                                                                                  FILED 

No. 17-0227 – State v. Barefield
                                                                                May 17, 2018 

                                                                                  released at 3:00 p.m.
                                                                              EDYTHE NASH GAISER, CLERK

                                                                              SUPREME COURT OF APPEALS

LOUGHRY, J., dissenting:                                                           OF WEST VIRGINIA




              While the search at issue in this case may have been illegal, there is little

doubt that the fruits of that search were ultimately inconsequential in the petitioner’s

conviction. The error was plainly harmless beyond a reasonable doubt. Accordingly, I

dissent to the majority’s reversal of the petitioner’s conviction of possession of a

controlled substance with intent to deliver.



              In this case, there were two key witnesses against the petitioner: Mr.

Salyers and Mr. Casto. Mr. Salyers testified that the petitioner was in possession of

methamphetamine and oxycodone; as the majority notes, the jury clearly found him not

credible, based on their acquittal of those charges. There is no evidence, however, that

the jury’s verdict hinged on or was even affected by the unlawfully seized evidence,

given Mr. Casto’s compelling testimony. Mr. Casto testified that he summoned the

petitioner to the house to sell crack cocaine to two individuals to whom Mr. Casto had

just sold heroin. Mr. Casto candidly discussed his own drug addiction and trafficking

activities and admitted to his own individual culpability as to the events occurring prior to

the raid. Clearly, the jury found him credible as his was the only testimony linking the

petitioner to the cocaine found on the premises.




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              Moreover, a closer examination of the significance of the unlawfully-seized

evidence demonstrates how inconsequential it was. Unlike most instances, the petitioner

in this case was not found with drugs on his person. Rather, the unlawfully seized

evidence consisted only of $800, an identification card, a social security card, a paystub,

and a VISA debit card. Obviously, the only remotely inculpatory evidence among these

items, relative to the charge of possession with intent to deliver, is the $800 in cash. To

suggest that the jury’s verdict was influenced by his possession of $800 in cash wholly

disregards Mr. Casto’s testimony. No one testified that the two individuals had already

paid the petitioner for the cocaine, in which case the cash would serve as corroborative

evidence. Nor was there any testimony demonstrating that the only logical conclusion is

that the cash was from the sale of the cocaine, as opposed to some innocent source. As

such, the mere possession of cash by the petitioner is of little to no moment in light of the

testimony of Mr. Casto, who squarely implicated the petitioner relative to the charge of

possession with intent to deliver. The scant mention of the cash by the prosecution is

further demonstrative of how insignificant it was to the case as a whole.



              This is not a case where scores of witnesses and evidence were introduced,

which would make the significance of the unlawfully-seized evidence to the jury

somewhat unclear. Instead, this was a simple, straightforward case and the conviction

rendered by the jury was supported fully by the testimony of a single witness. The

evidence erroneously admitted is simply not the type that added weight to the scales in

favor of conviction. Accordingly, I dissent.
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