degree” and “Arson in the First Degree” is affirmed.



                                                                                Affirmed.




                                            27

