STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

State of West Virginia, 

Plaintiff Below, Respondent FILED 

September 6, 2016 

vs) No. 15-0858 (Fayette County 14-F-233) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA Christopher L. Palmer, 

Defendant Below, Petitioner 

MEMORANDUM DECISION 

Petitioner Christopher L. Palmer, by counsel John M. Thompson, appeals the Circuit 

Court of Fayette County’s August 5, 2015, order that sentenced him to not less than one year nor 

more than five years of incarceration and assessed a five hundred dollar fine for his conviction of 

conspiracy to commit a felony, and to not less than two years nor more than fifteen years of 

incarceration for burglary. The State, by counsel Shannon Frederick Kiser, filed a response. On 

appeal, petitioner argues that the circuit court erred in (1) denying his Rule 29 motion for an 

acquittal, (2) failing to exclude a photographic lineup, and (3) failing to properly charge the jury. 

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. 

In April of 2014, the victim, Betty Puckett, identified petitioner and his co-defendant 

through a photographic lineup as the perpetrators of a break-in at her home. As a result, 

petitioner was charged with one count of conspiracy and one count of burglary. 

In October of 2014, petitioner moved the circuit court to exclude the photographic lineup 

on the ground that it was not properly conducted. Petitioner argued that the photographic lineup 

procedure failed to record a complete description of the perpetrator by the eyewitness and in the 

eyewitness’s own words, as required by West Virginia Code § 62-1E-2(a).1 Petitioner also 

1

West Virginia Code § 62-1E-2(a) provides that 

[p]rior to a lineup or showup, law enforcement should record as complete a
 

description as possible of the perpetrator provided by the eyewitness, in the
 

eyewitness's own words. This statement should also include information
 

regarding the conditions under which the eyewitness observed the perpetrator
 

including location, time, distance, obstructions, lighting and weather conditions.
 

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argued that the officer who conducted the photographic lineup failed to record the names of 

every person in said lineup, as required by West Virginia Code § 62-1E-2(k)(2).2 

In November of 2014, the circuit court held a motions hearing. A West Virginia State 

Police sergeant testified that the photographic lineup was performed in conjunction with an 

ongoing investigation of petitioner and his co-defendant. Petitioner called The West Virginia 

State Police corporal responsible for performing the lineup. The corporal described the process 

by which the photographs were compiled and testified that the lineup was performed at 

approximately 10:30 p.m., with Ms. Puckett sitting in the police cruiser. The officer further 

testified that all necessary forms were completed before Ms. Puckett identified petitioner. He 

testified that he did not provide a description of the perpetrator and affirmed that he gave Ms. 

Puckett no other instructions beyond directing her to look through the photographs to potentially 

identify the perpetrator. The officer then asked Ms. Puckett if she could identify the perpetrator 

from any of the photographs, although he admitted that he did not record the names of the 

individuals used in the lineup. 

On cross-examination, respondent produced the form used by the officer to prove that 

Ms. Puckett answered all the remaining portions on the form regarding her eyewitness account of 

the crime. The officer further testified that Ms. Puckett identified petitioner without hesitation. 

Petitioner renewed his argument that the officer failed to conduct the lineup properly and that it 

should be excluded pursuant to West Virginia Code §§ 62-1E-2(a) and 62-1E-2(k)(2). After a 

review of all the exhibits, the circuit court found that all five males depicted in the lineup were 

similar-looking, with no distinguishing features. Next, the circuit court found that Ms. Puckett 

provided a description of the individual that she saw in her home during the burglary and she 

was able to observe the individual for a substantial amount of time. Finally, the circuit court 

found that the procedure was not unduly suggestive, considering the relative ease with which the 

victim identified petitioner. The circuit ruled that that the photographic lineup was admissible 

and entered an order denying petitioner’s motion to exclude the photographic lineup. 

The eyewitness should also be asked if he or she wears or has been prescribed 

glasses or contact lenses and whether he or she was wearing them at the time of 

the witnessed event. The administrator should record whether or not the 

eyewitness was wearing glasses or contact lenses at the time of the lineup or 

showup. 

2 West Virginia Code § 62-1E-2(k)(2) provides that 

Law-enforcement officers should make a written or video record of a lineup 

which shall be provided to the prosecuting attorney in the event that any person is 

charged with the offense under investigation. The written record shall include all 

steps taken to comply with this article which shall include the following 

information: (2) The names of every person in the lineup, if known, and all other 

persons present at the lineup[.] 

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Later in November of 2014, petitioner’s trial commenced. Ms. Puckett testified that, on 

the night of the incident, she was home alone when she saw the co-defendant’s car stop at the 

end of her driveway. She testified that petitioner exited the car, walked around the back of her 

home, knocked twice, and then pried her backdoor open. She further testified that she confronted 

petitioner and was approximately six feet from him when she told him to leave her home. Ms. 

Puckett identified petitioner as the man who broke into her home, testified that tools were used to 

pry her back door open, and identified the co-defendant’s car as the one that pulled into her 

driveway. A police officer testified that a criminal investigation of the incident at Ms. Puckett’s 

home led police to petitioner and his co-defendant after the two men were identified using the 

license number on the co-defendant’s car. Another police officer testified that he collected a 

flathead screwdriver and a pry bar from the co-defendant’s vehicle and the damaged portions of 

Ms. Puckett’s door frame for evidence. Other witnesses testified that petitioner and the codefendant were together the day before the crime. Petitioner and the co-defendant admitted to 

being in the vehicle. After respondent rested its case-in-chief, petitioner moved for a judgment of 

acquittal, arguing that respondent failed to prove the necessary elements of the crimes charged. 

The circuit court recounted the evidence introduced by respondent and held that sufficient 

evidence existed to warrant the denial of petitioner’s motion. 

Petitioner then testified in his own defense and stated that he was not the individual that 

entered Ms. Puckett’s home. Petitioner denied that the co-defendant was a “close friend” but 

admitted to riding along with him on the day of the crime. Thereafter, petitioner rested his case. 

Upon reviewing the instructions and conferring with both parties, the circuit court determined 

that attempted burglary should not be included in the instructions. No objections were made 

regarding the charge to the jury. Following deliberations, the jury found petitioner guilty of both 

charges. The circuit court entered its final sentencing order on August 5, 2015, and sentenced 

petitioner to not less than one year nor more than five years of incarceration and assessed a five 

hundred dollar fine for conspiracy to commit a felony, and sentenced to not less than two years 

nor more than fifteen years of incarceration for burglary. The circuit court enhanced the burglary 

sentence due to petitioner’s prior felony conviction. The circuit court ordered that the sentences 

be served consecutively to each other and consecutively to an unrelated Summers County, West 

Virginia sentence. It is from the sentencing order that petitioner appeals. 

We have previously set forth the following standard of review: 

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). Upon our review, we find no 

error in the circuit court’s rulings below. 

We begin by addressing petitioner’s argument that there was insufficient evidence to 

support his conviction. Petitioner contends that the circuit court erred in denying his motion for 

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an acquittal pursuant to Rule 29 of the West Virginia Rules of Criminal Procedure because 

respondent failed to prove the necessary elements of the crimes charged or that he was involved 

in a conspiracy with the co-defendant.3 Upon our review, we find no error in the circuit court’s 

denial of petitioner’s Rule 29 motion for an acquittal. 

When discussing a motion for an acquittal, we have previously held that 

[t]he 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 with 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). We have also 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. 

Syl. Pt. 3, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). It is clear from the record 

that the evidence before the jury was sufficient for it to find petitioner guilty on all charges. 

To sustain his conviction for conspiracy under West Virginia Code § 61-10-31, the State 

was required to prove that “two or more persons [conspired] . . . to commit any offense against 

the state” [and] “one or more of such persons does any act to effect the object of the conspiracy.” 

To sustain his conviction for burglary under West Virginia Code § 61-3-11(a), the State was 

required to prove that petitioner “in the nighttime, break and enter, or enter without breaking, or 

shall, in the daytime, break and enter, the dwelling house, or an outhouse adjoining thereto or 

occupied therewith, of another, with intent to commit a crime therein.” At trial, Ms. Puckett 

identified petitioner as the man who broke into her home, testified that tools were used to pry her 

back door open, and further testified that the co-defendant’s car was the one that pulled into her 

driveway on the night of the incident. She also described the manner in which petitioner used 

3

Rule 29 of the West Virginia Rules of Criminal Procedure provides, in part, 

“[t]he court on motion of a defendant or of its own motion shall order the entry of 

judgment of acquittal of one or more offenses charged in the indictment or 

information after the evidence on either side is closed if the evidence is 

insufficient to sustain a conviction of such offense or offenses . . . .” 

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tools to forcibly enter her home. Ms. Puckett further testified that she confronted petitioner in her 

home and was approximately six feet from him when she told him to leave. As outlined above, 

there was sufficient evidence for the jury to find, as it did, that petitioner committed the crimes 

charged. As such, we find no error in this regard. 

Next, petitioner argues that that the circuit court failed to exclude the photographic lineup 

because the officer failed to conduct the lineup consistently with West Virginia Code §§ 62-1E2(a) and 62-1E-2(k)(2). Petitioner contends that the photographic lineup, wherein Ms. Puckett 

identified petitioner, should have been inadmissible because the officer failed to make a record. 

However, we disagree. 

West Virginia Code § 62-1E-2(a) requires that 

[p]rior to a lineup or showup, law enforcement should record as complete a 

description as possible of the perpetrator provided by the eyewitness, in the 

eyewitness’s own words. This statement should also include information 

regarding the conditions under which the eyewitness observed the perpetrator 

including location, time, distance, obstructions, lighting and weather conditions. 

The eyewitness should also be asked if he or she wears or has been prescribed 

glasses or contact lenses and whether he or she was wearing them at the time of 

the witnessed event. The administrator should record whether or not the 

eyewitness was wearing glasses or contact lenses at the time of the lineup or 

showup. 

After fulfilling the requirements of West Virginia Code § 62-1E-2(a), “[l]aw-enforcement 

officers should make a written or video record of a lineup which shall be provided to the 

prosecuting attorney in the event that any person is charged with the offense under 

investigation.” West Virginia Code § 62-1E-2(k)(2). Here, the police officer conducted two 

photographic lineups, the first involving petitioner’s co-defendant and the second involving 

petitioner. During the first lineup, Ms. Puckett could not identify the co-defendant as the driver 

of the car in her driveway. However, regarding the second lineup, Ms. Puckett was able to 

provide the officer with a description of the physical attributes of the person who actually pried 

open her back door and entered her home. Based upon that description, the officer put together a 

photo array of five similar-looking individuals for the second lineup and Ms. Puckett quickly 

identified petitioner. The circuit court reviewed the requirements set forth in West Virginia Code 

§ 62-1E-2(a) and found that the officer was able to fulfill the statutory requirements even though 

he did not record the names of all the individuals depicted in the photographs, especially in light 

of the submission of the lineup itself, all the photographs used, and the relative ease with which 

the victim identified petitioner. Next, the circuit court found that the procedure was not unduly 

suggestive because Ms. Puckett provided a description of the individual that she saw in her home 

during the burglary and was able to observe the individual for a substantial amount of time. 

Therefore, we find no error in the circuit court’s ruling that the photographic lineup was 

admissible. 

Finally, petitioner argues that the circuit court failed to properly charge the jury. In 

support, petitioner essentially argues that his trial counsel failed to object to the jury charge, 

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which failed to use the term “feloniously” in the essential elements of burglary as it was read to 

the jury. We find no error. 

We have previously held that “in West Virginia criminal cases[,] the sole bases for 

attacking an unobjected to jury charge are plain error and/or ineffective assistance of counsel.” 

State v. White, 231 W.Va. 270, 280, 744 S.E.2d 668, 678 (2013) (citing State v. Miller, 194 

W.Va. 3, 17, 459 S.E.2d 114, 128 (1995)). We have also previously established that 

[u]nder the “plain error” doctrine, “waiver” of error must be distinguished 

from “forfeiture” of a right. A deviation from a rule of law is error unless there is 

a waiver. When there has been a knowing and intentional relinquishment or 

abandonment of a known right, there is no error and the inquiry as to the effect of 

a deviation from the rule of law need not be determined. By contrast, mere 

forfeiture of a right-the failure to make timely assertion of the right-does not 

extinguish the error. In such a circumstance, it is necessary to continue the inquiry 

and to determine whether the error is “plain.” 

Syl. Pt. 8, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). 

As we previously established in White, the defendant in that case, after reviewing the 

charge to the jury, approved of the charge as it was read and assured the trial court that he was 

satisfied with the contents of the charge and had no objection to it. 231 W.Va. 270, 280, 744 

S.E.2d 668, 678 (2013). The same is true in the present case. It is clear from the record that 

petitioner initially requested that the circuit court require respondent to prove that he entered Ms. 

Puckett’s home with the intent to commit a felony therein as a part of the burglary charge. 

However, upon reviewing the language of West Virginia Code § 61-3-11(a), the parties 

recognized and agreed that the statute required only that respondent prove that petitioner entered 

Ms. Puckett’s home with the intent to commit a crime therein.4 Therefore, the petitioner 

knowingly and intelligently waived any right to have the jury instructed in the manner he 

proposes in his appeal. Accordingly, the plain error doctrine does not apply and we find no error 

in the charge to the jury. 

For the foregoing reasons, the circuit court’s August 5, 2015, sentencing order is hereby 

affirmed. 

Affirmed. 

4

West Virginia Code § 61-3-11(a) reads 

[b]urglary shall be a felony and any person convicted thereof shall be confined in 

the penitentiary not less than one nor more than fifteen years. If any person shall, 

in the nighttime, break and enter, or enter without breaking, or shall, in the 

daytime, break and enter, the dwelling house, or an outhouse adjoining thereto or 

occupied therewith, of another, with intent to commit a crime therein, he shall be 

deemed guilty of burglary. 

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ISSUED: September 6, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

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