Citation. 179 W. Va. 645, 371 S.E.2d 366, 1988 W. Va. 111.
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This case is before the court upon the appeal of the Defendant Kevin Wayne Hoselton (Defendant), from his conviction of entering without breaking a storage unit on a docked barge, with intent to commit a larceny therein pursuant to West Virginia statute. At the time of the crime, the Defendant was eighteen years old and was with several friends, each of whom was charged as principals in the first degree. The Defendant was charged as a result of his alleged role as a lookout.
Synopsis of Rule of Law.
This court has consistently held that lookouts are aiders and abettors and, as such, are principals in the second degree. Further, an aider and abettor, or principal in the second degree, must in some sort associate himself with the venture, that he participate in it as something that he wishes to bring about, that he seeks by his action to make it succeed.
Facts.
The only evidence that was able to link the Defendant with the crime was the Defendant’s own voluntary statement. When asked if he was acting as a lookout, the Defendant replied, “you could say that.” In his statement, the Defendant asserted that he was standing along one edge of the barge, with an obstructed view of the storage unit. Further, the Defendant testified that when he became aware of his friends’ activities, he left the barge and returned to an automobile. Among the items stolen from the storage locker were tools, grease guns, grease and a battery charger. None of the items, or their subsequent profits once sold, were given to the Defendant.
Issue.
Was there sufficient evidence to support a conviction for entering with intent to commit larceny?
Held.
Viewed in the light most favorable to the prosecution, the State did not prove that the Defendant was a lookout. As a result, the decision of the lower court is reversed and the Defendant’s conviction for entering without breaking is set aside.
Discussion.
The court found that the only evidence that suggested that the Defendant was a lookout, was his own statement to an investigator. That statement, standing alone, does not prove that the Defendant sought, by his action, to make the venture succeed.
