STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

State of West Virginia, 

Plaintiff Below, Respondent FILED 

January 8, 2018 

vs.) No. 17-0117 (Webster County 16-F-9) EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA Rodney A. Carpenter, 

Defendant Below, Petitioner 

MEMORANDUM DECISION 

Petitioner Rodney A. Carpenter, by counsel Daniel R. Grindo, appeals the Circuit Court 

of Webster County’s January 3, 2017, order denying his post-trial motion for judgment of 

acquittal and sentencing him following his convictions for operating or attempting to operate a 

clandestine drug laboratory and conspiracy. Respondent State of West Virginia, by counsel 

Robert L. Hogan, filed a response. On appeal, petitioner contends that the circuit court erred in 

denying his motion for judgment of acquittal because there was insufficient evidence to sustain 

his convictions. 

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 January 12, 2016, petitioner was indicted on one count of operating or attempting to 

operate a clandestine drug laboratory and one count of conspiracy. The indictment also charged 

Virginia Lee Davis, Billy W. Green, and Allen R. Garner Jr. with these same crimes. Mr. Green, 

who is Ms. Davis’s son, entered into a plea agreement with the State prior to trial. The charges 

against petitioner, Ms. Davis, and Mr. Garner proceeded to a jury trial on September 14, 2016. 

The evidence at trial showed that, on August 6, 2015, Deputies Vandevender and Cogar of the 

Webster County Sheriff’s Department were dispatched to Ms. Davis’s home following a report 

that petitioner was “there screaming and yelling at next-door neighbors [and] passing cars[.]” 

When Deputy Vandevender arrived at Ms. Davis’s residence, Ms. Davis, who was on the porch, 

stepped inside the home and then back outside. Deputy Vandevender asked her where petitioner 

was, and petitioner came to the front door. As Deputy Vandevender was walking toward the 

porch and petitioner was exiting the front door, Deputy Vandevender noted a chemical odor 

consistent with the operation of a methamphetamine laboratory, specifically, that of Coleman 

fuel, and he saw a bottle being thrown “off the back porch, and [it] flew across and hit the 

outbuilding [beside the house].” Deputy Vandevender observed liquid coming out of the bottle, 

and, once he got closer to it, noticed a white, granular substance in it. At this point, additional 

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law enforcement was called to the scene, including Trooper Baier and Trooper Hebb of the West 

Virginia State Police. Trooper Baier obtained consent from Ms. Davis to search her property. 

During the search of Ms. Davis’s home and property, the officers obtained and 

photographed additional evidence. The photographs, which were shown to the jury, depicted a 

partially-burned Zephrin-D pack; lithium battery pack; a bottle cut in half with a still-wet filter in 

it; a bag with liquid in it; tin foil, salt, and coffee filters on the kitchen countertop; pieces of 

ripped tin foil in a kitchen drawer; Liquid Fire; a metal “snort straw,” which had been concealed 

over a doorway; a sweatshirt found in Mr. Green’s room with a coffee filter in the front pocket; a 

gun rack from Mr. Green’s room containing drug paraphernalia; a container from Ms. Davis’s 

room containing lithium batteries; tubing from Ms. Davis’s bedroom; Coleman fuel; and a filter 

commonly used in smoking devices. Deputy Vandevender testified that the items depicted in the 

photographs were commonly used for manufacturing, smoking, or snorting methamphetamine. 

Rebecca Harrison, a forensic analyst in the drug identification section of the West 

Virginia State Police Forensic Laboratory, testified that the evidence obtained, based upon its 

condition, suggested that the methamphetamine-making process was “toward the end.” Trooper 

E.E. Bostic, who is certified in sampling and testing methamphetamine labs, also testified that 

the condition of the evidence obtained suggested that the methamphetamine-making process was 

nearly complete. 

Mr. Green testified at trial for the defense. Mr. Green claimed responsibility for the 

methamphetamine operation and attempted to exonerate his codefendants. Mr. Green testified 

that he was operating the methamphetamine laboratory outside, behind the house, alone when 

petitioner and another codefendant arrived at Ms. Davis’s house. Mr. Green testified that 

petitioner was not near him while he was making methamphetamine. 

Petitioner moved for a judgment of acquittal at the close of the State’s case-in-chief and 

again at the conclusion of the trial. Both motions were denied, and the jury found petitioner and 

his codefendants guilty of operating or attempting to operate a clandestine drug laboratory and 

conspiracy. On November 3, 2016, petitioner moved to set aside the verdict arguing that there 

was insufficient evidence to convict him. On November 7, 2016, the parties appeared for a 

hearing on post-trial motions and sentencing. Upon finding that sufficient evidence was 

presented to convict petitioner, the circuit court denied petitioner’s motion and sentenced him to 

not less than two nor more than ten years of incarceration for his operating or attempting to 

operate a clandestine drug laboratory conviction and not less than one nor more than five years 

of incarceration for his conspiracy conviction. These rulings were memorialized by an order 

entered on January 3, 2017. It is from this order that petitioner appeals. 

On appeal, petitioner argues that the State failed to present any evidence to support his 

convictions other than petitioner’s presence at the location of the methamphetamine laboratory, 

and that mere presence is insufficient to support a conviction. Petitioner argues that there was no 

indication that he lived at the residence at which the methamphetamine laboratory was found, 

nor was any connection made between petitioner and the evidence found at Ms. Davis’s 

residence. Although certain of petitioner’s codefendants had purchased pseudoephedrine, there 

was no evidence that petitioner had ever made such purchases. Petitioner also highlights Mr. 

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Green’s testimony that Mr. Green had been making methamphetamine unbeknownst to 

petitioner, who had arrived unexpectedly during the manufacturing process. In sum, petitioner 

argues that, not only was there no evidence upon which a jury could find him guilty beyond a 

reasonable doubt, but the only evidence presented either could not be specifically linked to him 

or exonerated him. 

This Court applies a de novo standard of review to appeals from rulings on a motion for 

judgment of acquittal: 

The trial court’s disposition of a motion for judgment of acquittal is subject to our 

de novo review; therefore, 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). Regarding a claim that the 

evidence at trial was insufficient to convict, this Court has stated 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). Further, 

[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. 

Id. at 663, 461 S.E.2d at 169, Syl. Pt. 3, in part. 

Viewing the evidence in the light most favorable to the State, we find that there was 

sufficient evidence from which the jury could find petitioner guilty of operating or attempting to 

operate a clandestine drug laboratory and conspiracy. We begin by noting that petitioner does not 

dispute that a methamphetamine laboratory was in operation on Ms. Davis’s property while he 

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was there. Indeed, Mr. Green admitted to operating the methamphetamine laboratory at the 

home. Petitioner is also correct in arguing that 

[m]erely witnessing a crime, without intervention, does not make a party 

to its commission unless his interference was a duty, and his non-interference was 

one of the conditions of the commission of the crime; or unless his noninterference was designed by him and operated as an encouragement to or 

protection of the perpetrator. 

Syl. Pt. 9, State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989) (internal quotations and 

citations omitted). But, 

[p]roof 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. 

Id. at 349, 387 S.E.2d at 816, Syl. Pt. 10. More particularly, 

[w]here 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 principle in the second degree, 

or as a principal in the first degree in the commission of such offense. 

Id. at 349, 387 S.E.2d at 816, Syl. Pt. 8. “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.” Id., Syl. Pt. 5. To be convicted as a principle in the second 

degree, “the law requires that the accused ‘in some sort associate himself with the venture, that 

he participate in it as in something that he wishes to bring about, that he seek by his action to 

make it succeed.’” Id. at 356, 387 S.E.2d at 823 (citation omitted). While the State must show 

that petitioner “shared the criminal intent of the principal in the first degree[, . . . ] the accused is 

not required to have intended the particular crime committed by the perpetrator, but only to have 

knowingly intended to assist, encourage, or facilitate the design of the criminal actor.” Id. 

(internal quotations and citations omitted). Further, “[u]nder the concerted action principle, a 

defendant who is present at the scene of a crime and, by acting with another, contributes to the 

criminal act, is criminally liable for such offense as if he were the sole perpetrator.” Id. at 349, 

387 S.E.2d at 816, Syl. Pt. 11. 

Bearing these principles in mind and crediting all inferences and credibility 

determinations that the jury might have drawn in favor of the prosecution, sufficient evidence 

exists to sustain petitioner’s convictions. A reasonable juror could have concluded that the 

methamphetamine laboratory was being operated inside the house rather than outside, as Mr. 

Green testified. Items typically used in operating a methamphetamine laboratory were found on 

the kitchen countertop, and petitioner was also inside the house at the time law enforcement 

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arrived. Deputy Vandevender testified to smelling Coleman fuel, used in the manufacturing 

process, as he approached the front porch. Moreover, testimony was adduced that the 

manufacturing process was nearing completion at the time law enforcement arrived. The 

partially burned Zephrin-D packaging and battery packages, methamphetamine laboratory 

components hidden under the house, concealed snort straw, and other items strewn about could 

have led a reasonable juror to infer that multiple people, including petitioner, were hurriedly 

attempting to conceal their operation. Finally, credibility determinations are for a jury, and the 

jury in this instance found Mr. Green’s attempts to exonerate his codefendants incredible. See 

Guthrie, 194 W.Va. at 663, 461 S.E.2d at 169, Syl. Pt. 3, in part. 

Similarly, we find sufficient evidence to support petitioner’s conspiracy to operate or 

attempt to operate a clandestine drug laboratory conviction. To prove a conspiracy, the State 

“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, in part, State v. Less, 170 W.Va. 259, 294 S.E.2d 62 (1981). Again, there is no dispute 

that a methamphetamine laboratory was in operation in petitioner’s presence. Thus, petitioner’s 

challenge focuses on the State’s alleged failure to show “any particular agreement, plan etc. 

between the [p]etitioner and the co-defendants[.]” 

The agreement to commit an offense is the essential element of the crime of 

conspiracy – it is the conduct prohibited by the statute. The agreement 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, 294 S.E.2d at 67 (citation omitted). Based upon the evidence presented as outlined 

above, reasonable jurors could conclude that petitioner was among a group of individuals who 

intended to encourage the preparation of the methamphetamine to share in it upon its completion. 

As such, the circuit court did not abuse its discretion in denying petitioner’s motion for judgment 

of acquittal. 

For the foregoing reasons, the circuit court’s January 3, 2017, order denying his post-trial 

motion for judgment of acquittal and sentencing him is hereby affirmed. 

Affirmed. 

ISSUED: January 8, 2018 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

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