(Fayette County 17-F-18)
Robert M. Lee, by counsel Donald L. Stennett, appeals the
Circuit Court of Fayette County's July 13, 2017,
sentencing order following his convictions for conspiracy to
commit a felony and first-degree robbery. Respondent State of
West Virginia, by counsel Shannon Frederick Kiser, filed a
response. Petitioner filed a reply. On appeal, petitioner
contends that there was insufficient evidence at trial to
support his convictions and that the prosecutor engaged in
misconduct during closing argument.
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.
was indicted in January of 2017 for one count of conspiracy
to commit a felony, one count of first-degree robbery, one
count of grand larceny, and three counts of possession of a
controlled substance with intent to deliver. These charges
arose following a confidential informant's controlled
drug buy from petitioner's codefendant, Jordan Goard, at
an apartment complex.
trial began on April 20, 2017, during which various witnesses
testified. Bryanna Cummings, the confidential informant who
purchased drugs from Mr. Goard, testified that the police
provided her with money to purchase the drugs and a purse
with a camera in it to record the transaction. After
purchasing the drugs from Mr. Goard, Ms. Cummings began
walking away through the apartment complex's parking lot.
Mr. Goard followed her, however, intent on taking the purse.
Ms. Cummings testified that Mr. Goard caught up with her,
grabbed her in a sort of "bear hug," and
"slammed [her] down on the curb and then tried to jerk
the purse off." As Ms. Cummings lay on the ground,
petitioner appeared and asked what was going on. As Mr. Goard
continued to try to wrest the purse from Ms. Cummings, Mr.
Goard reportedly responded, "She's wearing a wire.
She has a wire." Ms. Cummings stated that petitioner
then pointed a handgun at her and instructed her to give the
purse to Mr. Goard or he would shoot her. Mr. Goard struck
the back of Ms. Cummings's head, and she then "gave
up fighting" with him as he jerked the purse loose from
altercation was captured on the apartment complex's
surveillance cameras, and the State published this footage to
the jury. As it played, Ms. Cummings described to the jury
what was occurring in the video.
close of petitioner's two-day trial, the jury found him
guilty of conspiracy and first-degree robbery, but it did not
make a finding that petitioner used a firearm in committing
robbery. The circuit court sentenced petitioner to an
indeterminate term of one year to five years of incarceration
for his conspiracy conviction and a determinate term of
thirty years of incarceration for his first-degree robbery
conviction. Petitioner's sentence was memorialized in the
circuit court's "Sentencing and Commitment
Order," entered on July 13, 2017. It is from this order
that petitioner appeals.
appeal, petitioner first argues that the evidence was
insufficient to sustain his convictions. Petitioner argues
that "[t]he only evidence that [p]etitioner was involved
in a conspiracy to commit robbery was the testimony of [Ms.
Cummings]," but that "Ms. Cummings's testimony
was not credible." Petitioner acknowledges that
"[t]here is . . . 'evidence'" to support
petitioner's convictions, but concludes that "[t]he
problem with it is that it is simply not credible."
respect to claims concerning the sufficiency of the evidence
to support a conviction, this Court has stated that
[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
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.
has failed to satisfy this "heavy burden."
Id. Petitioner does not argue that "the record
contains no evidence . . . from which the jury could find
guilt beyond a reasonable doubt." In fact, petitioner
acknowledges that there is evidence, but he contends the
problem is that the evidence lacks credibility. It is well
settled, however, that "[c]redibility determinations are
for a jury and not an appellate court." Id.
"As we have cautioned before, appellate review is not a
device for this Court to replace a jury's finding with