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State v. Lane

Supreme Court of West Virginia

April 3, 2019

STATE OF WEST VIRGINIA, Respondent
v.
JOE ROGER LANE, Petitioner

          Submitted: January 29, 2019

          Appeal from the Circuit Court of Wyoming County The Honorable Warren R. McGraw, Judge Criminal Action No. 16-F-107

          Robert P. Dunlap, Esq. Sarah F. Smith, Esq. Beckley, West Virginia Counsel for the Petitioner

          Patrick Morrisey, Esq. Attorney General Holly M. Flanigan, Esq. Assistant Attorney General Julianne Wisman, Esq. Assistant Attorney General Charleston, West Virginia Counsel for the Respondent

         SYLLABUS BY THE COURT

         1. "The 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).

         2. "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. To the extent that our prior cases are inconsistent, they are expressly overruled." Syl. Pt. 3, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

         3. "When a criminal defendant undertakes a sufficiency challenge, all the evidence, direct and circumstantial, must be viewed from the prosecutor's coign of vantage, and the viewer must accept all reasonable inferences from it that are consistent with the verdict. This rule requires the trial court judge to resolve all evidentiary conflicts and credibility questions in the prosecution's favor; moreover, as among competing inferences of which two or more are plausible, the judge must choose the inference that best fits the prosecution's theory of guilt." Syl. Pt. 2, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996).

         4. "'"The Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands." Syllabus point 1, in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).' Syllabus Point 1, State v. Booth, 224 W.Va. 307, 685 S.E.2d 701 (2009)." Syl. Pt. 1, State v. Kilmer, 240 W.Va. 185, 808 S.E.2d 867 (2017).

         5. "While our constitutional proportionality standards theoretically can apply to any criminal sentence, they are basically applicable to those sentences where there is either no fixed maximum set by statute or where there is a life recidivist sentence." Syl. Pt. 4, Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981).

         6. "The appropriateness of a life recidivist sentence under our constitutional proportionality provision found in Article III, Section 5, will be analyzed as follows: We give initial emphasis to the nature of the final offense which triggers the recidivist life sentence, although consideration is also given to the other underlying convictions. The primary analysis of these offenses is to determine if they involve actual or threatened violence to the person since crimes of this nature have traditionally carried the more serious penalties and therefore justify application of the recidivist statute." Syl. Pt. 7, State v. Beck, 167 W.Va. 830, 831, 286 S.E.2d 234 (1981).

          OPINION

          WORKMAN, JUSTICE

         The petitioner, Joe Roger Lane, appeals the November 6, 2017, order sentencing him to life in prison with mercy in accordance with the recidivist statute, West Virginia Code §§ 61-11-18 (2014) (referred to as "recidivist life sentence"), based upon a felony conviction for two counts of delivery of a controlled substance and two prior felony convictions for unlawful wounding and conspiracy to commit the felony of transferring stolen property. The petitioner argues that there was insufficient evidence to convict him of the two delivery of a controlled substance counts and that the circuit court's imposition of a life sentence violates the proportionality clause of the West Virginia Constitution.[1] Based upon our review of the parties' briefs and arguments, the appendix record and all other matters before the Court, we affirm the petitioner's conviction for two counts of delivery of a controlled substance. We reverse, however, the circuit court's imposition of a recidivist life sentence as it violates the proportionality clause of the West Virginia Constitution and remand the case to the circuit court for resentencing.

         I. Facts

         On October 10, 2015, the petitioner sold Oxycodone to a confidential informant[2] on two separate occasions. The petitioner was indicted on May 25, 2016, on three counts of delivery of a controlled substance.[3]

         The petitioner's trial commenced on November 29, 2016. The respondent, State of West Virginia ("the State"), first called Capt. Don Cook with the Wyoming County Sheriff's Department and assigned to the Southern Regional Drug and Violent Crime Task Force. Capt. Cook testified that he suspected the petitioner was involved in the illegal sale of prescription medication. According to the officer, the petitioner was living at a residence where controlled substances were being sold by numerous individuals. Capt. Cook further testified that on October 10, 2015, he used Ina New, a confidential informant working for the Southern Regional Drug and Violent Crime Task Force, to conduct two controlled buys from the petitioner. For the first buy, Ms. New was given $50, which she used to purchase two Oxycodone 50 milligram pills for $45. Ms. New was wearing a hidden camera that recorded the encounter during the drug purchases. The second buy, which followed the first and occurred on the same day, also resulted in her purchase of two more Oxycodone pills from the petitioner for $45. The second encounter was also videotaped. Capt. Cook stated that he had searched Ms. New and her vehicle prior to and after each purchase to ensure that there were no illegal substances, money or other contraband on her person or in her vehicle. The serial numbers on the money given to Ms. New were recorded. The pills that Ms. New purchased were sent to the State Police laboratory for testing and were confirmed to be Oxycodone. Capt. Cook testified that he reviewed the video, but he did not see the actual exchange of the pills purchased as they were tiny.

         Like Capt. Cook, Ms. New also testified concerning the drugs she purchased from the petitioner while acting as a confidential informant. She stated she had purchased illegal substances from the petitioner in the past. On October 10, 2015, when she arrived at the residence where the petitioner was located, a woman, who Ms. New identified as Ashley Lambert, and her little girl, answered the door. Ms. Lambert was insistent that Ms. New speak to her or the homeowner, identified as Jimmy Mullens, [4] instead of the petitioner. Ms. New insisted that she speak with the petitioner. Ms. New testified that Ms. Lambert appeared "so high and that baby was standing there. So . . . [the petitioner] come [sic] outside . . . he was outside the door." Once the petitioner stepped out onto the porch, Ms. New told him she wanted two (meaning two Oxycodone).[5] Ms. New testified that the pills were not captured on the video recorded by the hidden camera she was wearing. The jury also watched the video. The petitioner attacked Ms. New's credibility by bringing to the jury's attention that she had a prior misdemeanor conviction for domestic violence in Virginia, as well as pending charges for forgery and uttering in West Virginia, stemming from her prior drug problem. Ms. New testified that she was not using drugs at the time she made the purchases and had been clean since she lost her youngest son.[6]

         The jury also heard from Tara Hayslip, a forensic analyst with the West Virginia State Police Laboratory, who was qualified as an expert. Ms. Hayslip stated that she tested the pills purchased and confirmed they were Oxycodone, a Schedule II Controlled Narcotic Substance.

         At the conclusion of the State's case, the petitioner did not take the stand to testify and offered no evidence in his defense. The case was then sent to the jury which found the petitioner guilty of two counts of delivery of a controlled substance.

         On January 27, 2017, the State filed a recidivist information alleging that the petitioner was previously convicted of unlawful wounding on March 20, 1997, and conspiracy to commit a felony of transferring stolen property on June 13, 2009. See W.Va. Code § 61-11-19 (2014). The petitioner's recidivist trial commenced on February 1, 2017, and resulted in a hung jury. On November 1, 2017, the petitioner's second recidivist trial commenced and resulted in the jury finding that the petitioner was the same person who had been convicted of the prior two felonies identified in the information. Thereafter, on November 6, 2017, the circuit court sentenced the petitioner to life in prison with mercy pursuant to West Virginia Code § 61-11-18. The instant appeal followed.

         II. Standard of Review

         The petitioner raises two separate issues on appeal each of which requires this Court to apply different standards of review. The Court, therefore, sets forth those standards within the discussion section of each issue as we proceed to determine whether the petitioner is entitled to relief.

         III. Discussion

         A. Sufficiency of Evidence

         The first issue concerns whether there was sufficient evidence to convict the petitioner of two counts of delivery of a controlled substance. We review sufficiency of the evidence challenges under the following standards of review:

The 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.
. . . .
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. To the extent that our prior cases are inconsistent, they are expressly overruled.

Syl. Pts. 1 and 3, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). We further held in syllabus point two of State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996):

When a criminal defendant undertakes a sufficiency challenge, all the evidence, direct and circumstantial, must be viewed from the prosecutor's coign of vantage, and the viewer must accept all reasonable inferences from it that are consistent with the verdict. This rule requires the trial court judge to resolve all evidentiary conflicts and credibility questions in the prosecution's favor; moreover, as among competing inferences of which two or more are plausible, the judge must choose the inference that best fits the prosecution's theory of guilt.

         Keeping these standards in mind, we examine whether the evidence was sufficient to support the petitioner's conviction.

         The petitioner argues that the State relied heavily upon the testimony of a confidential informant, along with video recordings of the alleged buys, "to elicit the elements of the alleged crime." The petitioner asserts that there were a "multitude of credibility issues" concerning the confidential informant, which included the confidential informant's admission to pending criminal charges as well as a prior misdemeanor domestic violence charge. The petitioner contends that the confidential informant, who was the only eyewitness of the alleged drug buy, had the most to gain from the petitioner's arrest as she was "not only promised leniency but actually paid cash for her work." Thus, the petitioner maintains the circuit court erred in denying his motion for a new trial as this evidence was insufficient to convict. Conversely, the State argues that our standard of review applicable to sufficiency of the evidence claims requires this Court to review the evidence and the credibility assessments the jury might have made in favor of the prosecution. Guthrie, 194 W.Va. at 663, 461 S.E.2d at 169, Syl. Pt. 3. As the State maintains, "[c]redibility determinations are for a jury and not an appellate court." Id. The State contends that under our law, the petitioner's argument, which focuses solely upon the credibility of the confidential informant, involves a determination that rests with the jury and not this Court.

         West Virginia Code § 60A-4-401 (2014) provides, in relevant part, that "it is unlawful for any person to . . . deliver, or possess with intent to . . . deliver, a controlled substance." The evidence introduced at the petitioner's trial established that on two separate occasions on the same day, the petitioner possessed Oxycodone, a controlled substance, and delivered four Oxycodone pills to a confidential informant, Ms. New, as part of two separate controlled buys. See id. The jury was presented with the law enforcement officer's testimony, the confidential informant's testimony and videotape evidence, all of which established that the delivery of a controlled substance occurred. Challenges to the confidential informant's credibility were made during cross-examination of that witness and during the petitioner's closing argument. Given the jury's decision to convict the petitioner following its deliberations, the jury clearly found the confidential informant to be a credible witness. We find the evidence established the requisite elements necessary for a jury to find, beyond a reasonable doubt, that the petitioner on two ...


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