1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia,

Plaintiff Below, Respondent

vs.) No. 19-0327 (Upshur County 18-F-47)

Brice Anthony Braxton,

Defendant Below, Petitioner

MEMORANDUM DECISION

Petitioner Brice Anthony Braxton, by counsel James E. Hawkins Jr., appeals the Circuit 

Court of Upshur County’s March 1, 2019, sentencing order following his convictions for 

possessing a stolen vehicle, fleeing in a vehicle, reckless driving, fleeing on foot, and obstructing 

a law enforcement officer. Respondent the State of West Virginia, by counsel Scott E. Johnson, 

filed a response.

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 is appropriate under Rule 21 of the Rules of Appellate Procedure.

In 2018, Richard Lee Hovatter owned a silver 2016 GMC model 1500 truck, which was 

equipped with OnStar. On March 11, 2018, Mr. Hovatter’s brother had the truck at his home with 

Mr. Hovatter’s permission. When Mr. Hovatter’s brother realized that the truck was missing, he 

called 9-1-1 and then called Mr. Hovatter. Mr. Hovatter called OnStar to track the truck. Later that 

evening, Deputy Chidester of the Upshur County Sheriff’s Department received a “be on the 

lookout” (“BOLO”) for the truck that was believed to be traveling on Route 33 toward 

Buckhannon. Deputy Chidester traveled to Route 33 where he watched traffic until he saw a truck 

that matched the BOLO description. He pulled behind the truck and confirmed that the license 

plate matched the one in the BOLO. The deputy activated the blue lights on his cruiser, but the 

driver did not pull over so the deputy activated his siren. However, the truck continued on. The 

truck took the off ramp toward Route 20 followed by the deputy. By this time, Patrolman O’Connor 

of the Buckhannon Police Department was in his cruiser at the bottom of the ramp with his lights 

and siren activated. The truck continued around Officer O’Connor’s cruiser using the wrong lane, 

with the deputy still in pursuit. The pursuit continued with the deputy continuing to use his lights 

and siren until the truck pulled into a hospital emergency room entrance area. When the driver of 

FILED

September 4, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

the vehicle opened his door, the deputy did the same, but the driver took off on foot into the hospital 

and the deputy pursued. 

When the deputy caught up with the driver, the driver initially cooperated by going to the 

floor and putting his hands behind his back. However, when Officer O’Connor joined them and 

the officers tried to handcuff the driver, the driver “rolled over on his side and started screaming, 

and that’s when the fight ensued.” The officers were eventually able to subdue the driver, and 

Deputy Chidester identified the driver as petitioner. After the truck was recovered by police, Mr. 

Hovatter affirmed that he did not give petitioner permission to take the truck that evening. 

In May of 2018, petitioner was indicted by a grand jury of possessing a stolen vehicle, 

fleeing in a vehicle, reckless driving, fleeing on foot, obstructing a law enforcement officer, and 

two counts of battery on a law enforcement officer (one related to the deputy sheriff and one related 

to the Buckhannon Police Officer). During trial, petitioner requested that the circuit court instruct 

the jury on joyriding as a lesser included offense of possession of a stolen vehicle, but the circuit 

court denied that request.

At the conclusion of the trial, petitioner was acquitted of the battery charges but convicted 

of the remaining counts. The circuit court ordered a presentence investigation, which was 

performed by a probation officer. On March 1, 2019, the circuit court entered its sentencing order 

sentencing petitioner to the following: (1) 270 days for misdemeanor fleeing in a vehicle, with 338 

days credit for time served; (2) 20 days for reckless driving; (3) 21 days for fleeing on foot; (4) 

365 days for obstructing an officer; and (5) one to five years for possessing a stolen vehicle. Each 

of the sentences were to run consecutively to one another. Petitioner’s counsel moved to suspend 

the sentences, but the circuit court denied the motion for alternative sentencing. Petitioner appeals 

from that order. 

On appeal, petitioner asserts three assignments of error. First, he argues that there was 

insufficient evidence to support his convictions for fleeing in a vehicle, fleeing on foot, obstructing 

an officer, and possessing a stolen vehicle.1 As this Court has long held,

[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. 

1 Petitioner specifically “concedes that there was sufficient evidence for [the charge of 

reckless driving] to go to the jury.” 
3

Syl. Pt. 4, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). In addition, Rule 10(c)(7) of 

the West Virginia Rules of Appellate Procedure requires that 

[t]he brief must contain an argument exhibiting clearly the points of fact and law 

presented, the standard of review applicable, and citing the authorities relied on, 

under headings that correspond with the assignments of error. The argument must 

contain appropriate and specific citations to the record on appeal, including 

citations that pinpoint when and how the issues in the assignments of error were 

presented to the lower tribunal. The Court may disregard errors that are not 

adequately supported by specific references to the record on appeal.

Further, in an Administrative Order entered December 10, 2012, Re: Filings That Do Not Comply

With the Rules of Appellate Procedure, this Court specifically noted that “[b]riefs that lack citation 

of authority [or] fail to structure an argument applying applicable law” are not in compliance with 

this Court’s rules. Further, “[b]riefs with arguments that do not contain a citation to legal authority 

to support the argument presented and do not ‘contain appropriate and specific citations to the 

record on appeal . . .’ as required by rule 10(c)(7)” are not in compliance with this Court’s rules. Id.

However, in this assignment of error, petitioner references only the Guthrie standard and cites only

his motion for judgment of acquittal before the circuit court. Thus, he fails to cite to any cases

related to the sufficiency of the evidence for any of the convictions he challenges or to any portions

of the record that contain the testimony he alleges occurred. Therefore, we decline to address the

merits of petitioner’s first assignment of error.

Petitioner next contends that the imposition of sentence was excessive and based upon

impermissible factors so it should be reversed. Petitioner argues that his lack of a prior felony 

record, his lack of a history of criminal convictions for misdemeanor crimes of violence, and the 

arguments presented at sentencing supported his request for an alternative sentence. He contends 

that the circuit court erred by sentencing him to a term of incarceration based upon the record 

before the circuit court and that if the court needed further information it could have continued the 

sentencing hearing. However, he does not identify what additional information may have been 

helpful to the circuit court’s determination of his sentence. Further, while he attributes quotes to 

the circuit court, he fails to cite to the record, again disregarding the requirements of Rule 10(c)(7). 

This Court reviews sentencing orders “‘under a deferential abuse of discretion standard, 

unless the order violates statutory or constitutional commands.’ Syllabus Point 1, [in part,] State

v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).” Syl. Pt. 2, in part, State v. Eilola, 226 W. Va.

698, 704 S.E.2d 698 (2010). Further, “‘sentences imposed by the trial court, if within statutory 

limits and if not based on some [im]permissible factor, are not subject to appellate review.’ 

Syllabus Point 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).” Eilola, 226 W. Va.

at 699, 704 S.E.2d at 699, syl. pt. 1. Petitioner fails to cite any cases that support his position that 

the circuit court’s consideration of his failure to cooperate with the probation officer’s presentence 

investigation was an impermissible factor. He also does not dispute that each of the sentences 

imposed by the circuit court were within the statutory guidelines. We must also consider our 

holding that 

“‘“[w]hen a defendant has been convicted of two separate crimes, before 
4

sentence is pronounced for either, the trial court may, in its discretion, provide that 

the sentences run concurrently, and unless it does so provide, the sentences will run 

consecutively.” Syllabus point 3, Keith v. Leverette, 163 W.Va. 98, 254 S.E.2d 700

(1979).’ Syllabus Point 3, State v. Allen, 208 W.Va. 144, 539 S.E.2d 87 (1999).” 

Syl. Pt. 7, State ex rel. Farmer v. McBride, 224 W.Va. 469, 686 S.E.2d 609 (2009).

Syl. Pt. 3, State v. Marcum, 238 W. Va. 26, 792 S.E.2d 27 (2016). Therefore, it was within the 

circuit court’s discretion to run petitioner’s sentences consecutively to each other, and we find no 

error in that decision.

Finally, petitioner asserts that the circuit court erred by refusing to instruct the jury as to 

the unlawful taking of a vehicle/joyriding, which he contends is a lesser included offense of 

possessing a stolen vehicle. Without citing to the record, petitioner contends that he testified he 

was in fear of gunshots and took the vehicle to escape “the situation he found himself in.” He also 

denies any intent to deprive the owner of the vehicle and, therefore, argues that he was entitled to 

an instruction on the lesser included offense.

The question of whether a defendant is entitled to an instruction on a lesser 

included offense involves a two-part inquiry. The first inquiry is a legal one having 

to do with whether the lesser offense is by virtue of its legal elements or definition 

included in the greater offense. The second inquiry is a factual one which involves 

a determination by the trial court of whether there is evidence which would tend to 

prove such lesser included offense. State v. Neider, W.Va., 295 S.E.2d 902 (1982).

Syl. Pt. 1, State v. Jones, 174 W. Va. 700, 329 S.E.2d 65 (1985). We need only address the first 

portion of this test because it is dispositive of our assessment of this assignment of error. The 

relevant statutes are West Virginia Code §§ 17A-8-4 (unlawful taking of vehicle/joyriding) and

17A-8-5 (receiving or transferring a stolen vehicle/possessing a stolen vehicle):

(a) Any person who drives a vehicle, not his or her own, without consent of the 

owner thereof, and with intent temporarily to deprive said owner of his or her 

possession of such vehicle, without intent to steal the same, is guilty of a 

misdemeanor. The consent of the owner of a vehicle to its taking or driving shall 

not in any case be presumed or implied because of such owner’s consent on a 

previous occasion to the taking or driving of such vehicle by the same or a different 

person. Any person who assists in, or is a party or accessory to or an accomplice in 

any such unauthorized taking or driving, is guilty of a misdemeanor.

(b) Any person violating the provisions of this section is, for the first offense, guilty 

of a misdemeanor . . . .

W. Va. Code § 17A-8-4, in part.

Any person who, with intent to procure or pass title to a vehicle which he knows or 

has reason to believe has been stolen or unlawfully taken, receives, or transfers 

possession of the same from or to another, or who has in his possession any vehicle 
5

which he knows or has reason to believe has been stolen or unlawfully taken, and 

who is not an officer of the law engaged at the time in the performance of his duty 

as such officer, is guilty of a felony.

W. Va. Code § 17A-8-5.

While petitioner asserts that “possession” and “driving” are synonymous in this case 

because petitioner possessed Mr. Hovatter’s truck by driving it, under Jones and Louk2a court 

looks only to the statutory elements of the crimes rather than how the crime was committed in 

determining whether one offense is a lesser included offense of another. See State v. Wilkerson, 

230 W. Va. 366, 370-71, 738 S.E.2d 32, 36-37 (2013) (“Upon review, we decline to adopt the 

approach advanced by the petitioner and utilized by a minority of jurisdictions whereby each case 

is considered individually to determine whether the evidence adduced at trial supports a lesser 

included instruction. This Court has always applied the strict elements test as set forth in syllabus 

point one of Louk to determine whether a lesser included instruction is warranted.”). Petitioner has 

failed to show that these statutes satisfy the Jones test, which would entitle him to an instruction

for joyriding. Therefore, we find that the circuit court did not err in denying petitioner’s request. 

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: September 4, 2020 

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison 

2

State v. Louk, 169 W. Va. 24, 285 S.E.2d 432 (1981).