                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


State of West Virginia,                                                             FILED
Plaintiff Below, Respondent                                                    February 7, 2020
                                                                                EDYTHE NASH GAISER, CLERK
vs.) No. 19-0223 (Berkeley County CC-02-2018-F-142)                             SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA


Gregory A. Smith, Jr.,
Defendant Below, Petitioner



                               MEMORANDUM DECISION


        Petitioner Gregory A. Smith, Jr., by counsel Bradley J. Wright, appeals the February 14,
2019, order of the Circuit Court of Berkeley County denying petitioner’s motion for a new trial.
The State of West Virginia, by counsel Mary Beth Niday, filed a response in support of the circuit
court’s order. On appeal, petitioner alleges that the circuit court erred in denying his motion for a
new trial and erred in finding that the evidence presented at trial was sufficient to establish proof
beyond a reasonable doubt as to the charge of first-degree robbery.

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

        On August 11, 2017, petitioner got into an argument with his girlfriend. Petitioner dragged
her to an abandoned house, strangled her to the point of unconsciousness, and stole $40 and a cell
phone from her. Once she regained consciousness, the victim chased petitioner and demanded that
her money and cell phone be returned. Petitioner refused, grabbed the victim, and then sexually
assaulted her. The assault was witnessed by a nearby resident who called the police. After the
assault occurred, the victim also called the police. Petitioner was identified by the victim and
subsequently arrested with the victim’s cell phone in his possession.

         On May 16, 2018, petitioner was indicted on one count of first-degree robbery, one count
of first-degree sexual assault, one count of strangulation, and one count of third-offense domestic
battery. Petitioner’s trial commenced on August 11, 2018. After the State rested, petitioner moved
for a directed verdict. As pertains to this appeal, petitioner asserted that there was no evidence of
violence or threat of violence regarding the robbery charge. The State responded that the evidence

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showed marks on the victim’s neck, that her shirt was stretched out, and that her demeanor
supported her testimony that petitioner strangled her. The trial court denied the motion for a
directed verdict. After deliberation, the jury found petitioner guilty of first-degree robbery, second-
degree sexual assault, and third-offense domestic battery. Petitioner was acquitted on the
strangulation charge. On February 4, 2019, petitioner’s sentencing hearing commenced. At this
hearing, the trial court heard arguments on petitioner’s motion for a new trial. The trial court denied
the motion for a new trial and sentenced petitioner to fifteen years of incarceration for the first-
degree robbery conviction, ten-to-twenty-five years of incarceration for the second-degree sexual
assault conviction, and one-to-five years of incarceration for the third-offense domestic battery
conviction. Petitioner was ordered to serve the first-degree robbery conviction sentence and
second-degree sexual assault conviction consecutively. The third-offense domestic battery charge
and sexual assault conviction were to run concurrently. The circuit court memorialized petitioner’s
sentence in its February 14, 2019, order. It is from this order that petitioner appeals.

        On appeal, petitioner raises two assignments of error. First, he contends that the evidence
presented at trial was insufficient to establish the essential elements of first-degree robbery. The
charge of first-degree robbery requires “(1) [c]ommitting violence to the person, including, but not
limited to, partial strangulation or suffocation or by striking or beating; or (2) [using] the threat of
deadly force by the presenting of a firearm or other deadly weapon[.]” West Virginia Code § 61-
2-12 (a).1 The circuit court instructed the jury as to the common law definition of robbery, that is

       (1) the unlawful taking and carrying away, (2) of money or goods, (3) from the
       person of another or in his presence, (4) by force or putting him in fear, (5) with
       intent to steal the money or goods.

Syl. Pt. 1, State v. Harless, 168 W. Va. 707, 285 S.E.2d 461 (1981).

        Petitioner asserts that because the jury acquitted him of the strangulation charge, the
violence element of first-degree robbery was not proven. Petitioner argues that the alleged
strangulation was the sole basis for the violence element of the robbery charge and that there was
no other evidence or testimony indicating petitioner committed violence to the victim. Petitioner
also contends that the forty dollars he allegedly stole from the victim was never recovered. He
asserts that the money was not seen after petitioner and the victim went to a drug dealer’s house
and that the only evidence of the theft was the victim’s testimony. Lastly, petitioner argues that
the phone he took from the victim belonged to both parties; therefore, there is no evidence he
intended to permanently deprive the victim of it. He asserts that the police failed to search the
phone to determine the true owner of the device and relied only on the victim’s assertion that the
phone was hers.


       1
         “We have previously examined this statute and recognized it ‘does not actually
define robbery.’” State v. Wilkerson, 230 W. Va. 366, 371, 738 S.E.2d 32, 37 (2013) (citing State
v. Harless, 168 W. Va. 707, 710, 285 S.E.2d 461, 464 (1981); State ex rel. Vandal v. Adams, 145
W. Va. 566, 569, 115 S.E.2d 489, 490 (1960)). “Rather, ‘the elements of robbery, unaffected by
the statute, are derived from the common law[.]’ State v. England, 180 W. Va. 342, 347, 376
S.E.2d 548, 553 (1988).” Wilkerson, 230 W. Va. at 371, 738 S.E.2d at 37.” State v. Henson, 239
W. Va. 898, 806 S.E.2d 822 (2017).
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        In reviewing a claim that the evidence at trial was insufficient to convict, this Court has
stated that

                 [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.

Syl. Pt. 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). Further,

        [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.

Id. at 663, 461 S.E.2d at 169, syl. pt. 3, in part.

        We find that, here, petitioner failed to prove that there was insufficient evidence to sustain
his conviction of first-degree robbery. Though petitioner was acquitted of the charge of
strangulation, all of the elements of first-degree robbery were satisfied. The victim testified that
petitioner grabbed her by the hair, grabbed her neck, and dragged her to an abandoned house where
he threw her on the porch. The jury found the victim’s testimony to be credible. It is well
established that “[c]redibility determinations are for a jury and not an appellate court.” Id. at 633.
Therefore, even absent strangulation, the evidence indicates petitioner committed violence upon
the victim before taking her phone and money, thus satisfying the violence element of first-degree
robbery.

        Petitioner also asserts that there is no evidence that he took forty dollars and a cell phone
from the victim. The victim testified that she had forty dollars and a cell phone in her bra the day
of the robbery. She stated that petitioner became violent toward her, threw her down, and strangled
her. When she regained consciousness, she realized that both her money and cell phone were gone.
She then observed petitioner walking down the street with her cell phone. The jury concluded that
the victim’s testimony was credible. See id. Further, petitioner was arrested with the victim’s cell




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phone in his possession.2 At the time of his arrest, petitioner stated that he was the sole owner of
the device and that the victim had her own cell phone. Petitioner’s story changed after he was taken
to the police station. While being questioned, petitioner stated that the cell phone was used by both
parties but admitted that all of the contacts in the phone were the victim’s. Given petitioner’s
inconsistent statements and the victim’s testimony that the phone belonged to her, it was not
unreasonable for the jury to determine that the cell phone belonged to the victim and that petitioner
took it from her. Accordingly, we find that there was sufficient evidence to uphold petitioner’s
conviction of first-degree robbery.

        Petitioner’s second assignment of error is that the circuit court erred in denying his motion
for a new trial. Petitioner argues, as above, that there was insufficient evidence to support his
conviction of first-degree robbery. He asserts that the violence element of first-degree robbery was
not proven since he was acquitted of the strangulation charge. He further argues that there was no
evidence he took forty dollars from the victim since the money was not recovered. Petitioner
asserts that there was no evidence he intended to permanently deprive the victim of her property
because the phone he allegedly stole was joint property. Finally, he alleges that the police did not
obtain a search warrant or search the phone to determine the owner of the phone.

       We review a circuit court’s order denying a motion for a new trial under the following
standard:

               As a general proposition, we review a circuit court’s rulings on a
               motion for a new trial under an abuse of discretion standard. In re
               State Public Building Asbestos Litigation, 193 W.Va. 119, 454
               S.E.2d 413 (1994). . . . Thus, in 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.

Tennant v. Marion Health Care Found., Inc., 194 W. Va. 97, 104, 459 S.E.2d 374, 381 (1995).

        As determined above, petitioner failed to prove that there was insufficient evidence to
sustain his conviction of first-degree robbery. As his motion for a new trial was based on the
sufficiency of the evidence to sustain his first-degree robbery conviction, we find that the circuit
court committed no error in denying petitioner’s motion for a new trial.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.


       2
        The forty dollars was not recovered; however, since petitioner also stole the victim’s cell
phone, it is irrelevant.
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ISSUED: February 7, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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