                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS

State of West Virginia,
Plaintiff Below, Respondent                                                            FILED
                                                                                  February 3, 2020
vs.) No. 18-0989 (Wood County 18-F-144)                                           EDYTHE NASH GAISER, CLERK
                                                                                  SUPREME COURT OF APPEALS
                                                                                      OF WEST VIRGINIA
Brandon Charles Greiner,
Defendant Below, Petitioner


                               MEMORANDUM DECISION


       Petitioner Brandon Charles Greiner, by counsel D. Shane McCullough, appeals the Circuit
Court of Wood County’s October 19, 2018, sentencing order following his convictions for fleeing
from an officer while under the influence of alcohol and fleeing from an officer with reckless
disregard. Respondent State of West Virginia, by counsel Mary Beth Niday, 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 affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.

        On February 24, 2018, at approximately 3:30 a.m., Patrolman Richard Sanchez, of the
Parkersburg City Police Department, responded to the Ohio Avenue area in Parkersburg, West
Virginia, following a report from an area McDonald’s of an intoxicated driver of a dark-colored
sedan bearing a license plate beginning with “O3” in the drive-thru lane. As documented in his
police report, Patrolman Sanchez noted the sedan traveling at a high rate of speed upon reaching
the area of the McDonald’s. As Patrolman Sanchez attempted to catch up to the vehicle, he
observed it make “a wide abrupt turn into the oncoming lane while continuing at a high rate of
speed” and then turn around in a driveway, nearly striking Patrolman Sanchez’s vehicle as it passed
in the opposite direction. As it passed, Patrolman Sanchez saw that the vehicle’s license plate
began with “O3.” Patrolman Sanchez turned around to continue following the vehicle and
witnessed the driver fail to stop at a stop sign. The officer detailed that he traveled at speeds greater
than seventy-five miles per hour in a twenty-five-mile-per-hour zone in an attempt to catch up to
the vehicle. Patrolman Sanchez initiated his emergency lights and siren in the 3000 block of
Fairview Avenue as the vehicle made an abrupt left turn and failed to yield to an oncoming vehicle.
The vehicle continued, with Patrolman Sanchez following, until parking at an apartment complex.

       After coming to a stop at the apartment complex, Patrolman Sanchez approached the
vehicle with his gun drawn and observed the driver exit the vehicle with a McDonald’s bag in his

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right hand. Despite verbal commands to stop, the driver continued toward Patrolman Sanchez and
reached his left hand behind his back. Eventually, the driver placed the McDonald’s bag on the
trunk of his vehicle and placed his right hand on the trunk. As the driver took his eyes off of
Patrolman Sanchez, Patrolman Sanchez holstered his weapon and shoved the driver against the
trunk of vehicle given the driver’s continued failure to show his left hand. The driver continued to
resist, but Patrolman Sanchez “gain[ed] compliance” and handcuffed the driver, identified as
petitioner. Patrolman Sanchez noted a strong odor of alcohol on petitioner; lethargic movements;
red, watery eyes; and that petitioner mumbled as he spoke. Patrolman Sanchez then transported
petitioner to the hospital.1

        Patrolman Sanchez further documented that once they arrived at the hospital, petitioner
“got in [Patrolman Sanchez’s] face and stuck his chest out as if to intimidate” the officer. Petitioner
was escorted into the hospital and handcuffed to a bed. When a nurse asked the officer to release
one of petitioner’s arms to obtain petitioner’s vitals, petitioner reportedly “began yelling at staff
and officers making the statements that ‘Your [sic] Dead’ as he was punching the air with [his]
now released hand.” Petitioner also reportedly yelled “you’re dead, you’re [expletive] dead.” After
petitioner was treated for minor abrasions, Patrolman Sanchez transported him to the police
department for processing. There, petitioner refused field sobriety tests and twice refused the
Intoximeter test (the breath test for alcohol). Petitioner was ultimately indicted on one count each
of fleeing from an officer while under the influence of alcohol, fleeing from an officer with reckless
disregard, and driving while under the influence.

        Petitioner moved in limine to prohibit the State from introducing evidence of petitioner’s
behavior at the time of his arrest and while at the hospital, including evidence that he was
“combative, aggressive, intimidating, or being non-compliant with being taken into physical
custody.” Petitioner also moved to exclude references to his expletive-containing statements.
Before trial started on August 23, 2018, the court considered petitioner’s motion. The State argued
that the evidence petitioner sought to exclude was relevant to a determination of intoxication.
Given petitioner’s refusals to take field sobriety or Intoximeter tests, there were no results of these
tests available, and Patrolman Sanchez’s observations of petitioner’s appearance and behavior
were the only evidence of his alleged intoxication. The court denied petitioner’s motion, finding
“that the probative value [of this evidence] is not substantially outweighed by the danger of unfair
prejudice.” The court noted that belligerence “can be a trait of someone who is under the influence
of alcohol,” and concluded that so long as “an appropriate foundation is laid for some of the signs
and symptoms that the officer looks for, I don’t believe that the probative value would be
substantially outweighed.”

        Patrolman Sanchez’s testimony at petitioner’s trial was largely consistent with the events
documented in his police report. He detailed that when he first observed petitioner’s taillights, he
“could tell it was going at a high rate of speed, because I’m doing thirty-five, and having to increase
speed to catch up to it.” He recounted to the jury petitioner’s near collision with him after turning
around in the driveway, failure to stop at the stop sign, and high rates of speed. With respect to
when he activated his lights and siren, Patrolman Sanchez testified that he did so “just prior to”


       1
         Patrolman Sanchez stated that department policy instructs officers to take an individual
to the hospital when an officer is forced to “go[] hands on” with that individual.
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the location of Parkersburg Catholic High School (“PCHS”). The officer continued, “We’re talking
yardage, probably seventy-five yards prior to [PCHS] there on your right-hand side. And at this
point in time, I was still accelerating trying to catch up with the [petitioner],” who “was right there
at the first entrance to” PCHS, approximately twenty-five yards from him. Patrolman Sanchez
stated that his lights “absolutely” were visible from twenty-five yards and the siren also audible
from that distance; yet, according to the officer, petitioner increased his speed, requiring Patrolman
Sanchez to drive over seventy-five miles per hour in a twenty-five-mile-per-hour zone.

        Patrolman Sanchez testified that, in his experience, drivers do not accelerate once he has
initiated his lights and siren. If a driver cannot pull over immediately, he or she will “signal, at
least give me notice they’re trying to pull over.” But petitioner made no such indication, and the
officer further noted that in the area between where he activated his lights and siren and the
apartment complex at which petitioner ultimately stopped, there were parking lots and side streets
on which petitioner could have pulled over.

        In light of his work on the midnight shift and training at the State Police Academy,
Patrolman Sanchez also testified to being familiar with the signs of alcohol intoxication. He stated
that he has made arrests for public intoxication and driving under the influence “multiple times.”
Based on his experience and training, petitioner’s lethargic movements; red, watery, glassy eyes;
confused look; odor of alcohol on his breath; being “off-centered” and “off-balance”; failure to
comply with verbal directives; verbally threatening behavior; and belligerence led the officer to
conclude that petitioner was intoxicated.

         On cross-examination, petitioner questioned Patrolman Sanchez about his testimony given
at petitioner’s preliminary hearing. At the preliminary hearing, Patrolman Sanchez stated that he
activated his lights and siren “past” PCHS. In explaining the discrepancy between that testimony
and his testimony at trial, Patrolman Sanchez noted that he also testified at the preliminary hearing
that he activated his lights and siren within the 3000 block of Fairview Avenue, and PCHS sits in
the 3000 block.

        Following the State’s case-in-chief, petitioner moved for judgment of acquittal arguing that
the State “simply h[as] not presented enough evidence for the jury to deliberate on this case.” The
court denied the motion.

        Petitioner testified that, on the day in question, his birthday, he had worked the late shift at
a restaurant and then celebrated with two beers after work. After drinking these beers, he stopped
at McDonald’s before heading home. Petitioner also explained that he had recently moved and, as
a result, was unfamiliar with the area, which explained his need to turn around in the driveway on
his way home from McDonald’s. Petitioner denied seeing Patrolman Sanchez attempting to pull
him over; therefore, petitioner submitted that the confusion documented by Patrolman Sanchez
was due to the surprise of seeing the officer with a handgun pointed at him once petitioner had
parked and exited his vehicle. Petitioner admitted to saying “some choice words to the officer,”
but justified his remarks by stating that he was “pretty well outraged at this point at the way I’m
being treated.” Petitioner also denied being offered field sobriety or Intoximeter tests. Although
petitioner admitted to driving five to ten miles per hour over the speed limit, he denied driving as
fast as Patrolman Sanchez claimed.

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        After petitioner testified, the defense rested and renewed its prior motion for judgment of
acquittal. The circuit court again denied the motion. The jury found petitioner guilty of fleeing
from an officer while under the influence of alcohol and of fleeing from an officer with reckless
disregard.2

        The parties appeared for sentencing on October 9, 2018. Petitioner argued for alternative
sentencing, but the circuit court found that imprisonment was appropriate because petitioner lied
on the stand,3 has a prior fleeing charge, previously violated probation, and created a substantial
danger to the public in fleeing from the officer in the instant case. Accordingly, the court sentenced
petitioner to concurrent terms of incarceration of not less than three nor more than ten years for
his fleeing from an officer while under the influence of alcohol conviction and not less than one
nor more than five years for his fleeing from an officer with reckless disregard conviction. The
court’s sentencing order was entered on October 19, 2018, and this appeal followed.

        Petitioner raises four assignments of error on appeal: first, the circuit court erred in denying
his motion to exclude references to his behavior at the time of his arrest as it was unduly prejudicial
and irrelevant; second, the court erred in denying his motion for judgment of acquittal at the close
of the State’s case-in-chief; third, the court erred in denying his motion for judgment of acquittal
raised again following the close of all the evidence; and fourth, the court erred in denying him an
alternative sentence and credit for time served.

        In support of his first assignment of error, petitioner argues that evidence of his demeanor
on the night of his arrest was irrelevant because he was not charged with obstruction of an officer,
battery, or assault of an officer or medical personnel. He characterizes his behavior as
“inquisitiveness into why he was being arrested, why he is being held at gunpoint, [and] why he is
being slammed into the ground,” and he claims that the behavior is not relevant to whether he was
driving while intoxicated or fleeing from an officer in a motor vehicle. Therefore, he asserts that
the court should have granted his motion in limine to exclude references to that behavior.
Alternatively, petitioner argues that if the evidence was relevant, the court failed to perform a
proper balancing under Rule 403 of the West Virginia Rules of Evidence and should have excluded
the evidence as unduly prejudicial. Petitioner claims that “[b]ecause this evidence was allowed to
be presented, it is clear that a proper 403 balancing test was not performed by the [t]rial [c]ourt.”

       We review a trial court’s ruling on a motion in limine under an abuse of discretion standard.
See Syl. Pt. 1, McKenzie v. Carroll Int’l Corp., 216 W. Va. 686, 610 S.E.2d 341 (2004). Under
Rule 401 of the West Virginia Rules of Evidence, “[e]vidence is relevant if: (a) it has any tendency
to make a fact more or less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” Although relevant, evidence may nevertheless be
excluded “if its probative value is substantially outweighed by a danger of one or more of the
        2
         The parties determined that the third count of the indictment, driving while under the
influence, was a lesser-included offense of fleeing from an officer while under the influence of
alcohol. The jury was instructed accordingly.
        3
          At trial, petitioner testified that he was not under the influence of alcohol; however,
petitioner admitted to being under the influence of alcohol to the probation officer who completed
his presentence investigation report after trial.
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following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time,
or needlessly presenting cumulative evidence.” W. Va. R. Evid. 403.

        Petitioner refused to perform field sobriety tests or take the Intoximeter test. Given these
refusals, evidence relevant to a determination of whether petitioner was intoxicated—a fact of
consequence in determining whether he was guilty of fleeing from an officer while under the
influence of alcohol—necessarily came from Patrolman Sanchez following the laying of a proper
foundation. Patrolman Sanchez, having undergone State Police Academy training and having
made arrests for public intoxication and driving under the influence “multiple times,” detailed his
familiarity with intoxicated persons and the behaviors they typically display. He testified that
failing to comply with verbal directives, making verbal threats, and acting belligerently are
behaviors suggestive of intoxication, particularly when exhibited in conjunction with lethargic
movements, red and glassy eyes, the odor of alcohol on one’s breath, and “off-balance” or “off-
centered” movements. As this evidence was probative of petitioner’s intoxication, we find no
abuse of the court’s discretion in allowing this testimony.

         We also find that petitioner has failed to establish that the evidence was unfairly prejudicial.
Petitioner argues only that it “painted [him] in a negative light” and made him “not very likeable
in the eyes of the [j]ury.” He contends, in conclusory fashion, that the admission of the evidence
makes it “clear that a proper 403 balancing test was not performed.” That the evidence made him
“not very likeable in the eyes of the [j]ury” does not amount to an unfair prejudice. “The fact that
evidence is prejudicial is not grounds by itself for exclusion. It is safe to say that almost all
evidence introduced by the State in a criminal trial is prejudicial in one degree or another; indeed,
that is usually why it is introduced.” State v. Peacher, 167 W. Va. 540, 574, 280 S.E.2d 559, 581
(1981). Rather, the evidence must be unfairly prejudicial. In light of the evidence’s probative value
and the trial court’s “broad discretion” in balancing that value against the danger of unfair
prejudice, we find that petitioner has failed to demonstrate a “clear abuse” of that discretion. See
Syl. Pt. 8, State v. Rollins, 233 W. Va. 715, 760 S.E.2d 529 (2014) (holding that trial court’s broad
discretion in performing Rule 403 balancing “will not be overturned absent a showing of clear
abuse”).

        In petitioner’s second assignment of error, he argues that the circuit court erred in denying
his motion for judgment of acquittal following the State’s case-in-chief. Petitioner acknowledges
that “[i]f just glancing at this evidence [from Patrolman Sanchez] on paper it might seem like
sufficient evidence that a [j]ury could find the [p]etitioner guilty.” But he contends that “[a]t the
heart of the sufficiency of this evidence is the credibility of arresting [o]fficer [Patrolman]
Sanchez.” Petitioner claims that Patrolman Sanchez’s “crucial” testimony concerning when he
activated his lights and siren evolved from “past” PCHS at petitioner’s preliminary hearing, to “at”
PCHS in his testimony before the grand jury, to “before” PCHS at trial. Petitioner also claims that
Patrolman Sanchez testified differently as to when he first observed petitioner speeding, when he
first observed that petitioner’s license plate matched the information that had been reported, and
how close he was able to get to petitioner after activating his lights and siren.

       We apply “a de novo standard of review to the denial of a motion for judgment of acquittal
based upon the sufficiency of the evidence.” State v. Jenner, 236 W. Va. 406, 413, 780 S.E.2d 762,



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769 (2015) (citation omitted). In addition to this general standard of review, we have also held that
the function of this Court in reviewing sufficiency of the evidence claims

        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.

Id., syl. pt. 2, in part (citing syl. pt. 1, in part, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163
(1995). And

                “[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).

Jenner, syl. pt. 3.

        Petitioner does not dispute that the evidence on any essential element of the crimes of
which he was convicted was sufficient. Indeed, he admits that “on paper it might seem like
sufficient evidence” for a jury to find guilt beyond a reasonable doubt. Rather, he argues that
Patrolman Sanchez’s credibility is “[a]t the heart of” his claim. Petitioner admits to “highlight[ing]
and point[ing] out [inconsistencies in the officer’s testimony] for the jury,” but he claims that the
officer was “effectively impeached.” It is well established that such “[c]redibility determinations
are for a jury and not an appellate court.” Id. Further, this Court “must credit all inferences and
credibility assessments that the jury might have drawn in favor of the prosecution.” Id.
Accordingly, because petitioner has challenged only the credibility determinations made, which is
a determination exclusively within the jury’s province, he has failed to establish that the circuit
court erred in denying his motion for judgment of acquittal at the close of the State’s case-in-chief.

         Petitioner, again, seeks to have this Court usurp the jury’s function in his third assignment
of error, which is that the circuit court erred in denying his renewed motion for judgment of
acquittal made at the close of all the evidence. Petitioner claims that “after having heard the
[p]etitioner testify and explain the events surrounding the night in question,” the court should have
granted his motion for judgment of acquittal. Petitioner states that he “testified competently and
offered reasonable explanations” for Patrolman Sanchez’s observations and asserts that he was not

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“discredited on cross examination.” We find no error in the circuit court’s denial of petitioner’s
renewed motion for judgment of acquittal, as petitioner again bases this claim on the resolution of
credibility determinations. “[T]he jury, as the finders of fact, have the responsibility of weighing
the evidence and the credibility of the witnesses and resolving these inconsistencies within the
framework of the instructions given to them by the court.” State v. Houston, 197 W. Va. 215, 230,
475 S.E.2d 307, 322 (1996) (citation omitted).

        Lastly, petitioner argues that the circuit court erred in denying him an alternative sentence.
Petitioner does not argue that the sentencing order violates statutory or constitutional commands,
but he “does believe[] that the denial of alternative sentencing is disproportionate based upon the
facts of the case and [his] limited criminal history.”4 Petitioner also argues that he should have
been awarded credit for 110 days served in jail between March 8, 2018, and June 25, 2018.

        “The Supreme Court of Appeals reviews sentencing orders, including orders of restitution
made in connection with a defendant’s sentencing, under a deferential abuse of discretion standard,
unless the order violates statutory or constitutional commands.” Syl. Pt. 1, State v. Lucas, 201 W.
Va. 271, 496 S.E.2d 221 (1997). “Probation is a matter of grace and not a matter of right.” Syl. Pt.
1, State v. Rose, 156 W. Va. 342, 192 S.E.2d 884 (1972). Likewise, a circuit court retains discretion
in ordering home confinement: “As a condition of probation or bail or as an alternative sentence
to another form of incarceration for any criminal violation of this code over which a circuit court
has jurisdiction, a circuit court may order an offender confined to the offender’s home for a period
of home incarceration.” W. Va. Code § 62-11B-4(a), in relevant part (emphasis added). The court
here found that petitioner would be an inappropriate candidate for alternative sentencing because
he “has a prior conviction for fleeing,” “has shown he is unable to follow the terms and conditions
of probation by violating them on multiple occasions,” and created a “substantial danger to the
public” in fleeing from law enforcement. In light of these findings, we find no abuse of discretion
in the court’s refusal to grant an alternative sentence.

         To the extent petitioner suggests that his sentences are disproportionate, we note that
“[w]hile our constitutional proportionality standards theoretically can apply to any criminal
sentence, they are basically applicable to those sentences where there is either no fixed maximum
set by statute or where there is a life recidivist sentence.” Syl. Pt. 4, Wanstreet v. Bordenkircher,
166 W. Va. 523, 276 S.E.2d 205 (1981). “Sentences imposed by the trial court, if within statutory
limits and if not based on some [im]permissible factor, are not subject to appellate review.” Syl.
Pt. 4, State v. Goodnight, 169 W. Va. 366, 287 S.E.2d 504 (1982). Petitioner’s sentences are within
statutory limits, and he does not argue that they were based on an impermissible factor.
Accordingly, they are not subject to appellate review.

        Finally, in arguing for additional credit for time served, petitioner states that “he was
technically incarcerated on both a probation revocation and the current case at the same time” and
“concedes that the [t]rial [c]ourt did have the authority to determine how his incarceration time
would be allocated between the two cases.” In other words, petitioner concedes that the court did
not err in declining to award him credit for time served for an unrelated charge, and we find no


       4
        At his sentencing hearing, petitioner argued for “some combination of probation or home
confinement.”
                                                  7
error. See State v. Wears, 222 W. Va. 439, 665 S.E.2d 273 (2008) (finding no error in the denial
of credit for time served where the time was served for an unrelated charge).

       For the foregoing reasons, we affirm.

                                                                                      Affirmed.

ISSUED: February 3, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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