                                     STATE OF WEST VIRGINIA
                                   SUPREME COURT OF APPEALS


    State of West Virginia, Plaintiff Below,                                             FILED
    Respondent                                                                         October 21, 2013
                                                                                    RORY L. PERRY II, CLERK
                                                                                  SUPREME COURT OF APPEALS
    vs) No. 12-1459 (Mercer County 12-F-110)                                          OF WEST VIRGINIA 


    Steven Wayne Shrader, Defendant Below,
    Petitioner

                                     MEMORANDUM DECISION

            Petitioner Steven Wayne Shrader, by counsel Michael P. Cooke, appeals the Circuit Court
    of Mercer County’s September 25, 2012 order denying his motion for judgment of acquittal. The
    State, by counsel Christopher S. Dodrill, filed a response. On appeal, petitioner alleges that the
    circuit court erred in denying his motion for judgment of acquittal because the evidence was
    insufficient to support his convictions.

           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 is appropriate under Rule 21 of the Rules of Appellate
    Procedure.

            On February 15, 2012, a Mercer County Grand Jury indicted petitioner on one count of
    burglary, one count of grand larceny, and one count of fraud in connection with access devices.
    The indictment was based upon allegations that petitioner broke into his father’s home, stole
    items from within, and had attempted to use his father’s debit card without permission. A jury
    trial was held in September of 2012, during which testimony was provided by petitioner, the
    victim, and an investigating officer. Thereafter, petitioner was convicted of petit larceny, a lesser
    included offense of grand larceny, and fraud in connection with access devices. Petitioner was
    acquitted of the charge of burglary.

           Petitioner moved for judgment of acquittal, but the circuit court denied the motion by
    order entered on September 25, 2012. By order entered on November 19, 2012, petitioner was
    sentenced to a term of incarceration of five years for his conviction of fraud in connection with
    access devices and a term of incarceration of one year for his conviction of petit larceny, said
    sentences to run concurrently.

           Upon our review, the Court finds no error in the circuit court’s denial of petitioner’s
    motion for judgment of acquittal. We have previously held that “[t]he Court applies a de novo
    standard of review to the denial of a motion for judgment of acquittal based upon the sufficiency

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of the evidence.” State v. Juntilla, 227 W.Va. 492, 497, 711 S.E.2d 562, 567 (2011) (quoting
State v. LaRock, 196 W.Va. 294, 304, 470 S.E.2d 613, 623 (1996)). As such, we note 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.” Syl. Pt. 3, State v. Guthrie, 194 W.Va.
       657, 461 S.E.2d 163 (1995).

Syl. Pt. 4, State v. Messer, 223 W.Va. 197, 672 S.E.2d 333 (2008).

        Petitioner’s argument that the evidence was insufficient to support his conviction is based
entirely on the fact that he provided testimony contradicting that of the victim and denied his
involvement in the crimes. Specifically, petitioner testified that he had permission to use the
victim’s debit card and that the only items he took from the home were two coats that the victim
gave him. Further, petitioner testified that other individuals would visit the home and could have
stolen the items in question, and that the victim had considered nailing the windows shut in order
to prevent access to the home. However, the victim testified that several items were missing from
the home, that he did not give any of these items to petitioner, and that petitioner did not have
permission to use his debit card. According to the victim, only he and petitioner had keys to the
home. Additionally, surveillance cameras from a convenience store showed petitioner attempting
to use the debit card.

        We have previously stated that “‘[t]he jury is the trier of the facts and in performing that
duty it is the sole judge as to the weight of the evidence and the credibility of the witnesses.’ Syl.
Pt. 2, State v. Bailey, 151 W.Va. 796, 155 S.E.2d 850 (1967).” Syl. Pt. 2, State v. Martin, 224
W.Va. 577, 687 S.E.2d 360 (2009). Based upon this language, it is clear that the jury was free to
afford more weight to the testimony of the victim and the investigating officer than petitioner.
Petitioner admitted that he took two coats from the home and that he attempted to use the debit
card. While petitioner argues that the coats were a gift and that he had permission to use the card,
the jury was free to disagree. As such, it is clear that the State met its burden of proof and the
evidence was sufficient to support petitioner’s convictions for fraud in connection with access
devices and petit larceny.

        For the foregoing reasons, the circuit court’s September 25, 2012 order denying
petitioner’s motion for judgment of acquittal is hereby affirmed.



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                                      Affirmed.

ISSUED: October 21, 2013

CONCURRED IN BY:

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




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