STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

State of West Virginia, FILED 

Plaintiff Below, Respondent April 10, 2015 

RORY L. PERRY II, CLERK 

vs) No. 14-0605 (Upshur County 13-F-52) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Joseph Loudin,
 

Defendant Below, Petitioner
 

MEMORANDUM DECISION 

Petitioner Joseph Loudin, by counsel James T. Kratovil, appeals the May 5, 2014, order 

of the Circuit Court of Upshur County denying his motion to set aside the verdict and grant a 

new trial following his conviction for unlawful assault. Respondent the State of West Virginia, 

by counsel Derek Knopp, filed its response to which petitioner submitted his reply. 

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 affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

On May 13, 2013, petitioner was indicted on one count of unlawful assault related to an 

incident between petitioner and Brian Stewart. According to Mr. Stewart’s testimony, on March 

6, 2013, he was walking home with Carmen Mallett in Buckhannon, West Virginia. Frank 

Williams began yelling at Mr. Stewart from across the street, while petitioner and Brian Phillips 

were both with Mr. Williams. Mr. Stewart stated that Mr. Williams eventually crossed the street 

and hit him on the side of the head. Mr. Stewart reportedly reacted and grabbed Mr. Williams, 

causing the two of them to fall to the ground. After they stood up, the altercation between the 

two seemed to die down. At that point, the two groups exchanged words and petitioner punched 

Mr. Stewart in the eye. Mr. Stewart testified that petitioner then continuously grabbed and 

punched him until he was left on his knees bleeding profusely. Mr. Stewart denied throwing a 

punch in either fight. At the hospital, Mr. Stewart was diagnosed with an “orbital blowout 

fracture,” nasal bone and septum fractures, and multiple abrasions to his face. He had surgery 

wherein a titanium plate was inserted into his face and screwed into his cheekbones. According 

to his testimony, Mr. Stewart still has numbness in the upper left side of his face. 

Following a jury trial, petitioner was sentenced to an indeterminate term of incarceration 

of not less than one nor more than five years for unlawful assault. Petitioner was also ordered to 

pay restitution in the amount of $19,514.14. On May 5, 2014, the circuit court entered its “Order 

Following Motion Hearing.” In that order, the circuit court quashed petitioner’s subpoenas for 

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jurors Josh Wilt and Sheila Johns, finding that petitioner had not established bias on the part of 

either juror. The circuit court also denied petitioner’s motion to set aside the verdict and grant a 

new trial due to juror prejudice. It further denied petitioner’s motion to set aside the verdict and 

grant a new trial based upon petitioner’s assertion that the evidence at trial did not support the 

verdict. Finally, the circuit court denied all post-trial motions. It is from that order that petitioner 

appeals. 

On appeal, petitioner asserts five assignments of error. First, petitioner alleges that the 

circuit court abused its discretion by failing to grant his motion to set aside the verdict and grant 

a new trial on the basis that the jury was biased and/or prejudiced against him, in violation of his 

right to a fair trial decided by an impartial jury of his peers. Petitioner admits that counsel 

engaged in voir dire during jury selection, but he contends that he was not aware that any of the 

sitting jurors might potentially hold bias against him until after the trial had concluded. At that 

time, petitioner and his counsel discovered that juror Josh Wilt’s sister previously contracted 

with petitioner to do some construction work for her and that she was unhappy with petitioner’s 

work. They also learned that juror Sheila Johns’ husband owned and operated a business from 

which petitioner purchased supplies. When petitioner filed for bankruptcy, his debt to Mr. Johns’ 

business exceeded $5,000, but that debt was discharged as part of the bankruptcy. The 

information concerning these jurors was part of petitioner’s motion to set aside the jury verdict 

and grant a new trial that was denied by the circuit court. Petitioner subpoenaed both jurors to 

appear at the hearing on that motion. However, the State presented an affidavit from Mrs. Johns 

and moved to quash the subpoenas. The motions to quash were granted by the circuit court. As 

set forth above, the motion to set aside the verdict and grant a new trial was ultimately denied. 

“In reviewing challenges to findings and rulings made by a circuit court, 

we apply a two-pronged deferential standard of review. We review the rulings of 

the circuit court concerning a new trial and its conclusion as to the existence of 

reversible error under an abuse of discretion standard, and we review the circuit 

court’s underlying factual findings under a clearly erroneous standard. Questions 

of law are subject to a de novo review.” Syl. pt. 3, State v. Vance, 207 W.Va. 640, 

535 S.E.2d 484 (2000). 

Syl. Pt. 1, State v. Surbaugh, 230 W.Va. 212, 737 S.E.2d 240 (2012). In addition, we have found 

that 

A motion for a new trial on the ground of the misconduct of a jury is addressed to 

the sound discretion of the court, which as a rule will not be disturbed on appeal 

where it appears that defendant was not injured by the misconduct or influence 

complained of. The question as to whether or not a juror has been subjected to 

improper influence affecting the verdict, is a fact primarily to be determined by 

the trial judge from the circumstances, which must be clear and convincing to 

require a new trial, proof of mere opportunity to influence the jury being 

insufficient. 

State v. Cecil, 221 W.Va. 495, 500, 655 S.E.2d 517, 522 (2007) (quoting Syl. Pt. 7, State v. 

Johnson, 111 W.Va. 653, 164 S.E. 31 (1932)). “[T]he parties to a trial are responsible for 

conducting a full and complete voir dire during which, if the prospective jurors are forthright, all 

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relevant and meaningful information will be revealed which is necessary for the impaneling of a 

qualified jury.” Proudfoot v. Dan’s Marine Service, Inc., 210 W.Va. 498, 505, 558 S.E.2d 298, 

305 (2001). Petitioner does not allege that either juror was disqualified by statute or that either 

juror gave false information during voir dire. Further, Mrs. Johns’ affidavit indicated that she 

never knew petitioner before sitting on the jury, and a witness testified that Mr. Wilt never 

indicated whether he had any like or dislike toward petitioner. Like the petitioner in State v. 

Vetromile, 211 W.Va. 223, 227, 564 S.E.2d 433, 437 (2002), petitioner in the instant case “has 

not presented an affidavit from a juror asserting that he or she had knowledge of prior 

wrongdoing by the [petitioner] and that this information was shared with other members of the 

jury.” Instead, petitioner offers information regarding familial connections with these jurors 

without any proof or information that the jurors were even aware of petitioner’s connections to 

those family members at the time the jury was selected or when the verdict was rendered. 

Therefore, we find no error in the circuit court’s denial of petitioner’s post-trial motions related 

to these jurors. 

Petitioner’s second assignment of error is that the circuit court abused its discretion by 

failing to grant his motion to set aside the verdict and grant a new trial on the basis that the 

evidence presented at trial did not support the jury’s verdict. Petitioner argues that the State 

failed to prove, beyond a reasonable doubt, each and every element of the crime charged and the 

evidence clearly did not support the verdict. Petitioner is critical of testimony offered by 

eyewitness Carmen Mallett because she referred to the assailants as the “first guy” and the 

“second guy” throughout her testimony. He argues that Ms. Mallett had difficulty distinguishing 

which individual had committed certain acts and reluctantly identified petitioner by stating that 

she believed petitioner was the “second guy.” Petitioner also points to the fact that neither of the 

State’s medical expert witnesses could say with any degree of medical certainty exactly what 

caused the victim’s orbital floor fracture – his fall to the sidewalk or being punched in the face 

by the “first guy,” the “second guy,” or a combination of the two. He contends that witnesses Mr. 

Phillips and Mr. Bailey, both of whom were present at the time of the incident, testified that the 

victim first swung at petitioner, petitioner blocked the victim’s blow, petitioner punched the 

victim in the forehead, the victim dropped to his knees, and petitioner walked away from the 

scene. Petitioner asserts that it would have been “reasonable to expect a jury to conclude that: (1) 

[petitioner] was not guilty and acted in self-defense; or (2) [petitioner] was guilty of the lesser 

included offense of battery. . . .”1 He argues that the evidence did not support the guilty verdict 

rendered by the jury, so his conviction should be reversed. However, he admits that the circuit 

court correctly instructed the jury on the elemental requirements of unlawful assault, the crime of 

which he was convicted. 

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 

1 As a third possible finding, petitioner asserts that the jury could have found that 

“petitioner was guilty of unlawful assault.” It is unclear what petitioner intended to argue here, as 

he was found guilty of unlawful assault. 

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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. 

Syl. Pt. 3, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). Ms. Mallet testified that the 

victim was not the original aggressor and that the “first guy” walked across the street to hit the 

victim. She stated that after the “first guy” left, petitioner pushed Ms. Mallet down on the curb 

and attacked the victim. She further testified that the victim did not hit petitioner and that 

petitioner just began hitting the victim. Petitioner is correct that neither of the State’s medical 

experts could identify the exact cause of the victim’s orbital floor fracture, but they testified that 

the injuries were consistent with injuries caused by blows to the face with a fist. The victim 

testified that he saw a flash when petitioner hit him directly in the eye, while a medical expert 

testified that if the eye was hit the right way, the eye would be bruised, causing flashes of light. 

While conflicting evidence was presented to the jury, as set forth above, credibility 

determinations are for a jury and not an appellate court. In addition, “[a] new trial will not be 

granted in a criminal case on the ground of insufficiency of the evidence, where the verdict is 

based on oral testimony and involves the credibility of the witnesses.” State v. Maley, 151 W.Va. 

593, 598, 153 S.E.2d 827, 830 (1967). Therefore, petitioner has failed to satisfy his heavy 

burden. Based on the record before this Court, we find that the circuit court did not err in 

refusing to set aside the jury’s verdict and grant a new trial related to the sufficiency of the 

evidence. 

The third assignment of error of which petitioner complains relates to the court bailiff’s 

communications with the jury during deliberations off the record and out of petitioner’s 

presence. It is uncontroverted that during deliberations, the jury orally asked the bailiff a 

question outside the presence of counsel and the circuit court. The bailiff relayed the question to 

the judge, also outside the presence of petitioner and his counsel. The judge brought the jury into 

the courtroom and relayed his understanding of the question on the record, but petitioner 

complains that “we really do not have any way of knowing exactly what transpired in the two 

communications between the [c]ourt’s [b]ailiff and the jury. The [j]udge’s rendition of that 

communication can best be characterized as nothing more than hearsay upon hearsay . . .” 

Petitioner also criticizes the circuit court’s failure to place the bailiff and/or jurors under oath to 

take testimony regarding the communication. 

Petitioner is correct that he has a right to be present during all critical stages of a criminal 

proceeding. See Syl. Pt. 6, State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977). However, 

based upon our review of the record, it does not appear that this was a critical stage of the 

proceeding. After the jury had been in deliberations for a few minutes, the bailiff indicated to the 

court that the jury had a question. The circuit court then advised the parties that he intended to 

bring the jury out to give them further instruction about what to do in case they had a question, 

including putting any questions they have in writing. The judge inquired of counsel if they had 

any problems with this approach, to which each side responded in the negative. The jury was 

then reconvened, and the circuit court instructed the jury regarding the proper procedure to 

follow with regard to future questions they may have. The circuit court put the jury’s question on 

the record, which was whether the jury could know who took a photo, that is not identified in the 

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record, and the time it was taken. The jury foreperson confirmed the nature of the question on the 

record. The circuit court then answered the question by stating that all of the evidence the jury 

could consider had to come in through the witness stand and that the court would not and could 

not repeat the testimony of witnesses or provide any information that did not come in on the 

witness stand. The court then inquired again whether counsel for either side had any objection, 

and the attorneys again responded in the negative. Based on petitioner’s failure to object at that 

time and our finding that the brief communication at issue in this matter was not a critical stage 

from which petitioner was excluded, we find that the circuit court did not err in denying the 

motion for a new trial on these grounds. 

Petitioner’s fourth assignment of error is that the circuit court abused its discretion when 

it permitted the State to admit photographic evidence at trial that was obtained by law 

enforcement officers from petitioner’s personal cell phone without a search warrant in violation 

of his right to be free from unreasonable searches. On the first day of trial, the State called Seth 

Jack as a witness and presented Mr. Jack with a photograph of the victim in the hospital, 

allegedly obtained from petitioner’s cell phone. That photo was admitted into evidence, though 

petitioner denied ever showing that photo to Mr. Jack. Petitioner asserts several theories as to 

how the State came into possession of that photo, but they are all unsupported theories without 

any reference to the record to support any of these theories. Petitioner admits that his trial 

counsel stipulated to the State’s use of the photo in question and did not object to its publication 

to the jury or its introduction into evidence. Petitioner cites Riley v. California, 134 S.Ct. 2473 

(2014), decided on June 25, 2014, arguing that police may not, without a warrant, search digital 

information on a cell phone seized from an individual who has been arrested. He argues that 

because Riley was not issued until after his trial had concluded, his counsel did not have a basis 

to object to the admission of the photo. 

“‘A trial court’s evidentiary rulings, as well as its application of the Rules of Evidence, 

are subject to review under an abuse of discretion standard.’ Syl. pt. 4, State v. Rodoussakis, 204 

W.Va. 58, 511 S.E.2d 469 (1998).” Syl. Pt. 2, Surbaugh, 230 W.Va. at 215, 737 S.E.2d at 243. In 

this case, the circuit court made its ruling prior to the issuance of the Riley case. However, there 

is an insufficient record before this Court to determine whether Riley is applicable in this 

instance. Petitioner’s argument is based on the assumption that he had been arrested and that his 

phone was searched and seized without a warrant subsequent to his arrest. Due to his counsel’s 

stipulation and failure to object to the admission of the photo, it is unclear from the record how 

the State came to possess the subject photo. Therefore, we find that the circuit court did not 

abuse its discretion in allowing the admission of this photo. 

Petitioner’s final assignment of error is that the circuit court abused its discretion by 

preventing his counsel from having an opportunity to meaningfully cross-examine a State 

witness at trial, thus denying petitioner the right to mount a defense on his own behalf and 

denying him the right to confront his accusers. On the first day of trial, Officer Tom Posey 

testified as part of the State’s case-in-chief. During cross-examination, petitioner’s counsel asked 

the officer to read a specified portion of the incident report. Petitioner contends that the trial 

court interrupted counsel and intervened before knowing what counsel’s question would be or 

what Officer Posey’s response may disclose. He asserts that the circuit court encouraged the 

State to object to counsel’s questioning. The circuit court later found that the incident report was 

a hearsay document and that the officer could not read from the report unless it was a prior 

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inconsistent statement, despite petitioner’s argument that the officer had authored it and 

identified it. However, the report was later admitted during the cross-examination of Chief 

Gregory, who apparently incorporated Office Posey’s report into the chief’s larger report. 

Petitioner argues that pursuant to Rule 803 of the West Virginia Rules of Evidence, police 

reports are not excluded in their entirety as hearsay, as the only thing Rule 803 excludes as 

hearsay in the context of a criminal case are the observations of police officers and law 

enforcement personnel. Therefore, he asserts that as long as counsel’s questions related to 

Officer Posey’s incident report focused on statements made by Officer Posey in that report, 

hearsay was not an issue. 

“‘The extent of the cross-examination of a witness is a matter within the 

sound discretion of the trial court; and in the exercise of such discretion, in 

excluding or permitting questions on cross-examination, its action is not 

reviewable except in the case of manifest abuse or injustice.’ Syl. pt. 4, State v. 

Carduff, 142 W.Va. 18, 93 S.E.2d 502 (1956).” Syllabus, State v. Wood, 167 

W.Va. 700, 280 S.E.2d 309 (1981). 

Syl. Pt. 12, State v. McIntosh, 207 W.Va. 561, 534 S.E.2d 757 (2000). During the crossexamination of Officer Posey, counsel approached the bench directly after petitioner’s counsel 

asked the officer to read the first four statements of the narrative portion of the report. 

Petitioner’s counsel immediately offered to withdraw the question, and the circuit court stated it 

did not know what the officer was reading from and it did not know what he was about to say. 

The circuit court then instructed counsel to ask the question differently. While the incident report 

at issue is not identified in the table of contents in the record before this Court, it appears from 

the trial transcript that the portion of the report counsel asked Officer Posey to read was related 

to witness statements given to the officer in the course of his investigation. The circuit court 

determined that it was hearsay, and there is insufficient information and documentation before 

this Court to show that there was manifest abuse or injustice as required for this Court to disturb 

the circuit court’s ruling on this matter. In addition, the report did come into evidence through 

another witness, so the jury was able to consider it. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: April 10, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Allen H. Loughry II 

DISSENTING AND WRITING SEPARATELY: 

Justice Menis E. Ketchum 

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KETCHUM, J., dissenting: 

The defendant raised legitimate factual concerns about the potential bias of two jurors. At 

the post trial hearing concerning this issue, the trial judge would not allow the defendant’s 

lawyer to question the two jurors. The defendant’s lawyer should have been given the 

opportunity to question these two jurors at the post trial hearing. Therefore, I dissent. 

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