          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                 January 2013 Term

                                                                  FILED

                                                             February 7, 2013

                                       No. 11-1273              released at 3:00 p.m.
                                                                RORY L. PERRY II, CLERK
                                                              SUPREME COURT OF APPEALS
                                                                  OF WEST VIRGINIA



                               State of West Virginia,

                                     Respondent


                                           v.


                                 Rodney L. Hypes,

                                    Petitioner




                  Appeal from the Circuit Court of Nicholas County

                        The Honorable Gary Johnson, Judge

                            Criminal Action No. 09-F-17


                                       AFFIRMED



                             Submitted: January 9, 2013

                              Filed: February 7, 2013


Gina M. Stanley, Esq.                                Patrick Morrisey, Esq.
Cabell County Public Defender Office                 Attorney General
Huntington, West Virginia                            Scott E. Johnson, Esq.
Duane C. Rosenlieb, Jr., Esq.                        Senior Assistant Attorney General
West Virginia Defender Services                      Andrew Mendelson, Esq.
Charleston, West Virginia                            Assistant Attorney General
Attorney for Petitioner                              Charleston, West Virginia
                                                     Attorneys for the Respondent


The Opinion of the Court was delivered PER CURIAM.
                               SYLLABUS BY THE COURT



               1.     “‘A statement is not hearsay if the statement is offered against a party

and is his [or her] own statement, in either his [or her] individual or a representative capacity.

W. Va. R. Evid. 801(d)(2)(A).’ Syl. Pt. 1, Heydinger v. Adkins, 178 W.Va. 463, 360 S.E.2d

240 (1987).” Syl. Pt. 7, State v. Payne, 225 W. Va. 602, 694 S.E.2d 935 (2010).



               2.     “Although Rules 401 and 402 of the West Virginia Rules of Evidence

strongly encourage the admission of as much evidence as possible, Rule 403 of the West

Virginia Rules of Evidence restricts this liberal policy by requiring a balancing of interests

to determine whether logically relevant is legally relevant evidence. Specifically, Rule 403

provides that although relevant, evidence may nevertheless be excluded when the danger of

unfair prejudice, confusion, or undue delay is disproportionate to the value of the evidence.”

Syl. Pt. 9, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994).



               3.     “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




                                                i
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).



              4.     “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.” Syl. Pt. 3, State v. Guthrie, 194 W. Va.

657, 461 S.E.2d 163 (1995).



              5.     “In order to sustain a conviction for violation of W. Va. Code §

60A-4-411 (2003), by assembling any chemicals or equipment for the purpose of

manufacturing methamphetamine, the State must prove beyond a reasonable doubt that the

defendant had actual or constructive possession over the chemicals and/or equipment. In

order to establish constructive possession where the defendant is present in a vehicle wherein

such materials are found, the State must prove beyond a reasonable doubt that the defendant

had knowledge of the presence of the chemicals and/or equipment to be used for the purposes

                                              ii
of manufacturing methamphetamine and that such items were subject to the defendant’s

dominion and control.” Syl. Pt. 6, State v. Cummings, 220 W. Va. 433, 647 S.E.2d 869


(2007).





                                         iii

Per Curiam:



       This case is before the Court upon the appeal of the Petitioner, Rodney L. Hypes, from

the August 12, 2011, Order of the Circuit Court of Nicholas County, West Virginia, re­

sentencing the Petitioner to a term of not less than two years nor more than ten years

imprisonment for his jury conviction of operating or attempting to operate a clandestine drug

laboratory. On appeal, the Petitioner argues that the circuit court erred by admitting into

evidence the Petitioner’s statement made two years after the events alleged in the indictment

and by denying the Petitioner’s motion for judgment of acquittal. Based upon a review of

the parties’ briefs and oral arguments, the appendix record and all other matters submitted

before the Court, we affirm the circuit court’s decision.1



                           I. Facts and Procedural Background

              According to the testimony of the Petitioner’s girlfriend, Tina Keener, on July

30, 2007, the Petitioner was living with her in an apartment located in Summersville, West

Virginia. The apartment was leased solely to Ms. Keener. Ms. Keener testified, however,

that the Petitioner had his own key to the apartment, that he came and went as he pleased, and

that she left him alone in the apartment for long periods of time. On this date, the manager



       1
        While this case was pending before the Court, Patrick Morrisey was sworn into office
as Attorney General for the State of West Virginia, replacing former Attorney General
Darrell V. McGraw, Jr. See W. Va. R. App. P. 41(c).

                                              1

of the apartment complex, Gretchen Roop, watched the Petitioner leaving the apartment with

a trash bag. Ms. Roop testified that the Petitioner acted suspiciously as he very carefully

carried the trash bag to the dumpster located in the apartment complex.



              Ms. Roop stated that after the Petitioner left the property, she went and looked

at the trash bag “to see what he was so suspicious about.” Ms. Roop tore a little hole in the

garbage bag and saw peroxide and matchbooks. She took the garbage bag from the dumpster

and placed it in the maintenance room and locked the door. Ms. Roop called her husband,

who was a police officer. He, in turn, called a fellow officer, Shane Dellinger. The two men

went to the apartment complex to examine the bag more closely. Upon examination, they

discovered a bottle with smoke coming from it. The two men moved the garage bag from

the maintenance room to the lawn. Based upon their examination of the contents of the bag,

the Central West Virginia Drug Task Force (“Drug Task Force”) was called to the scene.



              Sgt. T. A. Blake of the Summersville Police Department was assigned to the

Drug Task Force on July 30, 2007. He responded to the call from the apartment complex.

When he arrived, he opened up the garbage bag and found peroxide bottles, matchbooks, and

a couple of bottles. One bottle had some brownish-red liquid in it and another had some

coffee filters stuffed in the end of it. Sgt. Blake testified that there was a smoking bottle in

the garbage. He testified that this was “what’s generally referred to as a gas generator. It has

rock salt and another chemical in it that would cause a chemical reaction, and it would fume

                                               2

and smoke.” Sgt. Blake further testified that he found a couple of bills with Tina Keener’s

address on them in the garbage bag, as well as a HEET bottle and used blister bags. The

officer stated that HEET contains alcohol, which is a key ingredient for manufacturing

methamphetamine. Sgt. Blake testified that after going through the trash, he and another

officer left the scene to obtain a search warrant for Ms. Keener’s apartment. Two other

officers remained at the scene to secure the apartment.



              Sgt. Blake assisted in executing the search of Ms. Keener’s apartment. He

testified that he found several precursors to manufacturing methamphetamine including a

Bernzomatic propane bottle, a camp fuel container located under the kitchen sink, iodine, a

hotplate, Spa Ph, and three smoke detectors that had been removed from the ceiling. The

officer stated that he found a pill bottle belonging to the Petitioner, a check stub with the

Petitioner’s name on it and a piece of mail with the Petitioner’s name on it. Sgt. Blake also

found a duffle bag containing plastic tubing, a glassy soapy bottle, which is often found in

methamphetamine production because the bottles are used as gas generators, and a spatula.

Finally, Sgt. Blake stated that he found a book entitled The Secret of Methamphetamine

Manufacture, Uncle Fester’s 7th Edition (hereafter “Uncle Fester’s Cookbook”). There was

no evidence of any controlled substance, including methamphetamine, found in the apartment

or the garbage bag.




                                             3

                On March 18, 2009, the Petitioner was indicted2 by a Nicholas County grand

jury for one count of operating or attempting to operate a clandestine drug laboratory3 and

one count of conspiracy to manufacture methamphetamine.4



                While the Petitioner was awaiting trial on these charges, on April 3, 2009, a

Nicholas County Sheriff’s deputy served warrants on the Petitioner for misdemeanor Sudafed

purchases. After being taken into custody, the Petitioner executed a waiver of his Miranda5

rights and provided a signed statement regarding his knowledge of methamphetamine

manufacturing. The statement included the Petitioner’s admissions that he was informed

about how to make methamphetamine, and that he got his information and start with Uncle

Fester’s Cookbook. The Petitioner also stated that “[y]ou actually get addicted just cooking

the dope more than using the dope. I could set in jail for ten years, I would still be addicted

to cooking meth.”




       2
        According to the record, a warrant issued for the Petitioner’s arrest after the events
in July of 2007; however, the circuit court dismissed the warrant because it had not been
presented to the grand jury for indictment within three terms of court. The Petitioner was re­
indicted in January of 2009; however, due to “problems with the grand jury,” that indictment
was dismissed.
       3
           See W. Va. Code § 60A-4-411(2010).
       4
           See W. Va. Code § 61-10-31 (2010) and § 60A-4-401(2010).
       5
           See Miranda v. Arizona, 384 U.S. 436 (1966).

                                              4

                 The State filed a motion to admit the statement as evidence under West

Virginia Rule of Evidence 404(b).6 The Petitioner filed a brief in opposition. The State

argued that the statement was admissible as evidence of the Petitioner’s “‘intent and motive

for cooking methamphetamine.’” The Petitioner, however, argued that the statement was not

evidence of a crime, wrong or act because “the statement does not reference a specific

instance and contains only generalized statements about how a person could manufacture

methamphetamine.” The Petitioner argued that the statement was inadmissible under Rule

404(b) because it was character evidence.



                 The circuit court conducted a hearing on the admissibility of the statement prior

to trial. By Order entered August 12, 2009, the circuit court determined that the statement

was admissible. The court agreed with the Petitioner that the statement was inadmissible

under Rule 404(b) as evidence of “(i) Defendant’s subsequent crimes and arrest or (ii)

Defendant’s character.” Nevertheless, the court found that the statement was admissible “as




       6
           Rule 404(b) of the West Virginia Rules of Evidence provides, in relevant part:

                        Evidence of other crimes, wrongs, or acts is not
                 admissible to prove the character of a person in order to show
                 that he or she acted in conformity therewith. It may, however,
                 be admissible for other purposes, such as proof of motive,
                 opportunity, intent, preparation, plan, knowledge, identity, or
                 absence of mistake or accident . . . .

Id.

                                                 5

a statement of a party-defendant,7 made voluntarily, without coercion and after a proper

Miranda warning.” (Footnote added).



              The trial commenced. When Deputy Michael Allen Hanks with the Nicholas

County Sheriff’s Department testified regarding the Petitioner’s statement, the only objection

raised by the Petitioner was that the admission was unfairly prejudicial under West Virginia

Rule of Evidence 403. The Petitioner did not testify and called no witnesses. At the close

of the State’s case-in-chief, the Petitioner moved for a directed verdict on both counts. The

circuit court dismissed the conspiracy count. The jury found the Petitioner guilty of

operating or attempting to operate a clandestine drug laboratory. The Petitioner was

sentenced to an indeterminate term of two to ten years and was later re-sentenced for appeal

purposes.



                                       II. Argument8

                                 A. Petitioner’s Statement

              The Petitioner argues that the circuit court erred in admitting the statement he

voluntarily gave to police following his arrest two years after the events alleged in the

       7
        Under West Virginia Rule of Evidence 801(d)(2), an admission of a party-opponent
is not hearsay when “[t]he statement is offered against a party and is (A) the party’s own
statement[.]” Id.
       8
         Because two different standards of review will be used in review of each of the errors
assigned by the Petitioner, the standard of review will be set forth within the argument
section.

                                              6

indictment. The Petitioner argues that his statement in 2009 did not relate back to the crime

he allegedly committed in 2007. The Petitioner maintains that the deputy who questioned

him in 2009 never asked him if he knew how to manufacture methamphetamine in 2007.

Thus, the Petitioner maintains that the admission of the statement was unfairly prejudicial.

The State, however, argues that the circuit court did not abuse its discretion in allowing the

Petitioner’s statement to be admitted into evidence.9



              The standard of review for an evidentiary ruling made by a circuit court is

whether the circuit court abused its discretion. See Syl. Pt. 4, State v. Rodoussakis, 204 W.

Va. 58, 511 S.E.2d 469 (1998) (“A trial court’s evidentiary rulings, as well as its application

of the Rules of Evidence, are subject to review under an abuse of discretion standard.”). As

previously mentioned, the circuit court admitted the Petitioner’s April 3, 2009, statement

under West Virginia Rule of Evidence 801(d)(2). This Court held in syllabus point seven of



        9
        While the Petitioner asserts on appeal that the statement was erroneously admitted
as character evidence in violation of West Virginia Rule of Evidence 404(b), there was no
objection at trial to preserve this alleged error. See State v. DeGraw, 196 W. Va. 261, 272
n. 15, 470 S.E.2d 215, 226 n.15 (1996)(concluding that appellant’s failure to raise a Rule
404(b) objection before the trial court precluded this Court from reviewing appellant’s Rule
404(b) argument and further concluding that failure to raise Rule 404(b) objection did not
trigger application of plain error doctrine). Moreover, the trial court ruled that the statement
was inadmissible under Rule 404(b). The circuit court also expressly prohibited any
reference by the State to the subsequent crime with which the Petitioner was charged (the
misdemeanor purchase of too much Sudafed). Rather, the circuit court found the statement
admissible under West Virginia Rule of Evidence 801(d)(2). Given the Petitioner’s failure
to raise any Rule 404(b) objection at trial, we decline to review this argument on appeal.


                                              7

State v. Payne, 225 W. Va. 602, 694 S.E.2d 935 (2010), that “[a] statement is not hearsay if

the statement is offered against a party and is his [or her] own statement, in either his [or her]

individual or a representative capacity. W. Va. R. Evid. 801(d)(2)(A).’ Syl. Pt. 1, Heydinger

v. Adkins, 178 W.Va. 463, 360 S.E.2d 240 (1987).” As we noted in Payne,

                 The Heydinger Court also explained that the rule is sensible from
                 a practical standpoint.

                                The theory underlying this evidentiary rule
                        is that if a person’s own statements are offered
                        against him, he cannot be heard to complain that
                        he was denied an opportunity f or
                        cross-examination. An additional justification
                        supporting the admissibility of this class of
                        evidence is the fact that it is inherently trustworthy.
                        [citation omitted] Presumably, a party would not
                        admit or state anything against his or her interest
                        unless it was true; nevertheless, if the statement is
                        inaccurate, the party may deny it altogether or
                        explain why he/she made it.

Payne, 225 W. Va. at 611, 694 S.E.2d at 944 (quoting Heydinger, 178 W. Va. at 468, 360

S.E.2d at 245).



                 The only objection raised by the Petitioner when the statement was admitted at

trial was under Rule 403 of the West Virginia Rules of Evidence. Rule 403 sets forth a

balancing test for determining when otherwise relevant evidence should nonetheless be

excluded at trial. Rule 403 provides: “Although relevant,10 evidence may be excluded if its


        10
             The Petitioner did not object to the relevancy of the evidence under Rule 401of the
                                                                                   (continued...)

                                                  8

probative value is substantially outweighed by the danger of unfair prejudice, confusion of

the issues, or misleading the jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.” Id. (footnote added). In syllabus point nine

of State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994), we held:

                      Although Rules 401 and 402 of the West Virginia Rules
              of Evidence strongly encourage the admission of as much
              evidence as possible, Rule 403 of the West Virginia Rules of
              Evidence restricts this liberal policy by requiring a balancing of
              interests to determine whether logically relevant is legally
              relevant evidence. Specifically, Rule 403 provides that although
              relevant, evidence may nevertheless be excluded when the danger
              of unfair prejudice, confusion, or undue delay is disproportionate
              to the value of the evidence.

192 W. Va. at 168, 451 S.E.2d at 734, Syl. Pt. 9.



              In the instant case, after the suppression hearing concerning the Petitioner’s

statement, the circuit court determined that the Petitioner’s statement was relevant because

“it demonstrates that the Defendant knew how to cook methamphetamine, was interested in

chemistry and was addicted to cooking methamphetamine.” The circuit court further

determined that the statement “is evidence that the Defendant used Uncle Fester’s Cookbook,

which was located among the items seized from the same apartment.” The circuit court next

analyzed the evidence using the balancing test set forth in Rule 403 and found that the




       10
      (...continued)

West Virginia Rules of Evidence.


                                              9

probative value of the statement was “significant” and substantially outweighed any danger

of unfair prejudice. The circuit court determined that

              [w]ith the statement, itself, the only real danger of prejudice is
              the jury hearing that the Defendant does, in fact, know how to
              use the components of a methamphetamine laboratory to cook
              methamphetamine and that he is addicted to cooking meth.
              When weighed against the probative value of the statement, the
              risk of unfair prejudice does not require exclusion of the
              statement.



              Based upon this Court’s review of the statement and its admissibility, the circuit

court correctly determined that Petitioner’s voluntary statement in 2009 was relevant to the

2007 charges against him. Further, the circuit court did not err in its determination that the

Petitioner’s voluntary statement was not unduly prejudicial simply because the Petitioner

made the statement approximately two years after the events giving rise to the charge of

operating or attempting to operate a clandestine drug laboratory. The circuit court did not

abuse its discretion in admitting the Petitioner’s 2009 statement into evidence at trial.



                               B. Sufficiency of the Evidence

              The Petitioner next argues that the circuit court should have granted his motion

for directed verdict on both counts, instead of just the conspiracy count. The Petitioner

contends that there was insufficient evidence demonstrating that he knew the contents of the

garbage bag. The Petitioner also maintains that there was no evidence that linked him to the

items found in his girlfriend’s apartment, and there was no evidence that showed he knew

                                              10

how to manufacture or attempt to manufacture methamphetamine in 2007. The State,

however, argues that the materials and substances found in the trash bag carried by the

Petitioner to the dumpster, as well as all the materials and substances found in the residence

where the Petitioner lived, are key ingredients for producing methamphetamine. Therefore,

there existed sufficient evidence to support the Petitioner’s conviction for operating or

attempting to operate a clandestine drug laboratory in violation of West Virginia Code § 60A­

4-411.



              In syllabus point one of State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163

(1995), the Court established the following standard of review for sufficiency of evidence

claims on appeal:

                      [t]he 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.

Id. at 663, 461 S.E.2d at 169, Syl. Pt. 1. The Court further held in Guthrie 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

                                              11

                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 Syl. Pt. 3.



                In order to be convicted of operating or attempting to operate a clandestine drug

laboratory, West Virginia Code § 60A-4-411 provides:

                       (a) Any person who operates or attempts to operate a
                clandestine drug laboratory is guilty of a felony and, upon
                conviction, shall be confined in a state correctional facility for
                not less than two years nor more than ten years . . . .
                       (b) For purposes of this section, a “clandestine drug
                laboratory” means any property, real or personal, on or in which
                a person assembles any chemicals or equipment or combination
                thereof for the purpose of manufacturing methamphetamine . . .
                .

Id.


                In support of the Petitioner’s argument that the evidence was insufficient, he

relies upon this Court’s decision in State v. Cummings, 220 W. Va. 433, 647 S.E.2d 869

(2007). In Cummings, the appellant was driving a vehicle that was owned by another

individual. There were two other occupants in the car with the appellant when the vehicle was

stopped by police. After the initial stop, the police officer ordered the occupants, including

the appellant, out of the car. Because the officer observed a bulge in the appellant’s pocket,

the appellant was asked to empty his pockets. The items taken from the appellant’s pockets


                                                12

included a small container holding three hydrocodone pills and two bags of a substance

appearing to be methamphetamine. The appellant was placed under arrest and the car was

searched. As a result of the search, the police officer found six boxes of a cold medicine

containing pseudoephedrine, a white bag containing six boxes of matches and two bags of ten

syringes. Id. at 436, 647 S.E.2d at 872. The charges against the appellant included operating

or attempting to operate a clandestine drug laboratory and conspiracy. Id. at 436-37, 647

S.E.2d at 872-73. A jury convicted the appellant of this crime. Id.



              On appeal, the appellant, in Cummings, argued sufficiency of the evidence in

relation to the charge of operating a clandestine drug laboratory. This Court reversed the

appellant’s conviction, holding that

                    In order to sustain a conviction for violation of W. Va.
              Code § 60A-4-411 (2003), by assembling any chemicals or
              equipment for the purpose of manufacturing methamphetamine,
              the State must prove beyond a reasonable doubt that the
              defendant had actual or constructive possession over the
              chemicals and/or equipment. In order to establish constructive
              possession where the defendant is present in a vehicle wherein
              such materials are found, the State must prove beyond a
              reasonable doubt that the defendant had knowledge of the
              presence of the chemicals and/or equipment to be used for the
              purposes of manufacturing methamphetamine and that such items
              were subject to the defendant’s dominion and control.

220 W. Va. at 435, 647 S.E.2d at 871, Syl. Pt. 6.



              The Court based its reversal upon the following:


                                             13

                      Upon review of the evidence presented at Appellant’s
              trial, we conclude that the State did not meet this burden in the
              instant matter. All of the State’s case was presented through the
              testimony of one witness, Trooper Cox. There were no other
              witnesses. There was no forensic evidence (such as fingerprints
              on the cold medicine or matches). The State offered no evidence,
              other than that the cold medicine and matches which were
              discovered in the back seat of a vehicle driven by, but not owned
              or rented by, Appellant. The Appellant was not the only person
              in the vehicle. There were two other passengers either of whom
              may have owned some or all of the items. Neither were called by
              the State. There was no evidence presented that the defendant
              had purchased the items, either by introducing a receipt for the
              same containing his name or through the testimony of a person
              who may have sold the items to him. There was no evidence that
              the Appellant was even aware the items were in the vehicle prior
              to their discovery by Trooper Cox. There is simply no evidence
              to support an inference of actual or constructive possession.
              Absent a finding of actual or constructive possession, a finding
              that the Appellant was assembling the materials for the purpose
              of manufacturing methamphetamine is therefore not plausible.
              Likewise, the State failed to prove actual or constructive
              possession of the materials by Appellant’s alleged co-conspirator,
              Amy Cummings. Absent evidence sufficient to meet the
              necessary elements of the crimes for which Appellant was
              charged, Appellant's convictions must be reversed.

220 W. Va. at 440-41, 647 S.E.2d at 876-77.



              In the instant case, unlike the evidence examined by the Court in Cummings,

there was testimony from the apartment manager that she witnessed the Petitioner carrying

the garbage bag with drug precursors in it to the dumpster. There was also testimony and

evidence that the Petitioner resided in the apartment where methamphetamine ingredients and

precursors were found. The Petitioner’s girlfriend testified that the Petitioner came and went


                                             14

from the apartment as he pleased because he had his own key to the apartment. She testified

that she had no knowledge of what was going on in her apartment. The Petitioner’s girlfriend

testified that she had never cooked methamphetamine and that she could not buy Sudafed

because she did not have a photo identification. Further, the Petitioner’s own statement

demonstrated that he was addicted to making methamphetamine and learned how to make the

illegal drug from Uncle Fester’s Cookbook, a book that was seized as evidence from his

girlfriend’s apartment. The jury, therefore, was presented with sufficient evidence that the

Petitioner had “actual or constructive possession over the chemicals and/or equipment” to be

used for the purposes of manufacturing methamphetamine and “that such items were subject

to the defendant’s dominion and control.” 220 W. Va. at 435, 647 S.E.2d at 871, Syl. Pt. 6,

in part. Consequently, after reviewing the evidence in the light most favorable to the

prosecution, the Court concludes that there existed sufficient evidence to sustain Petitioner’s

conviction of operating or attempting to operate a clandestine drug laboratory in violation of

West Virginia Code § 60A-4-411. See Guthrie, 194 W. Va. at 663, 461 S.E.2d at 169, Syl.

Pts. 1 and 3.



                                        III. Conclusion

                Based upon the foregoing, the decision of the Circuit Court of Nicholas County

is affirmed.

                                                                                    Affirmed.



                                              15
