Wyoming County 16-F-120
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.
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.
of 2016, petitioner was indicted on nine counts of Delivery
of a Schedule II Controlled Substance -
Oxycodone. 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.
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.
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.
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.
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
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.
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.
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 ...