State of West Virginia v. Deborah Nunley ( 2013 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia, FILED
Plaintiff Below, Respondent February 11, 2013
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
vs) No. 12-0139 (Harrison County 11-F-123) OF WEST VIRGINIA
Deborah Nunley,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner’s appeal, by counsel Jonathan Fittro, arises from the Circuit Court of Harrison
County, wherein she was sentenced to consecutive terms of twenty years of incarceration and one
to five years of incarceration following her conviction, by jury, of first degree robbery and
conspiracy to commit first degree robbery. That order was entered on December 14, 2011. The
State, by counsel Laura Young, has filed its response.
This 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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.
Following a robbery at Dry Cleaning World in Bridgeport, West Virginia, petitioner was
indicted on one count of first degree robbery and one count of conspiracy to commit first degree
robbery. After a two-day jury trial, petitioner was convicted of both counts and sentenced as
outlined above. On appeal, petitioner alleges that the circuit court erred in admitting the testimony
of witness Joseph Helms. According to petitioner, this witness recanted a statement regarding
petitioner prior to trial. Petitioner also argues that the testimony elicited from Mr. Helms at trial
was irrelevant and highly prejudicial. In response, the State argues that the witness’s testimony
concerning the petitioner’s suspicious behavior at his home and her economic problems was
relevant, probative, and properly admitted into evidence.
“‘The Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse
of discretion standard, unless the order violates statutory or constitutional commands.’ Syl. Pt. 1,
in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).” Syl. Pt. 1, State v. James, 227
W.Va. 407, 710 S.E.2d 98 (2011). Moreover, “‘[r]ulings on the admissibility of evidence are
largely within a trial court’s sound discretion and should not be disturbed unless there has been an
abuse of discretion.’ State v. Louk, 171 W.Va. 639, [643,] 301 S.E.2d 596, 599 (1983).” Syl. Pt. 1,
State v. Kaufman, 227 W.Va. 537, 711 S.E.2d 607 (2011) (internal citations omitted). Upon our
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review, we find no abuse of discretion in the circuit court allowing the witness’s testimony over
petitioner’s objection because the probative value outweighed the alleged unfair prejudice to
petitioner.
For the foregoing reasons, the circuit court’s sentencing order is hereby affirmed.
Affirmed.
ISSUED: February 11, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Allen H. Loughry II
DISSENTING:
Justice Menis E. Ketchum
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