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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


September 2001 Term

FILED
December 11, 2001
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

RELEASED
__________ No. 28853 __________ STATE OF WEST VIRGINIA, Plaintiff Below, Appellee v. ROBIN LADD,
Defendant Below, Appellant

December 12, 2001
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

__________________________________________________________________ Appeal from the Circuit Court of Jackson County
Honorable Charles McCarty, Judge
Criminal Action No. 99-F-34
REVERSED AND REMANDED
__________________________________________________________________
Submitted: October 2, 2001 Filed: December 11, 2001 Rebecca L. Stafford, Esq. Prosecuting Attorney Ripley, West Virginia Attorney for Plaintiff Below, Appellee Harry G. Deitzler, Esq.
Hill, Peterson, Carper, Bee & Deitzler
Charleston, West Virginia
Attorney for Defendant Below, Appellant


JUSTICE MAYNARD delivered the Opinion of the Court.


SYLLABUS BY THE COURT


1.

"The 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." Syllabus Point 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). 2. "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. To the extent that our prior cases are inconsistent, they are expressly overruled." Syllabus Point 3, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). 3. "Where a defendant is convicted of a particular substantive offense, the test of the

sufficiencyof the evidence to support the conviction necessarily involves consideration of the traditional distinctions between parties to offenses. Thus, a person may be convicted of a crime so long as the
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evidence demonstrates that he acted as an accessory before the fact, as a principal in the second degree, or as a principal in the first degree in the commission of such offense." Syllabus Point 8, State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989). 4. "An accessory before the fact is a person who being absent at the time and place

of the crime, procures, counsels, commands, incites, assists or abets another person to commit the crime, and absence at the time and place of the crime is an essential element of the status of an accessory before the fact." Syllabus Point 2, State ex rel. Brown v. Thompson, 149 W.Va. 649, 142 S.E.2d 711 (1965), overruled on other grounds by State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980). 5. "In order for the State to prove a conspiracy under W.Va. Code, 61-10-31(1),

it must show that the defendant agreed with others to commit an offense against the State and that some overt act was taken by a member of the conspiracy to effect the object of that conspiracy." Syllabus Point 4, State v. Less, 170 W.Va. 259, 294 S.E.2d 62 (1981). 6. "Generally, out-of-court statements made by someone other than the declarant

while testifying are not admissible unless: 1) the statement is not being offered for the truth of the matter asserted, but for some other purpose such as motive, intent, state-of-mind, identification or reasonableness of the party's action; 2) the statement is not hearsay under the rules; or 3) the statement is hearsay but falls within an exception provided for in the rules." Syllabus Point 1, State v. Maynard, 183 W.Va. 1, 393 S.E.2d 221 (1990). 7. "The mission of the Confrontation Clause found in the Sixth Amendment to the

United States Constitution and Section 14 of Article III of the West Virginia Constitution is to advance a practical concern for the accuracy of the truth-determining process in criminal trials, and the touchstone is
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whether there has been a satisfactory basis for evaluating the truth of the prior statement. An essential purpose of the Confrontation Clause is to ensure an opportunity for cross-examination. In exercising this right, an accused may cross-examine a witness to reveal possible biases, prejudices, or motives." Syllabus Point 1, State v. Mason, 194 W.Va. 221, 460 S.E.2d 36 (1995). 8. "The two central requirements for admission of extrajudicial testimony under the

Confrontation Clause contained in the Sixth Amendment to the United States Constitution are: (1) demonstrating the unavailability of the witness to testify; and (2) proving the reliabilityof the witness's out of-court statement." Syllabus Point 2, State v. James Edward S., 184 W.Va. 408, 400 S.E.2d 843 (1990), modified by State v. Kennedy, 205 W.Va. 224, 517 S.E.2d 457 (1999). 9. "We modify our holding in James Edward S., 184 W.Va. 408, 400 S.E.2d 843

(1990), to comply with the United States Supreme Court's subsequent pronouncements regarding the application of its decision in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), to hold that the unavailability prong of the Confrontation Clause inquiry required by syllabus point one of James Edward S. is only invoked when the challenged extrajudicial statements were made in a prior judicial proceeding." Syllabus Point 2, State v. Kennedy, 205 W.Va. 224, 517 S.E.2d 457 (1999). 10. "When ruling upon the admission of a narrative under Rule 804(b)(3) of the West

Virginia Rules of Evidence, a trial court must break the narrative down and determine the separate admissibility of each single declaration or remark. This exercise is a fact-intensive inquiry that requires careful examination of all thecircumstances surrounding the criminal activity involved." Syllabus Point 7, State v. Mason, 194 W.Va. 221, 460 S.E.2d 36 (1995). 11. "To satisfy the admissibility requirements under Rule 804(b)(3) of the West Virginia
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Rules of Evidence, a trial court must determine: (a) The existence of each separate statement in the narrative; (b) whether each statement was against the penal interest of the declarant; (c) whether corroborating circumstances exist indicating the trustworthiness of the statement; and (d) whether the declarant is unavailable." Syllabus Point 8, State v. Mason, 194 W.Va. 221, 460 S.E.2d 36 (1995). 12. "Absent a showing of particularized guarantees of trustworthiness, the admission

of a third-party confession implicating a defendant violates the Confrontation Clause found in the Sixth Amendment to the United States Constitution and Section 14 of Article III of the West Virginia Constitution. The burden is squarely upon the prosecution to establish the challenged evidence is so trustworthy that adversarial testing would add little to its reliability. Furthermore, unless an affirmative reason arising from the circumstances in which the statement was made provides a basis for rebutting the presumption that a hearsay statement is not worthy of reliance at trial, the Confrontation Clause requires exclusion of the out-of-court statement." Syllabus Point 9, State v. Mason, 194 W.Va. 221, 460 S.E.2d 36 (1995). 13. "To trigger application of the `plain error' doctrine, there must be (1) an error; (2)

that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings." Syllabus Point 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). 14. "Assuming that an error is `plain,' the inquiry must proceed to its last step and a

determination made as to whether it affects the substantial rights of the defendant. To affect substantial rights means the error was prejudicial. It must have affected the outcome of the proceedings in the circuit court, and the defendant rather than the prosecutor bears the burden of persuasion with respect to
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prejudice." Syllabus Point 9, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). 15. Generally, in criminal trials, trial courts should exercise the utmost caution prior to

admitting hearsay testimony pursuant to Rule 804 of the West Virginia Rules of Evidence when the declarant's unavailability under that rule is due to the fact that his or her lawyer is a State legislator or designated employee of the Legislature, the Legislature is then in regular session, and the legislator or designated employee of the Legislature is exempt from attending to matters pending before tribunals pursuant to W.Va. Code

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