                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia,                                                             FILED
Plaintiff Below, Respondent
                                                                               November 23, 2015
                                                                               RORY L. PERRY II, CLERK
vs) No. 15-0237 (Fayette County 14-F-159)                                    SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

David L. Moore,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner David L. Moore, by counsel John M. Thompson Jr., appeals the Circuit Court
of Fayette County’s February 18, 2015, order sentencing him to consecutive terms of
incarceration of two to thirty years of incarceration for two counts of delivery of a controlled
substance and a fine of $5000. The State, by counsel Laura Young, filed a response in support of
the circuit court’s order. On appeal, petitioner argues that (1) the State presented insufficient
evidence to support his convictions and (2) the circuit court erred in denying his motions for
judgment of acquittal after the State’s case-in-chief and at the conclusion of trial.

       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.

         In May of 2014, a Fayette County grand jury indicted petitioner on two counts of delivery
of a controlled substance, in violation of West Virginia Code § 60A-4-401. Petitioner proceeded
to trial in December of 2014. At trial, the State presented evidence that on March 6, 2014, law
enforcement officers provided a confidential informant (“CI”) with pre-recorded “buy money”
and an “audio video recorder” to purchase cocaine from petitioner. According to the CI’s
testimony, she set up two separate drug transactions with petitioner on that day. The CI
explained that for each separate transaction she drove to petitioner’s apartment, and upon her
arrival honked her car horn. On both occasions that day, the CI testified that after she honked her
car horn, petitioner approached her vehicle and exchanged the drugs for the “buy money.” The
State also played the audio and video recordings of both drug buys to the jury, and also presented
the testimony of a forensic analyst with the West Virginia State Police, who explained that the
substance at issue was cocaine. Petitioner presented no witnesses or evidence. After the State
rested, and again at the conclusion of the trial, petitioner moved for judgment of acquittal
alleging that the evidence was insufficient to support the charges of delivery of a controlled
substance. The circuit court denied both motions.


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        Following its deliberations, the jury found petitioner guilty of both felony counts.
Petitioner filed a motion for new trial alleging that the circuit court failed to grant his prior
motions for judgment of acquittal. The circuit court denied petitioner’s motion by order entered
on February 2, 2015. At sentencing, the circuit court sentenced petitioner to consecutive terms of
incarceration of two to thirty years for two counts of delivery of a controlled substance.1 The
circuit court also imposed a cumulative fine of $5000. This appeal followed.

        On appeal, petitioner first argues that the evidence presented by the State at his trial was
insufficient to prove his guilt beyond a reasonable doubt. With regard to claims of sufficiency of
the evidence in a criminal proceeding, we have explained 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.” Syllabus Point 3, State v. Guthrie, 194
       W.Va. 657, 461 S.E.2d 163 (1995).

Syl. Pt. 1, State v. Malfregeot, 224 W.Va. 264, 685 S.E.2d 237 (2009). To convict petitioner of
delivery of a controlled substance, the State had to prove that petitioner intentionally delivered a
Schedule I or II controlled substance to another. W. Va. Code § 60A-4-401(a)(i).

       Following a thorough review of the record on appeal and the parties’ arguments, we find
no merit to petitioner’s argument. The jury heard testimony from the CI that she set up two
separate drug transactions with petitioner on March 6, 2014. The CI specifically testified that she
drove to petitioner’s apartment and after honking her horn to alert petitioner of her presence,
personally exchanged the “buy money” for cocaine with petitioner on two separate occasions.
Given the circumstances of this case, the jury heard sufficient evidence to find that petitioner
twice delivered a controlled substance to the CI. Therefore, we reject petitioner’s first
assignment of error.




       1
        West Virginia Code § 60A-4-401(a)(i) provides that the penalty for delivery of a
Schedule I or II controlled substance is a term of imprisonment of “not less than one year nor
more than fifteen years[.]” However, this Court notes that West Virginia Code § 60A-4-408
provides that “[a]ny person convicted of a second or subsequent offense under this chapter may
be imprisoned for a term up to twice the term otherwise authorized[.]” The circuit court’s
sentencing order reflects that petitioner’s criminal history includes a prior distribution of cocaine
charge.
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         Petitioner’s second assignment of error is that the circuit court erroneously denied his
motions for judgment of acquittal at the close of the State’s case-in-chief and at the conclusion of
the trial. Specifically, he argues that the circuit court erred in finding that the evidence presented
at trial was sufficient to support the charges beyond a reasonable doubt. We have 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 of the evidence.” State v. Juntilla, 227 W.Va. 492, 497, 711 S.E.2d
562, 567 (2011) (citing State v. LaRock, 196 W.Va. 294, 304, 470 S.E.2d 613, 623 (1996)).
Because we apply a de novo standard of review to the denial of such motions, “this Court, like
the trial court, must scrutinize the evidence in the light most compatible with the verdict, resolve
all credibility disputes in the verdict’s favor, and then reach a judgment about whether a rational
jury could find guilt beyond a reasonable doubt.” State v. LaRock, 196 W.Va. 294, 304, 470
S.E.2d 613, 623 (1996). As explained above, the evidence presented by the State in this matter
was sufficient to prove petitioner’s guilt beyond a reasonable doubt as to both counts. Therefore,
the circuit court did not commit error when it denied petitioner’s motions for judgment of
acquittal based on insufficient evidence.

       For the foregoing reasons, the circuit court’s February 18, 2015, order, is hereby
affirmed.

                                                                                           Affirmed.

ISSUED: November 23, 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




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