1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia, Plaintiff Below, Respondent

vs) No. 15-0007 (Fayette County 14-F-87)

Kenneth D. Black, Defendant Below, Petitioner



### MEMORANDUM DECISION

Petitioner Kenneth D. Black, by counsel J ohn M. “Jack” Thompson Jr., appeals the Circuit Court of Fayette County’s December 5, 2 014, order sentencing him to a cumulative term of incarceration of two to twenty years for two counts of delivery of a controlled substance to be served concurrently to one another and one count of felony conspiracy to run consecutively to one of the two counts of delivery of a contro lled substance. The State, by counsel Shannon Frederick Kiser, filed a response in support of th e circuit court’s order. On appeal, petitioner argues that (1) the State presen ted insufficient evidence to support his convictions and (2) the circuit court erred in denying his motions for judg ment of acquittal after the State’s case-in-chief

and at the conclu sion of trial.

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 affirming the orde r of the circuit cour t is appropriate under Rule 21 of the Rules of Appellate Procedure.

In May of 2014, the Fayette County grand jury indicted petitioner and a co-defendant, Vicky Wills, jointly on two counts of delivery of controlled subs tances, in violation of West Virginia Code § 60A-4-401(a), and one count of c onspiracy to deliver cont rolled substances, in violation of West Virginia Code § 61-10-31. Ms. W ills pled guilty to one count of delivery of a controlled substance prior to pe titioner’s trial, a nd the remaining counts against her were

dismissed.

Petitioner proceeded to trial in September of 2014. At trial, the Stat e presented evidence that on January 31, 2014, law enforcement officers pr ovided a confidential informant (“CI”) with “buy money” to purchase controlled substances through Vicky Wills. According to the CI’s testimony, she set up two separate drug transactions with Ms. Wills on that day, each about three hours apart. The CI explained that for each sepa rate transaction she arrived at Ms. Wills’ house with “buy money,” and Ms. Wills arranged to purcha se cocaine for the CI from a third party. On both occasions that day, the CI testified that Ms. Wills contacted the third party, and petitioner 

### FILED

October 20, 2015

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 arrived in a vehicle with the controlled substanc es. Ms. Wills then took the money to petitioner’s

vehicle and returned with cocain e. Ms. Wills testified that sh e paid petitioner $100 for cocaine on January 31, 2014, but she claimed to have no memory of a sec ond transaction on that date. The State also presented the testimony of a forens ic analyst with the West Virginia State Police, who explained that the substance at issue c ontained cocaine base. Pe titioner presented no

witnesses. After the State rested and again at the conclusion of the trial, petitioner moved for judgment of acquittal alleging that the eviden ce was insufficient to support the charges of delivery of a controlled substa nce and conspiracy. The circu it court denied both motions.

Following its deliberations, th e jury found petitioner guilty of all three felony counts. At sentencing, the circuit court sentenced him to a cu mulative term of incarcerat ion of two to twenty years for two counts of delivery of a controlled substance to be served concurrently to one another and one count of felony conspiracy to run consecutivel y to one of the two counts of delivery of a controlled substa nce. This appeal followed.

On appeal, petitioner first argu es that the evidence presented by the State at his trial was insufficient to prove his guilt beyond a reasonable doubt . With regard to claims of sufficiency of the evidence in a criminal proc eeding, we have explained that

“[a] criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellat e court must review all the evidence, whether direct or circumstan tial, 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. To th e extent that our prior cases are inconsistent, they are expressl y overruled.” Syllabus Point 3, State v. Guthrie , 194 W.Va. 657, 461 S.E.2d 163 (1995).

Syl. Pt. 1, State v. Malfregeot , 224 W.Va. 264, 685 S.E.2d 237 (2009). To convict petitioner of delivery of a controlled substance, the State had to prove that pe titioner intentionally delivered a

Schedule I or II controlled substance to anothe r. W. Va. Code § 60A-4-401(a)(1). To convict petitioner of conspiracy under West Virginia Code § 61-10-31, the State had to prove that petitioner “agreed with others to commit an offense against the State and that some overt act was taken by a member of the conspiracy to effect the object of that conspiracy.” State v. Less , 170 W.Va. 259, 264–65, 294 S.E.2d 62, 67 (1981). The ag reement to commit the crime “may be inferred from the words and actions of the conspi rators, or other circumstantial evidence, and the State is not required to show the formalities of an agreement.” Id . at 265, 67.

Following a thorough review of th e record on appeal and the pa rties’ arguments, we find no merit to petitioner’s argument. Petitioner is correct that Ms. W ills claimed to have no memory of a second transaction on January 31, 2014, and she claimed to have contacted another individual for the cocaine, only to have petitioner deliver the same. However, the jury heard3 testimony from the CI that Ms. Wills twice acted in agreement with petitioner to exchange money for cocaine and that Ms. Wills then provid ed that cocaine to the CI. The CI specifically witnessed petitioner arrive for bot h transactions, and while the CI did not witness the exchange during the second transaction between petitioner and Ms. Wills, the CI testified that petitioner arrived at the house, Ms. Wills took the “buy mone y” to petitioner’s vehicle, Ms. Wills then returned with cocaine, and petitioner left the house . Given the circumstances of this case, the jury heard sufficient evidence to find that petitioner twice delivered a controlled substance and feloniously conspired with Ms. Wills and the in dividual that Ms. Wills contacted for that cocaine. Therefore, we reject petitio ner’s first assignment of error.

Petitioner’s second assignment of error is th at the circuit court e rroneously denied his motions for judgment of acquittal at the close of the State’s case-in-chief and at the conclusion of the trial. Specifically, he relies on the conclusion that the circuit court erred in finding that the evidence presented at trial was sufficient to support the charges beyond a reasonable doubt. We have held that “[t]he Court applies a de novo sta ndard of review to the denial of a motion for judgment of acquittal ba sed upon the sufficiency of the evidence.” State v. Juntilla , 227 W.Va. 492, 497, 711 S.E.2d 562, 567 (2011) (citing State v. LaRock , 196 W.Va. 294, 304, 470 S.E.2d 613, 623 (1996)). Because we apply a de novo standard of review to th e denial of such motions, “this Court, like the trial court, must scrutinize the evidence in the light most compatible with the verdict, resolve all credibility disputes in the verdict’s favor, and then reach a judgment about whether a rational jury could fi nd guilt beyond a reasonable doubt.” State v. LaRock , 196 W.Va. 294, 304, 470 S.E.2d 613, 623 (1996). As explained a bove, the evidence presented by the State in this matter was sufficient to prove petitioner’s guilt beyond a reasonable doubt as to all three counts. Therefore, the circuit court did not comm it error when it denied petitioner’s motions for judgment of acquittal based on insufficient evidence.

For the foregoing reasons, the circuit cour t’s December 5, 2014, order, is hereby

affirmed.

Affirmed.

ISSUED: October 20, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman

Justice Robin Jean Davis Justice Brent D. Benjamin

Justice Menis E. Ketchum Justice Allen H. Loughry II