                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,                                                             FILED
Plaintiff Below, Respondent                                                      May 18, 2015
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
vs) No. 14-1012 (Wayne County 14-F-102 & 14-F-103)                              OF WEST VIRGINIA


James Darrell Robertson,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner James Darrell Robertson, by counsel Alison R. Gerlach, appeals the Circuit
Court of Wayne County’s October 3, 2014, order sentencing him to prison for one count of
conspiracy to commit delivery of a controlled substance and one count of delivery of a controlled
substance. The State, by counsel Julie Marie Blake, filed a response in support of the circuit
court’s order. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in
admitting evidence in violation of Rule 404(b) of the West Virginia Rules of Evidence.

        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 July of 2014, the grand jury of Wayne County indicted petitioner in two separate
indictments for two separate drug transactions, both occurring on March 18, 2014. In its first
indictment (Wayne County case numbers 14-F-102 and 14-F-103), the grand jury indicted
petitioner and a co-defendant on one count of conspiracy to commit delivery of a controlled
substance and one count of delivery of a controlled substance for events occurring at
approximately 4:13 p.m. on March 18, 2014 (“first indictment”). In its second indictment
(Wayne County case number 14-F-104), the grand jury indicted petitioner on one count of
delivery of a controlled substance for events occurring at approximately 1:59 p.m. on March 18,
2014 (“second indictment”).

        In anticipation of trial on the first indictment, petitioner filed a motion for the State to
produce any evidence it intended to introduce, pursuant to Rule 404 of the West Virginia Rules
of Evidence. In response, the State filed a motion to offer 404(b) evidence, namely petitioner’s
earlier drug transaction at issue in the second indictment occurring at approximately 1:59 p.m. on
March 18, 2014.



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        Petitioner’s two-day jury trial on the first indictment commenced in August of 2014. At
the outset, the circuit court noted that it would hold the State’s motion to offer 404(b) evidence in
abeyance. In its case-in-chief, the State presented the testimony of two police officers and a
confidential informant (“C.I.”). The officers testified that they facilitated a controlled drug buy
from petitioner at his home on March 18, 2014. The C.I. testified that he provided buy money to
petitioner for the stated purpose of securing Oxycodone. The C.I. explained that the two then
traveled from petitioner’s home to another location to retrieve that Oxycodone, and, when they
arrived at their destination, petitioner “got the pill” from two people and handed it to the C.I. The
State rested. Testifying on his own behalf, petitioner denied the charges against him. He claimed
that the C.I. had asked him for Oxycodone, but that he refused and never received any money
from the C.I. However, petitioner admitted that he had previously been addicted to prescription
medication and had previously purchased them off the “street.” Importantly, he denied any
recent drug use or sales, specifically stating that he “didn’t mess with them [drugs] anymore[.]”

          Following petitioner’s case-in-chief, the State renewed its motion to introduce 404(b)
evidence of the earlier drug transaction for the purpose of proving petitioner’s intent to deliver
controlled substances. The circuit court proceeded with an in camera hearing, pursuant to State v.
McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994). During the McGinnis hearing, the two
officers and the C.I. testified to a similar drug transaction between the C.I. and petitioner
occurring earlier that same day, as set forth in the second indictment. Based on the testimony
presented, the circuit court found, by a preponderance of the evidence, that the earlier drug
transaction occurred and could be introduced to demonstrate petitioner’s intent, pursuant to Rule
404(b). The circuit court also found that the probative value of the evidence outweighed its
prejudicial effect under Rule 403. The circuit court gave the jury two limiting instructions—the
first, at the time the State introduced the evidence, and the second, within its general jury charge.
Ultimately, the jury convicted petitioner on both counts of the first indictment. The circuit court
sentenced him to an indeterminate term of not less than one nor more than five years in prison
for conspiracy to deliver a controlled substance and an indeterminate term of not less than one
nor more than fifteen years in prison for delivery of a controlled substance. It is from this
sentencing order that petitioner now appeals.

       The standard of review of a circuit court’s decision regarding the admissibility of Rule
404(b) evidence has been stated as follows:

       The standard of review for a trial court’s admission of evidence pursuant to Rule
       404(b) involves a three-step analysis. First, we review for clear error the trial
       court’s factual determination that there is sufficient evidence to show the other
       acts occurred. Second, we review de novo whether the trial court correctly found
       the evidence was admissible for a legitimate purpose. Third, we review for an
       abuse of discretion the trial court’s conclusion that the “other acts” evidence is
       more probative than prejudicial under Rule 403.

State v. LaRock, 196 W.Va. 294, 310–11, 470 S.E.2d 613, 629–30 (1996). We have also
explained that “‘[r]ulings on the admissibility of evidence are largely within a trial court’s sound
discretion and should not be disturbed unless there has been an abuse of discretion.’ State v.
Louk, 171 W.Va. 639, [643,] 301 S.E.2d 596, 599 (1983).” Syl. Pt. 1, State v. Kaufman, 227

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W.Va. 537, 711 S.E.2d 607 (2011) (internal citations omitted). With those standards in mind, we
turn to petitioner’s assignment of error.

        On appeal, petitioner asserts that the circuit court erred in admitting “other act” evidence,
pursuant to Rule 404(b), of the earlier drug transaction occurring at approximately 1:59 p.m. on
the day in question. Specifically, petitioner claims the circuit court could not have found that the
testimony of the officers and the C.I. met the standard of preponderance of the evidence that the
earlier drug transaction occurred. Based on our thorough review of the record on appeal, we find
that the circuit court did not err in admitting the evidence of which petitioner complains, nor do
we find that petitioner was unfairly prejudiced by the evidence.

       We have long held that

                [w]here an offer of evidence is made under Rule 404(b) of the West
       Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West
       Virginia Rules of Evidence, is to determine its admissibility. Before admitting the
       evidence, the trial court should conduct an in camera hearing as stated in State v.
       Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and
       arguments of counsel, the trial court must be satisfied by a preponderance of the
       evidence that the acts or conduct occurred and that the defendant committed the
       acts. If the trial court does not find by a preponderance of the evidence that the
       acts or conduct was committed or that the defendant was the actor, the evidence
       should be excluded under Rule 404(b). If a sufficient showing has been made, the
       trial court must then determine the relevancy of the evidence under Rules 401 and
       402 of the West Virginia Rules of Evidence and conduct the balancing required
       under Rule 403 of the West Virginia Rules of Evidence. If the trial court is then
       satisfied that the Rule 404(b) evidence is admissible, it should instruct the jury on
       the limited purpose for which such evidence has been admitted. A limiting
       instruction should be given at the time the evidence is offered, and we recommend
       that it be repeated in the trial court's general charge to the jury at the conclusion of
       the evidence.

Syl. Pt. 2, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).

        In this matter, the record clearly indicates that the circuit court held a proper in camera
hearing to determine whether “by a preponderance of the evidence that the acts or conduct
occurred and that the defendant committed the acts.” Id. The C.I. testified under oath and subject
to cross-examination that he provided petitioner with money earlier on the day in question and
thereafter traveled with petitioner to another location where petitioner provided him with a
controlled substance. Despite petitioner’s argument that the C.I.’s testimony could not be
believed due to inconsistent statements related to his recent drug and/or alcohol use, we cannot
find, based on the record before us, that the C.I.’s testimony was inherently incredible. Further,
we may not decide the credibility of witnesses from the record on appeal. See State v. Guthrie,
194 W.Va. 657, 669 n. 9, 461 S.E.2d 163, 175 n. 9 (1995) (stating that “[a]n appellate court may
not decide the credibility of witnesses or weigh evidence as that is the exclusive function and
task of the trier of fact.”). Although petitioner is correct that the officers did not witness this

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transaction and could not corroborate that portion of the C.I.’s testimony, petitioner ignores the
remaining corroboration of the C.I.’s account provided by the officers. The officers confirmed
the C.I.’s testimony regarding his movements in and around petitioner’s home both before and
after the transaction. Therefore, the circuit court had sufficient specific testimony from the C.I.
with adequate corroboration by the two officers that it could find, by a preponderance of the
evidence, that the first transaction occurred. Moreover, the circuit court properly followed the
remaining measures set forth in McGinnis for the proper admission of Rule 404(b) evidence,
including two limiting instructions to the jury explaining the limited purpose of this evidence.
Therefore, the circuit court did not err in admitting this evidence pursuant to Rule 404(b). 1

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: May 18, 2015

CONCURRED IN BY:

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




       1
        As we determine that petitioner failed to establish error as to the admission of this
evidence, we do not address his argument that the error fails a harmless-error analysis.
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