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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 John M. “Jack” Thompson Jr., appeals the 

Circuit Court of Fayette County’s December 5, 2014, 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 controlled substance. The State, by counsel Shannon 

Frederick Kiser, filed a response in support of the circuit court’s order. On appeal, petitioner 

argues that (1) the State presented insufficient evidence to support his convictions and (2) the 

circuit court erred in denying his motions for judgment of acquittal after the State’s case-in-chief 

and at the conclusion of trial. 

 This 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 order of the circuit court 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 substances, in violation of West 

Virginia Code § 60A-4-401(a), and one count of conspiracy to deliver controlled substances, in 

violation of West Virginia Code § 61-10-31. Ms. Wills pled guilty to one count of delivery of a 

controlled substance prior to petitioner’s trial, and the remaining counts against her were 

dismissed. 

Petitioner proceeded to trial in September of 2014. At trial, the State presented evidence 

that on January 31, 2014, law enforcement officers provided 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 separate transaction she arrived at Ms. Wills’ house 

with “buy money,” and Ms. Wills arranged to purchase 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 VIRGINIA
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arrived in a vehicle with the controlled substances. Ms. Wills then took the money to petitioner’s 

vehicle and returned with cocaine. Ms. Wills testified that she paid petitioner $100 for cocaine 

on January 31, 2014, but she claimed to have no memory of a second transaction on that date. 

The State also presented the testimony of a forensic analyst with the West Virginia State Police, 

who explained that the substance at issue contained cocaine base. Petitioner presented no 

witnesses. After the State rested and again at the conclusion of the trial, petitioner moved for 

judgment of acquittal alleging that the evidence was insufficient to support the charges of 

delivery of a controlled substance and conspiracy. The circuit court denied both motions. 

 Following its deliberations, the jury found petitioner guilty of all three felony counts. At 

sentencing, the circuit court sentenced 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 controlled substance. This appeal followed. 

On appeal, petitioner first argues 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 proceeding, we have explained that 

“[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). 

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 petitioner intentionally delivered a 

Schedule I or II controlled substance to another. 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 agreement to commit the crime “may be 

inferred from the words and actions of the conspirators, 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 the record on appeal and the parties’ arguments, we find 

no merit to petitioner’s argument. Petitioner is correct that Ms. Wills 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 heard 
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testimony from the CI that Ms. Wills twice acted in agreement with petitioner to exchange 

money for cocaine and that Ms. Wills then provided that cocaine to the CI. The CI specifically 

witnessed petitioner arrive for both 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 money” 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 individual that Ms. Wills contacted for that 

cocaine. Therefore, we reject petitioner’s first assignment of error. 

Petitioner’s second assignment of error is that the circuit court erroneously 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 standard of review to the denial of a motion for 

judgment of acquittal based 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 the 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 find guilt beyond a reasonable doubt.” State v. LaRock, 196 W.Va. 

294, 304, 470 S.E.2d 613, 623 (1996). As explained above, 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 commit error when it denied petitioner’s motions for 

judgment of acquittal based on insufficient evidence. 

For the foregoing reasons, the circuit court’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