1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia, Plaintiff Below, Respondent

vs) No. 15-0023 (McDowell County 13-F-249)

Erik Monroe Brown, Defendant Below, Petitioner



### MEMORANDUM DECISION

Petitioner Erik Monroe Brown, by counsel R. Keith Flinchum, appeals the Circuit Court of McDowell County’s December 17, 2014, order se ntencing him to a cumulative term of

incarceration of two to twenty years for one count of delivery of a controlled substance; one count of felony conspiracy to run consecutively to the count for delivery of a controlled substance; and four counts of misdemeanor un lawful possession to run concurrently to the remaining sentences. 1 The State, by counsel Laura Young, filed a response in support of the circuit court’s order. On appeal, petitioner argu es that the circuit court erred in denying his motion for post-trial judgment of acquittal based on insufficient evidence to establish his guilt beyond a reasonable doubt.

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 October of 2013, the McDowell County gra nd jury indicted petitioner and a codefendant, Charles John Williams, jointly on six felony counts related to possession and delivery of controlled substances, including crack co caine, hydrocodone, morphi ne, and Alprazolam.

In July of 2014, petitioner’s jury trial co mmenced. The jury heard evidence that law

enforcement officers received a re port about a stolen all-terrain vehicle that led them to a house near Welch, West Virginia. Officers testified th at, upon their arrival at that house, petitioner approached them to discuss the vehicle. Accord ing to the officers’ testimony, petitioner claimed that the owner of the vehicle had run out of gasoli ne and left the vehicle at that location. Officers told the jury that th ey retrieved the vehicle and found th e key to it on pe titioner’s person.

1 Petitioner was separately convicted and senten ced to a term of incarceration of one to five years in a separate criminal proceed ing not at issue in the instant appeal. 

### FILED

October 20, 2015

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 Officers further explained that only after recoveri ng the vehicle did they discover that it had not been stolen, as previously reported, but that the owners had traded it for crack cocaine at that house. According to an informan t’s testimony, petitioner was pres ent for the exchange of the

vehicle for crack cocaine.

Officers testified that, upon learning of the drug transaction, they immediately obtained and executed a search warrant on the house. During that search, they found a bag of pills, crack cocaine, white tablets, a gun, and a pair of jeans reportedly belonging to pe titioner that contained another bag of pills, more crack cocaine, pr escription cough medicine, and hydrocodone. One officer testified that he witnessed bags of narc otics “come out” of the rear of the house, and the officer located those bags under a rear window. Testimony further revealed that officers found petitioner inside th e house near the “back bedr oom” or bathroom area a nd that he was the only person in a position to have thrown the bags of narcotics out of the rear window. Ultimately, the jury found petitioner guilty of one count of deliver y of a controlled substa nce, in violation of West Virginia Code § 60A-4-401( a); one count of conspiracy to deliver and possess controlled substances, in violation of West Virginia C ode § 61-10-31; and four counts of misdemeanor unlawful possession, in violation of West Virginia Code § 60A -4-401(c), which were lesser

included offenses of four of the indicted felony charges.

Soon thereafter, petitioner filed a post-trial motion for judgment of acquittal alleging that the evidence was insufficient to support the ju ry’s guilty verdict. In September of 2014, following a post-trial hearing, the circu it court denied petitioner’s motion.

In November of 2014, the circuit court held a sentencing hearing. The circuit court sentenced petitioner to one to fifteen years in prison for one count of delivery of a controlled substance; one to five years in prison for one co unt of conspiracy to run consecutively to the one to fifteen year sentence; and six months fo r each of the four misdemeanor counts to run concurrently with the remaining sentences. This appeal followed.

On appeal, petitioner argues that the circu it court erred in denying his motion for posttrial judgment of acquittal. Specifically, he cl aims that the evidence presented at trial was insufficient to support beyond a reasonable doubt his conviction of delivery of a controlled substance and conspiracy. We have held that “[t]he Cour t applies a de novo stan dard 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 th e trial court, must scrutinize the evidence in the light most compatible with the verdict, resolve a ll credibility disputes in the verdict’s favor, and then reach a judgment about whether a rational ju ry could find guilt beyond a reasonable doubt.”

State v. LaRock , 196 W.Va. 294, 304, 470 S.E.2d 613, 623 (1996). With regard to claims of sufficiency of the evidence in a crimin al proceeding, 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 jury3 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 contro lled substance, the State had to prove that petitioner intentionally delivered a Schedule I or II controlled substa nce to another. W. Va. Code § 60A-4-401(a)(1). To convict petitioner of cons piracy under West Virginia Code § 61-10-31, the State had to prove that peti tioner “agreed with others to co mmit an offense against the State and that some overt act was taken by a member of the conspiracy to eff ect 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 wo rds and actions of the conspirators, or other circumstantial evidence, and the State is not requ ired to show the formalities of an agreement.”

Id . at 265, 67. We have furt her explained that

5. A person who is the abso lute perpetrator of a crime is a principal in the first degree, and a person who is present, aiding and abetting the fact to be done, is a principal in the second degree.

. . . .

8. Where a defendant is convicted of a particular substantive offense, the test of the sufficiency of the eviden ce to support the co nviction necessarily

involves consideration of th e traditional distinctions between parties to offenses. Thus, a person may be convicted of a crim e so long as the evidence demonstrates that he acted as an accessory before the f act, as a principal in the second degree, or as a principal in the first degree in the commission of such offense.

. . . .

10. Proof that the defendant was pres ent at the time and place the crime was committed is a factor to be considered by the jury in determining guilt, along with other circumstances, such as the de fendant’s association with or relation to the perpetrator and his conduct before a nd after the commission of the crime.

Syl. Pts. 5, 8, and 10, State v. Fortner , 182 W.Va. 345, 387 S.E.2d 812 (1989).

In this case, contrary to pe titioner’s argument, we find sufficient evidence to sustain the jury’s verdict. Petitioner correctly notes that the informant testified that petitioner was “just there” and that the actual exchange of crack cocaine for the vehicle occurred between a woman4 and petitioner’s co-defendant. Howe ver, that same witness testifie d that “they [petitioner and his co-defendant] weighed [the crack cocaine] out a nd handed it to her.” Moreover, the jury heard testimony that petitioner was present for the excha nge of the vehicle for crack cocaine, which is a contention he does not dispute; possessed contro lled substances when later searched; was close friends with his co-defendant; a nd when officers retrieved that ve hicle from that house, petitioner was in possession of the key to it. Given the te stimony presented to the jury in this matter, including petitioner’s presence dur ing the drug transaction, asso ciation with his co-defendant, and conduct during the relevant events, we find th at the evidence, while mostly circumstantial, was sufficient to support the jury’s verdict beyo nd a reasonable doubt on the counts of delivery of a controlled substance and conspiracy. Theref ore, we find no merit to petitioner’s argument

and no reversible error in the ci rcuit court’s order denying his pos t-trial motion for judgment of acquittal.

For the foregoing reasons, the circuit c ourt’s December 17, 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