*1 simply type- the will is unsigned result that second MeCausland’s second will was document with no indication of testa- written void.
mentary intent. Additionally, although necessary not to the IV. CONCLUSION ease, resolution of this we note that Court’s judgment of the Circuit Court of Ma- statutory requirement that two witnesses County, Virginia, son West is affirmed. will, presence subscribe and attest the Affirmed. presence and in the testator of each
other, Although is not met in this case. Chief Justice disqualified. BENJAMIN
signatures appear of two witnesses on the will, nothing face of the in the record indi- WILFONG, Judge by sitting temporary they signed cates document either assignment. presence of Mr. or in the McCausland presence of each other. See Brammer v.
Taylor, 175
730 n.
(“the
215 n.
witnesses’ acknowl-
edgement
signatures
pres-
of their
...
in the
(and,
Virginia,
ence of the testator
West
other)
presence
of each
is tantamount to
‘signing’
and will be deemed a
or ‘subscrib-
ing’
presence
persons.”);
in the
of those
Ste-
by by Mr. McCausland or someone at his Supreme Appeals Court of direction, signature because there was no on Virginia. West the document. Sept. Submitted 2013.
This Court cannot find substantial compliance statutory requirement with the Sept. Decided 2013. testator, signed “by by that a will be presence by
some other in his direction,” 41-1-3, Virginia West Code in a situation where there was no compliance whatsoever. To hold otherwise would re
quire us not to construe the statute but to it; do,
disregard this we cannot “[t]he as right dispose property gener will is and,
ally regarded
statutory right,
as a
with
limitations,
subject
constitutional
it is
complete
Legislature.”
control of the
Black,
254-55,
(internal omitted). Accordingly, citation we judgment affirm the of the circuit court that (1943) (parol evidence as to the-fact affidavits of Ms. Robinson and Ms. Greer testator’s declarations of intention not admissible they state that which dates on saw Mr. will). to control the of a construction McCausland "execute" will were Decem- his last 14, 2010, respective- ber December reads, 7. The attestation clause in the second will ly than seven months after Mr. McCaus- —more entirety: previous in its "Witness to the as dictat- death. land’s by Bright following ed McCausland on the Further, April dates—10 & 11 2010.” the after- *2 Jeopardy violate the Double
Clauses of the state and federal constitutions. He also asserts that the evidence was insuffi- cient to sustain the convictions. After a briefs, careful review of the the record sub- appeal on listening mitted argu- to the *3 affirm, parties, ments of the part, we reverse, part and pro- remand for further ceedings consistent opinion. with this
I. AND
FACTUAL PROCEDURAL HISTORY wife, Mr. Goins with lived his Goins, Cynthia twenty-two in their home on Rock, acres of rural land in Virginia.2 West July On began Mr. Goins drinking got while at argument home and into an with argument his wife. The caused Mrs. Goins family to take the van and drive to her However, mother’s home. the vehicle broke down before she could reach her mother’s residence. Mrs. Goins called her husband to get come and agreed her. Mr. Goins and left the home with his father.3 Mrs. Goins was get able to the van started before her hus- band arrived. While Mrs. driving Goins was home, the van back toward her she saw Mr. Goins and stopped his father. Both vehicles intersection, got and Mr. Goins into the van with Mrs. Goins. After Mrs. Goins start- Smith, Corpora- David C. Public Defender van, driving couple began arguing. ed Princeton, tion, WV, for Petitioner. stopped Mrs. Goins the vehicle. Mr. Goins’ General; Morrisey, Attorney Patrick Ben- pulled up father behind the van and told Mr. III, jamin Yancey, Attorney F. Assistant get Goins to into his ear. Mr. Goins re- General, Charleston, WV, Respondent. they mained in his father’s car until arrived
at a local store. After Mr. Goins made a
DAVIS, Justice:
store,
purchase
got
from the
he
back into the
wife,
van with
couple
and the
drove home.
appeal
by
This is a criminal
filed
Ronald
(hereinafter
Goins”)
home,
couple
Goins
“Mr.
from an or-
When
arrived
Mr. Goins
County
began
der of the Circuit Court of Mercer
drinking again. Mrs. Goins became
convicting him of five counts of
upset
misdemeanor
and told her husband that she was
brandishing. The
going
circuit court sentenced
to tell her mother to come over and
year
Mr.
to five
pick
up.
angry
Goins
consecutive one
terms
her
Mr. Goins became
and
appeal,
pulled
phone
of incarceration.1
this
Mr. Goins
cord out of the wall. Mr.
eventually
contends that his sentences for five counts of Goins
went to bed. After Mr.
originally
suspended,
couple
1.The
sentences
were
and
2. The
is now divorced.
However,
placed
probation.
Mr. Goins was
on
proba-
as a result of a violation of the terms of
actually
3. Mr. Goins' father
him
drove
to meet
tion,
modified,
Mr. Goins’ sentence was
and he
his wife.
jail
year,
was sentenced to
for one
to be followed
years
probation.
fours
serving
year jail
year,
that after
the one
took the
sleep, Mrs. Goins
went to
Goins
sentence,
remaining
children and left
sentences would be
two infant
couple’s
walked with the children
placed
Mrs. Goins
would be
on
suspended,
house.
and Mr. Goins
away.
Thereafter,
a mile
neighbor
about
years.
home of
this
probation
to the
for four
home, Mrs. Goins
neighbor’s
at the
While
appeal
timely
filed.
Tiller,
brother,
told
Joseph
her
called
get her.4
come and
him to
II.
vehicle, with his wife
got
Tiller
into his
children,
drove to the
and their three
OF
STANDARD
REVIEW
would be
Goins said she
where Mrs.
area
the area
Mr. Tiller reached
waiting. After
jeopardy
that double
Mr. Goins contends
be, he
told him she would
where Mrs. Goins
being
him
sen-
principles prevented
from
*4
decided to
find her. Mr. Tiller
could not
brandishing, tenced for five counts of
hopes
of
Mrs. Goins’ home
drive toward
convict
the evidence was insufficient to
way.
Tiller
along the
Mr.
finding her
has held that a “double
him. This Court
yards from
vehicle about 150
stopped his
Syl.
reviewed de novo."
jeopardy
[is]
claim
Goins,
had
home. Mr.
who
Mrs. Goins’
Sears,
pt.
part,
State v.
196 W.Va.
awakened,
sitting
outside the home and
was
(1996).
1, Chrys-
Syl. pt.
III.
ond
for the same offense after
protects
conviction. And it
against multi-
DISCUSSION
ple punishments for the same offense.
Court,
appeal
On
to this
Mr. Goins raises
Similarly,
Syllabus point
1 of Conner v.
(1)
assignments
of error:
two
Griffith, 160 W.Va.
624
LaRock,
294, 304,
v.
470 S.E.2d
convict Mr. Goins of
that it could
instructed
fired,
upon
“Finally,
jury
each shot he
verdict
brandishing based
only
would be erroneous.
instruction
aside
when the record
such an
should be set
evidence,
stat
Nothing
regardless
in the text of our
contains no
of how it is
upon
suggests
it is violated based
ute
weighed,
jury
guilt
could find
from which
weapon.15
of shots fired from a
Guthrie,
the number
beyond
a reasonable doubt.”
interpretation
accept the State’s
of
To
669-70, 461
S.E.2d at 175-76.
W.Va.
if a
fired a
would mean that
statute
during the trial. He
Mr. Goins testified
presence
weapon three times
shooting
getting
admitted
out of his van and
brandishing offenses oc
person, three
one
However,
pistol.
Mr. Goins testified
interpretation of
This is an absurd
curred.
anyone
present at the
he did not know
was
Napier v. Board
statute. See
of Educ. of
began shooting.
time he
Mr. Goins’ version
Mingo, Cnty.
W.Va.
testimony
of events was contradicted
(2003) (“It
duty
...
wife. Mr. Tiller testi-
of Mr. Tiller and his
disregard a construction ... of the
a court to
fied as follows:
statute,
in a
when such construction
words
Q. Okay.
point
you
And at what
did
injustice
absurdity.” (quot
lead to
would
you
looking
realize that
were
at Ronald
Click,
Syl. pt.
part,
Click v.
ing
W.Va.
Goins?
(1925))).
419,
include each false statement found you Q. Okay. How close were able to davit). coming you? hear the bullets Sufficiency B. of the Evidence me, they they like A. To sounded 15-10,15 of me. foot Goins next contends that the evi dence in this case was insufficient to sustain a conviction under the statute. Q. you you when How did it make feel that “a criminal This Court has observed you you calm? heard this? Were Were sufficiency challenging defendant afraid? *8 support evidence to a conviction takes on a It me. After about the A. terrified Guthrie, heavy burden.” State v. they put I or fifth shot were so close fourth 657, 669, “Thus, 461 S.E.2d my gear sped That’s when car in and out. a suf
when a criminal defendant undertakes my I went and I called mom. evidence, ficiency challenge, all the direct jury provided Tiller the with the follow- Mrs. circumstantial, from the must be viewed testimony: ing prosecutor’s coign vantage, and the viewer that, you Q. Okay. looking it In at did see accept must reasonable inferences from all day? anything that that are the verdict.” State consistent with fact, brandishing re- viction. 15. statute does not quire weapon discharged to sustain a con- a be charge. Williams, [Goins] A. I seen Ronald the drivers on that See State v. van, (1983) side of the looked like he was [sic] trying key (“When to beat switch out of it. there is no error in a criminal ease
other than judgment imposing sentence, judgment should be reversed and re- Q. Sure. entry proper manded for of a sentence van, gets A. He out of the and he looks court.”). trial right up parked, there to where we’re walking he starts towards the front of the Affirmed, Reversed, part; part; van. He raises his arm and starts shoot- Remanded. ing. they’re hitting It sounds like
guardrail.
Justices WORKMAN and LOUGHRY concur and right reserve the to file Q. you How did that make feel? Were concurring opinions. calm, afraid, you or— No, I trying A. was terrified. I was LOUGHRY, Justice, concurring: get him [Mr. Tiller] to leave. I agree majority’s with the conclusion finding guilty Mr. violating Goins W. petitioner’s multiple that convictions of 61-7-11, § it Va.Code is obvious that brandishing may upheld not be on the basis
jury rejected Mr. Goins’assertion that he did present number of victims when he anyone repeatedly not see when he fired his Moreover, discharged weapon. I agree pistol in the direction of the Tillers’ vehicle. operable that prosecution” “unit of un- jury’s The decision to believe the Tillers’ Virginia § der West facts, Goins, Code 61-7-11 version of the over that of Mr. a peace” “breach of the credibility occasioned when involved determinations. have We “carr[ies], emphasized brandish[es], “[c]redibility defendant determinations or use[s]” jury appellate are for a and not an deadly weapon. court.” firearm or other And Guthrie, at S.E.2d at 175. I while do not believe that the evidence Therefore, we conclude the record clear- petitioner’s adduced trial was suffi- ly presented shows that the State sufficient justify cient multiple convictions of jury evidence for a to find Mr. Goins of brandishing, disagree strongly I with the violating § beyond Va.Code W. 61-7-11 conclusion, dicta, majority’s albeit that mul- reasonable doubt. tiple violations of the statute
cannot occur when a defendant fires multi- ple IV. majority shots from a firearm. The dis- missively position characterizes this as “ab- CONCLUSION surd,” analysis without so much as a hint of above, For the reasons set out this Court supporting case law. finds that imposed upon the five sentences majority proper analysis undertakes a Goins for the offense of prior gives of our eases which direction as to § under W. Va.Code 61-7-11 violate double determining prosecution” the “unit of and,
jeopardy principles,
accordingly, we re-
concludes,
Jeopardy
Double
purposes and
judgment
verse the
of the Circuit Court of
properly, that the number of victims is irrele-
County
However,
ground.
Mercer
on that
vant
to the number of offenses which
be
we find that there was sufficient evidence to
charged
under the
support
statute —a
Mr. Goins’ conviction for a
61-7-11, and,
already
conclusion this
count of
Court had
reached in
W. Va.Code
there-
*9
fore,
Kendall,
686,
regard
we affirm in
v.
this
and remand
State
639 S.E.2d
(2006).1
this case
resentencing
to the trial court for
doing, gives
In so
it
short shrift
recently
1. This Court
multiple
reached a similar conclu-
the scene of an accident where there are
Stone,
charged
sion
only
728 S.E.2d
can be
victims
for
one violation of
(2012),
Stone,
holding
§
that a defendant who leaves W. Va.Code
17C-4-1.
In
the Court
argument
rewarding
that
a defendant who chooses to com-
compelling
more
to the State’s
acts,
upheld
“limit[ing]
be
petitioner’s conviction should
mit additional
rather than
fired and
merely
number of shots
activity”
“encourages
on the basis of the
or her criminal
remarkably
thereby
a
similar case
activity.”
Rejecting
overlooks
a
additional criminal
Id.
by
which
recently
Justice Workman
authored
argument
multiple
in the context of
similar
analy-
thorough and well-reasoned
presents
assaults,
a
Appeals of Vir-
sexual
the Court of
precisely this issue.
sis of
ginia found that a defendant should not be
rape”
rape
permitted a “free
where each
McGilton, 229 W.Va.
State
divisible!,]”
“readily
and the defendant sim-
defendant stabbed his
ply
repeat
to
his crime on the same
“cho[se]
during
argument
times
wife numerous
period
time.” Carter
victim within a short
of
home, resulting in his conviction of
their
Commonwealth,
Va.App.
ap-
assault. On
multiple counts of malicious
end,
S.E.2d
that same
we
To
that conviction of
peal, McGilton asserted
concluded McGilton that:
malicious assault for three
three counts of
during
inflicted
the same course
stab wounds
reading
[mali-
it is not a reasonable
of this
Jeopardy.
violated Double
of conduct
cious
statute to conclude that a
assault]
issue,
quickly
the Court
iso-
addressing this
perpetrator
only
charged
can
be
with one
necessary analysis
highlighted the
lated and
simply
he or she
malicious assault
because
determining multiple,
if
discrete acts that
managed
multiple
a victim
to stab
times
may
during
period
a short
of time
occur
very
or not
quickly regardless of whether
—
multiple
sustain
convictions:
the elements of the crime were committed
have this Court make
He
would
distinctly,
contemporane-
[McGilton]
separately,
and
ruling that as a matter of law
an ironclad
ously
stabbing.
with each
multiple
anytime a
is stabbed
566, 729
at 888. We
times,
person,
the same
within
short
therefore held that
time,
perpetrator of the
period of
that the
multiple
defendant
be convicted of
[a]
only
be
of one malicious
crime can
under
offenses of malicious assault
West
Moreover,
petitioner
asks this
assault.
61-2-9(a) (2004) against
Virginia Code
regardless
to make such a conclusion
Court
victim
when the offenses
the same
even
crime
specific
circumstances
of
of
part
of conduct.
were a
of the same course
perpetrator
irrespective
whether a
violate the double
Such convictions do not
actually
requisite
intent each
formed
jeopardy provisions contained in either the
every
he or she committed
time
United States Constitution or the West
separate
a victim.
malicious assault of
long
Virginia Constitution as
as the facts
(emphasis add-
Id. at
627
(D.C.1991)
brandishing
pre-
(holding
in our
statute that would
that as to
separate
three
dwelling,
shots into a
charge
brandishing
each shot
clude a second
when a
constituted a
offense);
separate
People
Harris,
actually
brandishing
occurs within a
second
114,
957,
447,
Ill.2d
230 Ill.Dec.
695 N.E.2d
time,
period
complete
requi-
short
with the
(1998) (finding
as to two consecutive
See,
separately
e.g.,
site
formed intent.
Ken-
shots into a vehicle each shot constituted a
dall,
696,
App.2000) (holding that three successive supported convictions); separate
shots
three
States,
Gray
v. United
585 A.2d
"
States,
Blockburger
2. See also
concept:
impulse
v. United
single,
U.S.
'[W]hen
is
but one
lies,
52 S.Ct.
long