                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,                                                                FILED
Plaintiff Below, Respondent
                                                                                 November 23, 2015
                                                                                  RORY L. PERRY II, CLERK
vs) No. 14-1248 (Fayette County 14-F-174)                                       SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA

Lionel W. Bragg,

Defendant Below, Petitioner



                               MEMORANDUM DECISION
        Petitioner Lionel W. Bragg, by counsel E. Scott Stanton, appeals the Circuit Court of
Fayette County’s November 5, 2014, order sentencing him to one term of one to five years in
prison for one count of felony conspiracy and three terms of one to fifteen years in prison for one
count of delivery of a controlled substance, one count of possession of a controlled substance
with the intent to deliver, and one count of transportation of a controlled substance into the State
of West Virginia. The State of West Virginia, by counsel Derek A. Knopp, filed a response in
support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in (1)
denying his motions for judgment of acquittal made at the end of the State’s case-in-chief and at
the conclusion of the evidence;1 (2) allowing the confidential informant (“CI”) to testify at trial
about cellular telephone calls he made when the State failed to inspect or test the cellular
telephones recovered by police or to provide them to petitioner to inspect or test; (3) refusing
petitioner’s “missing evidence” jury instruction regarding the cellular telephones recovered; and
(4) granting petitioner only thirty-three days credit for time served at the time of his sentencing
hearing.

       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.

        In November of 2013, petitioner, who was at that time on parole for a prior criminal
conviction, and two other individuals were arrested and incarcerated in relation to an illegal drug
transaction in Fayette County, West Virginia. Petitioner remained incarcerated throughout the


       1
        Although petitioner refers to his motions as “motions to dismiss[,]” Rule 29 of the West
Virginia Rules of Criminal Procedure provides for “motions for judgment of acquittal[.]”
Therefore, we refer to petitioner’s motions in his first assignment of error as motions for
judgment of acquittal.
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proceedings below on charges related to the drug transaction and on a subsequent parole
revocation.

       In May of 2014, the Fayette County grand jury indicted petitioner and two co-defendants
on one count of felony conspiracy, in violation of West Virginia Code § 61-10-31; one count of
delivery of a controlled substance, in violation of West Virginia Code § 60A-4-401(a); one count
of possession of a controlled substance with the intent to deliver, in violation of West Virginia
Code § 60A-4-401(a); and one count of transportation of a controlled substance into the State of
West Virginia, in violation of West Virginia Code § 60A-4-409.

        In August of 2014, at a pre-trial hearing, petitioner moved for a jury trial in the May term
of court, and the circuit court granted that motion. The circuit court granted continuances for
both of petitioner’s co-defendants.

         In September of 2014, petitioner’s jury trial commenced. A confidential informant (“CI”)
testified for the State that he called petitioner and a co-defendant on November 17, 2013, to
arrange a drug transaction. According to the CI, petitioner agreed to transport controlled
substances from the State of South Carolina to the CI’s house in Fayette County, West Virginia.
Law enforcement officers testified that they stationed an undercover officer with a recording
device and controlled buy money at the CI’s house prior to petitioner’s arrival on November 17,
2013. Petitioner proceeded to transport controlled substances in his vehicle from South Carolina
to West Virginia with his co-defendants. When petitioner arrived at the CI’s house in his vehicle
with his co-defendants, a co-defendant and the undercover officer exchanged the controlled
substances for the controlled buy money while petitioner and another co-defendant were present.
The undercover officer testified that, during the transaction, petitioner stood in “a defensive
stance, just kind of like he was there to watch, to observe, make sure everything was—nothing
happened.”

        When the transaction was complete, the undercover officer shook hands with petitioner
and his co-defendants, who were arrested upon leaving the CI’s house. Further testimony
revealed that petitioner had some cash and a cellular telephone on his person, but that he had
nothing of evidentiary value. All of the controlled buy money, a magazine clip to a firearm, a
cellular telephone, and additional controlled substances in a prescription bottle were located on
the co-defendant who made the exchange with the undercover officer. The prescription bottle
had the co-defendant’s name on its label and was filled in Florence, South Carolina. At the close
of the State’s case-in-chief, petitioner made a motion to dismiss based on a lack of evidence,
which the circuit court denied.

        Petitioner testified on his own behalf. He denied that he received any telephone calls
from the CI and denied discussing selling pills with his co-defendants at any time. After
petitioner rested his case-in-chief, he again made a motion to dismiss for lack of evidence, which
the circuit court again denied. Thereafter, petitioner tendered to the circuit court the following
“missing evidence” instruction:

                           DEFENDANT’S INSTUCTION [sic] NUMBER 1



                                                 2

              If you find that the State has lost, destroyed or failed to preserve any
       evidence whose contents or quality are material to the issues in this case, then you
       may draw an inference unfavorable to the State which in itself may create a
       reasonable doubt as to the defendant’s guilt.

Petitioner argued that the State’s failure to properly inspect the cellular telephones prior to trial
or to present records from the cellular telephones at trial constituted “missing evidence.” The
State, on the other hand, argued that the instruction was improper because the evidence was not
lost, destroyed, or unpreserved. The State suggested that petitioner could assert the State’s failure
to present that evidence during his closing argument. Finding no support for a claim of missing
evidence, the circuit court refused petitioner’s proposed “missing evidence” instruction.
Following its deliberations, the jury found petitioner guilty on all counts.

         In October of 2014, the circuit court held a sentencing hearing. At the conclusion of that
hearing, the circuit court sentenced petitioner to a prison term of one to five years for one count
of felony conspiracy; one to fifteen years for one count of delivery of a controlled substance; one
to fifteen years for one count of possession of a controlled substance with the intent to deliver;
and one to fifteen years for one count of transportation of a controlled substance into the State of
West Virginia. The circuit court ordered those sentences to run consecutively to one another and
consecutively to a separate prior conviction. The circuit court found that petitioner was entitled
to thirty-three days credit for time served, noting that petitioner should not receive “double
credit” for time served following his parole revocation. This appeal followed.

        On appeal, petitioner first assigns error to the circuit court’s denial of his motions for
judgment of acquittal made pursuant to Rules 29(a) and (c) of the West Virginia Rules of
Criminal Procedure. Petitioner claims that the evidence presented at trial was insufficient to
establish his guilt beyond a reasonable doubt as to all four of his convictions. We have
previously held that “[t]he Court applies 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. Juntilla, 227
W.Va. 492, 497, 711 S.E.2d 562, 567 (2011) (citing State v. LaRock, 196 W.Va. 294, 304, 470
S.E.2d 613, 623 (1996)). As such, we note the following:

                1. “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.” Syl. Pt. 1, State v.
       Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

              2. “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

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

Syl. Pts. 1 and 2, State v. Juntilla, 227 W.Va. 492, 711 S.E.2d 562 (2011). Moreover, this Court
held in syllabus points 8 and 10 of State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989) as
follows:

               8. Where a defendant is convicted of a particular substantive offense, the
       test of the sufficiency of the evidence to support the conviction necessarily
       involves consideration of the traditional distinctions between parties to offenses.
       Thus, a person may be convicted of a crime so long as the evidence demonstrates
       that he acted as an accessory before the fact, as a principal in the second degree,
       or as a principal in the first degree in the commission of such offense.

       ...

               10. Proof that the defendant was present at the time and place the crime
       was committed is a factor to be considered by the jury in determining guilt, along
       with other circumstances, such as the defendant’s association with or relation to
       the perpetrator and his conduct before and after the commission of the crime.

Pursuant to West Virginia Code § 61-11-6, in every felony, “every principal in the second degree
and every accessory before the fact shall be punishable as if he were the principal in the first
degree; and every accessory after the fact shall be confined in jail not more than one year and
fined not exceeding $500.” As explained in syllabus point 5 of Fortner: “A person who is the
absolute perpetrator of a crime is a principal in the first degree, and a person who is present,
aiding and abetting the fact to be done, is a principal in the second degree.”

         In this case, we find that the evidence presented at trial was sufficient for a rational trier
to fact to find petitioner guilty on all counts beyond a reasonable doubt. Petitioner was convicted
of conspiracy of two or more persons to commit an offense in this State, delivery of a controlled
substance, possession of a controlled substance with the intent to deliver, and transportation of a
controlled substance into the State of West Virginia. Contrary to petitioner’s argument, the
evidence viewed in the light most favorable to the State showed that petitioner spoke with the CI
about transporting controlled substances from South Carolina to West Virginia, proceeded to
transport those controlled substances in his vehicle from South Carolina to West Virginia with
two co-conspirators (his co-defendants), and was present with his co-conspirators during the
drug transaction. Petitioner arrived with his co-conspirators, shook hands with the undercover
officer at the conclusion of the drug transaction, and left with them.

       Furthermore, while petitioner places great weight on the contention that he did not
physically exchange the controlled substances for the controlled buy money, the undercover

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officer testified that petitioner stood in a defensive stance watching the drug transaction as it
occurred to ensure that “nothing happened[,]” which may be inferred to mean that he acted in aid
of the transaction. Therefore, the evidence presented at trial was sufficient for a reasonable jury
to find that petitioner committed these crimes, including aiding his co-defendants as a principal
in the second degree in the possession with intent to deliver and delivery of controlled substances
to the undercover officer. Based upon our thorough review of the record on appeal and the
parties’ arguments, this Court finds no error in the circuit court’s denial of petitioner’s motions
for judgment of acquittal.

        Petitioner’s second assignment of error is that the circuit court allowed the CI to testify to
cellular telephone calls he made to petitioner on November 17, 2013, when the State failed to
inspect or test the cellular telephones recovered by police or to provide them to petitioner for his
inspection. We have explained that “[o]ne of the most familiar procedural rubrics in the
administration of justice is the rule that the failure of a litigant to assert a right in the trial court
likely will result in the imposition of a procedural bar to an appeal of that issue.” State v.
LaRock, 196 W.Va. 294, 316, 470 S.E.2d 613, 635 (1996)(internal quotations and citations
omitted); see also Powderidge Unit Owners Ass’n v. Highland Props., Ltd., 196 W.Va. 692, 703,
474 S.E.2d 872, 883 (1996) (stating that “[t]he law ministers to the vigilant, not those who
slumber on their rights.” (internal quotations and citations omitted)); State v. Asbury, 187 W.Va.
87, 91, 415 S.E.2d 891, 895 (1992) (stating that “[g]enerally the failure to object constitutes a
waiver of the right to raise the matter on appeal.”); Noble v. W.Va. Dep't of Motor Vehicles, 223
W.Va. 818, 821, 679 S.E.2d 650, 653 (2009) (stating that “[o]ur general rule is that
nonjurisdictional questions . . . raised for the first time on appeal, will not be considered.”
(internal quotations and citations omitted); W. Va. R. App. P. 10(c)(7) (providing that
petitioner’s argument “must contain appropriate and specific citations to the record on appeal,
including citations that pinpoint when and how the issues in the assignments of error were
presented to the lower tribunal.”).

        In this case, petitioner fails to indicate when and how he objected to the CI’s testimony as
to the cellular telephones or otherwise presented this issue to the circuit court. Without a noted
objection below on this ground, we now find that petitioner waived this issue for appellate
review. Therefore, because this issue was not properly preserved for appellate review, we refuse
to consider it on direct appeal.

         To the extent petitioner argues that “the failure to present said evidence [of cellular
telephone records] was clearly error on the State’s part[,]” petitioner fails to support his
allegation with authority. Petitioner cites no law requiring the State to present evidence of
cellular telephone records or other related material. Notably, petitioner does not allege that the
State committed a discovery violation, pursuant to Rule 16 of the West Virginia Rules of
Appellate Procedure (providing rules for discovery in criminal proceedings) or Brady v.
Maryland, 373 U.S. 83 (1963) (regarding the government’s obligation to disclose exculpatory
and impeachment evidence). To the contrary, he admits that he knew of this material prior to
trial, and he admits in his brief to this Court “that he was aware before trial began that the State
was not presenting the phones into evidence.” Further, while petitioner asserts that the cellular
telephones “were not provided” to him for inspection prior to trial, he does not claim to have



                                                   5

requested and been denied access to such an inspection. As such, we find no merit to his claim
that the State committed error in failing to present evidence related to the cellular telephones.

        Petitioner next argues that the circuit court erred in refusing to give the jury his “missing
evidence” instruction related to the cellular telephones recovered by police. We have held that
“[a]s a general rule, the refusal to give a requested jury instruction is reviewed for an abuse of
discretion.” Syl. Pt. 1, in part, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996). Contrary
to the express language in his proposed “missing evidence” instruction, petitioner admitted at
trial and now admits before this Court that the State, in fact, had possession of these cellular
telephones. Therefore, they were not lost, destroyed, or unpreserved. Given the clear indication
in the record on appeal that these cellular telephones existed at the time of trial, although the
State chose not to present their contents as evidence, the circuit court did not abuse it discretion
in refusing to give the proposed instruction. We find no abuse of discretion by the circuit court in
refusing to give an instruction on whether the State “lost, destroyed or failed to preserve any
evidence” when it is clear that the evidence at issue was not lost, destroyed, or unpreserved.

         Petitioner’s fourth and final assignment of error is that the circuit court erred in granting
him only thirty-three days of presentence credit for time served when he was incarcerated from
his arrest in November of 2013 until his sentencing hearing in October of 2014, which he claims
entitles him to 348 days of presentence credit for time served. “‘The Supreme Court of Appeals
reviews sentencing orders . . . under a deferential abuse of discretion standard, unless the order
violates statutory or constitutional commands.’ Syl. Pt. 1, in part, State v. Lucas, 201 W.Va. 271,
496 S.E.2d 221 (1997).” Syl. Pt. 1, State v. James, 227 W.Va. 407, 710 S.E.2d 98 (2011). In this
case, the record is clear that petitioner was arrested in November of 2013, and he admitted
violating his parole on an unrelated conviction thirty-three days following that arrest. Petitioner
remained incarcerated throughout the proceedings below for his parole revocation on that
unrelated conviction in addition to the underlying charges. Despite petitioner’s argument that he
is entitled to time served regardless of his unrelated conviction, this Court has previously held
that criminal defendants are not entitled to credit for time served in similar situations. See State v.
Wears, 222 W.Va. 439, 445, 665 S.E.2d 273, 279 (2008) (denying defendant’s request for credit
for time served between State’s voluntary dismissal of indictment and defendant’s reindictment
because he remained in custody serving time on unrelated charges); Echard v. Holland, 177
W.Va. 138, 144, 351 S.E.2d 51, 57 (1986) (incarcerated defendant not entitled to credit for time
served for offense committed after imposition of sentence on prior crime.). Therefore, petitioner
is not entitled to a credit on his underlying sentence for time served on an unrelated conviction.
As such, the Court finds no error in the circuit court award of credit for time served.

       For the foregoing reasons, the circuit court’s November 5, 2014, order, is hereby
affirmed.

                                                                                            Affirmed.

ISSUED: November 23, 2015




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CONCURRED IN BY:

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




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