                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


State of West Virginia,                                                           FILED
Plaintiff Below, Respondent                                                   November 8, 2019
                                                                                 EDYTHE NASH GAISER, CLERK
vs.) No. 18-0164 (Jefferson County 17-F-19)                                      SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA


Brian O’Neil Gifft,
Defendant Below, Petitioner



                              MEMORANDUM DECISION


       Petitioner Brian O’Neil Gifft, by counsel Michael Santa Barbara, appeals the January 24,
2018, order of the Circuit Court of Jefferson County sentencing him to a life term of incarceration
with mercy following a first-degree murder conviction by jury. The State of West Virginia, by
counsel Robert L. Hogan, filed a response. On appeal, petitioner argues that his conviction is not
supported by the evidence below.

        The 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.

        In January of 2017, petitioner was indicted on one count of first-degree murder. The circuit
court held two pretrial hearings in December of 2017 and then commenced a jury trial on December
11, 2017. During the trial, testimony showed that petitioner attended a party in Jefferson County,
West Virginia, in May of 2016. The victim arrived at the party and was met with animosity from
the property owner, Mr. Dillow, and his son. Mr. Dillow argued with the victim and escorted him
off of the property and back to the road with the help of his son. Petitioner then joined in the
argument between the victim and Mr. Dillow and struck the victim. The three men attacked the
victim, but the victim thwarted the attempts of Mr. Dillow and his son and bloodied petitioner’s
face. During this altercation, petitioner’s gun fell from his person and was recovered by one of the
witnesses. This witness, Mr. Fuston, started to leave the scene of the fight and intended to take the
gun inside a nearby home when he was stopped by petitioner’s brother, Mr. Gifft, who noticed
petitioner’s injuries and began asking Mr. Fuston questions. Quickly, petitioner came to Mr. Fuston
and demanded, “give me my shit.” At this time, Mr. Fuston observed the victim to be 200 or 300
feet from their location and walking away from the scene of the fight.

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        Mr. Fuston testified that he refused to hand over the gun and discouraged petitioner from
further violence, stating, “it’s your life man . . . not just his. It’s your life.” However, petitioner’s
brother threatened Mr. Fuston by pressing a hard object concealed by his shirt against Mr. Fuston’s
chest. Following this threat, petitioner reached into Mr. Fuston’s back pocket and retrieved the gun.
At this time, Mr. Dillow was escorting the victim back to the Dillow home and petitioner. Once
petitioner retrieved the gun, he headed towards the victim. Petitioner “put his arms . . . behind [the
victim] around his head and [held] the gun to [the victim’s] head.” Mr. Fuston could hear petitioner
telling the victim to apologize to Mr. Dillow, to which the victim responded that he would not
apologize for something he did not do. Petitioner asked “five or six” times for an apology then
stated, “fuck it.” Petitioner fired a shot into the victim’s head, and, after the victim fell to the ground,
petitioner stood over his body and fired a second shot into his head. Petitioner left the scene after
the shooting. Four other eye witnesses corroborated these details. Three days after the shooting,
petitioner turned himself in to law enforcement.

         Many of these witness described petitioner’s vacant expression and testified that he “wasn’t
there” at the time of the shooting. Indeed, Mr. Fuston testified that petitioner “just stared at” him
when he initially refused to return petitioner’s gun. Another eye witness testified that petitioner
made eye contact with her after the shooting “and he kept walking down the road, like, you know,
just like nothing happened.” This witness felt as though petitioner “look[ed] right through” her.
Petitioner’s brother’s testimony further corroborated statements that petitioner appeared not to be
mentally present during the shooting, stating that he went to talk to petitioner, but “[h]e wasn’t in
there. It wasn’t him.” Petitioner’s brother further recalled petitioner’s eyes “were pitch black . . . .
[t]he whole eye, there was no white in his eyeball” and testified that he tried to warn petitioner not
to “do it” and attempted to take petitioner’s gun. However, petitioner responded with resistance and
did not heed his brother’s warning.

        At trial, petitioner called a witness qualified as an expert in the field of mental health
counseling. This witness conducted a mental status examination of petitioner and testified that
petitioner experienced post-traumatic stress disorder following multiple violent encounters, had a
severe history of alcohol abuse, and suffered from an organic brain injury. The witness explained
that post-traumatic stress disorder could result in “disassociation” during which a person would be
“not really in touch with reality” and “might respond [to outside stimuli] in a very uncharacteristic
disjointed way.” Ultimately, the expert opined that, the day of the shooing, petitioner “was totally
incapacitated and could not have planned or intended or acted under his own control” due to an
episode of disassociation coupled with his alcohol intoxication. Accordingly, the witness testified
that petitioner was unable to deliberate, premediate, or form intent or malice prior to the shooting.
On cross-examination, the witness indicated that her opinion was formed during two meetings with
petitioner and review of a psychological report performed by a court-ordered psychiatrist; however,
the witness did not have access to, and did not review, petitioner’s medical records, police reports,
or witness statements.

        In rebuttal, the State called as a witness a court-ordered psychiatrist who was qualified as
an expert in forensic psychiatry. The psychiatrist testified that he was able to review petitioner’s
medical records, the police reports, and witness statements and conduct an in-person interview with
petitioner before preparing a psychological report. Based on this information, the psychiatrist

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opined that petitioner was “not under the influence of any psychiatric illness that would have made
him incapable of conforming his behavior to the requirements of the law.” Accordingly, the
psychiatrist believed petitioner could form the requisite intent to murder the victim and premediate
and deliberate on his actions prior to the shooting. Further, the psychiatrist critiqued the defense’s
expert’s report and expressed serious concerns in that expert’s inability to review the related
medical and police records. Additionally, the psychiatrist noted that petitioner’s scores on a test
performed by the defense’s expert indicated that petitioner was malingering, but the expert’s report
incorrectly interpreted the test results as non-malingering. Finally, the psychiatrist disagreed that
petitioner’s actions were consistent with a person suffering from post-traumatic stress disorder
because a person suffering from that disorder would be more likely to avoid violent activity.

        Ultimately, the jury found petitioner guilty of first-degree murder and recommended mercy.
In January of 2018, the circuit court sentenced petitioner to a life term of incarceration with mercy.
Petitioner now appeals the circuit court’s January 24, 2018, order.

         On appeal, petitioner argues that the evidence produced at trial could not support the
essential elements of first-degree murder. Specifically, petitioner argues the jury could not find that
petitioner premeditated, deliberated, and intended to kill the victim. Petitioner asserts that the
“evidence presented at trial demonstrated that in the few, short minutes of confrontation, [petitioner]
acted like an automaton, not . . . thinking, or planning, but simply reacting.” Petitioner argues that
the jury’s verdict is clearly against the weight of this evidence. Upon review, we find that petitioner
is entitled to no relief on appeal.

       Regarding a claim that the evidence at trial was insufficient to convict, this Court has stated
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). Further,

       [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.

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Id. at 663, 461 S.E.2d at 169, syl. pt. 3, in part.

       In regard to the crime of first-degree murder, this Court has held “[w]here there has been an
unlawful homicide by shooting and the State produces evidence that the homicide was a result of
malice or a specific intent to kill and was deliberate and premeditated, this is sufficient to support
a conviction for first degree murder.” Syl. Pt. 3, State v. Hatfield, 169 W. Va. 191, 286 S.E.2d 402
(1982). Additionally,

                 [a]lthough 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.

Guthrie, 194 W. Va. at 664, 461 S.E.2d at 170, syl. pt. 5. “In this sense, murder in the first degree
is a calculated killing as opposed to a spontaneous event.” Id. at 674, 461 S.E.2d at 180.

        Applying this reasoning to the facts of this case, a rational trier of fact could find that
petitioner formed the specific intent to kill the victim upon premeditation and deliberation. Here,
petitioner lost his firearm while fighting with the victim. Following the fight, petitioner approached
Mr. Fuston, who retrieved the weapon, and demanded the gun. During this brief encounter, Mr.
Fuston discouraged petitioner from further violence. As petitioner returned to the victim’s location,
petitioner’s brother discouraged petitioner from further violence. Yet, petitioner restrained the
victim and pressed a loaded gun to his head. Finally, after multiple demands for an apology,
petitioner shot the victim once in the head and then a second time after a brief pause. Although the
record does not provide an exact length of time during which these events transpired, a rational trier
of fact could find petitioner’s actions were premeditated and deliberate. In viewing these events in
a light most favorable to the prosecution, petitioner could have formed the intent to kill and reflected
upon it between his walk to collect his firearm, while hearing the multiple discouraging remarks
from his brother and friend, during his walk back to the victim, while making multiple demands for
an apology from the victim, or just prior to firing a second shot at the victim as he lay on the ground.
Moreover, the circuit court provided an instruction to the jury below based on this Court’s fifth
syllabus point in State v. Jenkins, in which we held:

               In a homicide trial, malice and intent may be inferred by the jury from the
        defendant’s use of a deadly weapon, under circumstances which the jury does not
        believe afforded the defendant excuse, justification or provocation for his conduct.
        Whether premeditation and deliberation may likewise be inferred, depends upon the
        circumstances of the case.

191 W. Va. 87, 443 S.E.2d 244 (1994) (internal citations omitted). Pursuant to this instruction,
which petitioner does not challenge on appeal, the jury could infer petitioner’s intent to kill from
his use of a deadly weapon and based on the circumstances presented. Therefore, a rational juror
could find petitioner intended to kill the victim after premeditation and deliberation.



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        Further, although petitioner presented evidence of his diminished capacity through his
expert witness at trial, the court-ordered psychiatrist’s testimony heavily criticized that expert’s
results and proposed a differing expert opinion on petitioner’s capacity. This contradictory evidence
was considered by the jury and afforded weight according to their discretion. See Syl. Pt. 2, State
v. Smith, 225 W. Va. 706, 696 S.E.2d 8 (2010) (“‘In the trial of a criminal prosecution, where guilt
or innocence depends on conflicting evidence, the weight and credibility of the testimony of any
witness is for jury determination.’ Syllabus Point 1, State v. Harlow, 137 W.Va. 251, 71 S.E.2d 330
(1952).”). Certainly, it cannot be argued that the record when viewed on appeal contains no
evidence, regardless of how it was weighed, from which the jury could find guilt beyond a
reasonable doubt. Sufficient evidence was presented for a rational juror to find that petitioner
intended to kill the victim after premeditation and deliberation. Accordingly, we find petitioner is
entitled to no relief on appeal.

         For the foregoing reasons, the circuit court’s January 24, 2018, order sentencing petitioner
to a life term of incarceration with mercy is hereby affirmed.


                                                                                         Affirmed.

ISSUED: November 8, 2019

CONCURRED IN BY:

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




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