### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

FILED State of West Virginia, Plaintiff Below, Respondent 

### June 11, 2018

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS vs.) No. 17-0391 (Wyoming County 16-F-120)

OF WEST VIRGINIA

Jimmy Dean Mullins, Defendant Below, Petitioner



### MEMORANDUM DECISION

Petitioner Jimmy Dean Mullins, by counsel Timothy P. Lupardus, appeals the Circuit Court of Wyoming County’s Ma rch 28, 2017, order sentencing him to a cumulative term of incarceration of 8 to 120 years following his conviction for 8 count s 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 ve rdict 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 deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21

of the Rules of A ppellate Procedure.

In May of 2016, petitioner was indicted on nine counts of Delivery of a Schedule II Controlled Substance – Oxycodone. 1 These charges stemmed fr om several controlled buys carried out by Wyoming County Sheriff’s Department Captai n Don Cook, a member of the Southern West Virginia Regional Drug and Viol ent Crime Task Force. Working in conjunction with a confidential informant (“CI”), Ina New, law enforcement’s investigation resulted in petitioner selling controlled subs tances to the CI nine times during a period of time between April of 2015 and December of 2015.

Petitioner’s jury trial took pl ace over five days in Sept ember of 2016. During voir dire, petitioner moved to strike one juror and two replacement jurors fo r cause, citing alleged bias due to either their relationships to law enforcemen t and the prosecution or prior experiences with issues regarding substance abuse. The circuit cour t declined to strike the jurors for cause, after which petitioner used peremptory st rikes on the jurors at issue.

1 One count from the indictment was eventually dismissed.

1At trial, CI New testified to the multiple purchases of controlled substances at issue herein, all of which were recorded. The recordi ngs were also entered into evidence. The State further produced evidence from multiple witnes ses establishing a chain of custody as to the controlled substances peti tioner sold and the results from the West Virginia State Police lab that established the substances to be oxycodone. Fu rther, the State introduc ed 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, th e jury convicted him of all eight counts.

In March of 2017, the circuit court sentenced pe titioner to eight term s of incarceration of one to fifteen years and ordered that the sent ences be served consecutively. It is from the sentencing order that petitioner appeals.

“The Court applies a de novo standard of revi ew to the denial of a motion for judgment of acquittal based upon the suffi ciency 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 wh en 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 suffi cient to convince a reasonable person of the defendant’s gui lt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewi ng 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 su fficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstanti al, in the light most favorable to the prosecution and must credit all inferences an d credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save th at 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 verdic t 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 mi nd, we turn first to petitioner’s assignment of error challenging the circuit court’s de nial of his motion for judgment of acquittal.

Petitioner argues that the evidence was insuffi cient 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 an d that his testimony established that CI New was selling or attempting to sell him Xanax during the buys in que stion. Petitioner further argues that CI New

2lacked credibility, especially in light of the f act 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 petiti oner 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 burde n petitioner faces in moun ting 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 Virginia Code § 60A-4-401(a)(i ) goes on to instruct that

[a]ny person who violates th is subsection with respect to . . . [a] controlled

substance classified in Sche dule I or II, which is a na rcotic drug, is guilty of a felony and, upon conviction, may be imprisone d in the state correctional facility for not less than one year nor more than fifteen years, or fined not more than twenty-five thousand dollars, or both[.]

Petitioner does not challenge the fact that oxyc odone is a Schedule II Controlled Substance. See W.Va. Code § 60A-2-206(b)(1)(P). Instead, petitione r argues that the evidence shows that he did

not deliver the controlled substa nce in question. However, petiti oner’s argument on this issue is predicated heavily upon credibility issues concerning his ow n testimony and that of CI New. According to petitioner, CI New lacked credib ility and his own testimony established that she was selling or attempting to sell him controlled substances during the c ontrolled buys. We find that these arguments are inappropriate for appellate review, as they turn entirely on credibility determinations. As noted above, “[c]redibility determina tions are for a jury and not an appellate

court.” Guthrie , 194 W.Va. at 663, 461 S.E.2d at 169, Syl. Pt. 3, in part . Indeed, “[a] reviewing court cannot assess witness credibility through a reco rd. The trier of fact is uniquely situated to

make such determinations and this Court is not in a position to, and will not, second guess such

determinations.” Michael D.C. v. Wanda L.C. , 201 W.Va. 381, 388, 497 S.E.2d 531, 538 (1997).

At trial, the State presen ted testimony from CI New a nd Captain Cook concerning the controlled buys, in addition to the recordings of those transactions and evidence concerning the chain of custody of the oxycodone a nd the testing to confirm that it was a controlled substance. In short, the evidence overwhelmingly established that, on eight separate occasions, petitioner delivered oxycodone to CI New pursuant to Capt ain Cook’s investigation. Accordingly, we find

that the evidence at trial was suffici ent to support petitioner’s convictions.

As a related matter, petitioner argues that the circuit court erred in admitting into evidence his recorded telephone ca lls made while he was at Southe rn Regional Jail awaiting trial. According to petitioner, before the Regional Jail and Correctional Facility Authority was permitted to disclose his recorded calls, a determ ination as to their necessity for purposes of prosecution was required. According to West Virginia Code § 31-20- 5E(a)(4)(B), “[t]he contents of inmates’ telephone calls, emails and othe r forms of electronic communications may be disclosed to the appropriate law-enforcement agency only if the disclosure is . . . [n]ecessary for the investigation of a crime[.] ” Accordingly, petitioner argues th at the determination as to whether the calls were necessary for the investigation of a crime must be made prior to

3disclosure, which was not done in the instant matter. Instead, te stimony established that all of petitioner’s calls were copied onto a disk and provided to the prosecutio n without prior review. We find, however, that it is unnecessary to addr ess this assignment of error. Even assuming, arguendo, that the circuit court erre d in admitting the evid ence in question, such error was clearly harmless as the other evidence admitted, as outlined above, overwhelmingly established petitioner’s guilt.

This Court has held that

[a]ssessments of harmless error are n ecessarily content- specific. Although erroneous evidentiary rulings alone do not lead to automatic reversal, a reviewing court is obligated to reverse where the improper exclusion of evidence places the underlying fairness of the entire trial in doubt or where the exclusion affected the substantial rights of a criminal defendant.” Syllabus Point 4, State v. Blake , 197 W.Va. 700, 478 S.E.2d 550 (1996).

Syl. Pt. 2, State v. Varlas , 237 W.Va. 399, 787 S.E.2d 670 ( 2016). Again assuming that the

introduction of the recorded calls in question constitute an err oneous evidentiary ruling, we find that the introduction of such evidence did not pl ace the underlying fairness of the entire trial in doubt or otherwise affect petitione r’s substantial rights. According to petitioner, the evidence in question was clearly prejudicial, give n that it included his statements to the effect that he needed to find a legitimate job instead of selling pills and th at he did not believe it was “right of the State to try and put a man in prison for a long tim e for selling a pill.” Although these statements amount to petitioner admitting to the conduct at issu e, it is clear that they were unnecessary for the jury to convict him on all counts, given the overwhelming evidence from the State that established petitioner sold CI Ne w oxycodone on eight separate oc casions. On appeal, petitioner argues that this evidence was key to his convicti on, given that the jury as ked to listen to the recordings again during deliberation. Petitioner fails to acknowledge, however, that this request was denied and the jury was instructed to cons ider the evidence from its own recollection, as with all testimonial evidence. Accordingly, we dec line to grant petitioner relief in this regard.

Next, petitioner argues that the circuit court failed to strike certain jurors for cause. Without addressing the specific allegations petitione r raises against each i ndividual juror that he

asserts establish that ther e “at least appear[ed] as though there could be some partiality issues[,]” we note that petitioner ultimately used his peremp tory strikes on these specific jurors. We have previously held as follows:

A trial court’s failure to remove a biased juror from a jury panel, as required by W. Va.Code § 62-3-3 ( 1949) (Repl.Vol.2010), does not violate a criminal defendant’s right to a trial by an impartial jury if the defendant removes the juror with a peremptory strike. In order to obtain a new trial for having used a peremptory strike to remove a biased juro r from a jury panel, a criminal defendant must show prejudice. The hol ding in Syllabus point 8 of State v. Phillips , 194 W.Va. 569, 461 S.E.2d 75 (1995), is expressly overruled.

Syl. Pt. 3, State v. Sutherland , 231 W.Va. 410, 745 S.E.2d 448 (201 3). On appeal, petitioner

4wholly fails to allege prejudice in his use of peremptory strikes on the jurors at issue. Instead, petitioner focuses solely on his al legations that the jurors “at le ast appear[e]d” to be impartial and, thus, should have been stricken for cause. Without ruling on the speci fic issue of whether the circuit court should have stricken these ju rors for cause, we find that, even assuming the jurors were biased, petitioner’s right to an impartial jury was not violated because he removed the jurors in question with perempto ry strikes. Accordingly, it is cl ear that petitioner is entitled to no relief in this regard.

Finally, petitioner argues that the circuit c ourt’s imposition of eight consecutive sentences totaling an effective term of incarceration of 8 to 120 years is disproportionate to the crimes for which he was sentenced. “‘The Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands.’ Syl. Pt. 1, in part, State v. Lucas , 201 W.Va. 271, 496 S.E.2d 221 (1997).” Syl. Pt. 1, State v. James , 227 W.Va. 407, 710 S.E.2d 98 (2011). Firs t, it is important to note that petitioner’s eight sentences of one to fifteen years of incarceration are all within the limits set forth in the applicable statute. See W.Va. Code § 60A-4-401(a)(i). Petitioner acknowledges this fact, as well as our prior holding that “‘[s]entences imposed by the trial court, if within statutory limits and if not based on some [im]permissible factor, are not subject to appellate review.’ Syllabus Point 4, State v. Goodnight , 169 W.Va. 366, 287 S.E.2d 504 (1982).” Syl. Pt. 3, State v. Georgius , 225 W.Va. 716, 696 S.E.2d 18 (2010). In regard to this holding, petitioner argues that the sentencing order herein is defi cient because the circui t court failed to set forth the factors it considered in sentencing, thus rendering him incap able of determining if the sentences at issue were based on an impermissibl e factor. We do not agree.

Petitioner cites to no authorit y requiring a sentencing court to specifically enumerate in its sentencing order every factor it considered in imposing its sentence. Moreover, petitioner failed to include a transcript of the sentencing hearing in the appe ndix on appeal. We have held that “[t]he general rule is that there is a pr esumption of regularity of court proceedings; it remains until the contrary app ears and the burden is on the pers on who alleges such irregularity to affirmatively show it.” Syl. Pt. 3, State ex rel. Godfrey v. Rowe , 221 W.Va. 218, 654 S.E.2d 104 (2007) (citation omitted). For th ese reasons, we find that peti tioner has failed to establish that the sentences at issue were based on any imp ermissible factor and we decline to grant him relief in regard to his request that th e matter be remanded for additional findings.

Next, the Court finds no merit to peti tioner’s argument that our holding in Goodnight referenced above does not apply because the judg e that imposed his sentence was not the same judge that presided over his tria l. In support of this argument, pe titioner asserts that this Court’s specific language that “s entences imposed by the trial court” are not subject to appellate review under certain circumstances requires the same judge to preside over both trial and sentencing. Simply put, there is no holding in Goodnight or any of our subseque nt cases to support this assertion, and petitioner cites to no such authority, beyond his ow n interpretation of Goodnight

. Indeed subsequent to Goodnight and without includi ng the language regarding trial courts upon which petitioner bases his argument, we have re iterated the fact that sentences such as petitioner’s are not subjec t to appellate review. See Syl. Pt. 3, State v. Booth , 224 W.Va. 307, 685 S.E.2d 701(2009) (“While our constitutional proportio nality standards theore tically can apply to any criminal sentence, they are basically applicable to those sentences where there is either no

5fixed maximum set by statute or where there is a life recidivist sentence.” (citation omitted)); State v. Sugg , 193 W.Va. 388, 406, 456 S.E.2d 469, 487 (1995) (“As a general proposition, we will not disturb a sentence following a criminal convi ction if it falls within the range of what is permitted under the statute.”). Accordingly, we find that petitioner’s argument that, because “he was not sentenced by his trial cour t judge, . . . the rule barring re view of sentencing announced in

the Goodnight decision does not apply” is without merit. As such, it is unnecessary to address petitioner’s argument regarding th e allegedly disproportionate natu re of his sentences, because the same are not subject to appellate review.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: June 11, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman

Justice Robin Jean Davis

Justice Menis E. Ketchum

Justice Elizabeth D. Walker

Justice Loughry, Allen H., II suspende d and therefore not participating.

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