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State v. Norwood

Supreme Court of West Virginia

May 30, 2019

STATE OF WEST VIRGINIA, Plaintiff Below, Respondent
v.
TRAVIS R. NORWOOD, Defendant Below, Petitioner

          Submitted: February 5, 2019

          Appeal from the Circuit Court of Greenbrier County The Honorable Robert E. Richardson, Judge Criminal Case No. 16-F-136

          Robert P. Dunlap, Esq. Sarah F. Smith, Esq. Robert Dunlap & Associates Beckley, WV Counsel for the Petitioner

          Patrick Morrisey, Esq. Attorney General Benjamin F. Yancey, III, Esq. Assistant Attorney General Charleston, WV Counsel for the Respondent

         SYLLABUS

         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." Syllabus Point 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." Syllabus Point 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." Syllabus Point 2, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996).

         4. "[A] circuit court has no jurisdiction to impose an enhanced sentence under the [recidivist] statute where the State fails to prove beyond a reasonable doubt "that each penitentiary offense, including the principal penitentiary offense, was committed subsequent to each preceding conviction and sentence." Syllabus, in part, State v. McMannis, 161 W.Va. 437, 242 S.E.2d 571 (1978).

         5. "The primary purpose of our recidivist statutes, W.Va. Code, 61-11-18 (1943), and W.Va. Code, 61-11-19 (1943), is to deter felony offenders, meaning persons who have been convicted and sentenced previously on a penitentiary offense, from committing subsequent felony offenses. The statute is directed at persons who persist in criminality after having been convicted and sentenced once or twice, as the case may be, on a penitentiary offense." Syllabus Point 3, State v. Jones, 187 W.Va. 600, 420 S.E.2d 736 (1992).

         6. A criminal defendant who has been twice convicted and sentenced for crimes punishable by confinement in a penitentiary, but has not discharged such prior penitentiary sentences, and is subsequently convicted of a third crime punishable by confinement in a penitentiary, is subject to an enhanced sentence under our recidivist statute, West Virginia Code §§ 61-11-18 (2000) and 61-11-19 (1943).

         7. "In determining whether a given sentence violates the proportionality principle found in Article III, Section 5 of the West Virginia Constitution, consideration is given to the nature of the offense, the legislative purpose behind the punishment, a comparison of the punishment with what would be inflicted in other jurisdictions, and a comparison with other offenses within the same jurisdiction." Syllabus Point 5, Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981).

         8. "The appropriateness of a life recidivist sentence under our constitutional proportionality provision found in Article III, Section 5 [of the West Virginia Constitution], 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 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." Syllabus Point 7, State v. Beck, 167 W.Va. 830, 286 S.E.2d 234 (1981).

          ARMSTEAD, JUSTICE

         Petitioner in the instant action and the defendant below, Travis Ray Norwood, (hereinafter, "Defendant Norwood"), was convicted by a jury of his peers on one count of delivery of a controlled substance - heroin - in violation of West Virginia Code § 60A-4-401(a)(2011). Following that conviction, pursuant to the provisions of West Virginia Code §§ 61-11-18 (2000) and 61-11-19 (1943), (hereinafter, collectively, "recidivist statute"), [1] the State filed an "Information Regarding Sentencing," which alleged that Defendant Norwood had previously been convicted and sentenced, on two separate occasions, of felony offenses that were punishable by incarceration in a penitentiary.

         A trial was then conducted pursuant to the procedures contained in West Virginia Code § 61-11-19 (1943), and Defendant Norwood was found by that jury to be the same person who was previously convicted of two prior felony offenses. Based upon that verdict, and the plain language of the recidivist statute, the circuit court sentenced Defendant Norwood to "imprisonment in the penitentiary of this State for the rest of his natural life, "[2] on the predicate delivery of heroin charge.

         In this appeal, Defendant Norwood raises three issues. First, he alleges the evidence was insufficient to sustain a guilty verdict on the delivery of heroin charge. Second, he argues that because he was on probation for his two prior felony convictions and he had not discharged either of those sentences, the circuit court's sentence was illegal. Finally, Defendant Norwood alleges the sentence of life in prison, on the charge of delivery of heroin, violates the proportionality clause contained in Article III, Section 5 of the West Virginia Constitution.

         Having considered the parties' briefs and oral arguments, the submitted appendix record, and the pertinent authorities, we find no error. Accordingly, for the reasons set forth below, Defendant Norwood's conviction and sentence are affirmed.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The facts adduced at trial, and necessary to sustain a conviction for delivery of a controlled substance, show that on June 1, 2016, Defendant Norwood sold heroin to a confidential informant, (hereinafter, "C.I.") cooperating with the Greenbrier Valley Drug and Violent Crime Task Force (hereinafter, "Task Force"). On that date, the C.I. contacted Defendant Norwood and made arrangements to purchase an eight-ball (3½ grams) of cocaine. After that conversation, the C.I. called Task Force member Sergeant Brian Baker of the Greenbrier County Sheriff's Department. During this call, the C.I. informed Sergeant Baker that arrangements could be made to purchase cocaine from Defendant Norwood. Sergeant Baker advised the C.I. to set up the cocaine purchase. Following protocol established by the Task Force, the C.I. met with Sergeant Baker who searched both the C.I. and her car. Neither the C.I. had drugs or money on her person, nor did her car contain drugs or money.

         At that time, Sergeant Baker provided to the C.I. $280 and placed clandestine audio and video recording devices in two locations in the C.I.'s car. After all was ready, the C.I. contacted Defendant Norwood to set up a meeting at the Pizza Hut in White Sulphur Springs to buy cocaine. Upon making these arrangements, the C.I. drove her car to the Pizza Hut, with Sergeant Baker following in his own vehicle. Sergeant Baker, parked at a distance, observed the C.I. pull into a parking spot located near the Pizza Hut.

         Once the C.I. parked her car, Defendant Norwood exited the Pizza Hut and got into the C.I.'s car. For the first time, Defendant Norwood informed the C.I. he did not have any "powder," but he did have some "dog food." Defendant Norwood got out of the C.I.'s car and went back into the Pizza Hut. Once Defendant Norwood exited the C.I.'s car, the C.I. called Sergeant Baker and recounted her conversation with Defendant Norwood. Sergeant Baker testified the term "powder" is slang for cocaine, and the term "dog food" is slang for heroin. Sergeant Baker advised the C.I. to purchase the heroin.

         Defendant Norwood reentered the C.I.'s car and was told by the C.I. that she wanted to buy the previously offered heroin. As Defendant Norwood did not have the heroin with him, the C.I. drove Defendant Norwood to his home in downtown White Sulphur Springs, where the C.I. gave $230 to Defendant Norwood. Defendant Norwood got out of the car and returned a short time later with a large bag of a substance believed by the C.I. to be heroin. Once in the C.I.'s car, Defendant Norwood poured some of that substance into a Pizza Hut receipt in the presence of the C.I. Defendant Norwood then gave the receipt containing the substance to the C.I., returned $9 of the $230 that had been given to him, and exited the car, taking the remainder of the large bag with him.

         Following the purchase, the C.I. was debriefed by Sergeant Baker and, pursuant to protocol, Sergeant Baker again searched the C.I.'s car and person for other drugs and money. Finding none, Sergeant Baker retrieved the clandestine audio and video recording devices from the C.I.'s car, the substance that was purchased by the C.I., and $59 of the $280 that was given to the C.I. for the transaction.

         After debriefing, the C.I. and Sergeant Baker parted ways. Sergeant Baker went to his office, where he field-tested the substance purchased by the C.I., and determined it to be heroin. Sergeant Baker processed the heroin into evidence and secured it in the locked, temporary evidence locker at the station. On June 13, 2016, Corporal Nathan Hersman of the West Virginia State Police removed the heroin from its temporary location, logged it into evidence, and placed it in the main evidence locker at the station. On June 16, 2016, Corporal Hersman removed the heroin out of the evidence locker and delivered it to the West Virginia State Police Forensics Lab in South Charleston, where it was further tested and confirmed to be heroin.

         Defendant Norwood was indicted on October 4, 2016, on one count of delivery of heroin. On May 4, 2017, following a two-day trial, Defendant Norwood was convicted of that crime. During the trial, Defendant Norwood extensively cross-examined all prosecution witnesses - two police officers and the C.I.. During closing argument, Defendant Norwood argued the police failed to establish the chain of custody and the evidence as a whole was insufficient to support his conviction.

         Following Defendant Norwood's conviction, the State filed its recidivist information on May 19, 2017, and, on September 25, 2017, Defendant Norwood was found by a jury to be the same person as had previously been convicted of two prior felonies. During the recidivist trial, Sergeant Baker testified Defendant Norwood was the same person who was twice previously sentenced to a penitentiary. The first prior conviction and sentence was for the felony offense of eluding police in Chesterfield County, Virginia, on October 28, 2008. The second prior conviction and sentence was for the felony offense of selling, giving, distributing, or possessing with the intent to sell, give, or distribute more than one-half ounce, but not more than five pounds of marijuana, in Alleghany County, Virginia, on February 1, 2016. The circuit court instructed the jury that the prior Virginia convictions constituted felonies "for which a penitentiary sentence could be imposed under the laws of the State of West Virginia." Having heard the evidence, the jury returned its verdict that Defendant Norwood was the same person who was previously convicted of two felony offenses.

         After the jury's verdict, the matter proceeded to the sentencing phase. There, the circuit court inquired of Defendant Norwood and his counsel if there was any argument regarding proportionality to be made. Hearing none, the circuit court found both the delivery of heroin conviction, as well as the prior felony conviction of eluding police, to be crimes of potential violence, and pursuant to the plain language of West Virginia Code § 61-11-18 (2000), sentenced Defendant Norwood to a term of life in the penitentiary.

         Following entry of the circuit court's sentencing order, Defendant Norwood filed this appeal.

         II. STANDARD OF REVIEW

         Each assignment of error has a different standard of review. For sufficiency of the evidence, the standard is:

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.

Syllabus Points 1 and 3, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). We have further stated:

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.

Syllabus Point 2, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996).

         Sentencing orders are reviewed "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. James, 227 W.Va. 407, 710 S.E.2d 98 (2011); Syllabus Point 1, State v. Kilmer, 240 W.Va. 185, 808 S.E.2d 867 (2017).

         III. ...


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