                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                         FILED
                                                                                October 16, 2015
vs) No. 14-0806 (McDowell County 13-F-14)                                      RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Eddie Coffey,

Defendant Below, Petitioner



                              MEMORANDUM DECISION
        Petitioner Eddie Coffey, by counsel Dennie S. Morgan, appeals his convictions for the
offenses of possession with intent to deliver a controlled substance and conspiracy to deliver a
controlled substance. Respondent State of West Virginia, by counsel David A. Stackpole, 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.

        In February of 2013, a grand jury indicted petitioner and his wife for multiple offenses
regarding the sale of controlled substances.1 Following a joint jury trial on July 25, 2013,
petitioner was found guilty of two counts of possession with intent to deliver a schedule II
substance, and one count of conspiracy.2

       The State’s evidence at trial showed that Hershel Lee Coleman sold one hundred Opana3

       1
           The indictment charged petitioner and his wife individually in count one with
possession with intent to deliver a schedule I controlled substance; in count two with possession
with intent to deliver a schedule II controlled substance; in count three with possession with
intent to deliver a schedule II controlled substance; in count four with possession with intent to
deliver a schedule III controlled substance; in count five with possession with intent to deliver a
schedule IV controlled substance, and in count six with conspiracy.
       2
           Petitioner was found not guilty of possession with intent to deliver a schedule I
controlled substance; possession with intent to deliver a schedule III controlled substance; and
possession with intent to deliver a schedule IV controlled substance.
        3
          Opana is a trade name for oxymorphone, a schedule II controlled substance pursuant to
West Virginia Code § 60A-2-206(b)(1)(q).
                                                1

pills to petitioner for forty dollars per pill on three different occasions. On the first two
occasions, Steve Huffman acted as a go-between, because petitioner was distrustful and would
not deal with people he did not know. The last time, Mr. Coleman testified that he sold the pills
directly to petitioner, and that Mr. Huffman was present for the exchange. On the day after the
third sale, petitioner was arrested.

       Petitioner’s arrest came after deputies received numerous anonymous tips that petitioner
was observed at his residence as multiple vehicles were coming and going without staying long;
and that petitioner was selling drugs at his residence. Based upon this information, a search
warrant was obtained, and on October 14, 2011, the sheriff’s department and Southern Regional
Drug and Violent Crime Task Force executed the warrant.

        Petitioner was at his residence when the warrant was executed. Officers conducted a
search of petitioner, and found twenty-two Opana pills in petitioner’s right jacket pocket in a
silver metal pill bottle.4 In petitioner’s right front pocket, officers found a piece of aluminum foil
with thirty 15 mg oxycodone pills, and a piece of aluminum foil containing one Opana pill.
Deputy Shelton of the McDowell County Sheriff’s Department testified that he was present
when the items were discovered, that Deputy England turned them over to him, and that Deputy
Shelton inventoried the items.5 Officers also seized $7,000.00 in cash from petitioner’s
residence. At trial, petitioner did not object to testimony regarding the seizure of the currency,
nor to the admission of the “Items Seized Report” which contained a list of the items found in
petitioner’s home.

        Deputy Shelton testified that at all times he kept control of the evidence, transported the
pills to the station, and sealed them in the evidence locker. Prior to taking the evidence to the
West Virginia State Police Lab, Deputy Shelton realized that two of the pill bottles seized from
petitioner’s home contained pills with different markings. In order to get a proper count of the
pills, Deputy Shelton opened one pill bottle at a time and grouped the pills by markings, counted
them, and returned them to the bottle.

        In his closing argument, petitioner argued that the drugs seized were for his personal use,
and that he had a substance abuse problem. In response, the prosecutor twice made statements
that petitioner was “not working” and pointed out the amount of money that was seized in an
attempt to show that intent to distribute existed.6 Petitioner did not object to these statements.



       4
          There were two officers present at the time of the execution of the search warrant.
Deputy England, who retrieved a number of the pills found in petitioner’s home, did not testify at
trial as he was no longer an employee of the McDowell County’s Sheriff’s Department at the
time of trial.
       5
          In addition to the pills seized from petitioner’s person, the officers also seized additional
pills, cash, guns, and several all–terrain vehicles from petitioner’s residence.
       6
           The statements, in context, are as follows:


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       The events described above are relevant to petitioner’s assignments of error at issue in
this appeal. Petitioner appeals his re-sentencing order,7 and the order of the circuit court that
denied his motion to set aside verdict, judgment of acquittal, and his motion for a new trial.

       Petitioner raises three assignments of error on appeal.

               “In reviewing challenges to findings and rulings made by a circuit court,
       we apply a two-pronged deferential standard of review. We review the rulings of
       the circuit court concerning a new trial and its conclusion as to the existence of
       reversible error 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.” Syllabus point 3, State v. Vance, 207
       W.Va. 640, 535 S.E.2d 484 (2000).

Syl. Pt. 2, State v. White, 228 W.Va. 530, 722 S.E.2d 566 (2011). We note that “‘[a] reviewing
court should not reverse a criminal case on the facts which have been passed upon by the jury,
unless the court can say that there is reasonable doubt of guilt and that the verdict must have
been the result of misapprehension, or passion and prejudice.’ Syllabus point 3, State v. Sprigg,
103 W.Va. 404, 137 S.E. 746 (1927).” Syl. Pt.1, State v. Easton, 203 W.Va. 631, 510 S.E.2d 465
(1998). Further,




       He’s got $7,000, roughly, in cash. Okay? He’s not working. He’s got this property
       – how many four-wheelers? Three? He paid $5,000, uncontradicted, to Junior
       Coleman a few days before. 4 and 7, that’s $11,000. Who has that much money
       just laying around the house that’s not working? Where did those other Opana go?
       He sold them. That’s the only reasonable inference that can be made from that. He
       didn’t eat 78 Opana over a period of at most five days – at least within 24 hours,
       really less than 24 hours if they were there the evening before. Where did those 78
       Opana go?
...
       He’s not working. He’s got close to $7,000. He pays $4,000 the day or two
       before. That’s $11,000. I mean it’s not reasonable to think that he’s got all this
       money and all these pills that he didn’t have a prescription for and he’s not selling
       them. I mean, let’s just- its not reasonable. I mean, that’s way too many pills, way
       too much money for him just to have a drug problem. If he just had a really bad
       drug problem, one wouldn’t have all that money because he’d be spending it all
       buying pills of some sort. And the reason he had the money is because he was
       making a profit selling drugs.
       7
         Petitioner was convicted on July 26, 2013. The original order denying petitioner’s
motions was entered January 31, 2014, and petitioner was sentenced April 28, 2014. On June 24,
2014, the circuit court entered an order re-sentencing defendant in order to allow the filing of this
appeal.


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        “[a]lthough the ruling of a trial court in granting or denying a motion for a new
        trial is entitled to great respect and weight, the trial court’s ruling will be reversed
        on appeal when it is clear that the trial court has acted under some
        misapprehension of the law or the evidence.”

Syl. Pt. 1, in part, White (internal citations omitted).

        Petitioner first claims that the trial court erred by not granting him a new trial once the
evidence showed that the State of West Virginia wrongfully withheld exculpatory material.8
Petitioner argues that pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and State v. Hatfield,
169 W.Va. 191, 286 S.E.2d 402 (1982), the State was required to turn over exculpatory evidence,
but did not. The circuit court found that the subject evidence was not exculpatory or
impeachment evidence, and rejected petitioner’s motion for a new trial on this basis.

        Petitioner has failed to establish that the subject evidence was exculpatory and that the
conduct of the State violated petitioner’s constitutional due process rights. “A claim of a
violation of Brady and Hatfield presents mixed questions of law and fact. Consequently, the
‘circuit court's factual findings should be reviewed under a clearly erroneous standard and . . .
questions of law are subject to de novo review.’” State v. Youngblood, 221 W.Va. 20, 26, 650
S.E.2d 119, 125 (2007) (internal citation omitted). Further,

                [t]here are three components of a constitutional due process violation
        under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and
        State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982): (1) the evidence at issue
        must be favorable to the defendant as exculpatory or impeachment evidence; (2)
        the evidence must have been suppressed by the State, either willfully or
        inadvertently; and (3) the evidence must have been material, i.e., it must have
        prejudiced the defense at trial.

Syl. Pt. 2, Youngblood. Black’s Law Dictionary defines exculpatory evidence as “[e]vidence
tending to establish a criminal defendant's innocence.” 675 (10th ed. 2014). Impeachment
evidence is “[e]vidence used to undermine a witness’s credibility.” Id. at 676.

        The evidence of which petitioner complains involves a statement that Ms. Cassell
allegedly gave to law enforcement, and testimony from law enforcement officers of several
unsuccessful attempts to buy, purchase, or arrange for the purchase of controlled substances from
petitioner. Petitioner fails to show how this evidence might tend to establish his innocence of the
offenses for which he was convicted. Petitioner was indicted and convicted based upon evidence
that, on three occasions, petitioner purchased one hundred Opana pills in exchange for forty
dollars per pill. In addition, evidence was introduced at trial that petitioner was notoriously

        8
          Petitioner cites two alleged pieces of exculpatory evidence which were not turned over
by the State prior to trial: (1) a written statement given by Lynn Cassell to a law enforcement
officer around October of 2011, in which she stated that she attempted to purchase drugs from
petitioner seven times in one day and was refused; and (2) evidence from law enforcement
officers regarding several unsuccessful attempts to buy, purchase, or arrange for the purchase of
controlled substances from petitioner.
                                                   4

paranoid, and would often turn others away. Therefore, we find petitioner has failed to satisfy the
standards set forth in Youngblood, as petitioner has not shown that any evidence was suppressed
by the State, willfully or inadvertently, nor that any such evidence was material, particularly in
light of the fact that petitioner had the opportunity to cross-examine Ms. Cassell, and the
investigating officers regarding this evidence. Therefore, we find that the circuit court did not err
in denying petitioner’s motion for a new trial on this ground.

        Petitioner next alleges that the circuit court erred in denying petitioner a new trial because
the State’s closing argument was improper and unduly prejudicial. At trial, the State argued that,
although petitioner was unemployed, he was found in possession of $7,000.00 cash, several
guns, and all-terrain vehicles. The State argued that petitioner was financing his lifestyle by
selling controlled substances. The circuit court found that, while there was no direct evidence
regarding petitioner’s employment status, the jury was free to make any reasonable inferences
from the evidence introduced at trial. The circuit court found further that petitioner was home on
a Friday afternoon when the search warrant was executed, and that there was testimony that
petitioner “always seemed home,” regardless of the time of the day or day of the week. The
circuit court concluded that it was reasonable to conclude that petitioner was home nearly all the
time, and was unemployed.

               “Four factors are taken into account in determining whether improper
       prosecutorial comment is so damaging as to require reversal: (1) the degree to
       which the prosecutor’s remarks have a tendency to mislead the jury and to
       prejudice the accused; (2) whether the remarks were isolated or extensive; (3)
       absent the remarks, the strength of competent proof introduced to establish the
       guilt of the accused; and (4) whether the comments were deliberately placed
       before the jury to divert attention to extraneous matters.” Syllabus point 6, State v.
       Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995).

Syl. Pt. 3, State v. Walker, 207 W.Va. 415, 533 S.E.2d 48 (2000). Upon our review of the record,
we find that petitioner is not entitled to have his conviction set aside because the prosecutor’s
remarks did not result in clear prejudice or manifest injustice.

        With regard to the first Sugg factor, we disagree with petitioner’s argument that the
prosecutor’s remarks had a strong tendency to mislead the jury and to prejudice petitioner. The
circuit court found, and we agree, that the remarks by the prosecutor amount to a reasonable
inference based upon testimony introduced at trial. Importantly, the jury was instructed by the
circuit court to disregard any statements not supported by the evidence.

        As to the second Sugg element, the statements in question were isolated, in that they were
little more than a small portion of the State’s rebuttal in closing argument. As to the third Sugg
element, as noted above, the jury had ample evidence with which to convict petitioner. The state
presented direct testimony that on three occasions, Mr. Coleman received $4000.00 from
petitioner in exchange for one hundred Opana pills. Officers testified that they received several
anonymous tips that multiple vehicles were coming and going from petitioner’s residence
without staying for long periods of time. Upon execution of a search warrant, officers found
twenty-two Opana pills in petitioner’s right jacket pocket, and another pill bottle with thirty
oxycodone 15 mg pills. Additional pills were found in petitioner’s home, and on his person. It is

                                                  5

clear, absent the prosecutor’s remarks, the evidence against petitioner was sufficient to support
his conviction.

        In addition, we find that the remarks were not deliberately meant to divert the jury’s
attentions to extraneous matters. There is no evidence that the State intended to assert anything
other than an inference based upon the evidence presented at trial that petitioner was at his
residence day and night, regardless of the day of the week, which suggests that petitioner was
unemployed. Finally, we note that petitioner did not object to the statements at the time they
were made. “‘Errors assigned for the first time on appeal will not be regarded in any matter of
which the trial court had jurisdiction or which might have been remedied in the trial court had
objection been raised there.’ Syllabus point 17, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445
(1974).” Syl. Pt. 1, State v. Berry, 227 W.Va. 221, 707 S.E.2d 831 (2011). Consequently, we find
that the prosecutor’s remarks do not justify reversal of petitioner’s conviction because they did
not prejudice petitioner or result in any manifest injustice.

        Finally, petitioner asserts that the circuit court allowed the admission of evidence that
was not properly authenticated, and that petitioner was unfairly prejudiced by the admission of
this improper evidence. Petitioner complains of the following evidence that was admitted at trial:
twenty-two 40 mg Opana pills seized from petitioner’s right jacket pocket; thirty 15 mg
oxycodone tablets seized from petitioner’s right front pants pocket; and currency in the amount
of $7,087.00 seized from petitioner’s home all of which were seized by Deputy J.R. England. At
the time of trial, Deputy England was no longer employed with the McDowell County Sheriff’s
Department and did not testify. Petitioner argues that because Deputy England did not testify to
his seizure of the items, the items could not be properly authenticated, and so were improperly
admitted by the circuit court.

              “Before a physical object connected with a crime may properly be
       admitted into evidence, it must be shown that the object is in substantially the
       same condition as when the crime was committed. Factors to be considered in
       making this determination are: (1) the nature of the article, (2) the circumstances
       surrounding its preservation and custody, and (3) the likelihood of intermeddlers
       tampering with it.”

Syl. Pt. 1, State v. Davis, 164 W.Va. 783, 266 S.E.2d 909 (1980). Further, “[t]he preliminary
issue of whether a sufficient chain of custody has been shown to permit the admission of
physical evidence is for the trial court to resolve. Absent abuse of discretion, that decision will
not be disturbed on appeal.” Syl. Pt. 2, id.

        Petitioner fails to demonstrate that the circuit court abused its discretion by permitting the
subject evidence. First, the record reflects that the currency was never admitted into evidence,
and that the only evidence offered regarding the currency seized was in the form of testimony by
the investigating officers. Chain of custody concerns the condition of physical objects which one
seeks to admit into evidence. Petitioner cannot complain of the physical condition of evidence
which was not admitted at trial. Further, petitioner did not object to the testimony regarding the
seized currency at trial.

       With respect to the pills seized from petitioner, petitioner claims that Deputy Shelton

                                                  6

testified that he sorted all of the pills found petitioner’s home in order to determine their type for
storage. Upon our review of the record, it appears that the circuit court excluded the pills sorted
by Deputy Shelton. The evidence of which petitioner complains, was not sorted by Deputy
Shelton, but was taken from petitioner by Deputy England, and sealed and stored by Deputy
Shelton, without his interference.

       To allow introduction of physical evidence into a criminal trial, it is not necessary
       that every moment from the time evidence comes into the possession of a law
       enforcement agency until it is introduced at trial be accounted for by every person
       who could conceivably come in contact with the evidence during that period, nor
       is it necessary that every possibility of tampering be eliminated; it is only
       necessary that the trial judge, in his discretion, be satisfied that the evidence
       presented is genuine and, in reasonable probability, has not been tampered with.

Id., 164 W.Va. at 786-87, 266 S.E.2d at 911-12 (internal citation omitted). It is evident from the
record that the circuit court thoughtfully considered the chain of custody of the evidence in this
matter, and selectively excluded evidence that it believed was improperly authenticated. Further,
the record reflects that Deputy Shelton was in the presence of Deputy England when the subject
evidence was seized, and that the subject evidence was sealed and stored until it was tested by
the West Virginia State Police Lab, after which time it was properly stored until trial.
Accordingly, we find the circuit court did not abuse its discretion in admitting this evidence, and
find petitioner’s argument to be without merit.

       For the foregoing reasons, we affirm.

                                                                                           Affirmed.

ISSUED: October 16, 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




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