STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS




                                                                                 FILED
State of West Virginia,                                                    September 16, 2016
                                                                               RORY L. PERRY II, CLERK
Plaintiff Below, Respondent                                                  SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
vs.) No. 14-0382 (Kanawha County 13-F-806)

Raymond Richardson,
Defendant Below, Petitioner



                                MEMORANDUM DECISION

        Petitioner Raymond Richardson, by counsel Justin Collin, appeals the Circuit Court of
Kanawha County’s February 24, 2014, order denying his motion for judgment of acquittal and
sentencing him to consecutive terms of 100 years for first degree robbery, 2-10 years for assault
during the commission of a felony, and 1-15 years for possession with intent to deliver cocaine.
The State, by counsel Laura Young, filed a response. On appeal, petitioner argues that the trial
court committed error by denying his motion for judgment of acquittal after the evidence failed
to establish that a weapon was used during the assault. Petitioner also argues that the prosecution
failed to present sufficient evidence of an unlawful taking of $103. Lastly, petitioner argues that
the victim’s testimony is inherently incredible and that the testimony is insufficient to prove an
unlawful taking beyond a reasonable doubt and that his sentence was disproportionate to the
crimes committed.

        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.

       During the early morning hours of August 24, 2013, petitioner attacked the sixty-one year
old victim in her home. Petitioner went to the victim’s home to sell her cocaine. The victim
characterized her cocaine use as a “daily habit.” Before the attack, petitioner, a thirty-five year
old man, had sold the victim cocaine for over a year. The two frequently communicated via cell
phone to arrange drug transactions. The victim’s testimony at trial indicated that in the week



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leading up to the attack, the cocaine she purchased from petitioner was sometimes cut with
baking soda.

         On the evening before the attack, the victim and petitioner agreed to meet at a bar in
South Charleston. At the bar, the victim bought $200 worth of what she thought was powder
cocaine from petitioner and returned home. The victim later testified that the cocaine product
was inferior and that it was mostly baking soda. That night, petitioner repeatedly called the
victim. The victim ignored his calls until around 2:00 o’clock in the morning when he called to
tell her that he would make up for selling her bad cocaine. At that time, the victim told petitioner
that she was going to bed. Later that same morning, petitioner called the victim and then woke
her up by knocking on her door. Once inside, petitioner offered the victim $200 worth of crack
cocaine. She told him that it was trash and threw it on the kitchen table. Petitioner told the victim
that he needed money in order to travel out of state and “re-up,” so he told the victim that she
needed to pay him for the product that she destroyed.

       An argument escalated at the victim’s house when she demanded that petitioner leave.
The victim testified that petitioner proceeded to punch the victim in the face. Petitioner
continued to hit her even after she fell to the floor. The victim later testified that $103 she had
earned in tips the previous night was taken by petitioner.

       After petitioner left the victim’s home, she called 911. The police responded to the scene
but she lied to them about the drug transaction and the identity of her attacker. Later, at trial, she
explained that she lied because she was embarrassed by her addiction, which she had hidden
from her children and customers at a local pizza parlor, some of whom were the policemen who
responded to her 911 call.

        Once at the hospital, the victim eventually admitted the truth to Detective Gordon about
her drug addiction and the identity of her attacker. Detective Gordon conducted a follow-up
interview at the victim’s home and made a video of the scene. The victim indicated that the
money she kept hidden in her closet, as well as the money in her purse, was not missing. Days
after the interview with Detective Gordon, the victim contacted Gordon to tell him that she
realized that $103 in tip money had been taken from her ironing board on the morning of the
attack. At trial, the victim testified that she heard petitioner grab the cash from her ironing board
when she was on the floor after the attack.

        On August 28, 2013, petitioner was arrested and detectives executed a search of his
home, where they found cash and a shirt stained with a substance that looked like blood. After
his arrest, petitioner was interviewed by two detectives and admitted to selling the victim drugs.
Petitioner initially denied that he had been at the victim’s house the morning of the attack, but
later admitted to being in her home. Petitioner told the detectives at first that the victim fell, but
later admitted to hitting her. Throughout the interview, petitioner insisted that he did not rob the
victim.

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       Petitioner was tried and the jury returned a guilty verdict on all three offenses. At
sentencing, the prosecution offered that the defendant could have been charged as a three-time
offender under the recidivist statute, given his prior kidnapping and unlawful wounding
convictions.1 The State noted his propensity for violence and lack of employment, and further
argued that a hundred-year sentence was not disproportionate, citing numerous cases. Before
pronouncing sentence, Judge Bloom commented as follows:

               I too have given a great deal of consideration as to what the appropriate
       sentence in a circumstance like this is and have not only done some research
       similar to yours as to what our Supreme Courts and District Courts have
       considered excessive, but I’ve also looked back over some of the sentences that
       I’ve handed down. Just within the last couple of years a young man just in his
       teens was involved in a series of robberies and he was sentenced to 75 years for
       first degree robbery.
               And he did not have any history anywhere approaching the history that
       you have, Mr. Richardson.
               Mr. Richardson, I’ve watched you over the years and presided over the
       bulk of the charges that the prosecutor has mentioned and listened to the recitation
       of the facts of the crimes that you committed, and quite honestly I find you to be a
       very violent, dangerous man, and I don’t say that lightly. But you are – you – the
       acts that you have committed have been heinous and torturous and unthinkable in
       the past, and that has to be a consideration in determining what the appropriate
       sentence in this case is.

       Petitioner was sentenced to a term of one hundred years for robbery, an indeterminate
term of two to ten years for assault during the commission of a felony, and an indeterminate term
of one to fifteen years for possession with intent to deliver. The sentences were ordered to be
served consecutively. This appeal followed.

        Petitioner asserts three assignments of error on appeal. He first argues that the trial court
erred by failing to instruct the jury that assault during the commission of a felony requires the
use of a weapon, and by denying petitioner’s motion for judgment of acquittal after the evidence
failed to establish that a weapon was used during the assault. Petitioner next argues that the
prosecution failed to present sufficient evidence of first degree robbery’s element of unlawful
taking, and that the trial court erred in denying petitioner’s motions for judgment of acquittal
based upon insufficient evidence of first degree robbery. Lastly, petitioner argues that the trial
court erred by imposing a 100-year sentence for first degree robbery because the sentence shocks
the conscience and is disproportionate to the crime.


       1
         In 2002, petitioner pled guilty and was convicted in the Circuit Court of Kanawha
County, Louis H. Bloom, J., of kidnapping and wanton endangerment and sentenced to 30 years.
He appealed his sentence. The Court reversed and remanded the case with directions for a
minimum sentence of 10 years in prison. State v. Richardson, 214 W.Va. 410, 589 S.E.2d 552
(2003).
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        In his first assignment of error, petitioner argues that the trial court erred by failing to
instruct the jury that assault during the commission of a felony requires the use of a weapon, and
by denying petitioner’s motions for judgment of acquittal after the evidence failed to establish
that a weapon was used during assault.

        We have previously held that the crime of assault during the commission of a felony2
essentially “acts as an enhancement statute where conduct otherwise defined as felonious is
executed in such a manner that another person — a victim of the underlying felony or a witness
or other bystander — is shot, cut, stabbed, or wounded in the process.” State v. Penwell, 199
W.Va. 111, 116, 483 S.E.2d 240, 245 (1996).

        The statute does not require that a weapon be used in order to commit assault during the
commission of a felony. Here, the victim was clearly wounded because of the injuries she
suffered as a result of being beaten by petitioner. Bruising to arms and legs, bruising to face,
injured hands and a broken nose satisfy the “wound” requirement of the statute and our case law.
Therefore, we find no error in the circuit court’s refusal to instruct the jury that assault during the
commission of a felony requires the use of a weapon, and no error in the circuit court’s denial of
the motion for judgment of acquittal.

         In his second assignment of error, petitioner argues that the prosecution failed to present
sufficient evidence of first degree robbery’s element of unlawful taking, and that the trial court
erred in denying petitioner’s motions for judgment of acquittal based upon insufficient evidence
of first degree robbery. Petitioner argues that there is not sufficient evidence to prove first degree
robbery’s element of an unlawful taking beyond a reasonable doubt because the victim’s
statements to the police and her testimony regarding the $103 that was taken from her ironing
board are inconsistent.

          We have previously held 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.” Syl. Pt.
1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). We have also held that:


       2
        The crime of assault during the commission of a felony is set forth in W.Va. Code § 61­
2-10, which provides:
       If any person in the commission of, or attempt to commit a felony, unlawfully
       shoot, stab, cut or wound another person, he shall be guilty of a felony and, upon
       conviction, shall, in the discretion of the court, either be confined in the
       penitentiary not less than two nor more than ten years, or be confined in jail not
       exceeding one year and be fined not exceeding one thousand dollars.
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       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, 663, 461 S.E.2d 163, 169 (1995).

        Here, the jury determined that the victim’s testimony was worthy of belief despite her
inconsistent statements. The victim explained why she initially lied to the police. She was
embarrassed and ashamed that she had a drug problem and did not want her family and the
police — some of whom were her customers — to know about the incident. In spite of her
inconsistent statements to the police, the jury believed that the victim told the truth under oath.
The victim was cross-examined and a reason why she would make up a story about being robbed
was never developed. The victim’s testimony was determined by the jury to be credible and
therefore we find no error in the circuit court’s finding that there was sufficient evidence of an
unlawful taking in order to charge petitioner with first degree robbery.

       In his third assignment of error, petitioner argues that the trial court erred by imposing a
100-year sentence for first degree robbery because the sentence shocks the conscience and is
disproportionate to the crime.

        In syllabus point 1 of State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997), this Court
held: “The Supreme Court of Appeals reviews sentencing orders, including orders of restitution
made in connection with a defendant’s sentencing, under a deferential abuse of discretion
standard, unless the order violates statutory or constitutional commands.” Moreover,
“[s]entences imposed by the trial court, if within statutory limits and if not based on some
[im]permissible factor, are not subject to appellate review.” Syl. Pt. 4, State v. Goodnight, 169
W.Va. 366, 287 S.E.2d 504 (1982).

        This case is the second time petitioner has sought to reduce a sentence imposed on him
for a violent crime. In the first case, the Court reviewed petitioner’s sentence of 30 years for
kidnapping and wanton endangerment for forcing his long-time girlfriend to exit her apartment
and walk down the street to a building owned by his grandfather, torturing her for fourteen hours.
The Court held that the sentence was disproportionate and remanded with instructions to impose
a minimum sentence of 10 years for kidnapping. State v. Richardson, 214 W.Va. 410, 589 S.E.2d
552 (2003). Notably, a dissent in the case stated: “the majority’s decision to remand this case for
the circuit court to impose a specific punishment of 10 years, lacks precedent in this State.” Id.,



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(Davis, J. dissenting). In 2008, the Court held that Richardson is a deviation from our established
law. State v. Slater, 222 W.Va. 499, 665 S.E.2d 674 (2008).

        A review of the record in this case reveals that in deciding the appropriate sentence, the
lower court considered petitioner’s extensive criminal history as well as his inability to keep a
steady job. In addition to the kidnapping and wanton endangerment conviction discussed above,
he was later convicted of unlawful wounding in 2005, after he beat and interrogated a woman. In
this case, petitioner’s sentence for attacking and robbing the victim in her home does not shock
the conscience. Petitioner beat the victim in her home after she refused to pay him for drugs. He
then stole $103 from her bedroom. Petitioner argues that 100-year sentences should be reserved
for more egregious conduct than his. However, in West Virginia, first degree robbery has been
recognized as a crime that involves a high probability of violence and injury to the victim,
therefore, the legislature has granted trial courts broad discretion in sentencing defendants
convicted of the crime. Indeed, in State v. Ross, 184 W. Va. 579, 402 S.E.2d 248 (1990), this
Court affirmed a 100-year sentence for the crime of attempted aggravated robbery, and stated
that “a disproportionality challenge should be resolved by more objective factors which include
consideration of the nature of the offense, the defendant’s past criminal history, and his
proclivity to engage in violent criminal acts.” Ross, 184 W. Va. At 250-51, 402 S.E.2d at 581-82.
These are the precise factors relied upon by the trial court. Therefore, we find no error in the
circuit court’s decision to sentence petitioner to 100 years in prison.

        For the foregoing reasons, we find no error in the decision of the Circuit Court of
Kanawha County and affirm the February 24, 2014, order denying petitioner’s motion for
judgment of acquittal and sentencing him to consecutive terms of 100 years for first degree
robbery, 2-10 years for assault during the commission of a felony, and 1-15 years for possession
with intent to deliver cocaine.

                                                                                        Affirmed.
ISSUED: September 16, 2016

CONCURRED IN BY:
Chief Justice Menis E. Ketchum, II
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Allen H. Loughry II

DISQUALIFIED:
Justice Margaret L. Workman




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