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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia, 

Plaintiff Below, Respondent

vs.) No. 20-0864 (Berkeley County CC-02-2019-F-255)

Joshua Earl Cupp, 

Defendant Below, Petitioner

MEMORANDUM DECISION

Petitioner Joshua Earl Cupp, by counsel Jason Stedman, appeals the Circuit Court of 

Berkeley County’s sentencing order entered on October 6, 2020. The State, by counsel Scott E. 

Johnson, filed a response. On appeal, petitioner alleges that 1) he was not properly identified as 

the driver of the vehicle at issue in his conviction, 2) he was denied the right to counsel during a 

previous conviction, 3) the State used his prior convictions as an improper character attack, and 4) 

he received ineffective assistance of trial counsel.1

 

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At the outset, we note that petitioner’s arguments for all four of his assignments of error 

consist of very skeletal sentences; only a few, bare citations to the appendix record; and citations

to just three total cases, statutes, or any other authorities to support his positions. As such, 

petitioner’s briefing on these issues is inadequate and fails to comply with Rule 10(c)(7) of the 

West Virginia Rules of Appellate Procedure, which requires that

[t]he brief must contain an argument exhibiting clearly the points of fact and law 

presented, the standard of review applicable, and citing the authorities relied on . . 

. . The argument must contain appropriate and specific citations to the record on 

appeal, including citations that pinpoint when and how the issues in the assignments 

of error were presented to the lower tribunal. The Court may disregard errors that 

are not adequately supported by specific references to the record on appeal.

Additionally, in an Administrative Order entered December 10, 2012, Re: Filings That Do Not 

Comply With the Rules of Appellate Procedure, the Court noted that “[b]riefs that lack citation of 

authority [or] fail to structure an argument applying applicable law” are not in compliance with 

this Court’s rules. Further, “[b]riefs with arguments that do not contain a citation to legal authority 

to support the argument presented and do not ‘contain appropriate and specific citations to the . . . 

(continued . . . )

FILED

August 27, 2021

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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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.

In October of 2019, a Berkeley County Grand Jury indicted petitioner for two counts of 

third-offense driving on a license revoked for driving under the influence (“DUI”). Count one 

alleged that on or about May 2, 2018, petitioner drove on a public highway in West Virginia while 

his privilege to drive was revoked for DUI. Count one also alleged that petitioner had previously 

been convicted of driving while revoked for DUI twice before, to wit, in the Magistrate Court of 

Berkeley County on May 3 and 25, 2016. Count two of the indictment alleged that on or about 

October 9, 2018, petitioner drove a vehicle on a public highway in West Virginia while his 

privilege to drive was revoked for DUI. Count two of the indictment also alleged that petitioner 

had twice before been convicted of driving while revoked for DUI on the basis of the same 

convictions alleged in count one of the indictment.

In July of 2020, the circuit court held a jury trial on petitioner’s indictment. At the trial, 

Berkeley County Sheriff’s Corporal Nelson Schoppert testified that on May 2, 2018, he was 

following a black Lincoln SUV and observed the vehicle cross the fog line on several occasions.2

Corporal Schoppert testified that he stopped the vehicle and petitioner identified himself as the 

driver. Corporal Schoppert also identified petitioner as the driver of the vehicle at the trial. 

Corporal Schoppert testified that petitioner provided him an identification card—not a driver’s 

license—and admitted that he was driving despite having a revoked license. Corporal Schoppert 

testified that the dispatcher advised him that petitioner’s license was revoked for a DUI. Corporal 

Schoppert stated that, as a result, he arrested petitioner for driving on a revoked license and

checked the magistrate court files, which revealed that petitioner had two prior convictions for 

driving while revoked for DUI. Finally, Corporal Schoppert noted that he charged petitioner with 

driving while revoked for DUI, third offense.

Next, Berkeley County Sheriff’s Deputy Phillip Butcher testified that he responded to a 

vehicle accident involving a black Lincoln SUV and a black Dodge Ram truck on October 9, 2018. 

Deputy Butcher testified that the driver of the black Lincoln SUV was not at the scene and had 

been transported by emergency medical services to a local hospital. Deputy Butcher explained that 

he went to the hospital where a nurse informed him that the driver of the black Lincoln SUV had 

checked out of the hospital against medical advice. Deputy Butcher testified that he was told the 

driver’s name was Joshua Cupp, that he was a white male, and that he had several tattoos. Based 

on this information, Deputy Butcher explained that he located a picture of petitioner from social 

media, which he showed to the attending nurse who advised that the picture was of the individual 

record on appeal . . .’ as required by rule 10(c)(7)” are not in compliance with this Court’s rules.

Nevertheless, we address each of petitioner’s assignments of error below.

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The white fog line on the right-hand side of the road divides the road from the shoulder. 
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who left the hospital against medical advice. Deputy Butcher also testified that he was unable to 

locate petitioner that night but did learn that petitioner had two prior convictions for driving while 

revoked due to DUI. 

Finally, the State presented the testimony of Berkeley County Emergency Medical 

Technician (“EMT”) Alex Dulyea. Mr. Dulyea testified that he completed a patient care report for 

a traffic accident on October 9, 2018. Mr. Dulyea explained that anything a patient tells him is 

listed in the patient care report. At trial, Mr. Duylea failed to identify petitioner as the person he 

treated on October 9, 2018. Although Mr. Duylea could not identify petitioner as the person he 

treated on October 9, 2018, he confirmed that the driver he treated provided the name of Joshua 

Cupp and a social security number and birthdate. Mr. Dulyea testified that, according to his patient 

care report, petitioner admitted to striking the pick-up truck. Mr. Dulyea went on to note that he 

did not treat anyone else from petitioner’s vehicle. Mr. Dulyea indicated that, upon completion of 

the patient care report, he and petitioner signed the report evidencing that everything therein was 

accurate. The patient care report presented at trial also listed the patient as petitioner and provided 

his correct date of birth and social security number. 

In addition to witnesses, the State introduced a copy of petitioner’s driving history, which 

showed that petitioner’s license was originally suspended on May 1, 2015. The State also provided 

a copy of a magistrate court case disposition form showing that petitioner was convicted of DUI. 

The circuit court admitted the document into evidence over petitioner’s objection. The State further 

introduced a judgment order where petitioner was convicted for driving on a suspended license for 

DUI on May 3, 2016. This document was also admitted into evidence. Finally, the State introduced 

another conviction for driving on a revoked license for DUI occurring on May 25, 2016. Over 

petitioner’s objection, the circuit court admitted the conviction document. After presenting its 

witnesses and evidence, the State rested. Petitioner then moved for a judgment of acquittal, which 

the circuit court denied. 

After the State rested, petitioner testified in his own defense. Petitioner testified that he was 

denied his right to counsel in one of his convictions for DUI by the magistrate court. The State 

responded that petitioner’s guilty plea form in magistrate court in that case was marked by 

petitioner, waiving his right to counsel. Accordingly, the circuit court precluded any further 

argument related to petitioner’s right to counsel concerning that conviction. On cross-examination, 

petitioner confirmed the last four digits of his social security number and birthdate—matching the 

information in the patient care report from the hospital. After his testimony, petitioner placed 

complaints about his trial counsel on the record. In response, the circuit court stated that 

petitioner’s trial counsel was a “fairly thorough defense counsel.” 

The jury returned a verdict of guilty on both counts of the indictment. The circuit court 

entered a sentencing order on October 6, 2020, sentencing petitioner to two indeterminate 

sentences of one to three years, to run consecutively, and a fine of $6,000. It is from this order that 

petitioner appeals.

We have previously held as follows:
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“In reviewing challenges to the findings and conclusions of the circuit court, 

we apply a two-prong deferential standard of review. We review the final order and 

the ultimate disposition under an abuse of discretion standard, and we review the 

circuit court’s underlying factual findings under a clearly erroneous standard. 

Questions of law are subject to a de novo review.” Syl. Pt. 2, Walker v. West 

Virginia Ethics Comm’n, 201 W.Va. 108, 492 S.E.2d 167 (1997).

Syl. Pt. 2, State v. Bruffey, 207 W. Va. 267, 531 S.E.2d 332 (2000). 

On appeal, petitioner first argues that he was not properly identified as the driver of the 

vehicle involved in the October 9, 2018, vehicle accident that was the subject of count two of the 

indictment. Petitioner contends that the State failed to present any witnesses at trial that could 

properly identify him as the driver of the vehicle. Specifically, petitioner asserts that the officer 

testifying at trial never saw him at the scene of the accident and that he was already in the hospital 

before law enforcement arrived. Further, petitioner argues that no hospital staff, including the EMT 

who testified, could identify him as the driver. Accordingly, petitioner argues that his request for 

judgment of acquittal should have been granted. Finally, petitioner argues that proper identification 

in open court is required to demonstrate a prima facie case before a jury. We find petitioner’s 

arguments to be without merit. 

This Court has held that 

[t]he 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.

Syl. Pt. 1, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). Additionally, we held 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.

Id. at 663, 461 S.E.2d at 169, Syl. Pt. 3. To be convicted of driving on a revoked license for DUI, 

third offense, the State had to prove beyond a reasonable doubt that petitioner drove “a motor 
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vehicle on any public highway of this state at a time when his or her privilege to do so has been 

lawfully revoked for driving under the influence of alcohol.” W.Va. Code § 17B-4-3(b). 

Upon our review of the trial evidence, there was sufficient, albeit circumstantial, evidence 

that petitioner was driving at the time of the accident. While Deputy Butcher did not witness 

petitioner at the scene of the accident, he testified that he was told petitioner’s name as the driver, 

that he was a white male, and that he had several tattoos. Based on this information, Deputy 

Butcher explained at trial that he located a picture of petitioner from social media. Deputy Butcher 

also testified that the attending nurse advised that the picture was of the individual who left the 

hospital. Although the EMT could not identify petitioner as the person he treated on October 9, 

2018, he confirmed that the driver he treated provided the name of Joshua Cupp, in addition to 

petitioner’s social security number and birthdate. Further, the EMT testified that petitioner 

admitted to striking the pick-up truck. The EMT went on to note that he did not treat anyone else 

from petitioner’s vehicle, and the patient care report entered into evidence at trial listed the patient 

as petitioner and provided his correct birthdate and social security number.

Looking at the evidence in the light most favorable to the State and considering petitioner’s 

burden of proof on appeal, we find that the State presented sufficient evidence upon which a jury

could conclude that petitioner drove “a motor vehicle . . . at a time when his or her privilege to do 

so has been lawfully revoked for driving under the influence of alcohol.” While there was no direct 

evidence that petitioner was driving immediately prior to the October 9, 2018 incident, the 

circumstantial evidence was sufficient to establish he was driving on a revoked license for DUI, 

third offense. As noted above, “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.” Guthrie, 194 W. Va. 663, 461 S.E.2d 169, Syl. Pt. 3, in part (emphasis added). 

Given the evidence detailed above, we find no merit to petitioner’s claims regarding the sufficiency 

of the evidence. 

Next, petitioner argues that there “was an issue with regard to right to counsel during one 

of the previous convictions.” Specifically, petitioner argues that the circuit court did not allow his 

counsel to develop an argument before the jury or allow him to testify about his access to counsel 

during his previous case. As such, petitioner argues that a “collateral attack on the previous 

conviction should have been allowed.”

We begin by observing that, in violation of Rule 10(c)(7) of the West Virginia Rules of 

Appellate Procedure, which requires a petitioner’s argument to “contain appropriate and specific 

citations to the record on appeal,” petitioner does not support this assignment of error with 

appropriate and specific citations to the record. This Court “may disregard errors that are not 

adequately supported by specific references to the record on appeal.” Id. Specifically, petitioner 

fails to identify where in the record he sought to attack his prior conviction or how the court 

otherwise “curtailed argument on the subject.” In addition to failing to specifically identify these 

alleged errors in the appendix record, petitioner has failed to “includ[e] citations that pinpoint 

when and how the issues in the assignments of error were presented to the lower tribunal.” We 

find petitioner’s cursory mention of an attack on his prior convictions insufficient to raise this issue 

on appeal given the lack of citations to the record demonstrating how he was harmed or prejudiced 

in this matter. Accordingly, we decline to review the issue pursuant to Rule 10(c)(7). 
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Next, petitioner argues that the prosecution’s demonstration of prior convictions became a 

feature of the trial. As such, petitioner contends that it became an improper character attack in 

violation of West Virginia Rules of Evidence 404(a) and (b). Specifically, petitioner argues that 

the State “focused on the prior conviction[, which was an] improper use of prior bad acts.” 

At the outset, it is important to note that petitioner fails to include any citation to the record 

to demonstrate where this issue was raised below. Not only has petitioner failed to demonstrate 

that he objected to the evidence in question, but his failure to include citations to the record leave 

this Court questioning whether Rule 404 was even invoked at trial. As noted above, Rule 10(c)(7) 

of the West Virginia Rules of Appellate Procedure requires a petitioner’s argument to “contain 

appropriate and specific citations to the record on appeal.” This Court “may disregard errors that 

are not adequately supported by specific references to the record on appeal.” Id. Additionally, 

“[o]ur general rule is that nonjurisdictional questions . . . raised for the first time on appeal, will 

not be considered.” Noble v. W. Va. Dep’t of Motor Vehicles, 223 W. Va. 818, 821, 679 S.E.2d 

650, 653 (2009) (citation omitted). Consistent with this authority, we decline to consider this 

argument.

Finally, petitioner asserts that he was denied the effective assistance of counsel. He is 

critical of his counsel below, arguing that he was not provided discovery in a timely manner, that 

his trial counsel failed to secure requested witnesses, and that his counsel engaged in limited to no 

cross-examination of the State’s witnesses. Petitioner also made these arguments to the circuit 

court during the trial. 

As this Court has found, 

[i]t is the extremely rare case when this Court will find ineffective assistance 

of counsel when such a charge is raised as an assignment of error on a direct appeal. 

The prudent defense counsel first develops the record regarding ineffective 

assistance of counsel in a habeas corpus proceeding before the lower court, and 

may then appeal if such relief is denied. This Court may then have a fully developed 

record on this issue upon which to more thoroughly review an ineffective assistance 

of counsel claim.

Syl. Pt. 10, State v. Triplett, 187 W. Va. 760, 421 S.E.2d 511 (1992). We have also explained that 

“the preferred way of raising ineffective assistance of . . . counsel is to file a subsequent petition 

for a writ of habeas corpus raising the issue in the court below.” Watts v. Ballard, 238 W. Va. 730, 

735-36 n.7, 798 S.E.2d 856, 861-62 n.7 (2017) (internal quotations and citation omitted). 

Consequently, “we decline to address an alleged ineffective assistance of counsel claim in this 

direct appeal. The record has not been developed on this issue. This is an issue that must be

developed in a habeas corpus proceeding.” State v. Richardson, 240 W. Va. 310, 319-20 n.13, 811 

S.E.2d 260, 269-70 n.13 (2018). 

For the foregoing reasons, we affirm the circuit court’s October 6, 2020, sentencing order.
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Affirmed.

ISSUED: August 27, 2021

CONCURRED IN BY:

Chief Justice Evan H. Jenkins

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton