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State v. McCraine5/16/2003
appeal period. It is from the August 27, 2001, order that this appeal is taken.
II. Standard of Review
Appellant assigns numerous and diverse errors to the trial court proceedings. Because the issues raised involve varying standards of review, we will discuss each alleged error separately and set forth any specific standard of review applicable to a particular error at the beginning of each discussion. Nevertheless, we note "[g]enerally [that] findings of fact are reviewed for clear error and conclusions of law are reviewed de novo. However, ostensible findings of fact, which entail the application of law or constitute legal judgments which transcend ordinary factual determinations, must be reviewed de novo." Syl. Pt. 1, in part, State ex rel. Cooper v. Caperton, 196 W.Va. 208, 470 S.E.2d 162 (1996).
III. Discussion
Appellant raises the following assignments of error in this appeal: (1) testimony of the arresting officer should have been suppressed because it involved information obtained during an invalid arrest; (2) the third offense DUI charge should have been dismissed because one of the predicate DUI convictions resulted from an uncounseled guilty plea; (3) the two charges should have been severed due to the prejudicial effect of trying them in a single proceeding; (4) judgment of acquittal should have been entered with regard to the driving revoked for DUI charge because the State failed to prove knowledge of the revocation as an essential element of the crime; (5) the pending DUI charge should have been bifurcated from consideration of proof of prior convictions; and (6) the jury should have been instructed that first offense DUI and second offense DUI are lesser included offenses of third offense DUI. We will consider each of these alleged errors in turn.
A. Motion to Suppress
When reviewing challenges to a circuit court's suppression hearing ruling, we are guided by the following review standard:
On appeal, legal conclusions made with regard to suppression determinations are reviewed de novo. Factual determinations upon which these legal conclusions are based are reviewed under the clearly erroneous standard. In addition, factual findings based, at least in part, on determinations of witness credibility are accorded great deference. Syl. Pt. 3, State v. Stuart, 192 W.Va. 428, 452 S.E.2d 886 (1994).
Appellant claims that the trial court erred by permitting the jury to consider testimony of Officer Sherman regarding his contact with Appellant on the night of the incident because the stop and subsequent arrest occurred outside the officer's territorial jurisdiction. The State asserts that the lower court ruling is in accord with the provisions of West Virginia Code § 8-14-3 (1990) (Repl. Vol. 1998), *fn7
which defines the authority and duties of municipal police officers. Appellant counters by arguing that this statutory provision was found to be inapplicable in a very similar situation decided by this Court in State ex rel. West Virginia v. Gustke, 205 W.Va. 72, 516 S.E.2d 283 (1999). We fail to see such similarity. Unlike the facts in Gustke, the record in the case before us contains unrefuted evidence that the officer was on duty, a misdemeanor was committed in the officer's presence within the city proper and the officer began the stop by turning on his lights before he left the city limits. Having begun the stop within the city limits, the officer was acting within his authority as set forth in West Virginia Code § 8-14-3 by completing a stop within the county where the municipality is situate for an offense committed in the officer's presence within the corporate limits of the city. Consequently, we do not fin
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