                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS



STATE OF WEST VIRGINIA,

Plaintiff Below, Respondent,                                                       FILED

vs) No. 16-0264 (Berkeley County 15-F-51)
                                                                                March 1, 2017
                                                                                  released at 3:00 p.m.
                                                                                RORY L. PERRY II, CLERK
VINCENT SCOTT SMITH, JR.,                                                     SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
Defendant Below, Petitioner



                                 MEMORANDUM DECISION

                Petitioner Vincent Scott Smith, Jr. (hereinafter “petitioner”), by counsel, Jason M.
Stedman, Esquire, appeals the December 10, 2015, order of the Circuit Court of Berkeley County
denying his motion for judgment of acquittal/motion for a new trial following his conviction of
first degree felony murder and conspiracy to commit robbery. Petitioner was sentenced to life in
prison without parole. On appeal, petitioner argues primarily that the evidence was insufficient
to sustain the convictions. He also asserts that the prosecuting attorney misstated the evidence
during closing arguments, committed a “discovery violation,” and that there were “flaws in the
DNA evidence presented at trial.” The State, by counsel, Cheryl K. Saville, Esquire, filed a
response in support of the circuit court’s findings.

                This Court has considered the parties’ briefs and the record on appeal. The facts
and legal arguments are adequately presented and 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.


                       I. FACTUAL AND PROCEDURAL HISTORY

                On September 14, 2014, Michael Garcia was found shot to death on Technology
Road in Berkeley County, West Virginia. Earlier in the day, Mr. Garcia was contacted by
LaQuadia Grant on behalf of Tulsa Johnson, to arrange a heroin buy from him; Ms. Grant and
Tulsa Johnson later picked up Jucobe Johnson and petitioner. The group initially met at the
apartment of Davon Adams, a friend of Mr. Garcia’s who occasionally let him use his apartment
to sell heroin. Mr. Adams testified that upon arriving at Mr. Adams’ apartment, Tulsa Johnson
privately advised him that the group intended to “take” the drugs from Mr. Garcia and that he
should not allow the transaction to occur in his apartment. Mr. Adams then advised the group to
leave, ostensibly because his children were in the apartment. Mr. Adams testified that he did so
to signal to Mr. Garcia that this was not an ordinary transaction and hopefully warn him of the
group’s intentions.


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                The group left the apartment; LaQuadia Grant returned to the vehicle in which she
arrived, where Jucobe Johnson was waiting in the drivers’ seat. Mr. Garcia, Tulsa Johnson, and
petitioner left in Mr. Garcia’s work vehicle and apparently traveled to a nearby cornfield.
Shortly thereafter, Ms. Grant testified that Tulsa Johnson and petitioner returned to the car
running from the direction of the cornfield. Ms. Grant testified that when they returned, Tulsa
Johnson stated that she “killed that motherf*cker” and petitioner was wiping down a gun with a
red bandana. Ms. Grant further testified that Tulsa Johnson and petitioner had a discussion about
having “cleaned up” the scene and needing to dispose of the weapon.

                 Mr. Garcia’s twin brother, Justin, testified that he was driving past the area of
Technology Road when he observed Mr. Garcia’s work vehicle sitting in the middle of the
roadway and stopped to investigate. He testified that he found Mr. Garcia badly injured, lying in
the roadway behind his vehicle, and that the pockets of his shorts were turned inside out. Justin
testified that he searched for Mr. Garcia’s cell phone to call 911 but did not locate it. Justin then
traveled to the nearby home of Anthony Branson, with whom Mr. Garcia had been residing and
had Mr. Branson accompany him back to the scene. Justin then left the scene before police
arrived due to outstanding criminal warrants.

                When police arrived, they found Mr. Garcia dead of multiple gunshot wounds; the
fatal wound was found to have penetrated his heart. Investigators further observed disturbances
in the nearby gravel suggesting a struggle. Mr. Garcia was found to have abrasions and dirt on
his person. Investigators testified that no cell phone, wallet, or drugs were found on Mr. Garcia’s
person at the scene and that no cell phone was ever recovered. Testing of DNA found in the rear
of Mr. Garcia’s vehicle was insufficient to make a “unique” identification of petitioner, but an
expert testified that she could not exclude petitioner as the source of the DNA. The “random
match probability” was 1 in 12.3 billion.1 A couple of days after the murder, Ms. Grant went to
authorities and gave a statement consistent with her testimony as described above.

                After a four-day consolidated trial, along with co-defendants Tulsa Johnson and
Jucobe Johnson, petitioner and Tulsa Johnson were both convicted of first degree felony murder
and conspiracy to commit robbery. Jucobe Johnson was acquitted of accessory after the fact to
murder. The jury made no recommendation of mercy as to either defendant. Petitioner moved
for a new trial arguing insufficiency of the evidence, which motion was denied by the trial court.
This appeal followed.




1
   The expert testified that nine of fifteen “loci” matched petitioner; the remainder were
insufficient to make a match. The “random match probability” indicates that only one in 12.3
billion people match this same nine of fifteen loci. Based on the expert’s laboratory thresholds,
the remaining loci were insufficient (i.e. “weak or partial”) to allow a match of the remaining
loci. Because she could not match the remaining six loci, the expert’s lab protocols would not
permit her to make a “unique identification” of petitioner.
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                                II. STANDARD OF REVIEW


              Generally,

              [i]n reviewing challenges to findings and rulings made by a circuit
              court, we apply a two-pronged deferential standard of review. We
              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). As pertains specifically to
petitioner’s primary assignment of error:

                      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.

                      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.

Syl. Pts. 1 and 3, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). With these standards
in mind, we proceed to petitioner’s assignments of error.




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                                       III. DISCUSSION


               Petitioner sets forth six assignments of error, three of which involve insufficiency
of the evidence. In his remaining assignments of error, petitioner asserts that the prosecutor
misstated the DNA evidence in closing argument, the State committed a “discovery violation”
involving a prior inconsistent statement of Mr. Adams’, and that the DNA testing was “flawed.”

               First, petitioner argues that the State’s evidence was insufficient to sustain the
convictions of first degree felony murder and conspiracy to commit robbery, asserting that the
evidence was “all circumstantial” and citing specifically the lack of an eyewitness to the actual
shooting. Petitioner further argues that the State failed to produce sufficient evidence of the
underlying crime upon which the felony murder rests—robbery.2 Petitioner argues that
investigators’ mere failure to locate personal items, a cell phone, drugs, or money on Mr.
Garcia’s body at the crime scene is insufficient to prove robbery.

               This Court has held:

               Circumstantial evidence . . . is intrinsically no different from
               testimonial evidence. Admittedly, circumstantial evidence may in
               some case[s] point to a wholly incorrect result. Yet this is equally
               true of testimonial evidence. In both instances, a jury is asked to
               weigh the chances that the evidence correctly points to guilt
               against the possibility of inaccuracy or ambiguous inference. In
               both, the jury must use its experience with people and events in
               weighing the probabilities. If the jury is convinced beyond a
               reasonable doubt, we can require no more.

Guthrie, 194 W.Va. at 668, 461 S.E.2d at 174 (quoting Holland v. United States, 348 U.S. 121,
139–40, 75 S. Ct. 127, 137–38, 99 L.Ed. 150, 166 (1954)). While there is no question the State
presented a circumstantial case, the evidence at trial was fairly overwhelming. The unrefuted
testimony demonstrated that the group concocted a plan to collect at Mr. Adams’ apartment to
obtain heroin from Mr. Garcia and that petitioner, Tulsa Johnson, and Mr. Garcia left the
apartment in Mr. Garcia’s vehicle to complete the transaction. LaQuadia Grant testified that
shortly thereafter, Tulsa Johnson and the petitioner returned to the apartment complex without
Mr. Garcia. Ms. Grant further testified that Tulsa Johnson declared she had “killed that
motherf*cker,” while petitioner was seen wiping down a gun; discussion was had about cleaning
up the scene and disposing of the gun. Mr. Garcia’s body was found shortly thereafter next to
his vehicle in the area from which petitioner and Tulsa Johnson were seen running. Moreover,

2
  Petitioner also argues that there was insufficient evidence on the underlying felony of “delivery
of a controlled substance,” the alternate theory upon which petitioner was indicted. However,
prior to instructing the jury, the trial court ruled that the State would not be permitted to submit
the felony murder count to the jury on the theory of delivery of a controlled substance as
described in W. Va. Code § 61-2-1 (1991) since there was no evidence that receipt of a
controlled substance was sufficient evidence of such a violation. Accordingly, petitioner’s
argument in this regard is without merit. At no time did the State argue nor was the jury
instructed that it could find felony murder on the basis of delivery of a controlled substance.
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the evidence of robbery was presented through the testimony of Davon Adams, who testified that
Tulsa Johnson advised him they intended to “take” the drugs from Mr. Garcia. In fact, no drugs,
money, or other personal items were found on Mr. Garcia’s body at the crime scene. As
indicated previously, although this evidence is indeed circumstantial, it was met with little to no
appreciable challenge, save various implications that Mr. Garcia’s twin brother’s discovery of his
body and subsequent actions were arguably suspect. The jury was well-situated to weigh the
credibility of the various witnesses and draw any inferences regarding petitioner’s guilt. We
therefore conclude that there was more than sufficient evidence upon which a reasonable jury
could convict petitioner of first degree felony murder and conspiracy to commit robbery.

                Next, petitioner argues that the circuit court erred by permitting the State to argue
in closing that petitioner was identified from DNA located in Mr. Garcia’s vehicle. Petitioner
claims that this is a reversible misstatement of the evidence as the DNA expert merely testified
that she could not exclude petitioner as the source of such DNA. The record shows that the
expert testified she could not make a “unique identification” because certain of the DNA
evidence was at a lower threshold than her lab permitted for purposes of making a unique
identification. However, the expert could, and in fact did, testify that she could not exclude
petitioner as the source of the DNA and that only 1 in 12.3 billion people would be a match to
that degree.

               This Court has held that “[a] prosecutor may argue all reasonable inferences from
the evidence in the record. It is unprofessional conduct for the prosecutor intentionally to
misstate the evidence or mislead the jury as to the inferences it may draw.” Syl. Pt. 7, State v.
England, 180 W.Va. 342, 376 S.E.2d 548 (1988). Moreover, “[t]he discretion of the trial court
in ruling on the propriety of argument by counsel before the jury will not be interfered with by
the appellate court, unless it appears that the rights of the complaining party have been
prejudiced, or that manifest injustice resulted therefrom.” Syl. Pt. 3, State v. Boggs, 103 W.Va.
641, 138 S.E. 321 (1927). Our review of the record reveals that, contrary to petitioner’s
contention, the prosecutor did not state that the expert had identified petitioner.3 Rather, the
prosecutor stated that the expert had testified petitioner could not be excluded, gave the statistical
probability of a random match per the expert,4 and then stated “what a coincidence.”
Accordingly, we find that the prosecutor did not misstate the evidence and her commentary
regarding the expert’s testimony was simply a reasonable inference to be drawn from the
testimony.

3
  In fact, petitioner’s trial counsel preemptively objected when the prosecutor began discussing
DNA to ensure that she did not state that the expert conclusively identified petitioner. At the
point that counsel objected, the prosecutor had stated only that “[w]e know Vincent Smith was in
contact with Michael Garcia’s car.” We find that this statement is simply a reasonable inference
from the evidence, particularly in light of the prosecutor’s subsequent and accurate discussion of
the expert’s exact testimony.
4
  The expert testified that only 1 in 12.3 billion people would randomly match the DNA analysis.
In closing, the prosecutor mistakenly said it was 1 in 1.69 billion. Although an error, the figure
given by the prosecutor is actually less persuasive than the expert’s testimony. In short, the
mathematical misstatement was in petitioner’s favor.


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                In his remaining two assignments of error, petitioner cursorily asserts 1) a
“discovery violation” stemming from Mr. Adams’ statement to police, which did not mention the
group’s plan to take anything from Mr. Garcia and was therefore “inconsistent” with his
testimony at trial5 and 2) the DNA testing was “flawed” because the experts were not aware that
there was a “second set of identical twins” involved in the case.6

               This Court is hard-pressed to discern the precise legal errors being asserted in
these final two assignments of error and therefore declines to address them as insufficiently
briefed. Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure provides that

               [t]he brief must contain an argument exhibiting clearly the points
               of fact and law presented, the standard of review applicable, and
               citing the authorities relied on . . . [and] must contain appropriate
               and specific citations to the record on appeal . . . . The Court may
               disregard errors that are not adequately supported by specific
               references to the record on appeal.

Moreover, this Court by Administrative Order entered December 10, 2012, advised that “[b]riefs
that lack citation of authority, fail to structure an argument applying applicable law, fail to raise
any meaningful argument that there is error, or present only a skeletal argument” are not in
compliance with this Court’s rules. Further, “[a]lthough we liberally construe briefs in
determining issues presented for review, issues which are . . . mentioned only in passing but are
not supported with pertinent authority, are not considered on appeal.” State v. LaRock, 196
W.Va. 294, 302, 470 S.E.2d 613, 621 (1996); see also State v. Lockhart, 208 W.Va. 622, 627 n.
4, 542 S.E.2d 443, 448 n. 4 (2000) (“Assignments of error that are not briefed are deemed
waived.”). Accordingly, inasmuch as petitioner’s remaining two assignments of error fail to
coherently state a legal error or identify any legal authority, we decline to address them.

5
  Although initially couched as part of his insufficiency of the evidence argument, without
further explanation or supporting legal analysis, petitioner asserts this was a “discovery
violation.” As the State notes, petitioner cross-examined Mr. Adams on his prior statement, a
copy of which petitioner was provided by the State. In fact, petitioner does not contend the State
failed to provide him with the statement, rather, he laments simply that it was inconsistent with
Mr. Adams’ testimony at trial. To whatever extent this bears on the sufficiency of the evidence,
obviously the jury was unpersuaded by this attempted impeachment.
6
  As noted, the victim, Mr. Garcia, was an identical twin; however, apparently Ms. Grant is also
an identical twin. Petitioner fails entirely to discuss what, if any, significance Ms. Grant’s twin
is to the DNA analysis as none of her DNA was found at the scene nor had any bearing
whatsoever on the evidence at trial. To the extent petitioner is actually referring to the victim’s
twin and the significance of that evidence as pertains to the actual DNA evidence, the expert
testified that she would like to have a DNA sample from Mr. Garcia’s twin (Justin) to ensure
they were identical, but did not have a sample. This is significant only insofar as DNA matching
Mr. Garcia was found on a Corona bottle in the vehicle. However, there is no explanation by
petitioner as to how Mr. Garcia having a twin would impact the non-inculpatory presence of the
victim’s DNA at the scene.


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                                     IV. CONCLUSION

                For the reasons set forth above, this Court affirms the December 10, 2015, order
of the Circuit Court of Berkeley County.


                                                                                 Affirmed.


ISSUED: March 1, 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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