                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                       FILED
                                                                             November 14, 2016
vs) No. 16-0015 (Marion County 14-F-47 & 15-F-63)                                RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
Ayers Alexander,

Defendant Below, Petitioner



                                  MEMORANDUM DECISION
        Petitioner Ayers Alexander, by counsel Roger D. Curry, appeals the Circuit Court of
Marion County’s November 6, 2015, order sentencing him to a term of incarceration of two to
five years for one count of delivery of a controlled substance.1 The State of West Virginia, by
counsel Gordon L. Mowen II, filed a response in support of the circuit court’s order. On appeal,
petitioner argues that the State presented insufficient evidence to support his conviction.

       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 October of 2014, a Marion County grand jury indicted petitioner on one count of
delivery of a controlled substance, in violation of West Virginia Code § 60A-4-401. Petitioner
proceeded to trial on April 8, 2015. At trial, the State presented evidence that on February 21,
2014, law enforcement officers used a confidential informant (“CI”) to purchase a half ounce of
marijuana from petitioner. According to a Marion County sheriff’s deputy, they provided the CI
with four, twenty dollar bills, equipped him with an audio/video recorder, and transported him to
petitioner’s residence and observed him enter the residence. After the CI exited petitioner’s
house, he returned to the deputy’s vehicle wherein he was no longer in possession of the twenty
dollar bills, but now possessed approximately a half ounce of marijuana. According to the CI’s
testimony, he arranged to purchase a half ounce of marijuana in exchange for $80.00. The CI
explained that a Marion County sheriff deputy transported him to petitioner’s house, equipped
him with a recording device, and four, twenty dollar bills. The CI testified that petitioner
instructed him to enter the residence from the basement door. He further testified that he


          1
              Petitioner’s counsel filed this appeal pursuant to Anders v. California, 386 U.S. 738
(1967).


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exchanged the money for a half ounce of marijuana. Upon returning to the deputy’s vehicle, the
CI produced approximately a half ounce of marijuana. Petitioner did not present any evidence.

        Following its deliberations, the jury found petitioner guilty of one count of delivery of a
controlled substance.2 At sentencing, the circuit court sentenced petitioner to a term of
incarceration of two to five years. However, his sentence was suspended in lieu of two years of
probation. This appeal followed.

        On appeal, petitioner argues that the evidence presented by the State at trial was
insufficient to prove his guilt beyond a reasonable doubt. With regard to claims of sufficiency of
the evidence in a criminal proceeding, we have explained that

               “[a] criminal defendant challenging the sufficiency of the evidence to
       support a conviction takes on a heavy burden. An appellate court must review all
       the evidence, whether direct or circumstantial, in the light most favorable to the
       prosecution and must credit all inferences and credibility assessments that the jury
       might have drawn in favor of the prosecution. The evidence need not be
       inconsistent with every conclusion save that of guilt so long as the jury can find
       guilt beyond a reasonable doubt. Credibility determinations are for a jury and not
       an appellate court. Finally, a jury verdict should be set aside only when the record
       contains no evidence, regardless of how it is weighed, from which the jury could
       find guilt beyond a reasonable doubt. To the extent that our prior cases are
       inconsistent, they are expressly overruled.” Syllabus Point 3, State v. Guthrie, 194
       W.Va. 657, 461 S.E.2d 163 (1995).

Syl. Pt. 1, State v. Malfregeot, 224 W.Va. 264, 685 S.E.2d 237 (2009). To convict petitioner of
delivery of a controlled substance, the State had to prove that petitioner intentionally delivered a
Schedule I or II controlled substance to another. W. Va. Code § 60A-4-401(a)(i).

        Following a thorough review of the record on appeal and the parties’ arguments, we find
no merit to petitioner’s argument. The jury heard testimony from the CI that he arranged to
purchase a half ounce of marijuana from petitioner in exchange for eighty dollars. The CI
specifically testified that he was given eighty dollars by the Marion County Sheriff’s Department
as buy money. Thereafter, the CI explained that petitioner instructed him to enter his residence
through the basement door. Once inside, the CI testified that he gave petitioner four, twenty
dollar bills in exchange for a half ounce of marijuana. The sheriff deputy’s testimony
corroborated the CI’s testimony insofar as the deputy provided the CI with four, twenty dollar
bills, equipped him with an audio/video recorder, transported him to petitioner’s residence and
observed him enter the residence, and located approximately a half ounce of marijuana on the CI
upon returning to his vehicle. Given the circumstances of this case, the jury heard sufficient
evidence to find that petitioner delivered a controlled substance to the CI. Therefore, we reject
petitioner’s assignment of error.



       2
        Thereafter, a separate jury found that petitioner was a recidivist having been previously
found guilty of a felony.
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       For the foregoing reasons, the circuit court’s November 6, 2015, order, is hereby
affirmed.

                                                                              Affirmed.

ISSUED: November 14, 2016

CONCURRED IN BY:

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




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