                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


                                                                                    FILED
State of West Virginia, Plaintiff Below,                                        January 12, 2015
Respondent                                                                     RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
vs) No. 13-1262 (Monongalia County 13-F-36)

Randy Cleveland, Defendant Below,
Petitioner


                              MEMORANDUM DECISION
        Petitioner Randy Cleveland, by counsel Timothy Gentilozzi, appeals the Circuit Court of
Monongalia County’s sentencing order entered on December 4, 2013, following his conviction
of battery. The State of West Virginia, by counsel Derek Knopp, filed a response. On appeal,
petitioner argues the circuit court erred in denying his motion for judgment of acquittal.

        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 January of 2013, petitioner was indicted by the Monongalia County Grand Jury on one
count of malicious assault following an altercation outside of a bar. On March 1, 2013, petitioner
filed notice of the affirmative defense of self-defense, wherein he admitted that he stabbed the
victim twice in self-defense. Following a jury trial in October of 2013, petitioner was convicted of
the lesser included offense of misdemeanor battery pursuant to West Virginia Code § 61-2-9(c).1

        On November 4, 2013, petitioner filed a motion for judgment of acquittal on the ground of
an inconsistent jury verdict. Petitioner argues that giving the jury a lesser included instruction on
the verdict form led to an inconsistent verdict because it was impossible to be found guilty of
battery based upon his affirmative defense of self-defense. By order entered on December 4,
2013, the circuit court denied petitioner’s motion for judgment of acquittal and sentenced him to a
period of incarceration for one year. This appeal followed.

      On appeal, petitioner argues that the circuit court erred in denying his motion for
judgment of acquittal because the verdict was inconsistent. In support of his position, petitioner

       1
        The circuit court instructed the jury on the lesser included offenses of unlawful assault
and battery. The circuit court also instructed the jury on the affirmative defense of self-defense.
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maintains that it is impossible to be found guilty of the lesser included offense of battery because
he was acquitted of malicious assault and the lesser included offense of unlawful assault based
on his affirmative defense of self-defense. We disagree.

        Upon our review, we find no error in the circuit court’s order denying petitioner’s motion
for judgment of acquittal. This Court has previously held that “‘[a]ppellate review of a claim of
inconsistent verdicts is not generally available.’ State v. Hall, 174 W.Va. 599, 328 S.E.2d 206
(1985).” Syl. Pt. 5, State v. Bartlett, 177 W.Va. 663, 355 S.E.2d 913 (1987). Even if appellate
review of a claim of inconsistent verdicts were reviewable, it is clear from a review of the record
that the verdict was not inconsistent. The evidence is undisputed that petitioner admitted to
stabbing the victim twice.

        It is well established that “[o]nce there is sufficient evidence to create a reasonable doubt
that the . . . defendant act[ed] in self-defense, the prosecution must prove beyond a reasonable
doubt that the defendant did not act in self-defense.” Syl. Pt. 4, State v. Kirtley, 162 W.Va. 249,
252 S.E.2d 374 (1978). Furthermore, “‘[i]t is peculiarly within the province of the jury to weigh
the evidence upon the question of self-defense, and the verdict of a jury adverse to that defense
will not be set aside unless it is manifestly against the weight of the evidence.’ Syllabus point 5,
State v. McMillion, 104 W.Va. 1, 138 S.E. 732 (1927).” Syl. Pt. 2, State v. Whittaker, 221 W.Va.
117, 650 S.E.2d 216 (2007). Petitioner’s argument is based on the unsupported premise that the
jury acquitted him of malicious assault and unlawful assault based upon his affirmative defense
of self-defense. “The jury is the trier of the fact and in performing that duty it is the sole judge as
to the weight of the evidence and the credibility of the witnesses.” Syl. Pt. 2, State v. Bailey, 151
W.Va. 796, 155 S.E.2d 850 (1967). See State v. Clark, 175 W.Va. 58, 62, 331 S.E.2d 496, 500
(1985) (“We have historically been reluctant to interfere with a jury verdict rejecting a claim of
self-defense”). The jury could have concluded that the prosecution rebutted the presumption that
petitioner did not act in self-defense, but that the State only proved beyond a reasonable doubt
that petitioner was guilty of battery. Therefore, the jury’s guilty verdict of battery is not
inconsistent with its acquittal of malicious assault and unlawful assault.

       For the foregoing reasons, we affirm.


                                                                                             Affirmed.

ISSUED: January 12, 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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