### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia, 

### FILED Plaintiff Below, Respondent 

### June 11, 2018 vs.) No. 17-0487 (Summers County 15-F-53) EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA Mark Shane Adkins, Defendant Below, Petitioner



### MEMORANDUM DECISION

Petitioner Mark Shane Adkins, by counsel Rich ard M. Gunnoe, appeals the Circuit Court of Summers County’s April 28, 2017, order denyi ng his post-trial motion for judgment of acquittal and sentencing him following his conviction of volunt ary manslaughter. Respondent State of West Virginia, by counsel Scott E. Johns on, filed a response. Petiti oner filed a reply. On appeal, petitioner contends that the circuit court erred in de nying his motion for judgment of acquittal because there was insufficien t evidence to sustain his conviction.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21

of the Rules of A ppellate Procedure.

On November 17, 2015, petitioner was indicted on one count of first-degree murder. The jury trial commenced on February 28, 2017. The evidence at trial showed that on July 19, 2015, Thomas Mathewson, petitioner’s next door neighbor , heard petitioner and petitioner’s brother, Choya Adkins (“the victim”), bickering and lau ghing through the day as they worked on a red truck in petitioner’s yard. Mr. Ma thewson saw one of the brothers enter the residence and remain inside for five to ten minutes. When the pers on returned, he saw him walk around the truck and immediately heard a gunshot followed by the sound of something heavy landing in the bed of the

truck. Mr. Mathewson did not hear any voices or other noise fr om the yard. After the gunshot, Mr. Mathewson saw a person sit down in the front seat of the red truck. A few minutes passed and a neighborhood boy rode his bike down to the vehicle. Mr. Mathewson heard the boy ask what happened to the victim and heard petitione r respond that the victim had shot himself. Mr. Mathewson immediately went to the home of Mr. Fleshman, petitioner’s step-father and neighbor, where he called the police.

At trial, Mr. Fleshman testified that he did not remember seeing Mr. Mathewson that day. However, he remembered receiving a phone call from petitioner, during which petitioner called and asked to speak to his mother, but she was not there. Petitioner told Mr. Fleshman that the

1victim killed himself and that he intended to leav e. Mr. Fleshman advised petitioner to stay until

law enforcement arrived.

The first law enforcement officer on the scene was Patrolman Timmy Adkins. Patrolman

Adkins testified that when he arrived he sa w petitioner and an unidentified female positioned around the body of the victim, which was motionl ess on the ground. Patrolman Adkins ordered petitioner to move away from the body. Petitioner was shirtl ess and had facial wounds, a bruised lip, and a large cut above his eye. Patrolman Ad kins handcuffed petitioner for officer safety and searched him. He found petitioner’s shirt in his back pocket, which was spotted with blood. Petitioner told the patrolman that his brother shot himself. Howe ver, with no gun within sight of the body, Patrolman Adkins began to search the area. Eventually, he found a shotgun and a spent cartridge “strategically placed” in the bed of the red truck and with blood smeared along the

barrel.

Patrolman Adkins began photographing the scen e and collecting evidence. The front seat

of the red truck and other items in the truck were bloodied. Blood drops were found on the back

of the red truck that led to the front driver’s si de door. Another vehicle at the residence, a blue truck, was sprayed with blood a nd displayed a pattern consiste nt with a body sliding down its frame through the blood. Patrolman Adkins also noti ced several empty beer cans in the yard and the bed of the red truck. Sergeant T.J. Cochran arrived on the scene and swabbed petitioner’s and the victim’s hands for gunshot residue.

Petitioner was transported to the emergenc y room in police cust ody and treated for his facial injuries. The emergency room doctor tes tified that the cut over petitioner’s left eye required several sutures to repair. Further, th e doctor was concerned th at petitioner may have

suffered a concussion. Petitioner told the doctor that he was in an altercation with his brother and

that his brother shot himself. Th e doctor testified that petitione r’s blood alcohol level at the time of his admission was .275, which is considered a toxic level.

At trial, multiple experts testified regarding evidence found at the scene. The doctor who performed the autopsy opined that the victim was at least three to four feet away from the shotgun when it discharged but that the victim’s arm was only two and a half feet long. The doctor also testified regarding a scalloping pattern around the w ound that indicated the pellets inside the shotgun shell had begun to disperse as they entered the victim’s body. When asked if there was any possible way that the victim could have shot himself, the doctor opined there was no possible way for the wound to be self-inflicte d and to have the same characteristics. In addition to the gunshot wound, the vi ctim had a bruised lip and an elevated blood alcohol level. A DNA analyst determined the bl ood on petitioner’s sh irt and on the items found inside the cab of the red truck belonged to petitioner. Petitioner’s blood was also found on the barrel of the shotgun. A latent fingerprint expert testified that no fingerprints were recovered from the shotgun or the shells. Finally, a trace evidence expert testified that gunshot residue was found on petitioner’s hands, but no residue was found on the victim’s hands.

Petitioner moved for a judgment of acquittal at the close of the State’s case-in-chief; the trial court denied that motion. On March 2, 2017, the jury found petitioner guilty of voluntary manslaughter, a lesser-included offense of firs t-degree murder. On March 8, 2017, petitioner

2moved for entry of a judgment of acquittal argui ng that the State presented insufficient evidence to sustain the conviction. On March 27, 2017, the parties appeared for a hearing on petitioner’s post-trial motion. Upon finding that sufficient evid ence was presented to convict petitioner, the circuit court denied petitioner’s motion by or der entered on March 31, 2017. Thereafter, the circuit court sentenced petitioner to a determinate sent ence of fifteen year s of incarceration. Petitioner now appeals the Ap ril 28, 2017, sentencing order.

This Court applies a de novo standard of revi ew to appeals from rulings on a motion for judgment of acquittal:

The trial court’s disposition of a motion for judgment of acquittal is subject to our

de novo review; therefore, this Court, like the trial court, must scrutinize the evidence in the light most compatible w ith the verdict, resolve all credibility disputes in the verdict’s favor, and then reach a judgment about whether a rational jury could find guilt beyond a reasonable doubt.

State v. LaRock , 196 W.Va. 294, 304, 470 S.E.2d 613, 623 (1996). Regarding a claim that the

evidence at trial was insufficient to convict, this Court has stated that

[t]he function of an appellate court wh en reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is suffi cient to convince a reasonable person of the defendant’s gui lt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewi ng the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.

Syl. Pt. 1, State v. Guthrie , 194 W.Va. 657, 461 S.E.2d 163 (1995). Further,

[a] criminal defendant challenging the su fficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstanti al, in the light most favorable to the prosecution and must credit all inferences an d credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save th at 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 verdic t 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.

Id. at 663, 461 S.E.2d at 169, Syl. Pt. 3, in part.

We begin by noting that “there is no stat utory definition of vol untary manslaughter in West Virginia.” State v. McGuire , 200 W.Va. 823, 833, 490 S.E .2d 912, 922 (1997). Instead, West Virginia Code § 61-2-1 “defines first a nd second degree murder and specifies the form of

3an indictment for either murder or manslaughter.” Id . at 833 n.22, 490 S.E.2d at 922 n.22. 1 As a result, this Court has held that “[g]enerally sp eaking, with respect to an unlawful killing, ‘[i]f malice is proven, the crime becomes second [or first] degree murder; if in tent is not proven, the crime becomes involuntary manslaughter.’” Id . at 835, 490 S.E.2d at 924 (quoting U.S. v. Quintero , 21 F.3d 855, 890 (9 th Cir. 1994)). On appeal, petitioner argues that the State failed to present sufficient evidence showing he kill ed the victim feloniously, unlawfully, and intentionally, upon sudden provocation and in the heat of passion. Ho wever, this Court has held that “[g]ross provocation and heat of passi on are not essential elements of voluntary manslaughter, and, therefore, they need not be proven by evidence beyond a reasonable doubt.”

McGuire , 200 W.Va. at 825, 490 S.E.2d at 914, Syl. Pt . 3. Here, in viewing the evidence in the light most favorable to the State, we find that there was sufficient evidence from which the jury could find petitioner guilty of voluntary manslaughter.

The combination of expert and lay witness testimony presented at trial provided a sufficient basis on which a jury could have found petitioner guilty of voluntary manslaughter.

Petitioner’s claim that the victim shot hims elf was undermined by the testimony of the doctor who performed the autopsy and th e trace evidence expert. In the doctor’s opinion, the shotgun

was fired at the victim from a distance of three to four feet, but the victim’s arm was not long enough to hold and discharge the shotgun at that distance. Further, gunshot residue testing confirmed residue on petitioner but not the victim , which supported a theory that the victim did not handle the shotgun and also indicated that petitioner handled the shotgun. Next, Mr. Mathewson’s testimony about an individual leaving the residenc e and moving around the truck, followed by the sound of an immediate gunshot and a heavy object landing in the bed of the truck supported a finding of an intentional action. Further, Mr . Mathewson observed a person open the door of the truck and sit in the driver’s seat. The DNA expert later identified the blood

on the driver’s side of the truc k as petitioner’s, which supports a conclusion that petitioner was the person Mr. Mathewson saw sit in the vehicle. Finally, petitioner admitted to his emergency room physician that he was in an altercation with his brother that day and suffered serious facial injuries. This admission further supports a conc lusion that petitioner acted on impulse and without malice. Based on this evidence, we find th at a reasonable jury coul d have concluded that

1 West Virginia Code § 61-2-1 provides that

[m]urder by poison, lying in wait, imprisonment, starving, or by any willful, deliberate and premeditated killing, or in the commission of, or attempt to commit, arson, kidnapping, sexual assa ult, robbery, burglary, breaking and entering, escape from lawful custody, or a felony offense of manufacturing or delivering a controlled substance as defined in article four, capt ure sixty-a of this code, is murder of the first degree. All other murder is murder of the second degree.

In an indictment for murder and manslaugh ter, it shall be necessary to set forth the manner in which, or the means by which, the death of the deceased was caused, but it shall be sufficient in every such indictment to charge that the defendant did feloniously, willfully, maliciously, deliberately, and unlawfully slay, kill and murder the deceased.

4petitioner intentionally kill ed the victim without malic e and was guilty of voluntary manslaughter.

In support of his argument, petitioner asserts that certain evidence presented was not credible. Petitioner argu es that the key witness, Mr. Math ewson, did not remember the first statement he gave to the inves tigating officers and that his tes timony was significantly different than that prior statement. We find, however, th at credibility determin ations are for a jury. See

Guthrie , 194 W.Va. at 663, 461 S.E.2d at 169, Syl. Pt. 3, in part. We decline to assess a witness’s credibility from the record. Accordingly, petitio ner is entitled to no relief on this issue.

Similarly, petitioner argues that, although his hands tested positive for gunshot residue, testimony was introduced at trial that dust from brake pads is of similar chemical composition and could have produced a false positive for the gunshot residue test. However, the trace evidence expert asserted that she would be able to distingui sh between gunshot residue and brake pad dust. Further, petitioner presented no expert testimony to contradi ct the trace expert’s testimony nor did he challenge the introduction of th at testimony by a Daubert 2 motion. Petitioner’s argument again hinges on the credibili ty of the witness which is in the province of the jury. Therefore, we find petitioner is entitled to no relief.

Finally, petitioner argues that this incident was the medical examiner’s first case, she had no specific ballistics training, a nd, thus, her expert opinion re garding the victim’s wound was unfounded. It is apparent that petitioner’s argument focuse s on the medical examiner’s credentials, rather than her cred ibility. However, the record is clear that the ci rcuit court found the medical examiner qualified as an expert witness and permitted the expert’s opinion testimony. Moreover, petitioner did not properly object to the medi cal examiner’s qualifications as an expert witness. 3 “‘Our general rule is that nonjurisdictional questions . . . raised for the first time on appeal, will not be considered.’ Shaffer v. Acme Limestone Co., Inc. , 206 W.Va. 333, 349 n.20, 524 S.E.2d 688, 704 n.20 (1999).” Noble v. W.Va. Dep’ t of Motor Vehicles , 223 W.Va 818, 679 S.E.2d 650 (2009). Accordingly, we find th at petitioner is enti tled to no relief.

For the foregoing reasons, the circuit court’ s April 28, 2017, sentencing order is hereby

affirmed.

Affirmed.

ISSUED : June 11, 2018

2 Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993).

3 Petitioner raised a belated objection to th e expert testimony of both the medical examiner and the trace evidence expert based on th e fact that the State never formally requested that the witnesses be allowed to testify as experts. After petitioner objected, the circuit court found that the witnesses were both qualifie d as experts and their opinion testimony was admissible. Further, the circuit court found that petitioner waived his right to object by not raising the issue during the experts’ testimony.

5CONCURRED IN BY :

Chief Justice Margaret L. Workman

Justice Robin Jean Davis

Justice Menis E. Ketchum

Justice Elizabeth D. Walker

Justice Loughry, Allen H., II suspende d and therefore not participating.

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