STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

State of West Virginia, FILED 

Plaintiff Below, Respondent April 10, 2015 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS vs) No. 14-0658 (Fayette County 14-F-68) OF WEST VIRGINIA 

Paul E. Horne,
 

Defendant Below, Petitioner
 

MEMORANDUM DECISION 

Petitioner Paul E. Horne, by counsel Christopher S. Moorehead, appeals the order of the 

Circuit Court of Fayette County denying his motion for judgment notwithstanding the verdict or 

for a new trial entered on June 12, 2014. Respondent State of West Virginia, by counsel Roger L. 

Lambert, filed a response. Following a jury trial, petitioner was convicted of conspiracy to 

commit a felony, burglary, and petit larceny. 

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. 

Petitioner was indicted in January of 2014, for the felony offenses of conspiracy to 

commit a felony and burglary, and for petit larceny, a misdemeanor. The West Virginia State 

Police Report of Criminal Investigation, upon which the indictment was based, states that on 

May 28, 2013, petitioner, Carl Walker, Jr., and Tex Koch conspired to burglarize the residence 

of an individual who was incarcerated; that Walker forcibly entered the residence while 

petitioner and Koch waited in a nearby vehicle; that after Walker returned to the vehicle with 

several firearms taken from the residence, petitioner advised Walker that the firearms were not 

worth much money and to return to the residence to obtain more firearms; that Walker then went 

back into the residence and returned to the vehicle with additional firearms; that Walker then 

took the firearms to his residence and at some point reconnected with petitioner and Koch. Law 

enforcement retrieved five firearms from petitioner, Walker, and Koch. Walker was the first to 

be arrested and gave the police a recorded statement describing the crimes. Thereafter, petitioner 

and Koch gave recorded statements as well. Petitioner denied knowing that Walker was stealing 

guns from the residence, but indicated that he would help sell them. In addition, the police 

secured a statement from a neighbor of the burglarized residence who saw Walker leave the 

residence with firearms and place them into the vehicle driven by petitioner. 

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The case proceeded to a jury trial on April 29, 2014. Petitioner was found guilty of the 

three charges in the indictment – conspiracy to commit a felony, burglary, and petit larceny – and 

was sentenced to consecutive terms of one to five years in prison and one to fifteen years in 

prison, with a six-month prison sentence for petit larceny to run concurrently with the sentences 

for the two felonies. Petitioner filed a motion for judgment notwithstanding the verdict or for a 

new trial, which the circuit court denied by order entered June 12, 2014. Petitioner now appeals 

to this Court. 

On appeal, petitioner raises three assignments of error. First, he argues that the circuit 

court interfered with the trial and unfairly assisted the prosecution. In support, petitioner 

references three instances during his trial where he alleges that the court improperly questioned 

witnesses and interjected improper comments in the presence of the jury that exceeded the 

bounds of impartiality. In Syllabus Points 1 and 2 of State v. Farmer, 200 W.Va. 507, 490 S.E.2d 

326 (1997), we held as follows: 

1. A trial court must exercise its sound discretion when questioning a witness 

pursuant to Rule 614(b) of the West Virginia Rules of Evidence. This Court will 

review a trial court's questioning of a witness under the abuse of discretion 

standard. To the extent the issue involves an interpretation of the Rule 614(b) as a 

matter of law, however, our review is plenary and de novo. 

2. “A trial judge in a criminal case has a right to control the orderly process 

of a trial and may intervene into the trial process for such purpose, so long as such 

intervention does not operate to prejudice the defendant's case. With regard to 

evidence bearing on any material issue, including the credibility of witnesses, the 

trial judge should not intimate any opinion, as these matters are within the 

exclusive province of the jury.” Syl. Pt. 4, State v. Burton, 163 W.Va. 40, 254 

S.E.2d 129 (1979). 

The first instance of improper judicial interference that petitioner references occurred 

during the State’s questioning of Walker, who was required by his plea agreement to testify 

against petitioner. He was the first witness called by the State. After the first few questions from 

the assistant prosecutor, it became apparent that Walker was reluctant to testify and provided 

only vague answers. The circuit court stated the following: 

THE COURT: Well, Mr. Walker, you know, you know why you’re here. 

WITNESS: Yes, sir. 

THE COURT: You’ve given a statement. 

WITNESS: Yes. 

THE COURT: Now, this lawyer shouldn’t have to drag things out of you. 

If you know something about this case, spit it out. If you don’t then that’s fine 

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too. But, now, listen to the question and try to respond to it as best you can. All 

right, go ahead and ask him the question. 

Petitioner argues that the circuit court essentially scolded Walker to testify consistent with his 

statement, which Walker then did by indicating that he took five guns from the residence and 

placed four into petitioner’s vehicle. 

Petitioner argues that the second instance of improper interference occurred when the 

court assisted the State again during Walker’s testimony by having Walker identify petitioner as 

the person who told him to return to the residence to get bigger barreled guns. Petitioner states 

that the court took over the questioning and made sure that Walker identified petitioner by the 

type of shirt he was wearing at the trial. 

The final instance of alleged improper assistance to the State by the court centered on an 

alleged threat that petitioner made to Walker during their transport from the Southern Regional 

Jail to the courthouse for the trial. Once the assistant prosecutor became aware of the threat, he 

requested a conference with the court outside of the presence of the jury. He then advised the 

court that on the ride to court in the same van, petitioner impliedly threatened harm to Walker 

should Walker testify against him.1 The assistant prosecutor requested that the two men be 

transported back to the jail in separate vans and that Walker be placed in protective custody. In 

addition, over petitioner’s objection, the court allowed the State to recall Walker, who had been 

excused as a witness, to testify to petitioner’s threats.2 Petitioner contends that these three 

instances demonstrate that the court lost its impartiality during the trial and that a new trial is 

warranted. 

Upon our review of the record, we do not find the three instances cited by petitioner 

demonstrate that the circuit court lost its impartiality. With respect to telling Walker to “spit it 

out,” the court did not instruct Walker how to testify; it merely was admonishing the witness to 

get to the point, which the court has the inherent power to do when dilatory conduct causes a lag 

in the proceedings. With respect to assisting the State in having Walker identify petitioner, the 

record shows that the State had already elicited testimony that petitioner was in the courtroom 

wearing a blue shirt. The court’s interjection merely supplemented this questioning by having 

Walker testify that it was a blue plaid shirt. 

In Syllabus Point 3 of State v. Thompson, 220 W.Va. 398, 647 S.E.2d 834 (2007), we 

held that 

[w]here a defendant on appeal in a criminal case asserts that a trial court's 

questioning of witnesses and comments prejudiced the defendant's right to present 

evidence and jeopardized the impartiality of the jury, this Court upon review will 

1 Walker testified that petitioner said he better not testify against him or “it wouldn’t be 

good when he got home.” 

2 By the court’s direction, this testimony did not reveal that the two men were being 

transported from jail at the time of the threat. 

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evaluate the entire record to determine whether the conduct of the trial has been 

such that jurors have been impressed with the trial judge's partiality to one side to 

the point that the judge's partiality became a factor in the determination of the jury 

so that the defendant did not receive a fair trial. 

In Thompson, the State propounded seventy-eight questions over four witnesses, many of 

which related to the witnesses’ credibility. In the present case, the circuit court interjected only a 

few non-substantive questions to a single witness. We note that petitioner primarily focuses his 

argument not on the number of questions the court asked, but on the court’s permitting the State 

to recall Walker to testify that petitioner threatened him should he testify. In this respect, we find 

no abuse of discretion. The transcript of Walker’s initial testimony reveals that he was vague and 

non-responsive, so much so that the court had to instruct him to “spit it out.” When the court 

later learned that Walker’s reluctance may have been due to petitioner’s threat, it was not an 

abuse of discretion for the court to allow the jury to hear Walker testify about that threat. 

Importantly, the court was careful to keep the jury from hearing that the threat occurred on the 

way from the jail. The court began the questioning by asking Walker one question -- “did you 

arrive at court this morning with the defendant?” -- then turned the examination over to the 

assistant prosecutor to elicit the exact nature of the threat. Petitioner’s counsel then crossexamined Walker. We see no error in allowing the State to recall Walker for this purpose. 

Petitioner’s second assignment of error is that the circuit court erred by permitting the 

State to argue that petitioner was an accessory before the fact/principal in the second degree, 

while the indictment alleged principal in the first degree. Petitioner alleges that he was denied 

notice of the State’s theory. Petitioner relies on State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20 

(1999), to argue that an indictment must allege all of the elements of the offense charged, 

including accomplice liability. Petitioner argues that Silver modified our prior holdings in State 

v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980) and State v. Fortner, 182 W.Va. 345, 387 

S.E.2d 812 (1989), that an indictment need not charge accomplice liability. 

This Court rejected petitioner’s argument in State v. Legg, 218 W.Va. 519, 525, 625 

S.E.2d 281, 287 (2005), where we stated that 

[b]ecause Petry and its progeny should put all defendants in West Virginia on 

constructive notice that an aiding and abetting instruction may be requested, even 

in the absence of an indictment thereon, we do not believe that the policies behind 

State v. Wallace are disregarded by upholding the rule established in Petry. 

Petitioner focuses solely on the indictment; he fails to recognize that he was put on notice 

of the State’s accomplice liability theory in discovery. The police report and Walker’s statement 

made it clear that Walker was the one who was alleged to have broken into the house and to have 

brought the guns to petitioner waiting in the car. Additionally, during jury selection, the assistant 

prosecutor told the jury panel that the State’s theory would be accessory before the fact, 

described the theory, and asked if anyone on the panel could not judge the case with that theory 

in mind. Therefore, petitioner was on actual notice of the State’s theory. 

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Notice notwithstanding, petitioner cannot show prejudice. At trial, petitioner argued that 

he lacked the criminal intent necessary for the convictions; his defense was that, while he 

accepted the firearms from Walker, he did not know that Walker burglarized the home or that the 

guns were stolen. This defense would be the same regardless of which theory the State pursued. 

Accordingly, the circuit court did not error in permitting the State to present an accessory before 

the fact/principal in the second degree theory against petitioner. 

Petitioner’s final assignment of error is that there was insufficient evidence to sustain his 

convictions. We have held that 

[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. 

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

Petitioner argues that Walker’s testimony initially did not implicate petitioner in any 

conspiracy related to stealing guns. Ultimately, Walker testified that he broke into the residence, 

took five guns, and put four of them in petitioner’s car, but that the guns were not wrapped in 

anything. Petitioner also contends that the neighbor testified that she saw Walker carrying guns 

wrapped up in a sheet, contrary to Walker’s testimony. Additionally, her testimony contradicts 

Walker’s with regard to the number of trips Walker made in and out of the residence. Petitioner 

argues that Walker’s testimony does not reveal a plan to steal guns; rather, Walker merely told 

petitioner he could get some guns from his neighbor. Petitioner argues that the jury acted on 

speculation that there was a plan to burglarize the residence. 

Upon our review of the record, we find there was sufficient evidence to sustain 

petitioner’s convictions. The testimony revealed that petitioner told Walker that he could sell the 

guns in order to have money with which to buy drugs; that Walker told petitioner where they 

could obtain guns to sell – from a neighbor who was incarcerated; and that when Walker brought 

several guns to petitioner, who was waiting in a nearby car, petitioner advised Walker that those 

guns were not worth much money and to go back to the residence to find guns with bigger 

barrels because they are more valuable. There is sufficient evidence that petitioner knew Walker 

was burglarizing the home in order to get guns to sell. As for the inconsistencies between the 

testimony of Walker and the eyewitness neighbor, this Court has held that matters of witness 

credibility and resolving inconsistencies in testimony are within the sole province of the jury. See 

State v. Houston, 197 W.Va. 215, 475 S.E.2d 307 (1996). Therefore, we see no basis to disturb 

the jury’s verdict in this matter. 

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For the foregoing reasons, we affirm the circuit court’s “Order Denying Defendant’s 

Motion for Judgment Notwithstanding the Verdict or For a New Trial” entered on June 12, 2014. 

Affirmed. 

ISSUED: April 10, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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