*1 53 to sell the Here, granting in the event the St. Clairs were noted that it should be Moreover, property. appellant cir as the stated: summary appellee, the the judgment for the specifically generally define the was aware of “[H]e not court did cuit Cole/St. appellee Agreement purchased and the St. the at the time he agreement between Clair Jerry See property Phyllis a life estate or a lease. from as either the Hamon Clairs (Michie Estates, 1985), M.J., § 20 indicat Accordingly, appellant the was not [.]” 7A Moore that, ordinarily, are created ing agreement, life estates of purchaser without notice the parties, concluded, either and, act of the express appel- an as the the circuit court Indeed, action, the by will. in this or In acquired property subject deed the it. lant “part agreement addition, was stated knowledge appellant the had actual the St. for the sale” to Clairs consideration occupying apart- the appellee the was appellee the whenever and would terminate appellee had there for ment. The resided Moreover, premises. the the to vacate chose years, the approximately thirty-two and as a lease for appellee has to execute refused appellee appellant of observes: the brief the appellant. was property with the Nor the knowledge of “charged was what family, type agreement of the wherein the reasonably prudent per- what observed or elderly an purchaser property of real as Angie namely, have son would observed member, promises “support” family such prior property the who was a owner of Cole Frasher, life. v. member for See Frasher apart- the room was still in of six (1978). 338, 249 Rath S.E.2d 513 garage.” ment and action, court, er, in this relied the circuit above, therefore, this Upon all of the involving as cir upon Farrar and Malone that, opinion the is of the under undis Court relatively similar to those herein. cumstances action, appellant this the puted facts of matter, has, reviewing In this Court purchaser property of in an the innocent likewise, authority no in found West and, instead, acquired property the question circumstances more close line these separate agreement subject the written note, howev- than Farrar and Malone. We appellee the the St. executed Clairs. er, Appeals the decision of the Court Malone, supra. Accordingly, Circuit See Lites, Ark. Arkansas in Ruth v. County correctly of Preston ruled Ruth, Ruth In James S.W.2d judgment ap summary granting the who, Routen, Dr. a tract of L. deeded land pellee, the final order March turn, land to Lites. deeded the J.B. is affirmed. Thereafter, to the land sought Ruth title Affirmed. transactions involved contending that to him and that the deeds constituted loan
nothing mortgage proper- than more Ruth, however, the Arkansas court
ty. absolute con- deeds were concluded Nevertheless, mortgage.
veyances and not a that, Virginia, Plaintiff as a matter of West court further concluded STATE Below, Appellee, required to equity, Lite was honor J.B. had made with Ruth to allow agreement he upon the Ruth’s wife to reside Ruth and SAMPSON, Defendant Darrell Eustace property long desired. as Below, Appellant. Here, appellant the assertion 23548. No. agreement a matter between Supreme Appeals Court of only, Clairs appellee and St. Virginia. him, unconvincing. binding upon appellee expressly stated that the agreement 28, 1997. Jan. Submitted apartment for the remain- reside in could May Decided or until she “should “natural life” der Thus, impli- the clear premises. vacate” the appellee agreement is that the
cation apartment continue to reside
could *3 Woods, Attorney Assistant Gen-
Victor S. eral, Charleston, Appellee. Venezia, Elswick, Howley Grants- Kelly & ville, Appellant.
PER CURIAM: appeals Sampson from an Darrell Eustace 27, 1995, final of the Circuit order October County in which he was of Calhoun relating theft of counts convicted six from Calhoun General tanks of nitrous oxide errors, Hospital. assigns none He numerous Accordingly, we affirm. of which has merit. November, 1994, Appellant, Darrell ex-wife, Sherry Sampson, living with his Parsons, in a house rented Par- son, Jeffrey Appellant’s adult sons. (“Scott”) stayed in Sampson, often Scott 13, 1994, Sherry spare November room. On implicat- gave a statement herself, Appellant, Samp- ing Scott cylinders brought cylinders son the theft of nitrous oxide of nitrous oxide. gas”) from (“laughing oxide, a fenced enclosure out- The inhaled three nitrous and Tim and Hospital on two occa- side Calhoun General leaving cylinders Bob left later day search of house later that sions. A Appellant behind. The testified that he first produced cylinders two blue and at least two saw the in the house the next pairs of wire cutters. The was morning. He said he been had aware of six indicted on counts: and enter- people living Scott some other petit larceny, conspiracy ing, to commit before, night room late the and saw the entering breaking and cylinders in Scott’s bedroom the morn- next Parsons; by Sherry first event described ing. Both the and Scott denied breaking, petit larceny, entering without stealing cylinders ever from Calhoun Gener- conspiracy to commit without break- al. *4 episode.1 ing with to the second testimony There was uncontradicted that . Conflicting presented evidence was at trial kept the spare tanks were at bedroom regarding underlying Sherry the events. Sherry Parsons’ Sampson where Scott she, Appellant, Parsons that the testified and slept. using Scott also admitted the nitrous sitting in evening, Scott were her home one himself, agreed oxide all but witnesses they suggested when Scott steal some Appellant the never used it. Several wit- gas cylinders According and sell them. to evening nesses testified about a third when Parsons, Appellant Ms. the found wire some Scott invited some everyone friends over and cutters and drove the of them to three Cal- tried the nitrous oxide. These witnesses Hospital. houn General Parsons stated that although stated that Appellant the and Sher- Appellant she remained in the car while the ry present during evening, Parsons were this disappeared Scott for a and few minutes and they gas. did inhale the Three witnesses cylinders. They returned with three drove regarding reputation testified Ms. Parsons’ acquaintance try to the home of an to to sell for lack hearing of truthfulness. After this cylinders. him one the acquain- When the evidence, jury the a returned verdict home, they tance wasn’t Sherry returned to guilty on six counts. Sherry Parsons’ house. Parsons testified Appellant The assigns following the errors: occasion, she, further that on a second the (1) jurors the trial court failed to strike two Scott, Appellant, girlfriend, and Scott’s Wen- (2) cause; for the chain-link enclosure where Fox, dy hospital returned the and took two cylinders kept the “building” were was not a During episode, more tanks. this Ms. Par- within the meaning defining of the statute originally sons told that she and Wen- (8) breaking entering; and gas the car, dy stayed Fox the but testified Sherry recovered from the home of Parsons they hospital stood near the doors as properly were not authenticated and should lookouts, and could see two men cross evidence; (4) not have been into a admitted hospital. the roof jury regarding instruction inferences to be Sampson Scott testified a completely drawn from the fact of exclusive different course of events. He said (5) evidence; was not warranted met two men Tim named and Bob while out imposed the sentence the court was dis- walking night. one The men asked him if he proportionate to the crime. We address place knew of a where could drink beer these errors below.2 being by police. without bothered Scott took them to the house where Appellant objects The first to the trial Appellant drinking lived. After some court’s failure to for prospective strike cause beer, one of the men juror went out the car and Fitzwater. Ms. Fitzwater had been verdict, 1. The support second event was termed without insufficient evidence to already because there hole cut in contrary weight that the verdict was the wire enclosure. evidence. We are find that these errors supported by the record therefore have no 2. The also asserts that the State failed merit. case, present prima facie there was West, addressed the issue pharmacy this Court eight per hours week as working hour, government technician, employees of State paid by at Calhoun whether Gen- juries employment serving on Hospital. Although disqualified her should be eral full-time, trials, employer, their Fitzwater had worked in criminal where was not Ms. There, twenty-one years. Virginia, party. for is a for General State of West Calhoun said, moved to strike her Appellant’s counsel the Court al- employment based on cause responsibilities proliferation of under- request refused leged victim. court governments taken the State and local peremptory strike used a counsel tendency propor- historical juror. prospective eliminate this governmental employees to increase tion of Fitz asserts that Ms. society, that all em- cause us to doubt disqualified for have been water should government prima are ployees of State cause, employee she was an because jurors disqualified in a crimi- to sit facie Virginia Code section alleged victim. West Each must be evaluated nal case. case (1992) twenty requires panel 62-3-3 facts; however, it re- its own we do hold jurors exception.” “free from See State permit challenged juror error to versible 209, 217, West, Department employee who is has said that the true This Court Safety, a law enforcement arm Public *5 juror for a should be struck test of whether State, of panel to be a member of a juror a can render cause is whether pro- twenty. Obviously, virtue of the solely on the evidence. The verdict based juror’s spective with enforce- association considerable discretion trial court is afforded subject potential he is ment officials determination, and we will reverse the this in challenges prejudice peremptory only if there has been an trial court’s decision required disqualify. not should be Phillips, 194 of discretion. State v. abuse 219, at The Id. at 200 S.E.2d 865. State (1995). 569, 588, 75, 461 94 We S.E.2d employees if not of State asserts case must be evalu have also said that each for government subject challenge are West, its 157 W.Va. at ated on own facts. party, is in in which the cause cases State 219, at 200 S.E.2d 865. employees of crime should then the victims employee an of Appellant asserts that The automatically similarly not excluded.3 be alleged prima disqualified facie victim us, say we cannot in In case before State v. under the decision of (1917). Dushman, 747, in court abused its discretion 91 809 that the trial 79 W.Va. S.E. challenge Dushman, denying Appellant’s motion to eighty this Court determined for pri- prospective juror Fitzwater cause. employees were years ago that railroad because this acting jurors distinguishable, in Dushman is disqualified ma from facie employee.4 a full-time involving a of case does not involve a criminal trial theft railroad Furthermore, prima exclu 750, Dushman’s facie at 811. The property. Id. at 91 S.E. may have its val employ- employees sion outlived reasoned that the of Dushman Court ue, may analysis case be company would have ees of victimized How trend on this issue. in of criminal trials more the modern the outcome interest ever, distinguish ease is company property, because instant relating to stolen Dushman, directly not from we need presumed to be able biased. should therefore alone, employment fur- without Scott v. concluded that 3. State also refers Court to Commonwealth, Va.App. prejudice, require 1 auto- did not ther evidence (1986), Appeals in which the Court 902 matic exclusion. per prospective juror was not held that employment by grocery disqualified se his court in the case note that circuit We alleged crime. that was the victim the store employ- cause a full-time before us excuse for did Brown, 644 States v. F.2d See also United hospital, ee stated that she who Cir.1981) (2d juror (prospective who was manager the case dis- and had heard business employed by bank another branch of victim at cussed work. subject robbery prosecution not to automat- bank cause). cases ic The courts these exclusion (1983), viability the continued address Dushman the trial court did err at this time. refusing to strike for deputy cause former sheriff, where the venireman testified that only hourly employee, working eight anAs position neither his former nor acquain his per large hospital, hours week for a Ms. investigating tance with the officer would cognizable Fitzwater had no financial inter- Accord, impartiality. affect his v. Des State est in the outcome case. Ms. Fitzwa- kins, (1989) 181 W.Va. S.E.2d voir during ter stated dire she worked (no in failing error strike cause former hospital, anything at the but didn’t know military police police member and former question. When about the events defense jurisdiction). officer in another Based on the employment if her counsel asked her authorities, latter we conclude that the trial prejudice any way, hospital would she court refusing did abuse its discretion replied it not. would The trial court McCroskey to strike Mr. for cause. an appropriate inquiry conducted and was that Ms. Fitzwater satisfied could render alleges next that his convic- verdict on the evidence. Under these based entering improper tion for circumstances, we find no error in the trial because chain link enclosure where the court’s not to strike. decision kept “building.” were was not a assignment raises a related defining breaking The statute entering, prospective juror error with- “any or without breaking, refers to McCroskey. McCroskey Mr. had worked as office, storehouse, warehouse, shop, banking City an officer of the Grantsville Police at any building, or house or other than a trial, however, one time. At the time dwelling adjoining or house outhouse thereto resigned had force and therewith_” occupied or W.Va.Code plant worked full-time as a operator. water § 61-3-12 The record reflects that an auxiliary city He was still officer for the the nitrous oxide tanks in an were stored *6 force, police but had not been called ten floor, enclosure that has a concrete two brick McCroskey months. was involved the (exterior walls), hospital walls two walls of crime, investigation of this which was con- including door, chain link fence a locked police. by the if ducted state When asked he a roof made of chain link fence. The enclo- State, might prejudiced in favor of the sure was entered cutting a in the hole really so, “I responded, don’t think but I chain link roof. always try to be The Appellant fair.” moved cause, refused, to strike for and the court The circuit gave following court the noting being that a former officer did instruction: “The jury the instructs exclusion, not automatically require that “building” that means a designed structure McCroskey had not up been called as an habitation, shelter, trade, storage, manu months, auxiliary officer in ten that he did facture, religion, business, education, the well, investigating not know the officers that like; A inclosing structure or edifice [sic] city police operate separately, state and space walls, within usually, its but not juror expressed willingness that the to be necessarily, Ap covered with a roof.” The fair. pellant object instruction, did not to this syllabus point right This Court held in therefore waived his to raise this issue West, appeal. five of that objections “[i]n a criminal case it is “When were not reversible court, error for trial court to shown to overrule a have been made in the trial challenge juror for cause of jurisdic who is an and the matters concerned were not employee prosecutorial character, of a or objections enforcement tional such will not agency Virginia.” the State of We appeal.” Syl be considered on Pt. State held, White, subsequently 742, 137 State v. Ferguson, Rd. Comm’n v. 148 W.Va. 658, 661-62, (1964).5 W.Va. 301 S.E.2d By holding, suggest so we do not that objection the address the issue because was made no instruction was an inaccurate statement of the at trial. only law. We have concluded that we will not whole, complains charge, ex the reviewed as sufficient- Appellant next ly jury they so cylinders the seized instructed the understood hibits 6 and properly were not Sherry Parsons’ the issues involved and were not [misled] authenticated, none of the witnesses A jury because law. instruction cannot be particular cylinders testify instead, that these appeal; could dissected on entire General. West property Calhoun were determining at when instruction looked 901(a) provides Virginia Rule Evidence court, therefore, accuracy. its A trial has authentication is sat requirement that the formulating charge discretion in its broad support a sufficient to isfied evidence jury, long charge so as the to the accurate- proponent finding that the item is what its given ly the law. Deference is to a reflects Sherry described the thefts claims. concerning spe- court’s discretion taken the tanks as ones and identified instruction, wording cific and the acting administrator of from her home. specific precise any character of extent and hospital that Calhoun General testified only instruction will be reviewed color from tanks of the same size and rented abuse of discretion. Welding, there were five complain does 'missing. hospital em A second law, that the instruction misstated but looked ployee testified .identical supported by testimony, taken rather that it was not the evi hospital’s tanks. This Parsons, misleading jury. is suffi together with that of Ms. dence and was With support jury’s finding support that the cient to evidence would instruction, from Calhoun Gener tanks were those taken inclusion of this there testi al, admitting not err in and the trial court did mony by that nitrous oxide several witnesses the tanks into evidence.6 kept spare tanks were bedroom house that the shared assignment error is The next points, State out that “exclu Parsons. The instruction, following given the trial recently possession property stolen sive objection: Appellant’s over court joint may possession by two or more include possession property Before the stolen Wilcox, persons,” quoting State per- presumption creates even 142, 148, Based thief, possession son is a the State must tanks, location of the we on the confessed beyond reason- prove by the evidence cannot that was an abuse of discretion find it person- able doubt that the *7 on for court to include an instruction the trial al, exclusive, recent, unexplained, and that Moreover, possession. the instruc exclusive asser- it a distinct and conscious involved given operated actually tion to benefit by property tion defendant. accused, prove requiring the State 749, Craft, 741, 272 See State v. 165 W.Va. beyond a reasonable doubt that defen (1980). 46, Appellant asserts 51 S.E.2d possession consciously over the dant asserted evidence of exclu- that there was insufficient jury property before the could consid stolen instruction, possession to warrant sive prove tending as his er that confusing misleading. that it was and and find it was mis guilt. Thus we do not the trial asks that we reverse Looking at the entire instruction leading. Guthrie, on v. 194 W.Va. court based State trial, at the context of the evidence adduced 657, syllabus point 461 168 S.E.2d not including the instruction was we find Guthrie, articulated the four this Court trial court. of discretion abuse jury review for instructions: standard of assignment of is that the jury The final error
A court’s instructions to trial imposed by the trial court was dis- of the law and sentence must be a correct statement stealing cylin- crime Jury proportionate supported by the evidence. instruc- Appellant was ders of nitrous oxide. The by determining whether tions are reviewed have been excluded under tanks were should 6. The also asserts relevant, and We also find prejudicial of Evidence 402 relevant their Rules not and if they be without merit. outweighed probative and these contentions to value nature their 60 counts, on six
convicted and sentenced
follows: entering Breaking years 1 1-10
Count (concurrent 1) Entering breaking 2 without 1-10 with count Count (consecutive) larceny days Petit 45 3 Count (concurrent) larceny year 1 4 Petit Count (consecutive) Conspiracy years 5 to commit count 1 1-5 Count (consecutive) Conspiracy years 6 to commit count 2 1-5 Count produced carpenter This a minimum sentence three I have as a since I worked enough pick my old nails out of box for years, forty-five days, and a maximum sen- I myself, dad. have built several houses twenty years, forty-five days. tence of many, many I have worked more. built sentencing Appellant asserts that consecutive sheds, barns and chicken For houses. related counts was an abuse of these I years spent my number of have vacation complains He that the sentence discretion. building people homes low-income imposed disproportionate is to the crime of Jimmy President Carter and Habitat for Hu- gas cylinders only hun- stealing worth five manity. I plumbed also have wired and dollars, in a that the victim did not dred theft many I buildings. people know what mean reported even notice until it they “building.” They when use the word do police. cage, mean not a wire nor do I believe the syllabus point This Court held Legislature cage drafting meant a when our 366, 4 v. Goodnight, 169 W.Va. 287 State on breaking entering. criminal statute (1982), imposed 504 “[sentences S.E.2d twelve-year-old I my If told niece to “fetch court, statutory within if limits jug of building water out of the around [imjpermissible and if based on some back,” cage, saw she was a wire she’d factor, subject appellate are not review.” probably enough get jug, have sense to upheld This consecutive sentences in a back, but when she came she’d tell me: “Un- Farr, similar situation in State 193 W.Va. Larry, any building cle I see didn’t back 355, (1995), in which defen there; all I cage saw was a or fenced-in dant counts convicted on three place.” Larry think Uncle And she’d was sentenced to three consecu being sloppy language, his which a year tive There one-to-ten sentences. busy carpenter every is entitled to now do proportionali Court noted that constitutional then. ty generally only applicable standards are law But court of isn’t entitled to twist sentences where is either no fixed max there everyone words to mean what knows imum set statute or where there is a life cage mean. A a building, don’t wire is not at recidivist sentence. Id. S.E.2d if it along building. even side a quoting Syl. Pt. Wanstreet v. Borden Second, jury pool a fair in a criminal case kircher, S.E.2d employ- does include officers and (1981). We therefore find no error *8 of ees the victim. imposed by sentence court. challenged juror just The one was above, we Based affirm the defen- officer; police former he was a former chief dant’s conviction. police auxiliary of and a current officer been likely whose services had and would
Affirmed. used the future local law enforcement. fact, his officer services were avail- Justice, STARCHER, dissenting: very sitting time able he was as a juror. challenged juror, The other the hospi- respectfully majority opin- I to dissent employee, jury’s tal would have to defend My ion. dissent is on two propositions based verdict before the victims of the theft —her appear to which to me be common sense. historically wisely bosses. The law has and First, a cage out of is not a fencing object made given right defendant the to to such building. jurors, right and this should have been en- And, particularly are these matters forced. community as have we important a small P.T.P., IV, Next an Infant his Friends case: in this P.T.P., B.P., Parents, III, and Appellants, Simpson mindful of the recent O.J. I am message to have sent terrible eases which justice game, most Americans —that THE BOARD EDUCATION OF OF evidence, depends not on that the verdict JEFFERSON, COUNTY OF jury pool. try to in the To but on the biases Sokol, Gerry Appellees. opposite message, imperative it is send people the reasons for to feel that we reduce No. 23460. of get a fair trial because cannot Supreme Appeals perceived jury pool. The hold- biases Virginia. majority nothing to attack the ing of the does has bred. cynicism the O.J. case 4, 1997. Submitted Feb. spoken importance have of fair- We May Decided appear- even
ness and need avoid impropriety on the civil side of our ance
courts; concepts important equally are those recently has the criminal side. This Court
held: legal system only so will endure society
long as members continue provide courts
believe that our endeavor
untainted, jus- forums in which unbiased may right
tice be found done. impartial trial is fundamental
a fair and judiciary is litigant; fundamental impartiality public’s confidence in the proceedings which judges
of our over
they preside.... avoiding appearance develop- impropriety important is as public judicial system
ing confidence our impropriety Tennant v. avoiding itself. Foundation, Inc.,
Marion Health Care 97, 108-109, 374, 384-85 probably guilty lar- defendant
ceny, guilty but building. jury pool was so consti- And the permit people to con- as to fair-minded
tuted against that the deck stacked
clude Accordingly, I dissent.
defendant.