State of West Virginia v. Justin G. Conner ( 2023 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS FILED
May 23, 2023
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
State of West Virginia, SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Plaintiff Below, Respondent
vs.) No. 21-0323 (Fayette County 20-F-11, 20-F-12, 20-F-13)
Justin G. Conner
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Justin G. Conner appeals the Circuit Court of Fayette County’s denial of his
motion for a judgment of acquittal of his burglary charge. 1 Upon review, we find that the circuit
court did not err in denying the motion because (1) Mr. Conner waived his arguments by failing
to properly raise them before the circuit court, and (2) the circuit court’s instructions to the jury
included the element of burglary that Mr. Conner now argues should be required. This case
satisfies the “limited circumstances” requirement of Rule 21(d) of the West Virginia Rules of
Appellate Procedure for resolution in a memorandum decision.
In late summer 2018, Mr. Conner and his girlfriend, C.B., moved to a residence together
in Fayette County, West Virginia. 2 Both of their names were on the lease to the residence, and Mr.
Conner had belongings in the residence. In mid-March 2019, Mr. Conner threatened C.B. and
carried her down the hall by her throat. She later awoke to him having sex with her. Two days
later, he again grabbed her by the throat and would not let her leave the home. C.B. called 911 and
sought and received an emergency domestic violence protective order (“DVPO”) from the
magistrate court. After being served with the emergency DVPO, Mr. Conner returned to the
1
Petitioner appears by counsel Matthew Brummond. The State appears by counsel
Attorney General Patrick Morrisey and Solicitor General Lindsay S. See.
Mr. Conner’s trial counsel called this motion a motion to dismiss. However, as he
challenged the sufficiency of the evidence, we will consider it a motion for a judgment of acquittal,
pursuant to West Virginia Rule of Criminal Procedure 29(a).
2
We use initials to protect the identity of the victim in this case, as it involves a crime of a
sexual nature. See W. Va. R. App. P. 40(e). See also Goodwin v. City of Shepherdstown, 241
W. Va. 416, 419 n.2, 825 S.E.2d 363, 366 n.2 (2019).
1
residence and grabbed her again by the throat. C.B. eventually left and called 911 again.
Approximately a week later, the family court issued an uncontested DVPO.
Separate from the DVPO proceedings, a law enforcement officer criminally charged Mr.
Conner with strangulation, violation of a DVPO, domestic battery, and domestic assault. He was
released from jail on bond with a condition that he not contact C.B.
Mr. Conner and C.B. later reconciled. C.B. requested termination of the DVPO, and the
family court granted her request. Sometime around April 14, 2019, Mr. Conner moved back into
the residence with C.B. He paid April’s rent. The criminal charges, however, remained pending,
and his bond condition forbidding him from contacting C.B. remained in effect.
Mr. Conner and C.B. argued on April 14, 2019, and she left. When C.B. returned the next
day they argued again, and Mr. Conner began choking her. After she called 911, he departed the
residence. At trial, Mr. Conner told the jury that he knew that law enforcement would have arrested
him had he stayed, as he was under a no-contact order. After Mr. Conner left, C.B barred the door
by screwing in a board on the back door to prevent him from entering with his keys. On the
morning of April 16, 2019, C.B. heard Mr. Conner kick in the barricaded back door. Mr. Conner
entered the residence and he began choking C.B. yet again.
In January 2020, a grand jury returned two indictments against Mr. Conner: (1) an eleven-
count indictment for the March 2019 offenses, including strangulation and third-degree sexual
assault; and (2) a four-count indictment for the April 2019 offenses, including burglary and
domestic battery. The circuit court held a trial on both indictments.
While the State provided proposed jury instructions to the trial court, Mr. Conner did not.
At the conclusion of the jury charge conference, Mr. Conner’s counsel noted that “everything for
statutory instructions and the jury instructions are essentially a recitation of statutory law[,] and
they appear to be correct.” The State provided the circuit court with the following jury instruction
regarding burglary:
Burglary is committed when any person breaks and enters,
or enters without breaking, either in the daytime or nighttime, a
dwelling house or out house adjoining thereto, or occupied therewith
of another person with the intent to commit a crime therein.
“Dwelling house” shall include but not be limited to a mobile
home, house trailer, modular home, factory built home, or self-
propelled motorhome use[d] as a dwelling regularly or from time to
time, or any other nonmotive vehicle primarily designed for human
habitation and occupancy and use[d] as a dwelling regularly or from
time to time.
Before the defendant, Justin G. Conner, can be convicted of
burglary, the State must overcome the presumption of innocence and
prove to the satisfaction of the jury that a reasonable – beyond a
reasonable doubt that: the defendant, Justin G. Conner, in Fayette
County, West Virginia on or about the 16th day of April 2019, did
2
unlawfully, intentionally, and feloniously, break and enter the
dwelling house of [C.B.], with the intent to commit a criminal
offense.
(Emphasis added and quoted as recited to the jury). Mr. Conner did not object to this instruction,
and it was part of the trial court’s charge to the jury.
After the State presented its case, Mr. Conner moved the court to dismiss his burglary
charge. While Mr. Conner did not deny kicking in the back door to the residence, he argued that
the evidence showed that he lived there, that he paid rent, and that his name was on the lease. He
claimed that burglary “is a property crime” and that he could not have burglarized his own house.
The State responded that while it had no evidence of an eviction, the evidence was sufficient to
show that the victim had bolted the door and that Mr. Conner “did not reside [there], at that time,
when he kicked the door in the next morning.” The trial court denied Mr. Conner’s motion and
reasoned that the indictment alleged that Mr. Conner “broke and entered the dwelling house of
[C.B.] with intent to commit a crime” there and that the State presented evidence “that this woman
was dwelling in this particular home.” The court explained that there was “evidence that he did
break and enter” and concluded that this contention was “an issue for the jury to determine whether
or not he’s guilty of burglary.” At the conclusion of trial, Mr. Conner renewed his motion, which
the State again opposed. The trial court found that “there has been sufficient evidence presented
from which a reasonable jury could conclude that the defendant is guilty of the offenses set out in
both of these indictments.” After deliberation, the jury found Mr. Conner guilty of the burglary
charge, among other offenses. He now appeals.
“The trial court’s disposition of a motion for judgment of acquittal is subject to our de
novo review.” State v. LaRock, 196 W. Va. 294, 304, 470 S.E.2d 613, 623 (1996). To the extent
that this appeal involves questions of law or the interpretation of a statute, the Court examines the
issue de novo. State v. Sulick, 232 W. Va. 717, 724, 753 S.E.2d 875, 882 (2012) (noting, “[a]s a
general rule, we have held that ‘questions of law and interpretations of statutes and rules are subject
to a de novo review.’”(quoting Syl. pt. 1, in part, State v. Duke, 200 W. Va. 356, 489 S.E.2d 738(1997)).
Mr. Conner’s argument before this Court concerns the language of the burglary statute.
When the Legislature amended the burglary statute in 2018, it removed the words “of another.”
See W. Va. Code § 61-3-11(a) (eff. 2018). 3 See also State v. Elswick, No. 17-1112, 2019 WL
3Subsection a of West Virginia Code § 61-3-11 now reads:
Any person who breaks and enters, or enters without breaking, a
dwelling house or outbuilding adjoining a dwelling with the intent
to commit a violation of the criminal laws of this state is guilty of a
felony and, upon conviction thereof, shall be imprisoned in a state
correctional facility for not less than one nor more than 15 years.
Before the 2018 amendments, subsections a and b of West Virginia Code § 61-3-11 read
as follows:
3
2337436, at *1 n.2 (W. Va. June 3, 2019) (memorandum decision) (describing other 2018 changes
to the burglary statute). Mr. Conner centers his assignments of error on this amended version of
the burglary statute. First, he argues that this Court should “read the [2018] West Virginia burglary
statute to require the offense be committed against the dwelling house ‘of another.’” He also
contends that the amendment did not “eliminate the requirement of unlawful entry.” Mr. Conner
argued neither of these theories to the trial court, where he limited his argument to property rights.
We do not need to reach the issue of whether the amended statute eliminated the element “of
another” and any related claims, as Mr. Conner has waived these arguments. See Syl. pt. 1, State
v. Berry, 227 W. Va. 221, 707 S.E.2d 831 (2011) (“Errors assigned for the first time on appeal will
not be regarded in any matter of which the trial court had jurisdiction or which might have been
remedied in the trial court had objection been raised there. Syllabus point 17, [in part,] State v.
Thomas, 157 W. Va. 640, 203 S.E.2d 445 (1974).”). Mr. Conner argues in his reply brief that the
trial court was on notice of the issue, so he did not waive it. Still, Mr. Conner’s argument before
the trial court focused on the idea that one cannot burglarize one’s own home as a general theory,
and did not claim any error based upon the language of the statute and its amendment.
Furthermore, Mr. Conner’s assertion that this Court should find an exception to any waiver
because the exception meets the plain error standard has no merit. Despite the change in statutory
language, the trial court provided the jury with an instruction containing the very resolution Mr.
Conner now seeks from this Court. The trial court instructed the jury that the dwelling house had
to be “of another person”—specifying an element that the jury must find to convict Mr. Conner of
burglary. And the jury did so. See State v. Miller, 197 W. Va. 588, 606, 476 S.E.2d 535, 553 (1996)
(explaining that “‘juries are presumed to follow their instructions.’” (quoting Zafiro v. United
States, 506 U.S. 534, 540, 113 S. Ct. 933, 939, 122 L. Ed. 2d 317 (1993))). While Mr. Conner
raised the issue regarding burglarizing one’s own home when he made his motion for a judgment
of acquittal, he did not seek a further jury instruction for clarification explaining what “of another”
means. 4 See State v. Miller, 194 W. Va. 3, 19, 459 S.E.2d 114, 130 (1995) (finding that the
(a) Burglary shall be a felony and any person convicted
thereof shall be confined in the penitentiary not less than one nor
more than fifteen years. If any person shall, in the nighttime, break
and enter, or enter without breaking, or shall, in the daytime, break
and enter, the dwelling house, or an outhouse adjoining thereto or
occupied therewith, of another, with intent to commit a crime
therein, he shall be deemed guilty of burglary.
(b) If any person shall, in the daytime, enter without breaking
a dwelling house, or an outhouse adjoining thereto or occupied
therewith, of another, with intent to commit a crime therein, he shall
be deemed guilty of a felony, and, upon conviction, shall be
confined in the penitentiary not less than one nor more than ten
years.
4
Though C.B. testified that she and Mr. Conner lived together in the house, that his name
was on the lease, and that he paid most of the utilities, other evidence presented at trial showed
that Mr. Conner’s bond condition prohibited him from contacting her, that he had moved out at
times, and that she barred the door to prevent his return. This evidence supported the jury’s
4
defendant’s failure to seek a jury instruction on self-defense was a voluntary waiver). At the
conclusion of the charge conference, Mr. Conner’s counsel noted that the jury instructions
appeared to be correct. For these reasons, we find no error occurred.
As Mr. Conner waived his arguments at the circuit court level, and further received the
outcome he now seeks, we affirm the circuit court.
Affirmed.
ISSUED: May 23, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice C. Haley Bunn
CONCURRING:
Justice William R. Wooton
WOOTON, J., concurring:
I write separately to express my agreement with petitioner’s argument that the 2018
amendment to the burglary statute contained in West Virginia Code § 61-3-11 suffers from a
constitutional defect. The title of the amendment failed to place both legislators and the public on
notice of the sea change imbedded into the amendment as to the crime of burglary, in violation of
article six, section thirty of the West Virginia Constitution. As it currently exists, the burglary
statute now makes any crime one commits or intends to commit upon entry of one’s own home a
“burglary.” This is inconsistent with the well-accepted underlying principle of the crime of
burglary and, I believe, was an unintended consequence of the amendment. However, I concur
with the majority’s affirmance of petitioner’s burglary conviction because any constitutional defect
in the burglary statute was harmless as to him. As the majority correctly notes, the jury was
instructed that it must find that petitioner entered the dwelling house “of another”—the very
element which petitioner claims the statute now unconstitutionally omits.
Our burglary statute is codified under Chapter 61, Article 3 entitled “Crimes
Against Property.” (Emphasis added). Burglary is historically and inherently a breach of the right
of habitation and our Legislature has codified the crime consistent with this understanding. 1 In
conclusion that Mr. Conner burglarized the dwelling “of another.” See Syl. pt. 3, State v. Guthrie,
194 W. Va. 657, 461 S.E.2d 163 (1995) (stating, in part, that “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”).
1
As one commentator has summarized,
5
2018, the Legislature sought to eliminate the prior distinction in the statute between daytime and
nighttime burglary—as made apparent by the title to the amendment itself which read:
AN ACT to amend and reenact § 61-3-11 of the Code of West
Virginia, 1931, as amended, relating to the crime of burglary;
eliminating the offense of daytime burglary; making breaking and
entering or entering without breaking into a dwelling or outbuilding
thereof a felony regardless of time of day; and establishing the
criminal penalty for burglary.
2018 West Virginia Laws Ch. 56 (S.B. 37) (emphasis added). Unfortunately, the amendment also
omitted the requirement that the “dwelling house” into which one breaks and/or enters with intent
to commit a crime must be “of another.” Therefore, anyone in West Virginia who enters his or
her home with the intent to commit any crime, and commits it, has committed not only the
underlying crime, but a felony burglary as well. Further, anyone who enters his or her home with
the intention to commit any crime, but does not ultimately commit that crime, has still theoretically
committed a felony “burglary.”
Article six, section thirty of the West Virginia Constitution provides that
[n]o act hereafter passed shall embrace more than one object, and
that shall be expressed in the title. But if any object shall be
embraced in an act which is not so expressed, the act shall be void
only as to so much thereof, as shall not be so expressed[.]
This constitutional requirement is critically important. It informs “legislators and other interested
parties” of its purpose and prevents inclusion of “matters foreign to its purpose which, if known,
might fail to gain the consent of the majority.” Syl. Pt. 1, in part, State ex rel. Walton v. Casey,
179 W.Va. 485, 370 S.E.2d 141 (1988); see also Syl. Pt. 5, State ex rel. Marockie v. Wagoner, 191
W. Va. 458, 446 S.E.2d 680 (1994). Further, this requirement of title expression “necessarily
implies explicitness. A title must, at a minimum, furnish a ‘pointer’ to the challenged provision in
the act. The test to be applied is whether the title imparts enough information to one interested in
Prominent eighteenth-century legal scholars affirmed this
habitation-based definition of burglary. In his Commentaries on the
Laws of England, Blackstone asserted that burglary involves “a
forcible invasion and disturbance of that right of habitation, which
every individual might acquire even in a state of nature.”
Furthermore, William Hawkins listed burglary as one of two
“[o]ffences against the [h]abitation of a [m]an.”
Stephen D. Sutherland, “Burglar of Interest”: An Analysis of South Carolina Burglary Law After
State v. Singley, 64 S.C. L. Rev. 849, 857 (2013).
6
the subject matter to provoke a reading of the act.” Syl. Pt. 2, Walton, 179 W.Va. at 485, 370
S.E.2d at 141.
Here, the title to the 2015 amendment expressly mentioned a singular purpose: to
“eliminat[e] the offense of daytime burglary” and make burglary a felony “regardless of time of
day[.]” No other purpose or alteration is mentioned. However, the most profound alteration to
the statute is removal of the requirement that the “dwelling house” or adjoining “outbuilding” be
“of another.” 2 The amendment’s title not only fails to provide notice of this substantial
enlargement of the breadth of the crime, but affirmatively (albeit likely unintentionally) misdirects
away from this change by mentioning only a laudable elimination of various gradations of the
crime. Cf. Syl. Pt. 1, C.C. Spike Copley Garage, Inc. v. Pub. Serv. Comm’n of W. Va., 171 W. Va.
489, 300 S.E.2d 485 (1983) (“Where the title to an act of the Legislature is specific about the
purpose of all provisions of an omnibus act except one isolated provision, the title is deficient
under W.Va. Const., art. VI, § 30 with regard to the provision in the act whose purpose is obscured
because the omission of one purpose in a title that is otherwise exhaustively informative is
positively misleading.”).
As indicated, I believe this omission to have been entirely unintentional. Under
differing circumstances, this defect might have been corrected by this Court through use of the
“least intrusive remedy” doctrine. This permits the Court to strike down any alteration to the
statute but for that which was properly noticed in the title:
Where a statute serves an urgent and necessary public
purpose but is technically deficient for constitutional reasons, this
Court will apply the doctrine of the least intrusive remedy and give
the statute, wherever possible, an interpretation which will cure its
defect and save it from total invalidation.
Syl. Pt. 2, Weaver v. Shaffer, 170 W. Va. 107, 290 S.E.2d 244 (1980). This Court has long
recognized that
“[a] statute may contain constitutional and unconstitutional
provisions which may be perfectly distinct and separable so that
2
However, it is not the mere absence of the phrase “of another” which creates the problem.
In fact, many states’ statutes no longer include that phrase: “The requirement that the structure be
that of another is to be found only in a minority of the contemporary burglary statutes.” 3 Wayne
LaFave, Substantive Criminal Law § 21.1(c) (3d ed. 2022). However, the absence of that phrase
does not undermine the purpose of those statutes because they employ a description of the type of
“entering” required such as to maintain the nature of the offense as violation of a right of
habitation: “The most common statutory term [describing the required entry] is ‘unlawfully,’ but
some jurisdictions use other language, such as ‘unauthorized,’ by ‘trespass,’ ‘without authority,’
or ‘without consent.’ Though these statutory formulae are not in all respects identical, they
generally require that the entry be unprivileged.” Id. § 21.1(a) (footnotes omitted). Here, the
Legislature removed the “of another” language without substituting another descriptor which
would maintain the nature of the crime—further evidence of the unintended nature of the omission.
7
some may stand and others will fall; and if, when the
unconstitutional portion of the statute is rejected, the remaining
portion reflects the legislative will, is complete in itself, is capable
of being executed independently of the rejected portion, and in all
other respects is valid, such remaining portion will be upheld and
sustained.”
Frantz v. Palmer, 211 W. Va. 188, 193-94, 564 S.E.2d 398, 403-04 (2001) (quoting Syl. Pt. 6,
State v. Heston, 137 W. Va. 375, 71 S.E.2d 481 (1952)). This doctrine serves the vitally important
purpose of “assur[ing] that the statute will not be unconstitutionally applied.” Syl. Pt. 1, in part,
State ex rel. Harris v. Calendine, 160 W. Va. 172, 233 S.E.2d 318 (1977).
In other words, because the amendment failed to properly excise “of another” from
the statute, but did properly eliminate the daytime/nighttime distinction, the Court had the authority
to give the statute precisely that reading. As the Court in Weaver explained, “Most appellate courts
have recognized in one way or another the problems which can be created for society by striking
down for a technical defect a statute which, in general, achieves a worthwhile public goal when
there is absolutely no assurance that the Legislature will again pass a similar statute.” Id. at 112,
290 S.E.2d at 249.
In the instant case the petitioner received an instruction which included the
unconstitutionally omitted element “of another”; accordingly, it was unnecessary to the resolution
of this case to strike down the statutory amendment. However, I encourage our Legislature to
revisit this statute at its next opportunity to cure this defect and ensure that the statute properly
expresses its will in regard to this crime.
Accordingly, I respectfully concur.
8