                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

State of West Virginia,
Plaintiff Below, Respondent                                                             FILED
                                                                                   September 6, 2016
vs) No. 15-0471 (Wayne County 14-F-082)                                                RORY L. PERRY II, CLERK
                                                                                     SUPREME COURT OF APPEALS
                                                                                         OF WEST VIRGINIA
Robert Wayne Prince,
Defendant Below, Petitioner


                               MEMORANDUM DECISION
        Petitioner Robert Wayne Prince, by counsel Alison R. Gerlach, appeals the Circuit Court
of Wayne County’s June 1, 2015, order sentencing him to not less than two years nor more than
fifteen years of incarceration for Delivery of a Schedule I Controlled Substance. The State, by
counsel Jonathan E. Porter, filed a response. On appeal, petitioner argues that the circuit court
erred in denying his motion to suppress certain evidence.

        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 August of 2013, petitioner sold less than two grams of heroin to a confidential
informant (“CI”) in the presence of multiple police officers. The CI arranged to meet petitioner
to purchase heroin from him while in the custody of the Kenova Police Department. The CI was
searched by an officer and a drug detection canine officer before she left the police station.
Another police officer drove the CI to the appointed meeting place and remained in the vehicle
with her until petitioner arrived and approached the vehicle’s window. Petitioner exchanged the
bag of heroin for money with the CI and was immediately arrested by several police officers.
The police officer in the vehicle with the CI picked up the heroin from the CI, kept it in his
possession, and ordered the CI out of the vehicle during petitioner’s arrest. Prior to petitioner’s
trial, the heroin tested positive using a field test kit at the police department and those findings
were confirmed by additional testing at the West Virginia State Police Forensic Laboratory.
Petitioner was subsequently charged with the Delivery of a Schedule I Controlled Substance.

        In March of 2015, petitioner filed a motion to suppress the heroin as evidence claiming
that there were three breaks in the chain of custody, one of which would call into question the
heroin’s authenticity. Petitioner claimed that the CI was not sufficiently searched at the police
station and left alone in the police officer’s vehicle with the heroin. Petitioner also contended that


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the heroin was not securely stored at the police department. The circuit court held petitioner’s
motion in abeyance until his criminal trial.

         In April of 2015, petitioner’s trial commenced. At trial, the officer that confiscated the
heroin confirmed that the heroin that tested positive was from the same sample that he received
when petitioner was arrested for Delivery of a Schedule I Controlled Substance. He further
testified that the heroin was placed in storage at the Kenova Police Department in accordance
with the policies of the department. A lab technician from the West Virginia State Police
Forensic Laboratory testified that the heroin sample arrived at the lab sealed in an evidence bag,
was analyzed, tested positive as heroin, and returned to the Kenova Police Department in the
same manner. After hearing the testimony regarding the chain of custody and the heroin’s
authenticity, the circuit court denied petitioner’s motion to suppress the heroin as evidence.

       The CI testified that she arranged for petitioner to sell her heroin and the police officers
searched her in the presence of a drug detection canine officer before she went to purchase
heroin from petitioner. The CI testified that it was petitioner who arranged the pre-determined
meeting place, arrived at the meeting place, and delivered the heroin. Ultimately, petitioner was
convicted of Delivery of a Schedule I Controlled Substance and sentenced to a period of not less
than two years nor more than fifteen years of incarceration. Petitioner now appeals his conviction
and sentencing order dated June 1, 2015.

       We have previously set forth the following standard of review:

               “When reviewing a ruling on a motion to suppress, an appellate court
       should construe all facts in the light most favorable to the State, as it was the
       prevailing party below. Because of the highly fact-specific nature of a motion to
       suppress, particular deference is given to the findings of the circuit court because
       it had the opportunity to observe the witnesses and to hear testimony on the
       issues. Therefore, the circuit court’s factual findings are reviewed for clear error.”
       Syllabus point 1, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996).

Syl. Pt. 13, State v. White, 228 W.Va. 530, 722 S.E.2d 566 (2011). Upon our review, we find no
error in the circuit court’s rulings below.

       We begin by addressing petitioner’s argument that the circuit court erred in denying his
motion to suppress the heroin. Specifically, petitioner argues that the heroin was not secured in a
proper chain of custody procedure at the Kenova Police Department and, therefore, could have
been tampered with.

        When discussing chain of custody procedures, we have previously held that “[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, State v. Davis, 164 W.Va. 783, 266 S.E.2d
909 (1980). It is clear from the record that the circuit court heard enough evidence to establish
that a sufficient chain of custody existed for the admission of the heroin at petitioner’s trial.



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         At trial, the police officer that confiscated the heroin on scene confirmed that the positive
heroin sample was from the same package he received when petitioner was arrested. He also
testified that the heroin was placed in storage at the Kenova Police Department in accordance
with the policies and procedures of the department. Other police officers corroborated his
testimony by confirming that the confiscated heroin was placed in the evidence locker at the
Kenova Police Department and only police department employees had access to the evidence
locker. A laboratory technician from the West Virginia State Police Forensic Laboratory also
testified that the heroin sample arrived at the laboratory sealed in an evidence bag, was analyzed,
tested positive as heroin, and was returned to the Kenova Police Department. The laboratory
technician indicated that the heroin sample arrived at the West Virginia State Police Forensic
Laboratory properly sealed and packaged and was returned to the police department in the same
manner. Finally and as previously stated, the CI testified that she arranged for petitioner to sell
her heroin and she was searched before she went to purchase the heroin from petitioner. She also
testified that it was petitioner who delivered the heroin. As outlined above, there was sufficient
evidence for the circuit court to deny petitioner’s motion to suppress and admit the heroin
evidence at trial. As such, we find no error in this regard.

        Next, petitioner argues that that the heroin was improperly secured. He contends that the
circuit court did not follow the proper analysis to determine chain of custody and, as such, it is
“quite likely that intermeddlers could have tampered with the substance, or even removed or
replaced the substance.” However, we disagree.

       We have held that

              [b]efore 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.

Id. at 164 W.Va. 783, 266 S.E.2d 909, Syl. Pt. 1. In the present case, several witnesses testified
regarding the transaction and exchange of heroin between petitioner and the CI. Additionally, a
number of police officers testified that the heroin was stored following the proper chain of
custody procedures, only police department employees had access to the evidence locker, and the
sample of heroin presented at trial was the same shape, size, and mass as the sample that was
placed into custody at the Kenova Police Department following petitioner’s arrest. Police
officers further testified that the heroin sample was the same as the heroin received at petitioner’s
arrest and sent to the West Virginia State Police Forensic Laboratory. Therefore, we find no error
in the circuit court admitting the heroin evidence at petitioner’s trial.

       For the foregoing reasons, the circuit court’s June 1, 2015, sentencing order is hereby
affirmed.


                                                                                           Affirmed.

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ISSUED: September 6, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




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