                            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 non­
        interference 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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