1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia

, Plaintiff Below , Respondent

,

v s .) No. 19

- 0 405 ( Mason County 17

- F

- 85 )

Larry T. Huffman

, Defendant B elow , Petitioner



### MEMORANDUM DECISION

Petitioner Larry Huffma n , by counsel Paul A. Knisley

, appeals his conviction for third

offense driving while revoked, driving under the influence ( DUI

- related )

. Respondent State of West Virginia

, by counsel Mary Beth Niday , filed a response in support of petitioner’s conviction

. Petitioner filed a reply.

This Court has considered the parties ’ briefs and the record on appeal. The facts and legal arguments are ade quately 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. Fo r these reasons,

a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

On August 5, 2016, petitioner was stopped by West Virginia State Police First Sergeant

Chris Zerkle (“Sgt. Ze rkle”) on Route 52 near New Haven, West Virginia, for a fraudulent inspection sticker. As part of the traffic stop, Sgt. Zerkle checked petitioner’s driver’s license in the West Virginia Division of Motor Vehicles ’ (“DMV”) system. The system noted that petitioner’s driver’s license “was valid with Interlock,” which meant that petitioner’s license was

valid “ as long as he had the proper equipment in the vehicle . . . the Interlock system . . . typically called the [b ] low and [g] o

. . . . ” Sgt. Zerkle observed that the vehicle petitioner was operating was not equipped with Interlock and discussed the same with petitioner. Further, Sgt. Zerkle recalled that p etitioner acknowledged that he knew he was supposed to have t he Interlock system
installed on his vehicl e , but

, since his release from prison, he had spent a lot of money to get his

driver’s license reinstated and was unable to afford the Interlock system

.

On September 5, 2017, petitioner was indicted by the Mason County Grand Jury for Driving While Revoked, DUI

- related, third or subsequent offense, in violation of West Virginia

Code ⸹ 17B

- 4

- 3(b). Petitioner stipulated to his prior convictions and his jury trial began on May 23, 2018. 

### FILED December 7, 2020

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 At trial, the State presented the testimony of only one witness, Sgt. Zerkle, and admitted petitioner’s DMV record into evidence. Following Sgt. Zerkle’s direct testimony about the traffic stop, the State presented its first exhibit, a certified copy of p etitioner’s DMV report. The report was entered into evidence without objection from petitioner’s trial counsel. The State then asked Sgt. Zerkle, “Was it your conclusion that, based on the DMV information, that [petitioner]’s privilege to drive a vehicle o n a public highway in this State was lawfully revoked on August 5, 2016?” To which, Sgt. Zerkle responded, “Yes, it was.” When pressed, Sgt. Zerkle testified that he came to this conclusion due to the fact that petitioner did not have the proper Interlock equipment installed in his vehicle.

Under cross

- examination , petitioner’s counsel asked Sgt. Zerkle if it is was his opinion that driving on a revoked license is the same as driving on a valid/Interlock license, Sgt. Zerkle responded “[n]o, that’s not my opinion. That’s the way I’ve done it for 24 years. Anybody that’s been valid with Interlock that doesn’t have the equipment, is charged with driving revoked, DUI.” Petitioner did not present any evidence in his defense

, and

, following the half

- day trial, he was

convicted of d riving w hile r evoked, DUI

- related, third or subsequent offense. On May 29, 2018, petitioner filed a motion for new trial, which was denied by the circuit court on February 1, 2019.

Petitioner was subsequently sentenced to an indetermin ate term of one to three years in prison

, and a $3,000 fine. It is from his conviction that petitioner now appeals.

On appeal, petitioner argues that it was plain error for the trial court to allow Sgt. Zerkle’s trial testimony as to whether petitioner’s privilege to drive a vehicle on a public highway in this State was lawfully revoked on the date in question. Petition er contends that the admission of such testimony violated his right to a fair trial. As petitioner’s trial counsel did not object to Sgt. Zerkle’s testimony, this Court must consider petitioner’s appeal under the lens of plain error. By its very nature, t he plain error doctrine is reserved for only the most egregious errors. In order “[t]o 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 fair ness, integrity, or public reputation of the judicial proceedings.” Syl. P t. 7, State v. Miller , 194 W. Va. 3, 459 S.E.2d 114 (1995)

. Here,

we find that the elements of the plain error doctrine are not met because the t rial court did not err in allowing Sgt. Zerkle’s testimony.

In syllabus point 5 of Jordan v. Bero, 158 W. Va. 28, 210 S.E.2d 618 (1974) , we stated that “[w]hether a witness is qualified to state an opinion is a matter which rests within the sound discretion of the trial court and its ruling will not ordinarily be disturbed unless it clearly appears

that its discretion has been abused.” Fu rthermore, we held in syllabus point 2 of State v. Peyatt,

173 W. Va. 317, 315 S.E.2d 574 (1983) (quoting State v. Louk, 171 W. Va. 639, 643, 301 S.E.2d 596, 599 (1983) )

, t hat “‘[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.’”

Here, p etitioner argues that Sgt. Zerkle’s trial testimony exceeded the scope of Rule 701 of the West Virginia Rules of Evidence as improper lay opinion testimony. Rule 701 of the West Virginia Rules of Evidence provides that

[ i ] f a witness is not testifying as an expert, testimony in the form of an opinion is

limited to one that is: (a) rationally based on the witness’s perception; (b) helpful3 to clearly understand the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702

.

P etitioner acknowledges that Sgt. Zerkle’s testimony was clearly based on his perception, as he

r eviewed the petitioner’s DMV record

, and further observed that there was no Interlock in petitioner’s vehicle . However, petitioner argues that when the State asked Sgt. Zerkle for his opinion as to whether petitioner’s driving privilege was revoked, and Sgt. Zerkle informed the jury that petitioner’s driving privilege had been revoked , s uch testimony went beyond helping the jury

to understand his testimon y or to determine a fact in issue. Petitioner claims that b y stating this opinion that he did drive a vehicle on a highway in the State of West Virginia when his privilege

to do so was revoked

, Sgt. Zerkle basically instructed the jury to find the petition er guilty, hence violating petitioner’s right to a fair and impartial trial. We disagree.

A review of the record establishes that Sgt. Zerkle’s testimony was properly admitted to assist the jury in determining a fact in issue: whether petitioner’s license was revoked at the time of the traffic stop on August 5, 2016. Further, such information was also contained within the DMV records that were admitted as evidence without object ion. As such, we find no abuse of the

circuit court’s discretion and no error or plain error.

For the foregoing reasons, we affir m the petitioner’s conviction

.

Affirmed.

ISSUED: December 7, 2020

Chief Justice Tim Armstead Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison