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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 sentencing 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 unlawful 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 argues 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 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 October of 2013, the McDowell County grand jury indicted petitioner and a codefendant, Charles John Williams, jointly on six felony counts related to possession and delivery 

of controlled substances, including crack cocaine, hydrocodone, morphine, and Alprazolam. 

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

enforcement officers received a report about a stolen all-terrain vehicle that led them to a house 

near Welch, West Virginia. Officers testified that, upon their arrival at that house, petitioner 

approached them to discuss the vehicle. According to the officers’ testimony, petitioner claimed 

that the owner of the vehicle had run out of gasoline and left the vehicle at that location. Officers 

told the jury that they retrieved the vehicle and found the key to it on petitioner’s person. 

 1

Petitioner was separately convicted and sentenced to a term of incarceration of one to 

five years in a separate criminal proceeding not at issue in the instant appeal. 

FILED 

October 20, 2015 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
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Officers further explained that only after recovering 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 informant’s testimony, petitioner was present 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 petitioner that contained 

another bag of pills, more crack cocaine, prescription cough medicine, and hydrocodone. One 

officer testified that he witnessed bags of narcotics “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 the house near the “back bedroom” or bathroom area and 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 delivery of a controlled substance, 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 Code § 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 jury’s guilty verdict. In September of 2014, 

following a post-trial hearing, the circuit 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 count of conspiracy to run consecutively to the one 

to fifteen year sentence; and six months for each of the four misdemeanor counts to run 

concurrently with the remaining sentences. This appeal followed. 

On appeal, petitioner argues that the circuit court erred in denying his motion for posttrial judgment of acquittal. Specifically, he claims 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 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). 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 
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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. We have further explained that 

5. A person who is the absolute 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 evidence to support the conviction necessarily 

involves consideration of the traditional distinctions between parties to offenses. 

Thus, a person may be convicted of a crime so long as the evidence demonstrates 

that he acted as an accessory before the fact, 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 present 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 defendant’s association with or relation to 

the perpetrator and his conduct before and 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 petitioner’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 woman 
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and petitioner’s co-defendant. However, that same witness testified that “they [petitioner and his 

co-defendant] weighed [the crack cocaine] out and handed it to her.” Moreover, the jury heard 

testimony that petitioner was present for the exchange of the vehicle for crack cocaine, which is 

a contention he does not dispute; possessed controlled substances when later searched; was close 

friends with his co-defendant; and when officers retrieved that vehicle from that house, petitioner 

was in possession of the key to it. Given the testimony presented to the jury in this matter, 

including petitioner’s presence during the drug transaction, association with his co-defendant, 

and conduct during the relevant events, we find that the evidence, while mostly circumstantial, 

was sufficient to support the jury’s verdict beyond a reasonable doubt on the counts of delivery 

of a controlled substance and conspiracy. Therefore, we find no merit to petitioner’s argument 

and no reversible error in the circuit court’s order denying his post-trial motion for judgment of 

acquittal. 

For the foregoing reasons, the circuit court’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