Court: West Virginia Supreme Court; December 3, 2008; West Virginia; State Supreme Court
Brian Keith Noll was indicted and convicted in Berkeley County of multiple charges, including burglary, grand larceny, and conspiracy. He raised several claims on appeal, asserting that the State violated pre-trial evidentiary rulings, engaged in prosecutorial misconduct, and presented insufficient evidence for the verdict. Noll also contended that his sentencing was incorrect, that the circuit court improperly allowed amendments to the indictment, and that cumulative errors justified a reversal.
The charges stemmed from crimes committed in April and May of 2004, involving five residences. Prior to trial, the State sought to introduce evidence regarding a statement made by Noll to police, as well as a necklace he wore during his arrest. The circuit court permitted this evidence but restricted admission concerning the necklace's link to a prior burglary. After a jury trial in February 2005, Noll was found guilty of several counts, including two counts of burglary and two counts of grand larceny, while being acquitted on other charges.
Subsequently, Noll pled no contest to misdemeanor charges of receiving and/or transferring stolen property in a separate case, with the sentences from both cases ordered to run concurrently. His sentences for the felony convictions included varying terms, with some running concurrently and others consecutively. The Supreme Court of Appeals of West Virginia affirmed in part, reversed in part, and remanded the case based on the stated reasons.
The effective sentence for the appellant ranges from three to thirty-five years, plus restitution. The appellant has been re-sentenced twice, with the final order issued on April 4, 2007, which is the subject of this appeal. The court affirms in part, reverses in part, and remands the case. According to the standards established in Burgess v. Porterfield, the court reviews the circuit court's final order for abuse of discretion, finds of fact under a clearly erroneous standard, and conclusions of law de novo.
In addressing the appellant's first assignment of error concerning Rule 404(b) of the West Virginia Rules of Evidence, the appellant alleges the State violated a pre-trial order by introducing evidence related to a necklace associated with a burglary. The State contends there was no violation and that the appellant did not preserve this issue for appeal due to lack of a trial objection and failure to file a notice of intent to appeal. Citing Syllabus Points from State v. Salmons, the court notes that issues not raised at trial cannot be assigned as error on direct appeal unless properly preserved. Given the appellant's failure to object at trial and the State's objection, the first assignment is deemed not properly before the court and is therefore without merit.
In the second assignment of error, the appellant argues that the State improperly questioned a witness about the appellant's right to remain silent. During cross-examination and subsequent re-direct examination, Trooper Bean's responses were used in closing arguments. However, the appellant did not object to these questions or the closing argument at trial.
The State challenges the appellant's second assignment of error, asserting it is improperly raised on appeal as the appellant did not object to the introduction of his statement denying involvement in the charged offenses during the trial. The appellant's counsel actively engaged with Trooper Bean regarding this denial without raising objections, and the appellant also failed to file a notice of intent to appeal concerning this issue, which aligns with Rule 3(b) of the West Virginia Rules of Appellate Procedure. Consequently, the Court deems this assignment of error without merit.
Additionally, the appellant contends that his sentence for Count Five is erroneous. The indictment charged him with daytime entering without breaking a dwelling house, while trial evidence suggested breaking and entering occurred. The jury was instructed on burglary by breaking and entering, ultimately convicting the appellant of burglary, inconsistent with the indictment's language. The statutory sentence for the charged offense is one to ten years, whereas for burglary, it is one to fifteen years. The appellant received a sentence of one to fifteen years under W.Va. Code § 61-3-11(a) (1993), and no amendment to the indictment was made. The appellant argues this constitutes an impermissible amendment to Count Five based on trial evidence and jury instructions, referencing the case State v. Adams, which outlines the criteria for permissible amendments to indictments. According to Adams, substantial amendments must be resubmitted to the grand jury, while amendments that do not mislead the defendant or alter the burden of proof may not require resubmission. The indictment for Count Five specifically charged the appellant with unlawful entry without breaking, which contrasts with the jury's verdict of burglary.
W.Va. Code, 61-3-11(a) addresses nighttime or daytime burglary involving breaking and entering, while W.Va. Code, 61-3-11(b) pertains to entering a dwelling without breaking in the daytime with intent to commit a crime, classifying it as a felony punishable by one to ten years in prison. The circuit court mistakenly instructed the jury on the elements of daytime burglary, which resulted in a constructive amendment of the indictment to a more severe charge under W.Va. Code, 61-3-11(a). This error led to a sentence exceeding that permitted under the indictment's original language, thereby prejudicing the appellant. The court concluded that the amendment was substantial enough to warrant reversal of the conviction for Count Five. Furthermore, the principles of lesser included offenses apply, allowing for a conviction on a lesser charge if the jury verdict indicates the defendant's guilt of the lesser offense without prejudice. The standards for molding a verdict to include a lesser included offense were discussed, emphasizing that such an offense must be inherently encompassed in the greater offense. The distinction between the offenses is reaffirmed, asserting that entering without breaking is a lesser included offense of breaking and entering, and that the requirements for the lesser offense do not introduce additional elements not present in the greater offense.
Daytime entering without breaking a dwelling house is classified as a lesser included offense of daytime burglary by breaking and entering, with the key distinction being the method of entry. The appellant was not misled during the trial and faced no additional burden of proof, although an incorrect sentence was imposed. The discrepancy between the trial evidence and the indictment constitutes a variance that does not undermine the grand jury's protections, provided the sentence is adjusted. The jury, despite improper instructions regarding Count Five, found the appellant guilty beyond a reasonable doubt of daytime breaking and entering, with the lesser included offense being applicable. The appropriate sentencing range for daytime entering without breaking is one to ten years. Although the appellant did not formally object to the sentence or seek correction, the State acknowledged the sentencing error, which meets the criteria for plain error. The sentencing error not only impacted the appellant’s rights but also affected the integrity of the proceedings. Consequently, the appellant’s burglary conviction under Count Five is reversed, and the case is remanded for resentencing in accordance with W.Va. Code, 61-3-11(b). The appellant has waived any claims regarding Rule 404 (b) evidence and prosecutorial misconduct. The ruling is affirmed in part, reversed in part, and remanded for further action. Justice Albright did not participate, and Justice McHugh served temporarily due to Justice Albright's illness.
The circuit court instructed the jury that the charges in Count 5 pertain to burglary, defining it as the act of breaking and entering, or entering without breaking, a dwelling or outhouse with intent to commit a crime. The jury had the options to find the defendant, Brian Noll, either guilty or not guilty, emphasizing that the State must prove his guilt beyond a reasonable doubt, specifically that he broke and entered during the daytime. The indictment referenced an incorrect West Virginia Code section (W.Va. Code, 61-3-11 (a)), but it was determined that this error did not prejudice the defendant's conviction, referencing State ex rel. Forbes v. McGraw, which states that such errors are harmless if they do not affect the defendant's rights. Additionally, the 'plain error' doctrine requires a clear error that affects substantial rights and the fairness of the judicial proceedings to warrant consideration.
