                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,                                                             FILED
Plaintiff Below, Respondent
                                                                                 June 16, 2017
                                                                                 RORY L. PERRY II, CLERK
vs) No. 16-0193 (Mercer County 15-M-AP-09-WS )                                 SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA

Kimberly Neal,

Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner Kimberly Neal, by counsel R. Thomas Czarnik, appeals the Circuit Court of
Mercer County’s February 1, 2016, order finding her guilty of one count of driving under the
influence of alcohol or drugs (“DUI”). The State of West Virginia, by counsel Zachary Aaron
Viglianco, filed a response in support of the circuit court’s order. On appeal, petitioner argues
that the circuit court erroneously found her guilty of DUI beyond a reasonable doubt.1

        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 June of 2014, police responded to an emergency call from the employees of a gas
station/convenience store (“store”) in Mercer County, West Virginia. Police arrived and
interviewed store employees, another witness, and petitioner. According to witnesses and the
criminal complaint filed later that day, petitioner drove her vehicle erratically into the store’s
parking lot, missed the entrance, “slam[med]” on her brakes, “fish tailed then turned into [the]
grass, swirved [sic] to miss [a] customer’s truck [which was] on [the gas] pump,” and struck an
ice machine. One witness stated that petitioner “then got out of [the] vehicle unaware she had
even hit anything[.]” In the criminal complaint, police described petitioner as “belligerent” and

       1
        In the “Assignments of Error” section of her brief, petitioner raises three separate
assignments of error: (1) that no testimony supported the finding that petitioner was under the
influence of alcohol or drugs, and the arresting officer testified that he did not observe alcohol or
drug use; (2) that the circuit court disregarded petitioner’s testimony; and (3) that the evidence
was insufficient. However, in the “Argument” section of her brief, petitioner combines her
assignments of error into a single, undivided discussion. As such, we analyze petitioner’s claims
under a single issue: whether the circuit court erroneously found her guilty of DUI beyond a
reasonable doubt.



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“stagger[ing]” when she walked. Further, police observed an unopened can of beer on the
passenger seat of petitioner’s vehicle, and they discovered that petitioner’s insurance card had
expired. Upon failing all three field sobriety tests, petitioner was arrested on several
misdemeanor charges, including driving under the influence of alcohol or drugs (“DUI”).2
Petitioner refused breath or blood testing.

       The Magistrate Court of Mercer County held a bench trial on the DUI charge. At the
conclusion of that trial, petitioner was found guilty and fined $100.3 Petitioner appealed her
magistrate court conviction to the Circuit Court of Mercer County.

         In September of 2015, the circuit court held a bench trial. At trial, several witnesses
testified that petitioner drove erratically and hit an ice machine in front of the convenience store.
Evidence was also presented that after petitioner drove into the ice machine, she entered the
convenience store and purchased beer. Petitioner reportedly appeared disoriented and confused
and attempted to light the wrong end of a cigarette after purchasing beer. Two witnesses testified
that petitioner appeared to be intoxicated. In her testimony, petitioner admitted to drinking an
alcoholic beverage the night before the incident and to taking an over-the-counter allergy
medication. Petitioner claimed that she had not slept that night because she was fighting with her
boyfriend, who had in petitioner’s words “already passed out” from drinking excessive alcohol
when she went to the convenience store. She testified that she went to buy beer “hoping it would
calm me down.” She further claimed that she suffered from several medical conditions and
“blacked out for a few seconds” that morning. At the conclusion of the bench trial, the circuit
court found that petitioner committed DUI beyond a reasonable doubt, “probably [from] a
combination of drugs and alcohol.” The circuit court re-imposed the magistrate court’s fine of
$100 plus court costs and fees. This appeal followed.

       Our standard of review of the circuit court’s judgment after a bench trial was set forth in
Syllabus Point 1 of State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006):

               In reviewing challenges to the findings and conclusions of the circuit court
       made after a bench trial, a two-pronged deferential standard of review is applied.
       The final order and the ultimate disposition are reviewed under an abuse of
       discretion standard, and the circuit court's underlying factual findings are
       reviewed under a clearly erroneous standard. Questions of law are subject to a de
       novo review. Public Citizen, Inc. v. First Nat. Bank in Fairmont, 198 W.Va. 329,
       480 S.E.2d 538 (1996).

With that standard in mind, we turn to petitioner’s arguments.



       2
           All but the DUI charge was later dismissed.
       3
        Nothing in the appendix record indicates when the bench trial occurred in magistrate
court. No conviction/sentencing order from magistrate court is included in the appendix record.



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        On appeal, petitioner argues that the circuit court erred in finding her guilty of DUI
beyond a reasonable doubt. Petitioner argues that the evidence was insufficient to support such a
finding because “[t]here was no proof of alcohol or drug intoxication[.]” Further, petitioner
argues that her own testimony proved that she had not had any alcohol in more than twelve hours
before the incident and that her medical issues explained her driving and behavior. The State
responds that petitioner’s admissions coupled with witness testimony as to her driving, behavior,
and appearance clearly support the circuit court’s finding.

       Regarding challenges to the sufficiency of the evidence, this Court has explained that

                3. “The 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.” Syllabus point 1, State
       v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

               4. “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. To the extent that our prior cases are
       inconsistent, they are expressly overruled.” Syllabus point 3, State v. Guthrie, 194
       W.Va. 657, 461 S.E.2d 163 (1995).

Syl. Pts. 3 and 4, State v. Horn, 232 W.Va. 32, 750 S.E.2d 248 (2013). To be convicted of DUI,
the State had to prove beyond a reasonable doubt that petitioner drove a vehicle “in this state: (i)
while . . . in an impaired state[.]” W.Va. Code § 17C-5-2(e). A person is an “impaired state”
when she is “under the influence of alcohol . . . any controlled substance . . . any other drug or
inhalant substance . . . or the combined influence of alcohol and any controlled substance or any
other drug.” Id. at 17C-5-2(a)(1).

        In this case, the evidence is largely undisputed. In her own testimony, petitioner admitted
that she drank alcohol the evening before the incident; that her boyfriend (with whom she spent
the entire night) drank alcohol to excess and “passed out”; that she took an over-the-counter
allergy medication; and that she drove to the store to buy more alcohol when her boyfriend
“passed out.” Several witnesses testified that petitioner drove erratically and crashed her vehicle
into the store’s ice machine. Petitioner then exited her vehicle unaware of her accident, entered



                                                 3
the store to buy beer, and lit a cigarette from the wrong end. She was also reported to be
belligerent and to stagger when she walked.

        Looking at the evidence in the light most favorable to the State and considering
petitioner’s burden of proof on appeal, we find that the State presented sufficient evidence upon
which a trier of fact could conclude that petitioner “under the influence of alcohol . . . any
controlled substance . . . any other drug or inhalant substance . . . or the combined influence of
alcohol and any controlled substance or any other drug.” While there was no direct evidence of
alcohol consumption or drug use immediately prior to the incident, the circumstantial evidence
was sufficient to establish DUI. As noted above, “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.” Horn, 232 W.Va. 32, 750 S.E.2d 248, Syl. Pt. 4, in part. Given
the evidence detailed above, we find no merit to petitioner’s claims regarding the insufficiency
of the evidence.

        Petitioner further argues that her testimony proved her innocence, and the circuit court
erred in failing to give it more weight. As explained above, we “must credit all . . . credibility
assessments that the jury might have drawn in favor of the prosecution. . . . Credibility
determinations are for a jury and not an appellate court.” Id.; see also Michael D.C. v. Wanda
L.C., 201 W.Va. 381, 388, 497 S.E.2d 531, 538 (1997) (stating that “[a] reviewing court cannot
assess witness credibility through a record. The trier of fact is uniquely situated to make such
determinations and this Court is not in a position to, and will not, second guess such
determinations.”). Having reviewed the record on appeal, the parties’ arguments, and pertinent
legal authority, we decline petitioner’s invitation to second guess the circuit court’s credibility
determination regarding her testimony about medical issues and her “black out.” We note that
petitioner did not present medical records or expert medical witnesses to affirmatively defend
against the charge or to otherwise rebut the State’s prima facie case for DUI. We find that the
circuit court was ideally situated to consider petitioner’s testimony and evaluate her claims
against the other evidence. Accordingly, we find no error.

       For the foregoing reasons, the circuit court’s February 1, 2016, sentencing order is hereby
affirmed.

                                                                                        Affirmed.

ISSUED: June 16, 2017

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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