STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Andrew C. Smith,
Defendant Below, Petitioner FILED
October 4, 2013
RORY L. PERRY II, CLERK
vs) No. 12-1513 (Monongalia County 12-M-AP-19) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
City of Morgantown,
Plaintiff Below, Respondent
MEMORANDUM DECISION
Petitioner Andrew C. Smith, appearing pro se, appeals the order of the Circuit Court of
Monongalia County, entered November , 27, 2012, that found him guilty of violating § 1741.02 of
the Building and Housing Code of the City of Morgantown, West Virginia, by performing work
without a grading permit. Respondent City of Morgantown, by counsel Brent O. Burton, filed a
summary response. Petitioner filed a reply.
The 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.
On May 21, 2012, Officer Mark Trump, the code enforcement officer of the City of
Morgantown, West Virginia, cited petitioner for extending a parking lot located on Pennsylvania
Avenue without a permit. In making out the citation, Officer Trump erroneously cited petitioner
under the building permit ordinance, § 1705.09, instead of the grading permit ordinance, §
1741.02, which applied to extension of parking lots. On June 26, 2012, the municipal court held a
bench trial on the citation. At the end of trial, the municipal court dismissed the citation because of
the erroneous reference to § 1705.09. According to petitioner, city officials had him stay in the
courtroom while a new citation was issued.
At the time petitioner was issued with the correct citation pursuant to § 1741.02, on June
26, 2012, he still had not obtained a grading permit for the work that had been done on the parking
lot. Subsequently, on August 7, 2012, the municipal court held a second trial and found petitioner
guilty of violating § 1741.02 and fined him $465 plus $35 court costs.
Petitioner appealed the municipal court’s judgment of guilt. The circuit court which heard
the matter de novo at a bench trial on October 23, 2012.1 At start of trial, petitioner moved the
1
See Syl. Pt. 2, Elkins v. Michael, 65 W.Va. 503, 64 S.E. 619 (1909) (“An appeal from a
1
circuit court to dismiss the citation under § 1741.02 on double jeopardy grounds. Respondent
argued that the citation should not be dismissed because, in dismissing the original citation for
citing the wrong ordinance, the municipal court made no finding that petitioner was not guilty. The
circuit court denied petitioner’s motion to dismiss.
Respondent presented Officer Trump as its first witness. Officer Trump testified that as of
October 23, 2012, petitioner had not obtained a grading permit for the extension of the parking lot
and that Officer Trump had revisited the location the day prior to trial and “observed sink holes,
pooling of water, and more gravel.” Respondent’s second witness was the city’s staff engineer
who testified that one of the purposes of the grading permit ordinance was to prevent drainage
problems. The city’s staff engineer further testified that petitioner was required to obtain a permit
for extending the parking lot because (1) there is a possibility that gravel could get onto the
roadway and (2) borders were necessary to delineate the parking area. Petitioner presented the
testimony of two licensed engineers, each of whom testified that a grading permit was not required
because the work performed on the parking lot was maintenance. The circuit court found the
testimony of petitioner’s witnesses to be less reliable because each had visited the location “[only]
after the gravel had been spread.”2
The circuit court found that the work performed was a mixture of both maintenance and
expansion because “[t]he new gravel applied extended the parking area beyond what it had been”
and “[the] new gravel was on grass which had not previously been part of the parking lot.” The
circuit court concluded that petitioner was guilty beyond a reasonable doubt of violating § 1741.02
by performing work without a grading permit. The circuit court imposed the same penalty as did
the municipal court, a $465 fine plus $35 municipal court costs, and also ordered that petitioner
pay the costs of the appeal. Petitioner now appeals the circuit court’s November 27, 2012, order,
finding him guilty.
We apply the standard for reviewing a judgment entered following a bench trial:
In reviewing challenges to the findings and conclusions of the
circuit court made after a bench trial, a two-pronged deferential
standard of review is applied. The final order and the ultimate
disposition are reviewed under an abuse of discretion standard, and
the circuit court’s underlying factual findings are reviewed under a
clearly erroneous standard. Questions of law are subject to a de novo
review.
[magistrate court’s] judgment vacates and annuls the judgment.”).
2
Credibility determinations made following a bench trial are entitled to great deference.
See State v. Guthrie, 194 W.Va. 657, 669 n. 9, 461 S.E.2d 163, 175 n. 9 (1995) (“An appellate
court may not decide the credibility of witnesses . . . as that is the exclusive function and task of the
trier of fact.”).
2
Syl. Pt. 1, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006) (quoting Syl. Pt. 1, Public
Citizen, Inc. v. First National Bank in Fairmont, 198 W.Va. 329, 480 S.E.2d 538 (1996)). Also, “a
double jeopardy claim [is] reviewed de novo.” Syl. Pt. 1, in part, State v. Sears, 196 W.Va. 71, 468
S.E.2d 324 (1996).
On appeal, petitioners argues one assignment of error, that jeopardy attached prior to his
appeal to the circuit court because the magistrate court held a full trial on June 26, 2012, before it
dismissed the original citation as erroneously issued under § 1705.09. Respondent argues that the
municipal court’s dismissal of the original citation was without prejudice and that the municipal
court would not have proceeded with the August 7, 2012, trial if it thought that double jeopardy
prevented it from doing so. We find respondent’s argument to be the more persuasive because
even if the June 26, 2012, dismissal could be described as a judgment of acquittal, which petitioner
does not do, that does not end the inquiry. State v. Adkins, 170 W.Va. 46, 50, 289 S.E.2d 720, 724
(1982) (it is error to assume that a judgment of acquittal will automatically bar a retrial). Rather,
“[t]he [double jeopardy] bar comes into play only if the judgment of acquittal is based on the trial
court’s determination that the government has failed in its proof of an essential element of the
offense.” Id. (Internal quotations and citations omitted). In the case at bar, the municipal court
dismissed the original citation because it cited the wrong ordinance, and not because the court
found petitioner not guilty. See also Evans v. Michigan, __ U.S. __, __, 133 S.Ct. 1069, 1077, 185
L.Ed.2d 124, __ (2013) (determination of guilt or innocence is “the touchstone” of whether a prior
judgment triggers the double jeopardy bar.). Therefore, this Court concludes that petitioner’s
double jeopardy argument is without merit.
As for the circuit court’s order, petitioner does not challenge the court’s factual findings.
The circuit court noted Officer Trump revisited the location the day before the bench trial. Officer
Trump testified that as of October 23, 2012, petitioner had not obtained a grading permit for the
extension of the parking lot and that when Officer Trump revisited the location the day prior to
trial, he “observed sink holes, pooling of water, and more gravel.” (Emphasis added.).3 Therefore,
this Court concludes that the circuit court did not abuse its discretion in finding petitioner guilty of
performing work without a grading permit.
Foregoing the reasons, we affirm.
Affirmed.
ISSUED: October 4, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
3
Officer Trump was asked the following question at trial: “And, have they extended more
of the gravel since the time you were there last time?” Officer Trump answered, “Yes, sir[.]”
3