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State v. Mullins

Supreme Court of West Virginia

June 11, 2018

State of West Virginia, Plaintiff Below, Respondent
Jimmy Dean Mullins, Defendant Below, Petitioner

          Wyoming County 16-F-120


         Petitioner Jimmy Dean Mullins, by counsel Timothy P. Lupardus, appeals the Circuit Court of Wyoming County's March 28, 2017, order sentencing him to a cumulative term of incarceration of 8 to 120 years following his conviction for 8 counts of Delivery of a Schedule II Controlled Substance - Oxycodone. The State of West Virginia, by counsel Benjamin F. Yancey III, filed a response in support of the circuit court's order. On appeal, petitioner argues that his sentence is disproportionate to the offenses charges and that the circuit court erred in (1) admitting his recorded phone calls into evidence, (2) failing to direct a verdict of acquittal upon insufficient evidence, and (3) failing to strike certain jurors for cause.

         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.

         In May of 2016, petitioner was indicted on nine counts of Delivery of a Schedule II Controlled Substance - Oxycodone.[1] These charges stemmed from several controlled buys carried out by Wyoming County Sheriff's Department Captain Don Cook, a member of the Southern West Virginia Regional Drug and Violent Crime Task Force. Working in conjunction with a confidential informant ("CI"), Ina New, law enforcement's investigation resulted in petitioner selling controlled substances to the CI nine times during a period of time between April of 2015 and December of 2015.

         Petitioner's jury trial took place over five days in September of 2016. During voir dire, petitioner moved to strike one juror and two replacement jurors for cause, citing alleged bias due to either their relationships to law enforcement and the prosecution or prior experiences with issues regarding substance abuse. The circuit court declined to strike the jurors for cause, after which petitioner used peremptory strikes on the jurors at issue.

         At trial, CI New testified to the multiple purchases of controlled substances at issue herein, all of which were recorded. The recordings were also entered into evidence. The State further produced evidence from multiple witnesses establishing a chain of custody as to the controlled substances petitioner sold and the results from the West Virginia State Police lab that established the substances to be oxycodone. Further, the State introduced recorded telephone calls petitioner made from Southern Regional Jail in which he stated that he needed to find a legitimate job and quit selling drugs. Ultimately, the jury convicted him of all eight counts.

         In March of 2017, the circuit court sentenced petitioner to eight terms of incarceration of one to fifteen years and ordered that the sentences be served consecutively. It is from the sentencing order that petitioner appeals.

         "The Court applies a de novo standard of review to the denial of a motion for judgment of acquittal based upon the sufficiency of the evidence." State v. Juntilla, 227 W.Va. 492, 497, 711 S.E.2d 562, 567 (2011). Moreover,

[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). Further,

[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.

Id. at 663, 461 S.E.2d at 169, Syl. Pt. 3, in part. With these standards in mind, we turn first to petitioner's assignment of error challenging the circuit court's denial of his motion for judgment of acquittal.

         Petitioner argues that the evidence was insufficient to support any of the eight counts for which he was convicted. In support, he alleges that none of the videos of the controlled buys show a complete transaction and that his testimony established that CI New was selling or attempting to sell him Xanax during the buys in question. Petitioner further argues that CI New lacked credibility, especially in light of the fact that she had been charged with forty-eight felonies related to stealing from an elderly neighbor for whom she served as a caretaker prior to her cooperation with authorities. Although petitioner acknowledges the extensive nature of the State's evidence, he argues that it was simply insufficient to support his conviction. We do not agree, especially considering the rigorous burden petitioner faces in mounting a challenge to the sufficiency of the evidence.

         Pursuant to West Virginia Code § 60A-4-401(a), "[e]xcept as authorized by this act, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance." West ...

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