                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS

State of West Virginia,
Plaintiff Below, Respondent                                                          FILED
                                                                                February 3, 2020
vs) No. 18-0786 (Berkeley County CC-02-2017-F-231)                               EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
Joshua Shaine Moore,
Defendant Below, Petitioner


                               MEMORANDUM DECISION

        Petitioner Joshua Shaine Moore, by counsel Robert C. Stone, Jr., appeals the final
sentencing order entered on August 27, 2018, in the Circuit Court of Berkeley County, following
his convictions by a jury of possession with intent to deliver marijuana; transporting a controlled
substance in the State, marijuana; and conspiracy to commit possession with intent to deliver, all
felonies. The State of West Virginia, by counsel Caleb A. Ellis, filed a response in support of the
circuit court’s order. Petitioner submitted a reply.

       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 order of the circuit court is appropriate under Rule 21 of
the Rules of Appellate Procedure.

         On December 27, 2016, petitioner and his passengers, Abdul Kamara and Shaniqua
Whindleton, were traveling north on Interstate 81 in Berkeley County, West Virginia, as West
Virginia State Police Trooper D.R. Walker was in his police cruiser monitoring northbound traffic
at mile marker 8. Though petitioner’s vehicle was not exceeding the speed limit, Trooper Walker
observed that, at the speed of seventy miles per hour, it was following too closely to the car in
front of it (approximately one-and-a-half car lengths, or twenty to twenty-five feet). According to
Trooper Walker, petitioner’s vehicle would not have had sufficient time to react to the vehicle in
front of it if that vehicle were to suddenly apply its brake. After he was able to safely pull onto the
interstate from the median, Trooper Walker initiated a traffic stop of petitioner’s vehicle.
Petitioner’s vehicle exited the interstate and came to a stop in the parking lot of a nearby gas
station.

       According to Trooper Walker, upon exiting his cruiser, he immediately smelled a strong
odor of marijuana, which seemed to emanate from petitioner’s vehicle. He approached the vehicle
and, when one of the occupants rolled down the passenger side window, smelled an even stronger
odor of marijuana. Trooper Walker asked petitioner, who was driving, for his license and

                                                  1
registration and, upon learning that the vehicle had been rented, also asked for the rental agreement.
While he was filling out the traffic citation, Trooper Walker confronted petitioner about the odor
of marijuana and asked him if there were any drugs in the vehicle. Petitioner did not respond.
Walker then patted petitioner down, noticed that there were items in his pocket, and inquired about
them. Petitioner pulled THC-infused candy out of his pocket.1

        Based upon the circumstances, Trooper Walker determined that he had probable cause to
search petitioner’s vehicle. He called another officer to assist him, and, when the other officer
arrived, Trooper Walker began searching the vehicle. He found and seized what appeared to be
marijuana in sixteen large sealed packages located in pieces of luggage; edibles and other products
purporting to contain THC; a loaded, vacuum-sealed .357 magnum handgun; a vacuum sealer; a
box of vacuum seal bags; and three cell phones. Trooper Walker also found a copy of petitioner’s
tax information, which was in the same bag as the gun, and seized $2,883 in cash. Petitioner and
his two passengers were arrested.

        On December 30, 2016, Walker submitted an affidavit and complaint for a search warrant
relating to one of the seized cell phones, a “Samsung Galaxy J1 (IME #99000600033743).” The
request for a search warrant was granted.

       On August 31, 2017, a Berkeley County Grand Jury indicted petitioner and his passengers
on one count of possession with intent to deliver marijuana, see W.Va. Code § 60A-4-401(a)(ii),
one count of transportation of a controlled substance into the state, see W.Va. Code § 60A-4-
409(a), and one count of conspiracy to commit possession with intent to deliver marijuana. See
W.Va. Code § 61-10-31.2

        On December 29, 2017, petitioner filed a motion in limine regarding the admissibility of
the evidence related to the firearm that was found in the trunk of the vehicle. Petitioner argued that
because he was not charged with a crime related to the unlawful possession or use of a firearm,
evidence related thereto was not relevant and would violate West Virginia Rule of Evidence
404(b).

       On June 18, 2018, petitioner filed a motion to suppress the fruits of the vehicle search and
any subsequent statements. He argued that the following-too-closely statute upon which Trooper
Walker relied to initiate the traffic stop, West Virginia Code § 17C-7-10, was void for vagueness,
and that Trooper Walker prolonged a routine traffic stop in order to turn it into a drug investigation,
absent reasonable suspicion.3 Petitioner filed a second motion to suppress on July 19, 2018,


       1
        “THC” refers to Tetrahydrocannabinol, a Schedule I controlled substance. See W. Va.
Code § 60A-2-204(d)(32) (2015).
       2
        Mr. Kamara was also charged with being a prohibited person in possession of a firearm.
See W. Va. Code § 61-7-7(a)(8).
       3
          Trooper Walker was monitoring a High Intensity Drug Trafficking Area (“HIDTA”) as
part of a national program focusing on specific drug-heavy areas, including Berkeley County.


                                                  2
challenging the validity of the search warrant for his cell phone. He argued that Trooper Walker’s
affidavit submitted in connection with his request for the warrant did not contain any information
providing probable cause to believe that evidence of possession with intent to deliver marijuana
would be found on the phone. Following a pretrial hearing, the circuit court denied petitioner’s
motions by order entered on July 23, 2018.

        Petitioner’s trial commenced on July 24, 2018. In addition to Trooper Walker, Special
Agent Seth Cox of the Bureau of Alcohol, Tobacco, and Firearms, who participated in the
investigation of this case, also testified. He testified that, based upon his investigation, the firearm
found in petitioner’s vehicle was purchased by one of his passengers, Ms. Whindleton, on
December 20, 2017, and that video from the establishment where it was purchased showed that
petitioner and Mr. Kamara (the other passenger) were with her at the time of purchase, that she
and petitioner had looked at various firearms throughout the store, and that petitioner provided her
with a large sum of money while she was at the cash register purchasing the firearm.

        Rebecca Harrison, a forensic analyst and drug examiner for the West Virginia State Police,
also testified. She testified that she tested a representative sample (0.3 grams) from the bags that
were seized from petitioner’s vehicle, which weighed approximately 11.8 pounds in total. Ms.
Harrison testified that, before picking a small sample to test, she made sure that the contents of the
bag she selected were “consistent with each other.” She confirmed that the substance was
marijuana.

        At the close of the State’s case-in-chief, petitioner moved for a judgment of acquittal. The
motion was denied. Petitioner did not testify or present any evidence. The jury ultimately returned
guilty verdicts as to all three counts of the indictment. Petitioner subsequently filed a post-trial
motion for a judgment of acquittal or new trial. At the August 20, 2018, sentencing hearing, the
circuit court denied petitioner’s motions and sentenced him to one-to-five years of incarceration
on each count, which sentences were ordered to run concurrently. The final sentencing order was
entered on August 27, 2018. This appeal followed.

       In his first assignment of error, petitioner argues that the circuit court erred in denying his
motion for a judgment of acquittal because the State failed to prove an essential element of each
of the crimes charged: that petitioner intended to deliver the marijuana that was found in his
vehicle.

        We review the circuit court’s disposition of petitioner’s motion for judgment of acquittal
de novo, see State v. LaRock, 196 W. Va. 294, 304, 470 S.E.2d 613, 623 (1996), and challenges to
the sufficiency of the evidence using a “highly deferential” and “strict” approach that will not
lightly overturn a jury’s verdict. See State v. Thompson, 240 W. Va. 406, 414, 813 S.E.2d 59, 67
(2018).

                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

                                                   3
        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). Furthermore,

        [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.

        The crimes for which petitioner was tried and convicted all required proof that petitioner
intended to deliver a controlled substance. See W. Va. Code § 60A-4-401(a) (possession with
intent to deliver)4; W. Va. Code § 60A-4-409 (transporting a controlled substance into the state)5;
and W. Va. Code § 61-10-31(conspiracy).6 “Most courts have held that possession with intent to
deliver a controlled substance can be proven by establishing a number of circumstances among
which are the quantity of the controlled substance possessed and the presence of other
paraphernalia customarily used in the packaging and delivery of controlled substances.” Syl. Pt. 4,
State v. Drake, 170 W. Va. 169, 291 S.E.2d 484 (1982). Furthermore,




        4
         West Virginia Code § 60A-4-401(a) provides that, “[e]xcept as authorized by this act, it
is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver,
a controlled substance.”
        5
           West Virginia Code § 60A-4-409(a) provides that “[e]xcept as otherwise authorized by
the provisions of this code, it is unlawful for any person to transport or cause to be transported into
this state a controlled substance with the intent to deliver the same or with the intent to manufacture
a controlled substance.”
        6
            West Virginia Code § 61-10-31 provides, in relevant part:

        It shall be unlawful for two or more persons to conspire (1) to commit any offense
        against the State or (2) to defraud the State, the state or any county board of
        education, or any county or municipality of the State, if, in either case, one or more
        of such persons does any act to effect the object of the conspiracy.



                                                      4
               “[t]he question of whether a person possesses a controlled substance with
       intent to manufacture or deliver is a jury question to be determined like other
       questions of intent from all the surrounding facts and circumstances, and as such
       intent is a basic element of the offense, it must be proven beyond a reasonable
       doubt.” Syllabus Point 3, State v. Frisby, 161 W.Va. 734, 245 S.E.2d 622, 624
       (1978).

Drake at 170, 291 S.E.2d at 485, syl. pt. 5.

        The State clearly established a number of circumstances that proved possession with intent
to deliver marijuana. Trooper Walker discovered 11.8 pounds of marijuana and other products
containing THC that were worth, in total, approximately $53,000. According to Trooper Walker’s
testimony, this amount of marijuana is not consistent with personal use. Indeed, this Court has
stated that “‘quantity, standing alone, is evidence of intent to deliver.’” Id. at 172, 291 S.E.2d at
487-88 (quoting State v. Frisby, 161 W. Va. 734, 737, 245 S.E.2d 622, 624 (1978)). Additionally,
the marijuana found in petitioner’s vehicle was packaged in individual vacuum-sealed bags, along
with a vacuum sealer, additional plastic bags, and $2,882 in cash. Viewing this evidence in the
light most favorable to the State, it was more than reasonable for the jury to infer that petitioner
possessed the marijuana with the intent to deliver. 7

       As for petitioner’s argument that there was no evidence of a conspiracy to possess
marijuana with the intent to deliver, we likewise find no error. “In order for the State to prove
a conspiracy under W.Va.Code, 61–10–31(1), it 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, State v. Less, 170 W. Va. 259,
294 S.E.2d 62 (1981). The agreement to commit the offense “may be inferred from the words and


       7
          To the extent petitioner also argues that the State proved only that 0.3 grams of the items
seized from his vehicle were marijuana because that was the only amount tested and that no
inference of intent can legitimately be made from this amount, we find no error. Petitioner failed
to challenge the manner or method of testing that was performed on the sample of the seized
vegetation, including the fact that Ms. Harrison, the drug examiner, made sure that the contents of
the bag from which the sample was taken were consistent with each other before she performed
the testing. Furthermore, on appeal, petitioner’s brief fails to cite to any legal authority in support
of his position that, as a matter of law, the testing was insufficient evidence that the seized
substance, in its entirety, was marijuana, or that the jury was not permitted to infer the same. We
have cautioned that

              [a]n appellant must carry the burden of showing error in the judgment of
       which he complains. This Court will not reverse the judgment of a trial court unless
       error affirmatively appears from the record. Error will not be presumed, all
       presumptions being in favor of the correctness of the judgment.

Syl. Pt. 4, in part, State v. Myers, 229 W. Va. 238, 728 S.E.2d 122 (2012) (citation omitted).



                                                  5
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.

       As outlined above, the evidence was more than sufficient to show an agreement to possess
marijuana with the intent to deliver and that an overt act was taken in furtherance of the same. The
amount of marijuana seized from petitioner’s vehicle, the manner in which it was packaged, and
the presence of a vacuum sealer, empty baggies, a large amount of cash, and a vacuum-sealed
firearm that was paid for by petitioner are evidence that the jury could reasonably conclude that
there existed a conspiracy to possess marijuana with the intent to deliver. Thus, petitioner’s
assignment of error in this regard is without merit.

        In his next assignment of error, petitioner argues that the circuit court erred in denying his
motion in limine to prohibit the State from introducing evidence related to the firearm that was
found in the trunk of petitioner’s vehicle. Petitioner argues that none of the crimes for which he
was tried involved the unlawful possession or use of a firearm and that, therefore, evidence relating
to the firearm was irrelevant under West Virginia Rule of Evidence 401, violated the balancing
test under Rule 403, and constituted evidence of uncharged “other bad acts” under Rule 404(b),
which required a McGinnis8 hearing to first determine its admissibility. According to petitioner,
he was unfairly prejudiced by the State’s repeated mention of the firearm during its opening and
closing statements and questioning of witnesses regarding the fact that petitioner paid for his
passenger’s purchase of the firearm prior to the traffic stop, and that the firearm was loaded, wiped
clean, and secured in a vacuum-sealed bag when it was discovered, which, in the witnesses’
experience, was unusual and suggested a nefarious purpose, including drug trafficking.9

         We find no error. “A trial court’s ruling on a motion in limine is reviewed on appeal for
an abuse of discretion.” Syl. Pt. 1, McKenzie v. Carroll Int’l Corp., 216 W. Va. 686, 610 S.E.2d
341 (2004). First, evidence relating to the firearm did not violate Rule 401.10 The evidence that
petitioner was present and paid for the firearm when it was purchased by Ms. Whindleton one
week before his arrest and that it was packaged in a manner similar to the 11.8 pounds of marijuana
discovered by police was relevant to whether there was a conspiracy to possess the marijuana with
the intent to deliver. The circumstances surrounding the purchase of the firearm and its presence
in petitioner’s vehicle along with the large amount of packaged marijuana, a vacuum sealer, and
empty bags, give rise to a reasonable inference of an agreement between petitioner and his
passengers to possess marijuana with an intent to deliver, and that an “overt act was taken by a
member of the conspiracy to effect the object of that conspiracy.” Less, 170 W. Va. at 261, 294


       8
           See Syl. Pt. 2, State v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516 (1994).
       9
          Over petitioner’s objection, the circuit court refused to give a cautionary instruction. On
appeal, petitioner does not specifically assign the circuit court’s refusal to give such an instruction
as error.
       10
           West Virginia Rule of Evidence 401 provides that “[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.”


                                                  6
S.E.2d at 63, syl. pt. 4, in part. Indeed, as previously noted, the agreement to commit the offense
“may be inferred from the words and actions of the conspirators, or other circumstantial evidence
. . . .” Id. at 265, 294 S.E.2d at 67. Thus, the evidence relating to the firearm did not violate Rule
401.

         Likewise, the evidence relating to the firearm did not violate Rule 404(b)(1), which
provides that “[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s
character in order to show that on a particular occasion the person acted in accordance with the
character.” Rather, the firearm evidence was intrinsic to the crimes charged and not governed by
the limitations of Rule 404(b). See State v. Harris, 230 W. Va. 717, 722, 742 S.E.2d 133, 138
(2013). We have explained that “‘[o]ther act’ evidence is ‘intrinsic’ when the evidence of the other
act and the evidence of the crime charged are ‘inextricably intertwined’ or both acts are part of a
‘single criminal episode’ or the other acts were ‘necessary preliminaries’ to the crime
charged.” State v. LaRock, 196 W. Va. at 312 n.29, 470 S.E.2d at 631 n.29 (quoting United States
v. Williams, 900 F.2d 823, 825 (5th Cir.1990)). See also Harris, 230 W. Va. at 721-22, 742 S.E.2d
at 137-38. Moreover, “‘[e]vents, declarations and circumstances which are near in time, causally
connected with, and illustrative of transactions being investigated are generally considered res
gestae and admissible at trial.’ Syl. Pt. 3, State v. Ferguson, 165 W.Va. 529, 270 S.E.2d 166
(1980), overruled on other grounds by State v. Kopa 173 W.Va. 43, 311 S.E.2d 412 (1983).” Syl.
Pt. 7, State v. Dennis, 216 W. Va. 331, 607 S.E.2d 437 (2004).

        Here, the evidence relating to the firearm was intrinsic to the crimes charged. The evidence
relating to the firearm, including the manner in which it was packaged (wiped clean of fingerprints
and other DNA) and the opinion of law enforcement witnesses that this suggested a nefarious
purpose such as drug trafficking, was evidence “intrinsic to the crimes alleged in the indictment,
not ‘other crimes, wrongs, or acts’ evidence designed to prove some fact of [petitioner’s]
character.” Harris, 230 W. Va. at 721, 742 S.E.2d at 137. Indeed, the firearm evidence clearly
“‘furnishe[d] part of the context of the crime[,]’” was “necessary to a ‘full presentation’ of the
case,” was “so intimately connected with and explanatory of the crime charged against [petitioner]
and [was] so much a part of the setting of the case and its ‘environment’ that its proof [was]
appropriate in order ‘to complete the story of the crime on trial by proving its immediate context
or the “res gestae . . . .”’” Id. (quoting United States v. Masters, 622 F.2d 83, 86 (4th Cir. 1980)).
Thus, the admissibility of the firearm evidence was not governed by Rule 404(b).

        Finally, petitioner argues that, even if the firearm evidence did not constitute Rule 404(b)
evidence, it was still subject to the Rule 40311 balancing test because “‘[e]vidence of “other crimes,
wrongs, or acts,” intrinsic or not, may improperly invite the jury to convict a defendant because of
other misdeeds, not because of his guilt of the crime charged.’” State v. Baker, 230 W. Va. 407,
415, 738 S.E.2d 909, 917 (2013) (quoting Levya v. State, 165 P.3d 446, 453 (Wyo. 2007)).
Petitioner argues that the State’s actions regarding the firearm evidence unfairly prejudiced his


       11
          West Virginia Rule of Evidence 403 provides that “[t]he court may exclude relevant
evidence if its probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time,
or needlessly presenting cumulative evidence.”


                                                  7
case because the State excessively employed or “shotgunned” this evidence by devoting excessive
trial time to it in its opening and closing statements and in questioning witnesses. See State v.
Thomas, 157 W. Va. 640, 656, 203 S.E.2d 445, 456 (1974). According to petitioner, “the volume
and scope” of the firearm evidence unfairly “compel[led him] to meet charges of which the
indictment [gave] him no information; which confuse[d] his strategy of defense; and which raise[d]
such a variety of issues that the jury’s attention [was] diverted from the charge[s] immediately
before it.” Id.

        We conclude that the admission of the firearm evidence did not violate Rule 403. As
previously established, the firearm evidence was relevant and intrinsic to the crimes charged
because it was intimately connected with and explanatory of the crimes for which petitioner was
being tried. The admission of such evidence was highly probative of the crimes charged and did
not unfairly prejudice petitioner’s defense. Indeed, petitioner admits, and the record reveals, that
petitioner repeatedly reminded witnesses (and, thus, the jury) that he had not been charged with a
firearm-related offense, thereby eliminating any potential confusion of the issues or misleading of
the jury.

        We next address petitioner’s assignment of error that the circuit court erred in failing to
instruct the jury that simple possession of marijuana, a misdemeanor, see W.Va. Code § 60A-4-
401(c),12 was a lesser-included offense of count 2 of the indictment – that is, transportation of a
controlled substance into the State. Petitioner argues that, based upon the evidence presented, it
would have been impossible for him to have transported the marijuana into West Virginia without
first possessing it and that, therefore, simple possession is a lesser-included offense of transporting
a controlled substance into the State. Accordingly, he argues, the circuit court’s failure to give the
lesser-included offense instruction offered by petitioner was reversible error.

        This Court has held that “‘[a]s a general rule, the refusal to give a requested
jury instruction is reviewed for an abuse of discretion. By contrast, the question of whether a jury
was properly instructed is a question of law, and the review is de novo.’ Syl. pt. 1, State v.
Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996).” Syl. Pt. 1, State v. Shingleton, 222 W. Va. 647,
671 S.E.2d 478 (2008).

        We find no error. Petitioner’s argument misapprehends the test for determining whether a
particular offense constitutes a lesser-included offense of a greater offense. As we explained in
syllabus point 4 of State v. Bell, 211 W. Va. 308, 565 S.E.2d 430 (2002):




       12
            West Virginia Code § 60A-4-401(c) states, in pertinent part:

       It is unlawful for any person knowingly or intentionally to possess a controlled
       substance unless the substance was obtained directly from, or pursuant to, a valid
       prescription or order of a practitioner while acting in the course of his professional
       practice, or except as otherwise authorized by this act. Any person who violates this
       subsection is guilty of a misdemeanor . . . .


                                                  8
               “‘“‘The test of determining whether a particular offense is a lesser included
       offense is that the lesser offense must be such that it is impossible to commit the
       greater offense without first having committed the lesser offense. An offense is not
       a lesser included offense if it requires the inclusion of an element not required in
       the greater offense.’ Syllabus Point 1, State v. Louk, 169 W.Va. 24, 285 S.E.2d 432
       (1981) [,overruled on other grounds, State v. Jenkins, 191 W.Va. 87, 443 S.E.2d
       244 (1994) ].” Syllabus Point 1, State v. Neider, 170 W.Va. 662, 295 S.E.2d 902
       (1982).’ Syl. Pt. 5, State v. Wright, 200 W.Va. 549, 490 S.E.2d 636 (1997).”

        West Virginia Code § 60A-4-401(c), the simple possession statute, does not meet this test
because it is not impossible to commit the greater offense of transporting a controlled substance in
to the State, West Virginia Code § 60A-4-409(a), without first having committed the lesser offense
of simple possession. West Virginia Code § 60A-4-409(a) provides, in pertinent part, that “it is
unlawful for any person to transport or cause to be transported into this state a controlled substance
with the intent to deliver the same . . . .” Thus, it is not necessary to possess a controlled substance
to “cause [it] to be transported into this state.” Id. Put another way, it is possible “to transport or
cause to be transported into this state a controlled substance with the intent to deliver the same,”
in violation of West Virginia Code § 60A-4-409(a), without also simply “possess[ing] a controlled
substance,” in violation of West Virginia Code § 60A-4-401(c). Petitioner’s argument that, based
upon the evidence of his particular case, it would have been impossible for him to have transported
the marijuana into West Virginia without first possessing it clearly misapprehends the law, as
courts in this jurisdiction do not consider each case “individually to determine whether the
evidence adduced at trial supports a lesser included instruction.” State v. Wilkerson, 230 W.Va.
366, 370, 738 S.E.2d 32, 36 (2013).13 Based upon the foregoing, we do not find that the circuit


       13
           The amended version of West Virginia Code § 60A-4-409 (transporting a controlled
substance into the State) became effective on July 7, 2017, after the crimes herein occurred. The
amended version states that “it is unlawful for any person to transport or cause to be transported
into this state a controlled substance with the intent to deliver the same . . . .” (Emphasis added).
On appeal, petitioner contends that he was entitled to be tried under the prior version of the statute,
which provided that “it shall be unlawful for any person to transport into this State a controlled
substance with the intent to deliver the same,” West Virginia Code § 60A-4-409 (2005), and which
did not include the “or cause to be transported” language. According to petitioner, under the prior
version of the statute, simple possession would have been a lesser-included offense of transporting
a controlled substance into the State, which would have required that the circuit court give
petitioner’s proffered lesser-included offense instruction.

        We find no error. The record reveals that petitioner acquiesced to the application of the
amended version of West Virginia Code § 60A-4-409(a) to his case. During the discussion of jury
instructions, petitioner’s counsel specifically referenced the current statutory language, arguing
that “there’s no evidence of arranging or causing to be transported into the State. The evidence is
[petitioner] was driving a car[,]” and that the State “ha[s] offered no evidence that [petitioner]
caused [the marijuana] to be transported.” The record further reveals that petitioner specifically
referenced the language of the amended version of the statute in his proposed lesser-included
offense instruction and, thus, failed to argue that it did not apply. “‘A judgment will not be reversed


                                                   9
court abused its discretion in refusing to give the proffered instruction.

        Next, petitioner argues that the circuit court erred in failing to grant his motion to suppress
the search warrant for the Samsung Galaxy J1 smartphone that was seized during the traffic stop.
Petitioner argues that the “Affidavit and Complaint for Search Warrant” for the phone that was
completed by Trooper Walker and submitted to the magistrate court failed to set forth probable
cause to believe that evidence of a crime would be found on the phone. Further, he argues,
Walker’s narrative that was submitted in support of the affidavit and complaint (denoted as
“Attachment A”) failed to include any information regarding the seized phone. Therefore,
petitioner argues, the search warrant for the phone should have been suppressed.14 We find no
error.
        Regarding the circuit court’s denial of petitioner’s motion to suppress the search warrant
for his cell phone, we have held:

                When reviewing a ruling on a motion to suppress, an appellate court should
        construe all facts in the light most favorable to the State, as it was the prevailing
        party below. Because of the highly fact-specific nature of a motion to suppress,
        particular deference is given to the findings of the circuit court because it had the
        opportunity to observe the witnesses and to hear testimony on the issues. Therefore,
        the circuit court’s factual findings are reviewed for clear error.


for any error in the record introduced by or invited by the party seeking reversal.’ Syllabus point
4, State v. Mann, 205 W.Va. 303, 518 S.E.2d 60 (1999).” Syl. Pt. 7, State v. Hughes, 225 W. Va.
218, 691 S.E.2d 813 (2010). Furthermore, “‘“‘[i]n the exercise of its appellate jurisdiction,
this Court will not decide nonjurisdictional questions which were not considered and decided by
the court from which the appeal has been taken.’ Syllabus Point 1, Mowery v. Hitt, 155 W.Va.
103[, 181 S.E.2d 334] (1971).” Syl. pt. 1, Shackleford v. Catlett, 161 W.Va. 568, 244 S.E.2d 327
(1978).’ Syl. Pt. 3, Voelker v. Frederick Business Properties Co., 195 W.Va. 246, 465 S.E.2d 246
(1995).” Syl. Pt. 5, State v. Day, 225 W. Va. 794, 696 S.E.2d 310 (2010).
        14
             Trooper Walker testified regarding text messages that were extracted from the cell phone
at issue:

                Generally there’s some conversation there of what appeared to be drug
        sales. Also photographs of large marijuana grow, what appeared to be a marijuana
        grow. And also shipping labels to several location[s] over to the Richmond area
        right after the pictures of the marijuana grow, or what appear to be the marijuana
        grow.

        ....

        Four of the shipping labels that were photographed were to Ms. Whindleton [one
        of petitioner’s passengers]. The return address on the shipping labels appeared to
        be fake.



                                                  10
               In contrast to a review of the circuit court’s factual findings, the ultimate
       determination as to whether a search or seizure was reasonable under the Fourth
       Amendment to the United States Constitution and Section 6 of Article III of the
       West Virginia Constitution is a question of law that is reviewed de novo. Similarly,
       an appellate court reviews de novo whether a search warrant was too broad. Thus,
       a circuit court’s denial of a motion to suppress evidence will be affirmed unless it
       is unsupported by substantial evidence, based on an erroneous interpretation of the
       law, or, based on the entire record, it is clear that a mistake has been made.

Syl. Pts. 1 and 2, State v. Lacy, 196 W. Va. 104, 468 S.E.2d 719 (1996). Furthermore,

       after-the-fact scrutiny by the courts of the sufficiency of an affidavit should not take
       the form of de novo review. A magistrate’s determination of probable cause should
       be paid great deference by reviewing courts. A grudging or negative attitude by
       reviewing courts toward warrants is inconsistent with the Fourth Amendment’s
       strong preference for searches conducted pursuant to a warrant; courts should not
       invalidate warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a
       commonsense, manner.

State v. Payne, 239 W. Va. 247, 261, 800 S.E.2d 833, 847 (2016) (internal citations omitted).
Finally, this Court has explained that

               [p]robable cause for the issuance of a search warrant exists if the facts and
       circumstances provided to a magistrate in a written affidavit are sufficient to
       warrant the belief of a prudent person of reasonable caution that a crime has been
       committed and that the specific fruits, instrumentalities, or contraband from that
       crime presently may be found at a specific location. It is not enough that a
       magistrate believes a crime has been committed. The magistrate also must have a
       reasonable belief that the place or person to be searched will yield certain specific
       classes of items. There must be a nexus between the criminal activity and the place
       or person searched and thing seized. The probable cause determination does not
       depend solely upon individual facts; rather, it depends on the cumulative effect of
       the facts in the totality of circumstances.

Syl. Pt. 3, State v. Lilly, 194 W. Va. 595, 461 S.E.2d 101 (1995).

        We find no error. In Attachment A to the affidavit and complaint, Trooper Walker included
a detailed summary of the traffic stop, the circumstances that precipitated a search of petitioner’s
vehicle, and the seizure of the three cell phones, along with the vacuum-sealed bags of suspected
marijuana, suspected THC candy, a vacuum-sealed loaded firearm, a large sum of cash, and three
large locked boxes. Attachment A also included the fact that petitioner had been placed into
custody on the charges for which he was ultimately indicted and requested that a search warrant
be issued for the “above mentioned cell phone in order to continue this investigation.” The “above
referenced cell phone” was identified in the affidavit and complaint as a “Samsung Galaxy J1
(IME #99000600033743).” Given these facts, petitioner’s argument that Attachment A

                                                 11
“contain[ed] no information regarding where [the] Samsung Galaxy J1 was located nor does it tie
the phone to the traffic stop” is disingenuous and unavailing. Indeed, it was highly reasonable for
the magistrate court to infer that the Samsung Galaxy J1 cell phone identified in the affidavit and
complaint for a search warrant was one of the cell phones seized as a result of petitioner’s arrest.
Furthermore, the totality of the circumstances as set forth in Trooper Walker’s written narrative
established a nexus between the seized cell phone and the suspected criminal activity (particularly,
the offenses of possession with intent to deliver and conspiracy), “was sufficient to warrant the
belief of a prudent person of reasonable caution that a crime ha[d] been committed” and that
evidence of the same might be found on the phone. See Lilly, 194 W. Va. at 598, 461 S.E.2d at
104, syl. pt. 3.

         In his final assignment of error, petitioner argues that the circuit court erred in failing to
grant his motion to suppress all of the evidence seized as a result of the traffic stop. He contends
that the purported reason for initiating the stop of petitioner’s vehicle (that petitioner’s vehicle was
following too closely to the vehicle in front of it) and the subsequent reason for searching the
vehicle after it was stopped (that Trooper Walker smelled the odor of marijuana as he approached
petitioner’s vehicle) were not credible. Petitioner argues that the initial stop of petitioner’s vehicle
was based upon Walker’s subjective (and uncorroborated) observation that petitioner’s vehicle
was violating the following-too-closely statute, that the statute does not contain objective standards
with regard to the distance a vehicle must maintain behind the vehicle driving in front of it, and
that, consequently, the statute is void because it is unconstitutionally vague and subject to abuse
in its application with regard to justifying a traffic stop. According to petitioner, Trooper Walker,
who was on a drug interdiction patrol when he stopped petitioner’s vehicle, detained petitioner
longer than was necessary in order to embark upon “an unwarranted investigation into drug
trafficking that was not supported by reasonable suspicion.” U.S. v. Digiovanni, 650 F.3d 498, 505
(4th Cir. 2011). Accordingly, petitioner argues, any evidence seized as a result of the traffic stop
and any statements thereafter obtained were fruit of the poisonous tree and should have been
suppressed prior to trial. See Syl. Pt. 1, State v. Davis, 170 W. Va. 376, 294 S.E.2d 179 (1982)
(“The general rule is that where there is an illegal seizure of property, such property cannot be
introduced into evidence, and testimony may not be given in regard to the fact surrounding the
seizure of the property.”).

        We first address whether the following-too-closely statute is so unconstitutionally vague
so as to be void. We review constitutional challenges relating to a statute de novo. See State of
West Virginia ex rel. Citizens Action Group v. W. Va. Econ. Dev. Grant Comm., 213 W. Va. 255,
261-262, 580 S.E.2d 869, 875-876 (2003). Further, we have observed that
“[t]he void for vagueness doctrine is an aspect of the due process requirement that statutes set
forth impermissible conduct with sufficient clarity that a person of ordinary intelligence knows
what conduct is prohibited and the penalty if he transgresses these limitations.” State ex rel.
Appleby v. Recht, 213 W. Va. 503, 518, 583 S.E.2d 800, 815 (2002). However, “‘[w]hen the
constitutionality of a statute is questioned every reasonable construction of the statute must be
resorted to by a court in order to sustain constitutionality, and any doubt must be resolved in favor
of the constitutionality of the legislative enactment.’ Point 3 Syllabus, Willis v. O’Brien, 151 W.
Va. 628[, 153 S.E.2d 178].” Syl. Pt. 4, State v. Flinn, 158 W. Va. 111, 208 S.E.2d 538 (1974). See
also Syl. Pt. 4, in part, State v. James, 227 W. Va. 407, 710 S.E.2d 98 (2011) (“In considering the
constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the

                                                  12
principle of the separation of powers in government among the judicial, legislative and executive
branches. Every reasonable construction must be resorted to by the courts in order to sustain
constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the
legislative enactment in question. . . . The general powers of the legislature, within constitutional
limits, are almost plenary. In considering the constitutionality of an act of the legislature, the
negation of legislative power must appear beyond reasonable doubt.”)

        West Virginia Code § 17C-7-10(a), our following-too-closely statute, states that “[t]he
driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and
prudent having due regard for the speed of such vehicles and the traffic upon and the condition of
the highway.” Petitioner argues that the “reasonable and prudent” standard set forth in the statute
is unconstitutionally vague because it does not contain any specific minimum distance requirement
and is so subjective in nature that a person of ordinary intelligence cannot know what conduct is
prohibited. See Appleby, 213 W. Va. at 518, 583 S.E.2d at 815.

         We find no error. A number of courts in other jurisdictions have upheld the “reasonable
and prudent” standard in following-too-closely statutes that are identical or similar to ours, finding
that it provides sufficient notice to drivers as to what type of driving conduct is prohibited. See
e.g., United States v. Hunter, 663 F.3d 1136 (10th Cir. 2011); United States v. Near, 2019 WL
2435683 (N.D.Okla. June 11, 2019); United States v. Mendez-Cejas, 2009 WL 914873 (D.Nev.
Jan. 15, 2009); United States v. Marmolejo, 2007 WL 915195 (S.D.Ohio Mar. 26, 2007); State v.
Harper, 415 P.3d 948 (Idaho Ct.App. Feb. 26, 2018); and State v. Chavez, 427 P.3d 126 (N.M.Ct.
App. July 17, 2013). As the Court of Appeals of Idaho explained in Harper,

       [t]he statute provides notice to all drivers that following too closely is prohibited.
       What constitutes following too closely is dependent upon a variety of factors,
       including but not limited to weather, lighting, and road conditions. That the statute
       leaves to a driver to determine what constitutes a reasonable and prudent distance
       to follow another vehicle does not make the statute inherently vague. This
       flexibility is intentionally built into the statute so drivers can assess all the factors
       in determining how best to avoid the dangerous consequences of following a
       vehicle too closely. The prohibition of following too closely does not need to be
       reduced to an exact mathematical equation, factoring in speed, distance, car size,
       etc. in order to provide notice to a driver of ordinary intelligence
       how close is too close when following another vehicle. Indeed, to do so would
       inevitably fail to adequately address at least one of the many variables that change
       depending on the conditions. It is clear that what is a safe distance to follow on a
       well-lit, dry road on a July afternoon may be vastly different than what is a safe and
       prudent distance on that same road in January at 7:00 p.m. after a snow storm. A
       driver is expected to use reasonable common sense when assessing the road
       conditions and adjusting his or her driving patterns accordingly.

415 P.3d at 952-53. See also Hunter, 663 F.3d at 1142 (stating that “imprecision in statutes such
as the one here simply build in needed flexibility while incorporating a comprehensible, normative
standard easily understood by the ordinary driver, and giving fair warning as to what conduct on
his or her part is prohibited. Further, references in these statutes to considerations such as speed,

                                                  13
traffic and road conditions, channel enforcement” (footnote omitted)). In contrast, petitioner has
failed to identify a single case in any jurisdiction that has invalidated a similar following-too-
closely statute on the ground that the “reasonable and prudent” standard is unconstitutionally
vague. Because we find the reasoning of the cases cited above to be compelling, we find no merit
in petitioner’s argument that West Virginia Code § 17C-7-10(a) is unconstitutionally vague and,
therefore, void.

        Likewise, we find no merit in petitioner’s argument that West Virginia Code § 17C-7-10’s
“reasonable and prudent” standard is subject to abuse in its application by law enforcement with
regard to justifying a traffic stop. Having already established that the “reasonable and prudent”
standard provides adequate notice to drivers as to what type of driving behavior is prohibited, we
also find that the statute similarly provides sufficient guidelines for its enforcement. As stated in
Harper,

       the statute instructs officers to make judgments according to the statute’s reasonable
       and prudent standard, just as drivers. To guide that judgment, the statute includes
       situations that might call for a driver to increase his following distance: speed of
       his vehicle, how much traffic is on the road, or the condition of the highway itself.

415 P.3d at 953. Thus, just as West Virginia Code § 17C-7-10(a) provides drivers with adequate
notice of prohibited driving conduct, it also appropriately guides the discretion and judgment of
the officers who enforce it. See Harper, 415 P.3d at 953.

        Finally, to the extent petitioner argues that Trooper Walker detained petitioner longer than
was necessary in order to investigate him for drug trafficking without reasonable suspicion, we
likewise find no error. In his motion to suppress, petitioner argued that it would have been
impossible for Trooper Walker to smell the marijuana as he approached the vehicle and when
petitioner’s passenger rolled down the window because the marijuana was in vacuum-sealed, non-
permeable plastic baggies. However, the circuit court found Walker’s testimony that he smelled
the odor of marijuana to be “credible and reasonable under the circumstances.”

        We have held that, “[o]n appeal, legal conclusions made with regard to suppression
determinations are reviewed de novo. Factual determinations upon which these legal conclusions
are based are reviewed under the clearly erroneous standard. In addition, factual findings based, at
least in part, on determinations of witness credibility are accorded great deference.” Syl. Pt.
3, State v. Stuart, 192 W. Va. 428, 452 S.E.2d 886 (1994). Further,

               “[a]n automobile may be stopped for some legitimate state interest. Once
       [a] vehicle is lawfully stopped for a legitimate state interest, probable cause may
       arise to believe the vehicle is carrying weapons, contraband or evidence of the
       commission of a crime, and, at this point, if exigent circumstances are present, a
       warrantless search may be made.”




                                                 14
Syl. Pt. 4, State v. Moore, 165 W. Va. 837, 272 S.E.2d 804 (1980), overruled on other grounds by
State v. Julius, 185 W. Va. 422, 408 S.E.2d 1 (1991).15 As already established, the traffic stop of
petitioner’s vehicle was legitimate, as we have determined that Trooper Walker properly stopped
petitioner’s vehicle for following too closely to the vehicle in front of it, in violation of West
Virginia Code § 17C-7-10(a). As to whether Walker had probable cause to believe the vehicle was
carrying contraband or evidence of a crime, the circuit court’s finding regarding the credibility of
Walker’s testimony that he smelled the odor of marijuana coming from and in petitioner’s vehicle
is given great deference, as petitioner has failed to show that such finding was clearly wrong.
Accordingly, we conclude that petitioner has failed to show that the circuit court erred in denying
petitioner’s motion to suppress all of the evidence seized as a result of the traffic stop on the ground
that Trooper Walker unlawfully prolonged the traffic stop

       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




       15
            Petitioner does not claim that exigent circumstances did not exist in this case.
                                                  15
