                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS



State of West Virginia,                                                            FILED
Plaintiff Below, Respondent                                                       April 25, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 13-0649 (Marion County 12-F-90)                                        OF WEST VIRGINIA


Steven Jacob Dukes aka Steven Young,
Defendant Below, Petitioner


                                 MEMORANDUM DECISION

        Petitioner Steven Jacob Dukes aka Steven Young, by counsel W. Chad Noel, appeals two
orders of the Circuit Court of Marion County, both entered on April 2, 2013, denying his
post-trial motions for judgment of acquittal following his criminal trial and post-trial motions
relating to his recidivist trial. The State of West Virginia, by counsel Scott E. Johnson, has filed
its response.

        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 circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        In April of 2012 members of the West Virginia State Police Bureau of Criminal
Investigations and the Marion County Sheriff’s Department were involved in the investigation of
suspected drug trafficking in the Marion County area. They received information that petitioner
was involved in distributing heroin. While awaiting the issuance of a search warrant for the home
of Christine Swindler, who had unknowingly participated in a controlled buy, the officers
observed a vehicle pull up to Swindler’s home, an individual enter the home, and then the same
individual leave the home approximately five minutes later. After the warrant was obtained and
Swindler’s home searched, Swindler indicated that she wished to cooperate and stated that the
individual who had just left the home was her supplier. She gave them petitioner’s name, the
vehicle he drives, a description of him, his address, and his place of employment. At the
direction of the police, Swindler made an unrecorded call to petitioner, allegedly to ask him to
her residence in order for her to pay him some money owed to him and for him to deliver more
heroin. He was observed leaving his home and driving toward Swindler’s home. Based on the
information ascertained from Swindler and their knowledge of a valid warrant for petitioner’s
arrest due to a probation violation in Maryland, police conducted a traffic stop of petitioner and
his vehicle. He was searched and several bundles of heroin were found in the hooded shirt he
was wearing.

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         Petitioner was indicted in June 4, 2012, on one count of possession of a controlled
substance (heroin) with intent to deliver. On July 20, 2012, petitioner filed a motion in limine to
suppress the evidence obtained from the stop and search of his vehicle and the subsequent search
of his residence. This motion was denied by order entered on August 10, 2012. Petitioner
proceeded to trial on August 15, 2012. At trial, the officers testified as to the surveillance of
Swindler’s home and as to their knowledge of the telephone call. Swindler testified that
petitioner would give her heroin to sell, charging her fifteen dollars per “hit” and that she would
resell it for twenty-five dollars per “hit.” When she was out of heroin, she would text him “good”
to let him know to deliver more. She also testified as to the events that led to petitioner’s arrest.
He was found guilty by jury after a two-day trial.

       On August 27, 2012, petitioner filed his post-trial motions, which were denied after a
hearing held on March 19, 2013. The post-trial motions were for a new trial on the ground that
the verdict was against the weight of the evidence, and for judgment of acquittal. The order
denying the motions was entered on April 2, 2013.

        The State filed a recidivist information on September 21, 2012, seeking enhancement of
petitioner’s sentence based on three prior convictions: the instant conviction of possession of a
controlled substance; a December 20, 2000, felony conviction on one count of possession of a
deadly weapon by a prohibited person; and, an April 30, 1992, felony conviction in North
Carolina on one count of possession of cocaine. On February 11, 2012, the jury returned a
verdict finding that petitioner was twice or more previously convicted of crimes punishable by
penitentiary confinement as alleged in the recidivist information. On that same date, petitioner
filed post-trial motions in the recidivist case, which were denied by order entered on April 2,
2013. Petitioner was sentenced on March 19, 2013, to a life sentence with credit for time served.
Petitioner appeals from this conviction.

        First, petitioner argues that the circuit court erred in denying his post-trial motions
because he is entitled to a new trial on the basis that the weight of the evidence adduced at trial
as to the element of “intent to distribute” weighed so heavily against the eventual verdict that it
would be unjust not to grant him a new trial. Petitioner also argues that his motion for judgment
of acquittal pursuant to Rule 29 of the West Virginia Rules of Criminal Procedure should have
been granted as the evidence regarding his “intent to distribute,” even viewed in a light most
favorable to the verdict, was insufficient. Specifically, he argues that the informant was not
credible because she is an admitted drug user and seller.

      “A motion for judgment of acquittal challenges the sufficiency of the evidence.” State v.
Houston, 197 W.Va. 215, 229, 475 S.E.2d 307, 321 (1996) (citing Franklin D. Cleckley, 2
Handbook on West Virginia Criminal Procedure 292 (2d ed. 1993)). In addition,

              “[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

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       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. 2, State v. McFarland, 228 W.Va. 492, 721 S.E.2d 62 (2011); Syl. Pt. 7, State v. White,
228 W.Va. 530, 722 S.E.2d 566 (2011). In this case, petitioner did not meet his burden in
showing that there was insufficient evidence to sustain his conviction. A claim on appeal that the
testimony is not credible does not sustain petitioner’s burden of showing insufficient evidence, as
the jury is charged with determining the credibility of the witnesses and the evidence. We find no
error in the circuit court’s denial of petitioner’s motion for a new trial and/or for judgment of
acquittal.

         Petitioner next argues that the circuit court erred in denying petitioner’s post-trial motions
in that the admission of petitioner’s own statements regarding his prior criminal activity, made to
the trial court’s probation officer during the pre-sentence investigation, should have been
excluded in light of the circumstances. Petitioner argues that the statements were made while he
was already in custody and in the absence of any caution or advisement of his constitutional
rights. During the recidivist trial, there was testimony from the probation officer that petitioner
had several prior criminal charges, and petitioner argues that this testimony was prejudicial. A
pre-sentence investigation is mandatory after a conviction unless waived by a defendant or found
unnecessary by the trial court. See State ex rel. Simpkins v. Harvey, 172 W.Va. 312, 305 S.E.2d
268 (1983). In this case, petitioner was not compelled by coercion to make a statement, and his
cooperation in the pre-sentence investigation was not mandatory. Furthermore, this Court has
found that

       a probation officer need not give in-custody probationers Miranda warnings prior
       to questioning the probationer because we do not perceive that continuation of an
       ongoing dialogue between probationer and probation officer, notwithstanding that
       it happens to be conducted in a jail, constitutes the police-dominated interrogation
       that Miranda warnings were designed to prevent.

Hughes v. Gwinn, 170 W.Va. 87, 90, 290 S.E.2d 5, 8-9 (1981). Importantly, the information
regarding petitioner’s prior convictions is also a matter of public record. Therefore, we find no
error in the admission of petitioner’s statements to the probation officer and no error in the
circuit court’s denial of petitioner’s post-recidivist trial motions.

       For the foregoing reasons, we affirm.




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                                      Affirmed.

ISSUED: April 25, 2014

CONCURRED IN BY:

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




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