STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

State of West Virginia, FILED 

Plaintiff Below, Respondent February 18, 2014 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

vs) No. 13-0615 (Logan County 12-F-40) OF WEST VIRGINIA 

Delmar Shane Parsons, 

Defendant Below, Petitioner 

MEMORANDUM DECISION 

Petitioner Delmar Shane Parsons, by counsel Steven M. Thorne, appeals the May 30, 

2013, Re-Sentencing Order entered following his conviction by a jury in the Circuit Court of 

Logan County of first degree robbery, conspiracy to commit robbery, and wanton endangerment. 

The State of West Virginia, by counsel Scott E. Johnson, filed a response. 

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 circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

On September 15, 2011, at approximately 2:38 a.m., the Rich Oil gas station in Cora, 

Logan County, was robbed at gunpoint by two men wearing masks. The men took a total amount 

of $245.49 and drove away in a dark-colored 2008 Toyota Four-Runner that had been stolen 

several hours earlier from Ashley and Brian Garretson. Video surveillance evidence provided by 

a local business revealed that, not long after the robbery, at approximately 2:56 a.m., a 2002 

white Chevrolet Cavalier, followed by a dark-colored SUV believed to be the Four-Runner, were 

driven to an area known as Coppers Fork Road, in the town of Holden. However, approximately 

twenty minutes later, only the Cavalier was seen being driven back down. Shortly thereafter, the 

Four-Runner was found burning on Coppers Fork Road. 

Surveillance video obtained from a Walmart store showed that at approximately 3:35 

a.m., the white Cavalier was driven into the store’s parking lot by Robert Ernest, petitioner’s codefendant, with petitioner in the passenger seat. The video also showed both men entering the 

store and making a purchase. 

Petitioner and Mr. Ernest were subsequently arrested1 after Mr. Garretson (the owner of 

1

According to the trial testimony of Trooper James K. Harris of the West Virginia State 

Police, surveillance video of the gas station taken the day before the robbery showed petitioner 

and his co-defendant in and around the store at 11:48 a.m. and again at 2:24 p.m. Trooper Harris 

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the stolen Four-Runner) viewed the gas station surveillance video of the robbery and observed 

that one of the perpetrators was wearing Puma running shoes that were similar to a unique pair 

that he had previously given to Mr. Ernest.2 At trial, witness Shawn Watson testified that, 

approximately four weeks before the robbery, Mr. Ernest asked him if he would help him rob the 

gas station.3 

For several months prior to the robbery, both petitioner and Mr. Ernest stayed off and on 

at the home of Janessa Dowdy, the owner of the aforementioned 2002 white Cavalier, and her 

fifteen-year-old daughter, Ashton. Ashton Dowdy testified that when petitioner and Mr. Ernest 

returned to the Dowdy home following the robbery, petitioner “told me that he had robbed the 

Rich Station and had a gun to [an employee’s] head. And they took a car to Holden and burned 

it, an SUV.” Upon viewing still photographs from the robbery scene, Miss Dowdy further 

testified that the sweatshirt and jogging pants worn by one of the masked robbers were the 

sweatshirt and pants she loaned petitioner on the night of the robbery. Petitioner testified at trial 

and denied any involvement in the robbery.4 

Petitioner was convicted on the charges of first degree robbery, conspiracy, and wanton 

endangerment.5 He received a life sentence as a habitual offender6 for the robbery conviction 

and was sentenced to one to five years of incarceration for conspiracy and five years for wanton 

endangerment. All of the sentences were ordered to run consecutively. Petitioner’s post-trial 

motion for a new trial was denied.7 This appeal followed. 

Petitioner’s first assignment of error is that the trial court abused its discretion by failing 

to strike a juror for cause. During voir dire, potential juror Janet Rogers revealed that her 

testified that he often collects video evidence up to twenty hours before a robbery has occurred 

because, based upon his experience, perpetrators routinely case the targeted location before 

committing the robbery. 

2

Mr. Garretson testified that Mr. Ernest had previously done some construction work for 

him at his home. 

3

At the time, Mr. Watson was employed at the gas station. He testified that he declined 

to help Mr. Ernest and did not initially report Mr. Ernest’s inquiry to police because he did not 

believe Mr. Ernest would go through with the robbery. 

4

Mr. Ernest did not testify at petitioner’s trial. 

5

Petitioner was acquitted on burglary and petit larceny charges relating to guns stolen 

from the home of Roy Gene Vincell prior to the robbery at issue. 

6

Following a trial under the habitual criminal statute, the same jury found that petitioner 

was previously convicted of two prior felonies in Kentucky and Indiana. 

7

Petitioner also filed a pro se motion for reconsideration of sentence. That motion was 

denied by order entered January 14, 2013. 

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daughter and Ashley Garrettson (the owner of the stolen Four-Runner) were best friends in junior 

and senior high school but that she had not had much contact with Ms. Garrettson since 1998. 

Ms. Rogers further stated that she was a member of a community crime watch group; that her 

son-in-law worked as a guard at a federal prison; and that her niece worked as a dispatcher for 

the West Virginia State Police. In response to questions from the prosecuting attorney regarding 

whether she could fairly weigh the evidence as presented, Ms. Rogers answered that she could. 

When asked by defense counsel whether she “could be fair not only to the State of West Virginia 

but to a person that is in this courtroom charged with numerous crimes[,]” Ms. Rogers replied “I 

believe that I could. . . . I mean I’m certain I could. I don’t want to judge anybody wrongly.” In 

response to defense counsel’s question that “[i]f there is evidence there that didn’t amount to 

beyond a reasonable doubt. Would it be difficult for you to acquit in that case?” Again, Ms. 

Rogers replied, “I don’t think so. . . . I always hope to do the right thing, you know, with the 

evidence.” Thereafter, the trial court asked Ms. Rogers whether she understood her duty to 

acquit if the State failed to prove its case beyond a reasonable doubt and, further, whether she 

was confident that she could follow the court’s instructions and find petitioner not guilty if the 

State fails to prove its case. In response to all of these questions, Ms. Rogers answered in the 

affirmative. 

Petitioner’s subsequent motion to strike Ms. Rogers for cause was denied and petitioner 

used a peremptory strike to remove her from the jury panel. On appeal, petitioner argues that the 

trial court committed reversible error by failing to strike Ms. Rogers for cause. In support of his 

argument, petitioner contends that “[o]nce a prospective juror has made a clear statement during 

voir dire reflecting or indicating the presence of a disqualifying prejudice or bias, the prospective 

juror is disqualified as a matter of law and cannot be rehabilitated by subsequent questioning, 

later retractions, or promises to be fair.” Syl. Pt. 2, State v. Griffin, 211 W.Va. 508, 566 S.E.2d 

645 (2002) (quoting Syl. Pt. 5, O’Dell v. Miller, 211 W.Va. 285, 565 S.E.2d 407 (2002)). 

Petitioner further argues that the relevant test for determining juror bias is whether the juror had 

a fixed opinion such that she could not be impartial. Syl. Pt. 4, State v. Miller, 197 W.Va. 588, 

476 S.E.2d 535 (1996). “Even though a juror swears that he or she could set aside any opinion 

he or she might hold and decide the case on the evidence, a juror’s protestation of impartiality 

should not be credited if the other facts in the record indicate to the contrary.” Id. Petitioner 

argues that Ms. Rogers demonstrated disqualifying prejudice given her answers to defense 

counsel’s voir dire question. Moreover, she was surrounded by friends and family in law 

enforcement, was directly involved in a community crime watch, and personally knew the owner 

of the stolen SUV. Thus, petitioner argues, despite Ms. Rogers’ claim that she could judge 

petitioner impartially, the trial court should have removed her as a juror and petitioner should not 

have been forced to use a preemptory strike. Petitioner contends he is entitled to a new trial. 

In reviewing a trial court’s decision not to strike a potential juror for cause, this Court has 

articulated the following standard: 

“In reviewing the qualifications of a jury to serve in a criminal case, we 

follow a three-step process. Our review is plenary as to legal questions such as the 

statutory qualifications for jurors; clearly erroneous as to whether the facts 

support the grounds relied upon for disqualification; and an abuse of discretion as 

to the reasonableness of the procedure employed and the ruling on 

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disqualification by the trial court.” State v. Miller, 197 W.Va. 588, 600-01, 476 

S.E.2d 535, 547-48 (1996). 

State v. Sutherland, 231 W.Va. 410, __, 745 S.E.2d 448, 450 (2013). 

In syllabus point three of Sutherland, 231 W.Va. at __, 745 S.E.2d at 449, this Court 

further held as follows: 

A trial court’s failure to remove a biased juror from a jury panel, as 

required by W.Va. Code § 62-3-3 (1949) (Repl. Vol. 2010), does not violate a 

criminal defendant’s right to a trial by an impartial jury if the defendant removes 

the juror with a peremptory strike. In order to obtain a new trial for having used a 

peremptory strike to remove a biased juror from a jury panel, a criminal defendant 

must show prejudice. The holding in Syllabus point 8 of State v. Phillips, 194 

W.Va. 569, 461 S.E.2d 75 (1995), is expressly overruled. 

See, 231 W.Va. at __, 745 S.E.2d at 458 (recognizing that “when a defendant has been tried 

before an unbiased jury, he or she has received exactly what the constitution guarantees. 

Consequently, a defendant should be required to show prejudice resulting from the selection of 

an unbiased juror. To hold otherwise results in an unjustifiable waste of judicial time and 

resources.”) In the present appeal, petitioner in no way challenges the qualifications of any of the 

jurors who actually sat on his jury nor does he argue that his jury was not impartial. Simply put, 

petitioner fails to show prejudice. Therefore, we find no error in the trial court’s decision not to 

remove Ms. Rogers from the jury panel for cause. 

Petitioner’s second and final assignment of error is that the evidence at trial was 

insufficient to support his convictions. In support of this argument, petitioner contends that the 

witness testimony was inconsistent and often conflicted, thereby calling into question the 

witnesses’ credibility. More specifically, petitioner argues that former gas station employee 

Shawn Watson’s testimony that Mr. Ernest (petitioner’s co-defendant) had previously 

approached him about robbing the gas station conflicted with Mr. Ernest’s statement to police 

that it was Mr. Watson who approached him about committing the robbery. Likewise, Mr. 

Garretson’s testimony that he believed Mr. Ernest stole his SUV conflicted with Mr. Ernest’s 

statement that Mr. Garretson had previously asked him to steal the SUV because Mr. Garretson’s 

wife was about to divorce him. Given that Mr. Ernest’s statements are not a part of the appellate 

record, petitioner’s argument that his statements conflict with those of other witnesses are 

without merit. Petitioner further argues that Ashton Dowdy’s testimony incriminating petitioner 

in the crimes conflicted with a letter she subsequently wrote to him while he was incarcerated in 

which she stated that “I know you’ll be home soon because I know you didn’t have nothing to 

[do] with it.” For his part, petitioner denied any involvement in the robbery, testifying that he 

had a toothache that night and went to Walmart to purchase medication while wearing Ashton 

Dowdy’s sweatshirt. He further denied that he had any conversation with Miss Dowdy about 

robbing the gas station. Thus, petitioner argues that “[w]hen two inferences, equally plausible, 

may be drawn from evidence, the law does not permit the jury to adopt the one more unfavorable 

to the accused. . . .” Syl. Pt. 3, State v. Maley, 151 W.Va. 593, 153 S.E.2d 827 (1967) (citation 

omitted). He argues that the evidence should have been construed in his favor and that, further, 

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the evidence was not sufficient to convict him of the crimes charged.8 

In syllabus points one and three of State v. Guthrie, 194 W.Va. 657, 663, 461 S.E.2d 163, 

169 (1995), this Court established the following standards for reviewing claims of insufficiency 

of the evidence: 

The function of an appellate court when reviewing the sufficiency of the 

evidence to support a criminal conviction is to examine the evidence admitted at 

trial to determine whether such evidence, if believed, is sufficient to convince a 

reasonable person of the defendant’s guilt beyond a reasonable doubt. Thus, the 

relevant inquiry is whether, after viewing the evidence in the light most favorable 

to the prosecution, any rational trier of fact could have found the essential 

elements of the crime proved beyond a reasonable doubt. 

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. 

Furthermore, with regard to petitioner’s contention that certain witnesses were not 

credible, we observe that “[a]n appellate court may not decide the credibility of witnesses or 

weigh evidence as that is the exclusive function and task of the trier of fact. . . . It is for the jury 

to decide which witnesses to believe or disbelieve.” Id. at 669 n.9, 461 S.E.2d at 175 n.9. See 

State v. LaRock, 196 W.Va. 294, 304, 470 S.E.2d 613, 623 (1996) (stating that when reviewing 

sufficiency of evidence, “the viewer must accept all reasonable inferences from it that are 

consistent with the verdict. . . .[and] as among competing inferences of which two or more are 

plausible, the judge must choose the inference that best fits the prosecution’s theory of guilt.”). 

8

Additionally, petitioner argues that testimony from witness Michael “Mickey” White, 

the principal of Holden Central Elementary School, was not credible. Mr. White testified 

regarding the accuracy of the time of day noted on still photographs derived from the school’s 

video surveillance camera, which was located along the highway upon which the Cavalier and 

SUV were driven. Petitioner argues that Mr. White testified that one of the photographs of the 

above-described vehicles passed by the school at 3:03:25 a.m., but that he also testified that the 

video cameras are inaccurate all of the time. Based upon this Court’s review of the transcript of 

Mr. White’s trial testimony, and contrary to petitioner’s argument in this regard, it is not at all 

clear that the photographs about which Mr. White testified included images of the vehicles at 

issue. 

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Upon our review of the evidence in the light most favorable to the prosecution, we 

conclude that the evidence was more than sufficient to sustain petitioner’s convictions. Former 

gas station employee Shawn Watson testified that petitioner’s co-defendant, Mr. Ernest, had 

asked him several weeks earlier if Mr. Watson would help him rob the gas station. Surveillance 

video from the gas station taken the day before the robbery showed petitioner and Mr. Ernest 

casing the location. After the robbery, the perpetrators drove away in an SUV stolen from 

Ashley and Brian Garretson, in whose home Mr. Ernest had previously worked. Upon viewing 

video footage of the robbery, Mr. Garretson observed one of the perpetrators wearing running 

shoes similar to a pair he had previously given Mr. Ernest. Shortly after the robbery, the white 

Cavalier owned by Janessa Dowdy (in whose home the two men were staying) and the stolen 

SUV were seen on surveillance video being driven to Coppers Fork Road. The stolen SUV was 

then found burning at that location. Finally, Ashton Dowdy testified that petitioner admitted to 

her that he robbed the gas station; that he held a gun to the cashier’s head; and that the men 

burned the SUV. In consideration of all of the above, this Court concludes that the jury had 

sufficient evidence to convict petitioner of first degree robbery, conspiracy to commit robbery, 

and wanton endangerment.9 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: February 18, 2014 

CONCURRED IN BY: 

Chief Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

9

Petitioner also briefly argues that his sentence as a habitual offender was invalid because 

there was insufficient evidence to convict him on the first degree robbery conviction. Given this 

Court’s holding that the evidence was, indeed, sufficient to convict petitioner of this offense, we 

need not address his contention that his sentence as a habitual offender was invalid. 

6