                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,                                                             FILED
Plaintiff Below, Respondent
                                                                                 April 10, 2017
                                                                                 RORY L. PERRY II, CLERK
vs) No. 16-0631 (Tyler County 15-MAP-2)                                        SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
Cynthia Post,

Defendant Below, Petitioner



                              MEMORANDUM DECISION

        Petitioner Cynthia Post, by counsel John E. Gainer, appeals the Circuit Court of Tyler
County’s July 10, 2016, order affirming petitioner’s conviction for driving under the influence of
a controlled substance with a minor in the vehicle and driving left of center. The State of West
Virginia, by counsel Gordon L. Mowen, II, filed its response in support of the circuit court’s
order. On appeal, petitioner argues that there was insufficient evidence to support a finding of
guilt beyond a reasonable doubt.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

         In July of 2015, petitioner was arrested for driving under the influence of a controlled
substance with a minor in the vehicle and driving left of center. The criminal complaint alleged
that Patrolman Mason Rine observed petitioner almost striking an oncoming vehicle while
driving left of center. After Ptlm. Rine initiated a traffic stop on petitioner’s vehicle, he noticed
that petitioner had glassy eyes and slurred speech. Petitioner admitted that she had taken
prescription Subutex prior to driving. Thereafter, Ptlm. Rine conducted a series of field sobriety
tests that petitioner failed. A preliminary breath tested revealed that petitioner had a blood
alcohol content of 0.00%. Ptlm. Rine placed petitioner under arrest and transported her to
Sistersville General Hospital for a blood draw. Hospital personnel were unable to successfully
draw blood from petitioner. Ptlm. Rine issued petitioner a citation and released her under her
sister’s supervision.

       In December of 2015, petitioner appeared before the Magistrate Court of Tyler County.
Following a bench trial, petitioner was found guilty of driving under the influence with an




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unemancipated minor in the vehicle.1 Thereafter, petitioner filed a notice of intent to appeal in
circuit court.

        In May of 2016, the circuit court held a bench trial during which it heard testimony from
Ptlm. Rine and petitioner. According to Ptlm. Rine, he observed petitioner almost strike another
vehicle head-on while driving left of center. As a result, Ptlm Rine conducted a traffic stop and
observed that petitioner was emotional, had glassy eyes, and slurred speech. Ptlm. Rine also
explained that petitioner failed the horizontal gaze nystagmus, walk-and-turn, and one-legged
stand tests. However, the preliminary breath test indicated that her blood alcohol content was
0.00%. After voluntarily consenting to a blood test, Ptlm. Rine transported petitioner to the
Sistersville General Hospital where medical professionals were unable to collect petitioner’s
blood. Subsequently, Ptlm. Rine wrote petitioner a citation for driving under the influence and
driving left of center and released petitioner to her sister’s custody.

        While petitioner admitted that she consumed Subutex prior to operating a motor vehicle,
she indicated she has taken Subutex for approximately one year and that it does not cause her
any physical problems. However, she concedes that dizziness is a known side effect of taking
Subutex. Petitioner also acknowledged that she drove left of center. According to petitioner, she
attributes her slurred speech to being “an emotional wreck.” Similarly, petitioner contends that
she failed the one-legged stand test because she was “a nervous wreck” and was “very
emotionally and physically . . . exhausted.” After considering the testimony and the parties’
arguments, the circuit court affirmed the Magistrate Court’s conviction. By order entered on July
10, 2016, the circuit court reimposed the magistrate court’s sentence of incarceration of seventy-
two hours and a fine of $200 for her conviction of driving under the influence of a controlled
substance with a minor in the vehicle. The circuit court also reimposed the magistrate court’s
fine of $20 for driving left of center. This appeal followed.

       Petitioner’s sole argument on appeal is that there was insufficient evidence to sustain her
conviction for driving under the influence of a controlled substance with an unemancipated
minor in the vehicle. We disagree.

        In considering petitioner’s appeal, we apply the following standard of review:

               In reviewing challenges to findings and rulings made by a circuit court, we
       apply a two-pronged deferential standard of review. We will review the rulings of
       the circuit court concerning a new trial and its conclusion as to the existence of
       reversible error under an abuse of discretion standard, and we review the circuit
       court’s underlying factual findings under a clearly erroneous standard; questions
       of law are subject to a de novo review.

Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000). Furthermore, this
Court has held that


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         The record on appeal is devoid of the magistrate court’s conviction order. However,
petitioner was also found guilty of driving left of center.
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                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).

        During petitioner’s bench trial, the circuit court heard testimony from Ptlm. Rine and
petitioner regarding the underlying events, including petitioner’s reasoning as to why she failed
the field sobriety tests. We have long held that credibility determinations made following a
bench trial are entitled to great deference. See State v. Guthrie, 194 W.Va. 657, 669 n. 9, 461
S.E.2d 163, 175 n. 9 (1995) (“An appellate court may not decide the credibility of witnesses . . .
as that is the exclusive function and task of the trier of fact.”). West Virginia Code § 17C-5-2(k)
provides that an individual is guilty of driving under the influence of a controlled substance
when she drives “a vehicle in this state while . . . she is in an impaired state[.]” An “‘impaired
state’ means a person is under the influence of any controlled substance.” W.Va. Code § 17C-5­
2-(a). Here, the circuit court heard testimony that petitioner admitted to taking prescription
Subutex prior to operating a motor vehicle, and that dizziness is a side effect of the medication.
Furthermore, it is undisputed that petitioner failed the horizontal gaze nystagmus, walk-and-turn,
and one-legged stand tests. Having reviewed the record on appeal, the parties’ arguments, and
pertinent authority, we find that the circuit court properly exercised its function in weighing the
evidence and rendering a finding that the evidence presented before it supported the finding that
petitioner was guilty of driving under the influence of a controlled substance with an
unemancipated minor in the vehicle. Therefore, we find no merit to petitioner’s appeal.
       For the foregoing reasons, we find no error in the circuit court’s July 10, 2016, order and
we hereby affirm the same.


                                                                                        Affirmed.

ISSUED: April 10, 2017


CONCURRED IN BY:

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




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