STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

State of West Virginia, FILED 

Plaintiff Below, Respondent November 21, 2016 

RORY L. PERRY II, CLERK 

vs) No. 15-0582 (McDowell County 14-F-62-M) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Wesley Owen Payne, 

Defendant Below, Petitioner 

MEMORANDUM DECISION 

Petitioner Wesley Owen Payne, by counsel Thomas H. Evans III, appeals the Circuit 

Court of McDowell County’s May 14, 2015, order resentencing him to a term of incarceration of 

thirty years for his conviction of second-degree murder. The State, by counsel Jonathan E. 

Porter, filed a response. On appeal, petitioner alleges that the circuit court erred in denying both 

his motion for judgment of acquittal1 and his motion for a new trial. Petitioner also alleges that 

West Virginia Code § 61-2-1 is unconstitutionally vague. 

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 19, 2013, petitioner Wesley Owen Payne shot and killed Donnie Baker. During 

the February of 2014 term of court, petitioner was indicted on one count of first-degree murder 

and one count of abduction. Petitioner’s jury trial commenced in January of 2015 and continued 

for three days. At trial, petitioner claimed the shooting was in self-defense. The only witness to 

the shooting was Lisa Hughes, who was romantically involved with both petitioner and the 

victim. At trial, testimony established that the dispute between petitioner and the victim started 

because Ms. Hughes was involved in a relationship with petitioner for over twenty-five years and 

suddenly left him to be with the victim. Evidence showed that Ms. Hughes and the victim called 

911 on another occasion out of fear of petitioner, when he previously arrived at the victim’s 

home unannounced. 

1

Petitioner’s motion below was actually styled “Motion To Strike Verdict And To Grant 

New Trial.” While Rule 33 of the West Virginia Rules of Criminal Procedure allows criminal 

defendants to move for a new trial, the Rules do not allow for a motion to strike a verdict. 

Instead, Rule 29 allows criminal defendants to move for judgment of acquittal. As such, the 

Court will refer to petitioner’s “Motion To Strike Verdict” as a motion for judgment of acquittal 

in this memorandum decision. 

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In regard to the crime in question, evidence showed that petitioner arrived at the victim’s 

home to convince Ms. Hughes to leave the victim and come home with him. When petitioner 

arrived at the residence he met with the victim, who was inebriated2

, and a dispute occurred 

between the men. This altercation resulted in petitioner shooting and killing the victim with a 

single shell from a shotgun to the chest. At trial, the prosecution presented evidence that showed 

the victim never owned a shotgun like the murder weapon and that multiple shots were fired 

from different firearms during the incident, including the 9mm rifle that the victim owned. 

When petitioner and Ms. Hughes left the scene, they fled to the home of one Mr. 

Prichard, who was dating petitioner’s sister at the time. Mr. Prichard testified that the two acted 

nervous in his home, hid multiple guns and a vehicle, changed clothes, and called to have 

petitioner’s sister “get them elsewhere.” After the sister picked them up, Mr. Prichard called the 

sheriff’s department, which resulted in petitioner and Ms. Hughes being arrested. Ms. Hughes 

gave the police a statement hours after the shooting in which she stated that petitioner showed up 

to the victim’s residence and opened fire on the victim and the camper he lived in, hitting him in 

the chest and killing him. Ms. Hughes stated that she was terrified of petitioner and accompanied 

him after the shooting out of fear and against her will. At trial, however, Ms. Hughes provided a 

conflicting account of the events. During her testimony, Ms. Hughes said petitioner was hiding 

behind a vehicle and fired one “lucky” shot out of self-defense that killed the victim. Conversely, 

evidence introduced at trial from the crime scene, as well as Mr. Prichard’s testimony, supported 

the State’s theory that petitioner was the aggressor, as Ms. Hughes initially reported. 

Petitioner testified that the reason he went to the victim’s home the day of the killing was 

because Ms. Hughes told a friend to tell petitioner that Ms. Hughes was being held against her 

will and needed petitioner to pick her up at the victim’s residence. Petitioner testified that he 

went to the victim’s home unarmed to rescue Ms. Hughes. Petitioner testified that he told the 

victim “I come in peace” when he arrived at the home. Despite this, petitioner alleged that the 

victim aimed a 9mm rifle at him and fired several shots. Petitioner testified that he took cover 

behind a vehicle and found a loaded shotgun, which he said belonged to the victim, hidden in the 

yard. Petitioner stated he then picked up the gun and fired one shot in the direction of the victim 

as he was retreating from the victim’s shots. Petitioner testified that the one shot he fired hit the 

victim in the chest and killed him. Further, petitioner testified he shot the victim in self-defense 

and did not have the requisite intent or malice to be guilty of murder. Although both sides 

presented evidence and testimony to prove who the initial aggressor was, the jury ultimately 

found petitioner to be the aggressor and rejected his contention that he acted in self-defense. 

Also during trial, some of the victim’s family members made comments from the 

courtroom’s gallery, which caused the trial court to order the family members to move away 

from the jury. The comments were directed at petitioner and included expressions of anger about 

the victim’s death. However, petitioner’s counsel did not object or request a mistrial regarding 

the trial court’s actions. At the close of all evidence, the jury found petitioner guilty of seconddegree murder, though the circuit court granted petitioner’s motion to dismiss the charge of 

abduction. The court denied petitioner’s post-trial motions for judgment of acquittal and a new 

2

An autopsy revealed the victim’s blood alcohol content to be 0.11 at the time of death. 

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trial and sentenced petitioner to a term of thirty years of incarceration. It is from the order 

resentencing him that petitioner appeals. 

We have previously held as follows: 

“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. Blevins, 231 W.Va. 135, 744 S.E.2d 245 (2013). On appeal, petitioner argues 

that the circuit court erred in denying his motion for judgment of acquittal because the State did 

not establish every statutory element of second-degree murder. In addressing motions for 

judgment of acquittal, we have stated that “[t]he Court applies a de novo standard of review to 

the denial of a motion for judgment of acquittal based upon the sufficiency of the evidence.” 

State v. Juntilla, 227 W.Va. 492, 711 S.E.2d 562 (2011) (citing State v. LaRock, 196 W.Va. 294, 

304, 470 S.E.2d 613, 623 (1996)). As to challenges to the sufficiency of the evidence, this Court 

has further explained that 

“[t]he function of an appellate court when 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 sufficient to convince a 

reasonable person of the defendant’s guilt beyond a reasonable doubt. Thus, the 

relevant inquiry is whether, after viewing 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.” Syllabus point 1, State 

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

Syl. Pt. 3, State v. Horn, 232 W.Va. 32, 750 S.E.2d 248 (2013). Specifically, petitioner argues 

that the evidence established that he did not commit murder because he acted in self-defense. 

Moreover, petitioner asserts that the State failed to establish malice on his part. The Court, 

however, does not agree. Importantly, petitioner’s argument on this issue misstates the evidence 

presented below. 

According to petitioner, there was no evidence that he was the initial aggressor in the 

confrontation at issue. This argument totally ignores the fact that the jury rejected testimony 

from both petitioner and Ms. Hughes on this issue, especially in light of Ms. Hughes’s 

impeachment regarding the statement she gave to police hours after the shooting in which she 

stated that petitioner arrived at the victim’s residence and opened fire on the victim from outside. 

While it is true that Ms. Hughes provided a conflicting account of the events at trial, the jury 

clearly made a credibility determination regarding her testimony and did not find her conflicting 

account at trial credible. The only other testimony regarding petitioner’s self-defense theory 

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came from petitioner, and the jury was also free to discredit his testimony if it found the same 

inherently incredible. 

In discussing witness credibility, we have held that “[c]redibility determinations are 

properly made by the trier of fact . . . who has had the opportunity to observe, first hand, the 

demeanor of the witness.” Lister v. Ballard, 237 W.Va. 34, --, 784 S.E.2d 733, 739 (2016) 

(quoting Miller v. Chenoweth, 229 W.Va. 114, 121, 727 S.E.2d 658, 665 (2012)). Additionally, 

we have held as follows: “‘In the trial of a criminal prosecution, where guilt or innocence 

depends on conflicting evidence, the weight and credibility of the testimony of any witness is for 

jury determination.’ Syllabus Point 1, State v. Harlow, 137 W.Va. 251, 71 S.E.2d 330 (1952).” 

Syl. Pt. 2, State v. Smith, 225 W.Va. 706, 696 S.E.2d 8 (2010). Based upon these holdings, it is 

clear that the jury was free to give less weight to the testimony of petitioner and the conflicting 

account of Ms. Hughes, the only witnesses who provided any evidence in support of petitioner’s 

theory of self-defense. This is especially true in light of the additional evidence that supported 

the jury’s verdict of second-degree murder. 

The record on appeal shows that the State put on sufficient evidence to establish that 

petitioner could not have been firing backwards as he ran away, as he alleged, and that he 

harassed the victim in the days before his death. Additionally, the State established that the 

murder weapon likely did not belong to the victim, as petitioner argued, because no shells for the 

weapon were found in the residence, despite the fact that multiple rounds were fired from this 

weapon during the incident. Further, the State established that petitioner’s testimony regarding 

the lone shot he fired was not credible, as evidence showed that petitioner fired at least one 

additional shot after the victim was already bleeding to death, as evidenced by the presence of 

broken glass from a window on the victim’s back. Moreover, Mr. Prichard’s testimony at trial 

further called Ms. Hughes’s trial testimony into question, as he testified that petitioner came to 

his home, hid the murder weapon and his truck, acted nervously, and may have taken Ms. 

Hughes against her will. As such, it is clear that the evidence below established that petitioner 

did not act in self-defense. 

Further, viewing the evidence in the light most favorable to the State, it is clear that the 

prosecution established malice, as required for a conviction of second-degree murder. Pursuant 

to West Virginia Code § 61-2-1, 

[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 assault, 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, chapter sixty-a of this 

code, is murder of the first degree. All other murder is murder of the second 

degree. 

(emphasis added). In discussing second-degree murder, we have held that “‘[m]alice, express or 

implied, is an essential element of murder in the second degree, and if absent the homicide is of 

no higher grade than voluntary manslaughter.’ Syllabus Point 1, State v. Galford, 87 W.Va. 358, 

105 S.E. 237 (1920).” Syl. Pt. 2, State v. Clayton, 166 W.Va 782, 277 S.E.2d 619 (1981). 

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Moreover, we have held that “[i]n a homicide trial, malice and intent may be inferred by the jury 

from the defendant’s use of a deadly weapon, under circumstances which the jury does not 

believe afforded the defendant excuse, justification or provocation for his conduct.” Syl. Pt. 1, in 

part, State ex rel. Corbin v. Haines, 218 W.Va. 315, 624 S.E.2d 752 (2005) (quoting Syl. Pt. 5, 

State v. Jenkins, 191 W.Va. 87, 443 S.E.2d 244 (1994)). As outlined above, petitioner admitted 

to shooting the victim, although he also claimed that he acted in self-defense. The jury, however, 

did not find petitioner’s evidence regarding self-defense credible and, instead, inferred malice 

from petitioner’s use of a deadly weapon. As such, it is clear that the State established all 

elements of second-degree murder, and the circuit court did not err in denying petitioner’s 

motion for judgment of acquittal on these grounds. 

Next, petitioner argues that the circuit court erred in denying his motion for a new trial. 

According to petitioner, the State made improper remarks before the jury, offered improper 

evidence, and engaged in misconduct. First, petitioner argues that the State’s overuse of 

speculation and conjecture during its opening statement and closing argument requires a new 

trial because the remarks clearly prejudiced him and resulted in manifest injustice. Specifically, 

petitioner argues that the State portrayed the victim as protecting Ms. Hughes and also ignored 

the fact that the victim’s blood alcohol content was well above the legal limit to operate a vehicle 

and that he had recently been released from prison for committing a violent crime. The record on 

appeal, however, reveals no error. While petitioner may not have agreed with the State’s 

characterization of the evidence below, the State’s remarks in its opening statement and closing 

argument were all based on the evidence. We have held that “[a] prosecutor may argue all 

reasonable inferences from the evidence in the record.” Syl. Pt. 3, in part, State v. Messer, 223 

W.Va. 197, 672 S.E.2d 333 (2008) (quoting Syl. Pt. 7, State v. England, 180 W.Va. 342, 376 

S.E.2d 548 (1988)). Our review shows that the statements of which petitioner complains 

constitute reasonable inferences based on the evidence and, accordingly, we find no error in the 

circuit court’s denial of petitioner’s motion for a new trial on these grounds. 

Next, petitioner argues that the State improperly sought to introduce evidence that the 

circuit court deemed inadmissible. According to petitioner, the State was barred from introducing 

Ms. Hughes’s prior statement to police into evidence, but that it, nonetheless, introduced the 

evidence during her testimony. The Court, however, finds that petitioner’s argument on this issue 

incorrectly characterizes the nature of the State’s examination of Ms. Hughes. Importantly, the 

circuit court specifically ruled that the State was not allowed to introduce Ms. Hughes’s 

statement into evidence. However, the circuit court correctly ruled that the State could impeach 

Ms. Hughes by way of her recorded statement. 

In discussing impeachment, we have held that “Rule 607 of the West Virginia Rules of 

Evidence allows a party, including the one who called the witness, to impeach a witness by a 

prior inconsistent statement.” State v. White, 231 W.Va. 270, 281, 744 S.E.2d 668, 679 (2013) 

(quoting Syl. Pt. 3, State v. Collins, 186 W.Va. 1, 409 S.E.2d 181 (1990)). Moreover, in regard to 

prior inconsistent statements, we have held that “[s]uch a statement may not be admitted as 

substantive evidence: The inconsistent statement only serves to raise doubts regarding the 

truthfulness of both statements of the witness.” State v. Blake, 197 W.Va. 700, 706, 478 S.E.2d 

550, 556 (1996) (citing State v. Collins, 186 W.Va. 1, 6, 409 S.E.2d 181, 186 (1990)). Indeed, in 

this matter, the witness’s prior inconsistent statement was not admitted as substantive evidence. 

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In fact, it was not admitted into evidence at all. Instead, the State simply used the statement to 

impeach the witness and raise doubts as to the truthfulness of her testimony. As such, we find no 

error in the circuit court’s denial of petitioner’s motion for a new trial on this ground. 

Petitioner also argues that the circuit court erred in denying his motion for a new trial 

upon allegations of juror misconduct. According to petitioner, the jury’s verdict was influenced 

by comments made by the victim’s relatives in the courtroom. Petitioner argues that on the last 

day of trial, two of the victim’s relatives seated in the gallery made derogatory remarks towards 

petitioner that the jury could hear. The record on appeal, however, is devoid of any evidence that 

any juror heard these remarks, let alone committed misconduct by acting on these remarks. We 

have previously held that 

“[i]n the absence of any evidence that an interested party induced juror 

misconduct, no jury verdict will be reversed on the ground of juror misconduct 

unless the defendant proves by clear and convincing evidence that the misconduct 

has prejudiced the defendant to the extent that the defendant has not received a 

fair trial.” Syllabus point 3, State v. Sutphin, 195 W.Va. 551, 466 S.E.2d 402 

(1995). 

Syl. Pt. 2, State v. Trail, 236 W.Va. 167, 778 S.E.2d 616 (2015). As noted above, there is simply 

no evidence to indicate that any juror misconduct occurred as a result of the relatives’ statements, 

nor is there any evidence of juror misconduct. Accordingly, we find no error in the circuit court’s 

denial of petitioner’s motion for a new trial on these grounds. 

Finally, petitioner argues that our second-degree murder statute, as codified at West 

Virginia Code § 61-2-1, is unconstitutionally vague because it fails to define the conduct 

prohibited and, as such, should be voided. The Court does not agree. Pursuant to West Virginia 

Code § 61-2-1, 

[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 assault, 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, chapter sixty-a of this 

code, is murder of the first degree. All other murder is murder of the second 

degree. 

Further, in addressing the constitutionality of statutes, we have held that “‘[a] criminal statute 

must be set out with sufficient definiteness to give a person of ordinary intelligence fair notice 

that his contemplated conduct is prohibited by statute and to provide adequate standards for 

adjudication.’ Syl. Pt. 1, State v. Flinn, 158 W.Va. 111, 208 S.E.2d 538 (1974).” Syl. Pt. 7, State 

v. James, 227 W.Va. 407, 710 S.E.2d 98 (2011). Here it is clear that West Virginia Code § 61-2­

1 is constitutional, as it plainly sets forth the prohibited conduct; that is to say, individuals are 

prohibited from committing murder. While the statute in question is brief, it is abundantly clear 

that any murder not described as first-degree murder constitutes second-degree murder. As such, 

we find petitioner is entitled to no relief in this regard. 

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For the foregoing reasons, the circuit court’s May 14, 2015, order resentencing petitioner 

is hereby affirmed. 

Affirmed. 

ISSUED: November 21, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

DISSENTING: 

Justice Robin Jean Davis 

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