STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

State of West Virginia, FILED 

Plaintiff Below, Respondent May 24, 2013 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS vs) No. 12-0683 (Pleasants County 11-F-14) OF WEST VIRGINIA 

Jerry L. Wigal,
 

Defendant Below, Petitioner
 

MEMORANDUM DECISION 

Petitioner’s appeal, by counsel Wells H. Dillon, arises from the Circuit Court of Pleasants 

County, wherein the circuit court denied, in part, petitioner’s “Motion For Reduction of Sentence” 

by order entered April 23, 2012. The State, by counsel Marland L. Turner, has filed its response, 

to which petitioner has filed a reply. 

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 is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

In May of 2011, a Pleasants County Grand Jury indicted petitioner on one count of 

attempted grand larceny and one count of conspiracy. These charges stemmed from an incident in 

which petitioner and two accomplices, John Bailey and Roy Tranter, attempted to steal multiple 

batteries from vehicles owned by Select Energy. Following a jury trial in July of 2011, petitioner 

was convicted of both counts, and the circuit court sentenced him to a term of incarceration of one 

to three years for his conviction of attempted grand larceny, and a term of incarceration of one to 

five years for conspiracy, said sentences to run consecutively. Thereafter, petitioner filed a motion 

for resentencing and reduction of sentence. The circuit court resentenced petitioner for purposes 

of appeal, and also denied the motion for reduction of sentence, in part, by denying petitioner 

home incarceration. The circuit court order notes, however, that it has taken his request for 

concurrent sentencing under advisement. 

On appeal, petitioner alleges that the circuit court erred in denying his motion for 

judgment of acquittal, in not granting his motion for concurrent sentencing, and that the 

indictment under which he was charged was constitutionally insufficient. In support, petitioner 

argues that there was insufficient evidence to establish the elements of both offenses because the 

circuit court allowed broad speculation as to what exactly petitioner and his accomplices 

attempted to steal. Petitioner argues that the only evidence submitted showed that he and his 

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accomplices attempted to steal three to four truck batteries worth no more than $197 each, and 

that only by speculating was the State able to arrive at the dollar amount require to satisfy the 

elements of attempted grand larceny. Petitioner also argues that the indictment was deficient 

because it did not specifically allege the property that he allegedly attempted to steal as required 

by State ex rel. Day v. Silver, 210 W.Va. 175, 556 S.E.2d 820 (2001). Lastly, petitioner argues 

that the circuit court erred in declining to rule on his motion for concurrent sentencing. According 

to petitioner, that motion has been pending since May of 2012, and his parole eligibility has been 

adversely affected by the circuit court’s delay. 

We have previously held that “[a] motion for judgment of acquittal challenges the 

sufficiency of the evidence.” State v. Houston, 197 W.Va. 215, 229, 475 S.E.2d 307, 321 (1996) 

(citing Franklin D. Cleckley, 2 Handbook on West Virginia Criminal Procedure 292 (2d 

ed.1993)). As such, we note 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.” Syl. Pt. 3, State v. Guthrie, 194 W.Va. 

657, 461 S.E.2d 163 (1995). 

Syl. Pt. 5, State v. Broughton, 196 W.Va. 281, 470 S.E.2d 413 (1996). Upon our review, the Court 

finds no error in the circuit court’s denial of petitioner’s motion for judgment of acquittal in 

regard to his convictions for attempted grand larceny and conspiracy. We have previously held 

that “[i]n order for the State to prove a conspiracy under W.Va.Code, 61-10-31(1), it must show 

that the defendant 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.” Syl. Pt. 4, 

State v. Less, 170 W.Va. 259, 294 S.E.2d 62 (1981). The evidence at trial established that 

petitioner and his co-conspirators agreed to steal as many batteries as they could transport, and 

that these individuals were arrested during the commission of the crime. As such, it is clear that 

the State satisfied the elements necessary for conviction of conspiracy. This evidence is also 

sufficient to support petitioner’s conviction for attempted grand larceny. We have previously held 

that 

“[i]n order to constitute the crime of attempt, two requirements must be met: (1) a 

specific intent to commit the underlying substantive crime; and (2) an overt act 

toward the commission of that crime, which falls short of completing the 

underlying crime.” Syl. Pt. 1, State v. Burd, 187 W.Va. 415, 419 S.E.2d 676 

(1991). 

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Syl. Pt. 4, State v. Minigh, 224 W.Va. 112, 680 S.E.2d 127 (2009) (internal citations omitted). For 

these reasons, the evidence was sufficient to support petitioner’s convictions and the circuit court 

did not err in denying petitioner’s motion for judgment of acquittal. 

As to petitioner’s assignment of error related to the sufficiency of the indictment, we note 

that “‘[g]enerally, the sufficiency of an indictment is reviewed de novo. An indictment need only 

meet minimal constitutional standards, and the sufficiency of an indictment is determined by 

practical rather than technical considerations.’ Syl. Pt. 2, State v. Miller, 197 W.Va. 588, 476 

S.E.2d 535 (1996).” Syl. Pt. 1, State v. Johnson, 219 W.Va. 697, 639 S.E.2d 789 (2006). We have 

also held that 

“[a]n indictment is sufficient under Article III, § 14 of the West Virginia 

Constitution and W. Va. R.Crim. P. 7(c)(1) if it (1) states the elements of the 

offense charged; (2) puts a defendant on fair notice of the charge against which he 

or she must defend; and (3) enables a defendant to assert an acquittal or conviction 

in order to prevent being placed twice in jeopardy.” Syl. Pt. 6, State v. Wallace, 

205 W.Va. 155, 517 S.E.2d 20 (1999). 

Syl. Pt. 5, State v. Haines, 221 W.Va. 235, 654 S.E.2d 359 (2007). The record shows that the 

indictment in question was sufficient. The indictment clearly listed the elements of both offenses, 

put defendant on fair notice of the charges against him, and enabled him to assert an acquittal or 

conviction to avoid double jeopardy. The Court notes that petitioner’s reliance on Day is 

misplaced. In Day, the indictment stated that the defendant stole “various items” from the victim, 

and this Court found such language insufficient because defendant was “not told what property he 

is accused of stealing and destroying; therefore, he does not have sufficient information to prepare 

his defense and plead his conviction as a bar to later prosecution for the same offense.” State ex 

rel. Day v. Silver, 210 W.Va. 175, 180, 556 S.E.2d 820, 825 (2001). In the current matter, 

however, the indictment clearly indicated that petitioner attempted to steal “truck batteries.” As 

such, we find no error with the indictment under which petitioner was charged. 

Lastly, the Court finds that it cannot rule on petitioner’s assignment of error related to the 

circuit court’s failure to grant him concurrent sentencing because that assignment of error is 

premature, insofar as the circuit court has yet to rule on petitioner’s request for concurrent 

sentencing. However, the Court finds that petitioner’s motion has now been pending for over one 

year without resolution, and orders the circuit court to enter an order in regard to petitioner’s 

outstanding request for concurrent sentencing. 

For the foregoing reasons, the circuit court’s order is hereby affirmed. 

Affirmed. 

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ISSUED: May 24, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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