                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,                                                             FILED
Plaintiff Below, Respondent                                                         May 17, 2013
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs) No. 12-0760 (Wood County 11-F-132)                                           OF WEST VIRGINIA



Charles Wade Parsons II,
Defendant Below, Petitioner


                               MEMORANDUM DECISION
        Petitioner Charles Wade Parsons II, by counsel Joseph G. Troisi, appeals the order of the
Circuit Court of Wood County, entered May 14, 2012, which denied his motions for judgment of
acquittal and for a new trial following his conviction of first degree robbery. The State, by
counsel Marland L. Turner, 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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

       In June of 2011, petitioner was convicted by a jury of one count of first degree robbery.
Thereafter, he was sentenced to forty years in the penitentiary.

        Petitioner raises several grounds on appeal.1 He alleges that the circuit court erred in
denying his motions for judgment of acquittal at the close of the State’s case-in-chief and at the
conclusion of all the evidence, and in denying his motion for a new trial. In support, petitioner
argues that the evidence below was insufficient to support his conviction of first degree robbery
because the State failed to establish that he presented a knife when robbing the convenience
store. Petitioner claims the best evidence in this case, the surveillance video of the robbery,
shows no indication of a knife.


       1
         We find no merit in petitioner’s contention that the circuit court committed plain error
by failing to provide the jury a written copy of its instructions. Petitioner cites no legal authority
in his brief with regard to this alleged error. After reviewing this matter, we find that the circuit
court read the instructions to the jury, made the instructions available upon request during
deliberation, and gave the jury a copy of the instructions setting forth the elements of first degree
robbery.


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        In response, the State argues that the evidence introduced at trial was sufficient to support
the jury’s verdict. The victim, a cashier at the convenience store, testified that petitioner held a
knife in his right hand, which was partially tucked underneath his jacket. The State claims the
surveillance video of the robbery was unclear because petitioner was leaning on the counter and
the cashier’s body was positioned between the petitioner and the camera.

        We note the following standard of review regarding the circuit court’s order denying the
petitioner’s post-trial motions:

       “‘Although 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. 4, Sanders v. Georgia-
       Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).” Syl. Pt. 1, Andrews v.
       Reynolds Mem'l Hosp., Inc., 201 W.Va. 624, 499 S.E.2d 846 (1997).

Syl. Pt. 1, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000). Petitioner argues that the
circuit court abused its discretion in denying the motion for a new trial because the verdict went
against the weight of the evidence. We have held that,

       “[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.” Syl. Pt. 3, State v. Guthrie, 194 W.Va.
       657, 461 S.E.2d 163 (1995).

Syl. Pt. 5, State v. Broughton, 196 W.Va. 281, 470 S.E.2d 413 (1996).

        Upon our review, the Court finds that the evidence was sufficient to support petitioner’s
conviction, keeping in mind that for the purpose of this analysis, all the evidence must be viewed
in the light most favorable to the prosecution. Id. After hearing the testimony of the cashier, as
well as seeing the surveillance video, the jury determined that petitioner presented a knife while
robbing the convenience store. Although petitioner attacks the credibility of the cashier, there is
no question that witness credibility determinations are within the province of the jury. Syl. Pt. 2,
State v. Bailey, 151 W.Va. 796, 155 S.E.2d 850 (1967). We see no compelling reason to disturb
that finding on appeal.

      Petitioner also argues that the circuit court committed plain error when it failed to provide
a means for the jury to view the surveillance video in closed session during deliberations. After

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the jurors retired to deliberate, they requested the opportunity to review the exhibits. The jurors
were directed into open court to study the surveillance video. The State responds that petitioner
cannot cite to any authority that requires the circuit court to allow the jury to view video
evidence in the jury room. Even if the circuit court erred, the State maintains that defense
counsel intentionally waived this argument when he made no objection.

        We find no abuse of discretion in the manner that the circuit court allowed the jury to
view this video evidence during deliberations. An analogy may be drawn to the presentation of
audio evidence at trial. We have held that “[i]f a jury, during its deliberation, asks a trial court to
permit it to listen to a tape recording that was admitted into evidence, the trial court has
discretion to bring the jury back into the courtroom to listen to the tape recording.” Syl. Pt. 6,
State v. Hughes, 225 W.Va. 218, 691 S.E.2d 813 (2010).

        Petitioner further contends the circuit court committed plain error by failing to instruct
the jury on the elements of second degree robbery and larceny. The State responds that defense
counsel made a strategic decision to argue against the incorporation of any lesser-included
offenses in the jury instructions. The defense strategy was to convince the jury that the evidence
failed to support the finding of first degree robbery because the knife was not clearly seen in the
surveillance video. The State responds that since petitioner argued for only having to defend
against a single offense, he should not now be permitted to seize upon any alleged error which he
invited.

        In dealing with jury instructions, our standard of review is familiar. “A criminal
defendant is entitled to an instruction on the theory of his or her defense if he or she has offered a
basis in evidence for the instruction, and if the instruction has support in law. See State v.
LaRock, 196 W.Va. 294, 308, 470 S.E.2d 613, 627 (1996).” State v. Hinkle, 200 W.Va. 280, 285,
489 S.E.2d 257, 262 (1996). The inquiry of whether a jury was properly instructed is a question
of law, and, thus, our review is de novo. Id. In the present case, we find no merit in petitioner’s
argument. The circuit court gave the instruction he requested and there was evidence to support
the instruction. We therefore find no reversible error.

        The final issue raised by petitioner is that the cumulative effect of the alleged errors
below resulted in an unfair trial requiring reversal under the cumulative error doctrine. We note
that cumulative error can be found “[w]here the record of a criminal trial shows that the
cumulative effect of numerous errors committed during the trial prevented the defendant from
receiving a fair trial, his conviction should be set aside, even though any one of such errors
standing alone would be harmless error.” Syl. Pt. 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d
550 (1972). After review, this Court has found no legal or factual basis supportive of any of the
alleged assignments of error.2 Having failed to find numerous errors, we conclude that the
cumulative error doctrine is not applicable.



       2
        Also without merit are petitioner’s assignments of error concerning inappropriate
remarks made by two witnesses. Petitioner takes issue with a defense witness’s singular
reference to petitioner’s incarceration and a State witness’s singular reference to a domestic
dispute involving petitioner. We note that defense counsel, not the State, asked the questions
                                                  3

      For the foregoing reasons, we affirm petitioner’s criminal conviction as set forth in the
May 14, 2012, order of the Circuit Court of Wayne County.

                                                                                     Affirmed.

ISSUED: May 17, 2013

CONCURRED IN BY:

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




which prompted the remarks petitioner now assigns as error. Even if the remarks were
inappropriate, we find that they were so fleeting as to be harmless.
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