Webster County 16-F-8
Allen R. Garner Jr., by counsel Timothy V. Gentilozzi,
appeals the Circuit Court of Webster County's January 3,
2017, order denying his post-trial motions for judgment of
acquittal and a new trial and sentencing him following his
convictions for operating or attempting to operate a
clandestine drug laboratory and conspiracy. Respondent State
of West Virginia, by counsel Mary M. Downey, filed a
response. On appeal, petitioner contends that there was
insufficient evidence to sustain his convictions, that the
circuit court erred in admitting evidence of a
"scuffle" between him and an officer at the scene,
that the State improperly introduced a statement made by him
without disclosing the statement, and that the circuit court
erred in denying his motion to sever.
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.
January 12, 2016, petitioner was indicted on one count of
operating or attempting to operate a clandestine drug
laboratory and one count of conspiracy. The indictment also
charged Virginia Lee Davis, Billy W. Green, and Rodney R.
Carpenter with these same crimes. Mr. Green, who is Ms.
Davis's son, entered into a plea agreement with the State
prior to trial. Also prior to trial, petitioner moved to
sever his trial from his codefendants' trial. Finding
that petitioner failed to demonstrate any prejudice by a
unitary trial, the circuit court denied this motion. The
charges against petitioner, Ms. Davis, and Mr. Carpenter
proceeded to a jury trial on September 14, 2016.
evidence at trial showed that, on August 6, 2015, Deputies
Vandevender and Cogar of the Webster County Sheriff's
Department were dispatched to Ms. Davis's home following
a report that Mr. Carpenter was there causing a disturbance.
As Deputy Vandevender was walking to Ms. Davis's front
door, he noted a strong chemical odor consistent with the
operation of a methamphetamine laboratory, specifically, that
of Coleman fuel, and he saw a bottle being thrown "off
the back porch, and [it] flew across and hit the outbuilding
[beside the house]." Deputy Vandevender observed liquid
coming out of the bottle, and, once he got closer to it,
noticed a white, granular substance in it. At this point,
additional law enforcement was called to the scene, including
Trooper Baier and Trooper Hebb of the West Virginia State
Police. Trooper Baier obtained consent from Ms. Davis to
search her property.
the search of Ms. Davis's home and property, the officers
obtained and photographed additional evidence. The
photographs, which were shown to the jury, depicted a
partially-burned Zephrin-D pack; lithium battery pack; a
bottle cut in half with a still-wet filter in it; a bag with
liquid in it; tin foil, salt, and coffee filters on the
kitchen countertop; pieces of ripped tin foil in a kitchen
drawer; Liquid Fire; a metal "snort straw, " which
had been concealed over a doorway; a sweatshirt found in Mr.
Green's room with a coffee filter in the front pocket; a
gun rack from Mr. Green's room containing drug
paraphernalia; a container from Ms. Davis's room
containing lithium batteries; tubing from Ms. Davis's
bedroom; Coleman fuel; and a filter commonly used in smoking
devices. Deputy Vandevender testified that the items depicted
in the photographs were commonly used for manufacturing,
smoking, or snorting methamphetamine.
Vandevender also testified that two individuals seen at the
scene were not arrested "[b]ecause we saw them walking
through the yard towards [Ms. Davis's] residence and it
was their statement and the statement of all the [d]efendants
that they had just arrived there. They hadn't been there
any time." Petitioner's counsel objected on the
ground that this testimony suggested that petitioner gave a
statement. The circuit court overruled this objection. During
petitioner's counsel's cross-examination of Deputy
Vandevender, counsel returned to the issue of these two
Q: Well, what is your testimony of why you let them go?
A: That we saw them walking to the house. They advised that
they'd just got there. All the [d]efendants, at some
point, said that they had nothing to do there, they had just
[Petitioner's counsel]: Judge, I'm going to object
THE COURT: Objection's overruled. You asked the question.
Petitioner's counsel continued:
Q: As far as my client, he never told you anything about
[these two individuals], correct?
A: Yes, he did. There was no official statement taken from
him, but he told us -
[Petitioner's counsel]: Objection. I'm going to
object to the -
THE COURT: The objection's overruled. You[r] exceptions
Baier testified regarding his involvement in the
investigation. Upon arriving to the scene, Deputy Vandevender
informed him of the steps taken so far in the investigation
and that "he had some type of a physical altercation
with one of the - Bam, Allen Garner." Petitioner's
counsel objected, but the circuit court overruled the
objection and ...