                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS

State of West Virginia,
Plaintiff Below, Respondent                                                           FILED
                                                                                  November 21, 2018
vs.) No. 17-0951 (Cabell County 15-F-337)                                            EDYTHE NASH GAISER, CLERK
                                                                                     SUPREME COURT OF APPEALS
                                                                                         OF WEST VIRGINIA 
Ronald Steven Carson Jr.,
Defendant Below, Petitioner


                               MEMORANDUM DECISION
        Petitioner Ronald Steven Carson Jr., by counsel A. Courtenay Craig, appeals the Circuit
Court of Cabell County’s September 26, 2017, order sentencing him following his convictions of
driving under the influence causing the death of another person and negligent homicide. The
State of West Virginia, by counsel Zachary Aaron Viglianco and Gordon L. Mowen II, filed a
response in support of the circuit court’s order and a supplemental appendix. On appeal,
petitioner argues that the circuit court erred in failing to offer a jury instruction on missing or lost
evidence, failing to suppress his statement, and denying his right to a speedy trial.

        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 the evening of April 5, 2015, Kevin Perry was driving on Route 2 in Cabell County,
West Virginia. Mr. Perry noticed a single headlight behind him, which he ascertained was from a
motorcycle. Because Mr. Perry often rode motorcycles himself and was aware of the potential
visibility hazards, he was particularly attuned to the motorcyclist’s location. As he was traveling
along Route 2, Mr. Perry noticed headlights to his right coming from a driveway located
perpendicular to Route 2. Mr. Perry was concerned for a moment that the car coming from the
driveway was going to enter Route 2 right in front of him, but the car did stop at the end of the
driveway, and Mr. Perry continued past it. As Mr. Perry checked on the motorcyclist from his
rearview mirror, he saw the headlight disappear and heard a loud screech and impact. Mr. Perry
immediately turned his car around and proceeded back to the accident.

       At the scene of the accident, Mr. Perry discovered the driver of the motorcycle, Justin
Parsons, underneath the car that had turned out of the driveway, which was driven by petitioner.
Mr. Perry instructed petitioner to turn his car off and exit it. Mr. Perry described petitioner’s
response as slow and lethargic. Mr. Perry also attempted to locate a pulse on Mr. Parsons, but
could not find one. Ultimately, Mr. Parsons died at the scene.

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        The first officer to arrive on the scene, Justin Cochran, similarly characterized
petitioner’s behavior at the scene as “unusual” given petitioner’s “slightly delayed” reaction to
questions and “really calm” demeanor. Deputy Cochran administered a breathalyzer, which
revealed that petitioner was not under the influence of alcohol. Another investigating officer,
Michael Talbott, arrived at the scene shortly after Deputy Cochran, and described petitioner as
“withdrawn and slow.” Petitioner’s “very calm” demeanor struck Deputy Talbott as odd given
the gravity of the situation, so he asked petitioner whether he had consumed any alcohol.
Petitioner responded that he had not had any alcohol, “but that he had taken his medication,”
which was reported to be three half-milligram tablets of Xanax. Petitioner was later arrested.1

       During the crash, the motorcycle’s headlight became detached from the handlebars, but
remained attached to the bike by wires. At the scene following the crash, due to petitioner’s
statement that he did not see the bike’s headlight before pulling out onto Route 2, the wires were
cut and the headlight was taken into evidence.

       Petitioner was indicted on August 12, 2015, on one count of driving under the influence
causing the death of another person and one count of negligent homicide. Various pretrial
motions were argued and proceedings held, and petitioner’s trial eventually began on August 28,
2017. After a two-day trial, the jury found petitioner guilty of both crimes charged. On
September 26, 2017, the circuit court sentenced petitioner to not less than two nor more than ten
years of incarceration for his conviction of driving under the influence causing the death of
another, but because the court found that the negligent homicide conviction “may be a lesser
included” offense of driving under the influence causing the death of another, it did not impose a
sentence for the negligent homicide conviction. It is from this order that petitioner appeals.

        Petitioner first assigns as error the circuit court’s failure to instruct the jury in accord with
State v. Osakalumi, 194 W.Va. 758, 461 S.E.2d 504 (1995). Petitioner claims that the State
should have preserved the entire motorcycle – not just the headlight – because the headlight
alone was insufficient to determine whether a malfunction in the light was “caused by anything
from the battery connections to the wiring to the lamp itself. The lamp alone would not register
answers to the other possible malfunctions.” Petitioner asserts that in his initial conversations
following the accident, he maintained that he did not see the headlight on the motorcycle,
thereby alerting the State to the “importance of the evidence.” Petitioner further claims that the
failure to preserve the entire bike deprived him of the ability to prove his defense that the
motorcycle’s light had malfunctioned and was not on at the time of the collision.



                                                                    
        1
        After his admission to consuming Xanax, but prior to his arrest, petitioner was placed in
the back of a police cruiser for approximately forty-five minutes and, later, instructed to undergo
additional tests, including field sobriety tests. The circuit court granted petitioner’s motion to
suppress evidence obtained following his placement in the cruiser, finding that this placement
amounted to a de facto arrest.



                                                                       2
         
        We review the refusal to give a requested jury instruction under an abuse of discretion
standard. Syl. Pt. 1, in part, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996). “When
assessing whether the trial court properly exercised that discretion, a reviewing court must
examine the instructions as a whole to determine if they sufficiently cover the issues in the case
and focus on the facts presented by the evidence.” Id. at 285, 489 S.E.2d at 262 (citations
omitted). Where an instruction is requested but refused, reversible error occurs only if

       (1) the instruction is a correct statement of the law; (2) it is not substantially
       covered in the charge actually given to the jury; and (3) it concerns an important
       point in the trial so that the failure to give it seriously impairs a defendant’s ability
       to effectively present a given defense.

Syl. Pt. 11, in part, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994). But, to be entitled to an
instruction on the theory of his or her defense, there must be “a basis in evidence for the
instruction” and the instruction must have “support in law.” Hinkle, 200 W.Va. at 285, 489
S.E.2d at 262.

        In Osakalumi, we held that

               [w]hen the State had or should have had evidence requested by a criminal
       defendant but the evidence no longer exists when the defendant seeks its
       production, a trial court must determine (1) whether the requested material, if in
       the possession of the State at the time of the defendant’s request for it, would have
       been subject to disclosure under either West Virginia Rule of Criminal Procedure
       16 or case law; (2) whether the State had a duty to preserve the material; and (3) if
       the State did have a duty to preserve the material, whether the duty was breached
       and what consequences should flow from the breach. In determining what
       consequences should flow from the State’s breach of its duty to preserve
       evidence, a trial court should consider (1) the degree of negligence or bad faith
       involved; (2) the importance of the missing evidence considering the probative
       value and reliability of secondary or substitute evidence that remains available;
       and (3) the sufficiency of the other evidence produced at the trial to sustain the
       conviction.

Id. at 759, 461 S.E.2d at 505, Syl. Pt. 2. We further noted that one such consequence could be an
instruction to the jury that, where the State “allowed to be destroyed or lost any evidence whose
content or quality are in issue, you may infer that the true fact is against the State’s interest.” Id.,
n.14 (citing Arizona v. Youngblood, 488 U.S. 51, 59-60 (1988)).

        We find no abuse of discretion in the circuit court’s refusal to give an instruction akin to
that cited in Osakalumi. To start, petitioner fails to direct this Court to any request made for the




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motorcycle in issue.2 Without a request for the evidence, a trial court need not determine whether
the material was subject to disclosure, whether the State had a duty to preserve it, or, if such duty
existed, whether it was breached and, if so, the consequences, including the requested
instruction, that should flow from that breach. See id. at 759, 461 S.E.2d at 505, Syl. Pt. 2
(“When the State had or should have had evidence requested by a criminal defendant . . . .”)
(emphasis added). Nevertheless, the circuit court undertook this analysis, and we find no error in
the conclusions reached.

        The circuit court first reasoned that there was no duty to preserve the body of the
motorcycle where the issue all along had been the headlight. The court stated, “the headlight was
available, has been available the whole time, and that still seems to be the evidence here.” Mr.
Perry informed the investigating officers immediately after the accident that Mr. Parsons’s
headlight was on, and the only indication at that time that the headlight would be an issue was
petitioner’s self-serving statement about not seeing the headlight. The headlight was, therefore,
preserved and remained available throughout the proceedings below. As the circuit court noted,
the State “preserved what [it] thought was the issue that the [petitioner] complained about.”

        Despite finding no duty to preserve the body of the motorcycle, the circuit court gave
petitioner the benefit of further analysis. The court continued that, even if one assumes the State
had a duty to preserve the entire motorcycle, the State did not act in bad faith in breaching that
duty because, as set forth above, it preserved the item with which petitioner took issue at the
scene. Therefore, the court found that instructing the jury “[t]hat it should be presumed that the
evidence was adverse to the State and they were trying to make sure people didn’t have it” did
not fit within the “spirit of [the Osakalumi] case.”

        In State v. Morris, we found no abuse of discretion in the circuit court’s conclusion that
the State had no duty to preserve a vehicle involved in a fatal accident where, at the time of the
crash, there were injuries but not yet a fatality. 227 W.Va. 76, 83, 705 S.E.2d 583, 590 (2010).
The circuit court in Morris stated that “[p]olice routinely, routinely investigate accidents and if
they were to take all the cars into some sort of custody then they would have a large inventory of
smashed up vehicles indeed.” Id. Given the facts presented in the instant case, we likewise find
no abuse of discretion in the circuit court’s conclusion that the State did not have a duty to
preserve the body of the motorcycle or in the court’s conclusion that, assuming a duty to
preserve the motorcycle existed, an Osakalumi instruction would not be appropriate. In sum,
there was no basis in law for an Osakalumi instruction. Hinkle, 200 W.Va. at 285, 489 S.E.2d at
262.

       Petitioner’s second assignment of error concerns the circuit court’s failure to suppress his
statement to Deputy Talbott that he had taken his prescription medication. Petitioner argues that

                                                                   
       2
         The State’s review of the record revealed no request. Further, the State supplemented the
appendix to include petitioner’s “Omnibus Discovery Request,” which likewise included no
request for the motorcycle.




                                                                      4
        
the statement should have been suppressed because he was in custody but not given his Miranda
warnings.3 Petitioner claims that the environment surrounding the accident was coercive and
amounted to a de facto arrest once his driver’s license and vehicle registration were held for
longer than necessary to issue a ticket or warning. Further, petitioner notes that Deputy Cochran
stated at the suppression hearing that petitioner was not free to leave from the moment he began
his investigation.

       In reviewing a ruling on a motion to suppress, we apply the following standard of review:
“On appeal, legal conclusions made with regard to suppression determinations are reviewed de
novo. Factual determinations upon which these legal conclusions are based are reviewed under
the clearly erroneous standard. In addition, factual findings based, at least in part, on
determinations of witness credibility are accorded great deference.” Syl. Pt. 3, State v. Stuart,
192 W.Va. 428, 452 S.E.2d 886 (1994). Further,

       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, in part, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996).

        With respect to the circumstances necessitating Miranda warnings, it is well-settled that
“[t]wo elements must be present before Miranda warnings are required: first, the person must be
in custody, and, second, he or she must be interrogated.” State v. Farley, 238 W.Va. 596, 607,
797 S.E.2d 573, 584 (2017) (citing State v. Honaker, 193 W.Va. 51, 60, 454 S.E.2d 96, 105
(1994)). “Custodial interrogation” occurs when law enforcement initiates questioning “after a
person has been taken into custody or otherwise deprived of his freedom of action in any
significant way.” Id. (citing Miranda v. Arizona, 384 U.S. 436, 444 (1966)). We look to
“whether a reasonable person in the suspect’s position would have considered his or her freedom
of action curtailed to a degree associated with a formal arrest.” Id. at 601, 797 S.E.2d at 578, Syl.
Pt. 3, in part (citation omitted). This is an objective analysis that “does not depend on the
subjective view of either the person interrogated or the officers who conduct the interrogation.”
Id. at 608, 797 S.E.2d at 585 (citation omitted).

       In State v. Preece, 181 W.Va. 633, 383 S.E.2d 815 (1989), we made clear that

       [t]he Miranda safeguards were never intended to apply to the typical, “on-the-
       scene” investigation which ordinarily does not create the type of coercive
       atmosphere that Miranda sought to eradicate: “Our decision is not intended to
       hamper the traditional function of police officers in investigating crime. . . .
                                                                   
       3
           See Miranda v. Arizona, 384 U.S. 436 (1966).
         




                                                                      5
        
       General on-the-scene questioning as to facts surrounding crime or other general
       questioning of citizens in the fact-finding process is not affected by our holding.”

Id. at 638, 383 S.E.2d at 820 (quoting Miranda, 384 U.S. at 477).

        Deputy Talbott, who took the statement from petitioner, testified at the suppression
hearing that he arrived at the scene at approximately 9:40 p.m., which was about eight minutes
after the accident occurred. Upon arrival, Deputy Talbott spoke with Deputy Cochran to
determine what was known at that point, and then approached petitioner, who was standing off
the roadway close to his driveway, to ask what happened. Deputy Talbott stated that he spoke
with petitioner a few times within the first ten minutes of his arrival, and that he did not know
whether a crime had been committed when he approached petitioner. Petitioner recounted that he
pulled out of his driveway, that he did not see a headlight or the motorcycle, and that a crash
occurred. Petitioner also informed Deputy Talbott that he had not consumed any alcohol but had
taken Xanax, for which he had a prescription.

       We find no error in the circuit court’s denial of petitioner’s motion to suppress his
statement regarding his Xanax consumption. Petitioner’s admission concerning the Xanax
occurred in the early moments of the scene investigation, and we have held that “[t]he Miranda
safeguards were never intended to apply to . . . typical, ‘on-the-scene’ investigation[s].” Preece,
181 W.Va. at 638, 383 S.E.2d at 820 (citation omitted).  

        Lastly, petitioner assigns as error the circuit court’s failure to try him within three terms
of court or otherwise afford a speedy trial. Petitioner states that he was arrested on April 5, 2015,
indicted in August of 2015, and not tried until August 28, 2017. Petitioner concedes that he
requested one continuance in December of 2015 into the January 2016 term, but that, without
including that term, more than three regular terms of court passed without being tried.

               This Court’s standard of review concerning a motion to dismiss an
       indictment is, generally, de novo. However, in addition to the de novo standard,
       where the circuit court conducts an evidentiary hearing upon the motion, this
       Court’s “clearly erroneous” standard of review is invoked concerning the circuit
       court’s findings of fact.

Syl. Pt. 1, State v. Grimes, 226 W.Va. 411, 701 S.E.2d 449 (2009).

       West Virginia Code § 62-3-21, the “three-term rule,” provides that

       [e]very person charged by presentment or indictment with a felony or
       misdemeanor, and remanded to a court of competent jurisdiction for trial, shall be
       forever discharged from prosecution for the offense, if there be three regular
       terms of such court, after the presentment is made or the indictment is found
       against him, without a trial, unless the failure to try him was caused by his
       insanity; or by the witnesses for the State being enticed or kept away, or
       prevented from attending by sickness or inevitable accident; or by a continuance
       granted on the motion of the accused; or by reason of his escaping from jail, or

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       failing to appear according to his recognizance, or of the inability of the jury to
       agree in their verdict[.]

Cabell County’s terms of court are set in Rule 2.06 of the West Virginia Trial Court Rules to
commence “on the first Monday in January and May, and the second Tuesday in September.”
Petitioner was indicted during the May 2015 term of court, and his trial commenced during the
May 2017 term of court. Therefore, this Court’s review entails consideration of seven terms of
court.4

       We begin our review by noting that the term in which the indictment is returned is not
counted for purposes of determining whether a violation of the three-term rule has occurred:

               Under the provisions of Code, 62-3-21, as amended, the three unexcused
       regular terms of court that must pass before an accused can be discharged from
       further prosecution are regular terms occurring subsequent to the ending of the
       term at which the indictment was returned. The term at which the indictment was
       returned can not be counted as one of the three terms.

Syl. Pt. 1, State ex rel. Spadafore v. Fox, 155 W.Va. 674, 186 S.E.2d 833 (1972). Petitioner
concedes that he requested a continuance during the September 2015 term. Thus, the May 2015
and September 2015 terms of court are excused terms of court for purposes of our calculation.

       With respect to the remaining terms of court, we have held that

              [a]ny term at which a defendant procures a continuance of a trial on his
       own motion after an indictment is returned, or otherwise prevents a trial from
       being held, is not counted as one of the three terms in favor of discharge from
       prosecution under the provisions of Code, 62-3-21, as amended.

Spadafore, 155 W.Va. at 674, 186 S.E.2d at 834, Syl. Pt. 2. A formal motion for continuance
need not be made. Id. at 679, 186 S.E.2d at 836. Rather, if a defendant “were a moving party in a
proceeding which necessitated such continuance, such term should not be counted.” Id. (citation
omitted). In sum,

       [w]e do not think that the language used in the statute, ‘on motion of the accused,’
       means that the accused party must make a formal motion in the court in which the

                                                                   
       4
         The terms of court applicable to petitioner’s case are as follows: petitioner was indicted
during the May 2015 term of court. The September 2015 term of court commenced on
September 8, 2015. The January 2016 term of court commenced on January 4, 2016. The May
2016 term of court commenced on May 2, 2016. The September 2016 term of court commenced
on September 13, 2016. The January 2017 term commenced on January 2, 2017. Finally,
petitioner’s trial began on August 28, 2017, during the May 2017 term of court, which
commenced on May 1, 2017.



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       indictment is pending in order to charge him with the delay in bringing him to
       trial. If he instigates a proceeding which forces a continuance of the case at a
       particular term of court, he will not be permitted to take advantage of the delay
       thus occasioned.

Id. (internal quotations and citation omitted).

        Moreover, “[i]t is uniformly held in other jurisdictions that if the delay in bringing the
accused to trial is attributable to the accused in any manner, the accused cannot take advantage
of such delay and contend that he has been denied a speedy trial.” Id. (citations omitted). Finally,
“where a court does not have time for the disposition of motions or pleas filed by the accused
and a term passes as a result thereafter, such term cannot be counted as one of the three terms
under the provisions of Code, 62-3-21, as amended.” Spadafore, 155 W.Va. at 679, 186 S.E.2d at
836 (citation omitted).

        In the majority of the remaining terms for this Court’s consideration, petitioner initiated
proceedings that caused the delay of which he now complains. After requesting a continuance
during the September 2015 term of court, petitioner stated his intention to file various motions
for the circuit court’s consideration.5 In accordance with this representation, petitioner filed two
motions to suppress and a motion to dismiss the indictment; however, petitioner did not file these
motions until May 23, 2016 – after the January 2016 term of court had concluded and after the
May 2016 term of court had commenced. Because petitioner’s representations caused the delay
during the January 2016 term of court, that term does not count as one of the three.

       After petitioner filed his motions, the circuit court held a hearing on June 21, 2016, at
which multiple witnesses testified. Petitioner requested the opportunity to submit proposed
findings of fact and conclusions of law, which request the circuit court granted. Petitioner
submitted his proposed findings and conclusions on July 27, 2016, and the State submitted its
own findings and conclusions on August 15, 2016. As the circuit court explained,

       this . . . allowed approximately [twenty-nine] days for [it] to issue a ruling on
       [petitioner’s] motions and then commence a trial before the start of the September
       2016 term[,] which began on September 13, 2016. However, [it] was called upon
       to meticulously review and consider the undeniably complex factual and legal
       issues presented by the parties’ pleadings and the 241-page transcript from the
       June 21, 2016 hearing.

It is clear that the circuit court did not “have time for the disposition of motions or pleas filed by
the accused” during the May 2016 term; accordingly, where “a term passes as a result thereafter,
such term cannot be counted as one of the three terms under the provisions of Code, 62-3-21, as
amended.” Id.

                                                                   
       5
        Petitioner’s motion to continue the trial date also sought “to continue his case generally
as may be required.”



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        The next term for consideration is the September 2016 term, during which the circuit
court informed the parties of its rulings following the June 21, 2016, hearing and instructed them
to schedule a status conference. No conduct on petitioner’s part appears from the record to have
contributed to any delay during this term; accordingly, we count it toward the three-term limit.

        During the next term – the January 2017 term – the circuit court held a status conference
at which the State sought clarification of the circuit court’s rulings on the motions to suppress.
Petitioner failed to appear for the status conference, however, and the status conference had to be
rescheduled. The parties agreed to reschedule it for June 6, 2017, which continued the case into
the next term of court. Given petitioner’s failure to appear at the status conference and
subsequent agreement to continue the matter to the next term of court, we find that this term is
not an unexcused term.

       The final term for consideration – the May 2017 term – commenced on May 1, 2017.
This term counts toward the three-term calculation, but petitioner was tried during this term of
court. Accordingly, petitioner was tried during three terms of court, and his rights under West
Virginia Code § 62-3-21 were not violated.

         Finally, although petitioner’s argument on appeal focuses on his right to a speedy trial
under the legislative pronouncement of that standard found in West Virginia Code § 62-3-21, he
also seemingly invokes his speedy trial right under the Sixth Amendment to the United States
Constitution. To the extent petitioner argues that ground as well, we reiterate our holding that
“[i]f a conviction is validly obtained within the time set forth in the three-term rule, W.Va. Code
62-3-21 [1959], then that conviction is presumptively constitutional under the speedy trial
provisions of the Constitution of the United States, Amendment VI[.]” Syl. Pt. 3, State v.
Carrico, 189 W.Va. 40, 427 S.E.2d 474 (1993). Accordingly, petitioner’s right to a speedy trial
was not violated under either the West Virginia or United States Constitution.

         For the foregoing reasons, we affirm the circuit court’s September 26, 2017, sentencing
order.

                                                                                        Affirmed.

ISSUED: November 21, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins

DISQUALIFIED:

Justice Paul T. Farrell sitting by temporary assignment

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