                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS


State of West Virginia, Plaintiff Below,                                              FILED
Respondent                                                                        January 12, 2015
                                                                                 RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
vs) No. 13-1267 (McDowell County 13-F-8)                                           OF WEST VIRGINIA


Ricky Johnson, Defendant Below,
Petitioner


                                MEMORANDUM DECISION
        Petitioner Ricky Johnson, by counsel Floyd Anderson, appeals the Circuit Court of
McDowell County’s November 22, 2013, order denying his motion for post-verdict judgment of
acquittal or new trial. The State of West Virginia, by counsel Laura Young, filed a response. On
appeal, petitioner argues that the evidence was insufficient to support his conviction.

        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.

         On February 19, 2013, a McDowell County Grand Jury indicted petitioner on one felony
count of damage to public utility property and one felony count of conspiracy to damage public
utility property. The indictment alleged that petitioner and his co-defendants cut and stole a public
telephone wire. Following a jury trial in August of 2013, petitioner was convicted of one felony
count of conspiracy to commit damage to a public utility property, pursuant to West Virginia
Code § 61-10-31.1 Petitioner was acquitted of the felony count of damage to public utility
property.




       1
           West Virginia Code § 61-10-31 provides that

                  [i]t shall be unlawful for two or more persons to conspire (1) to commit
                 any offense against the State or (2) to defraud the State, the state or any
                 county board of education, or any county or municipality of the State, if,
                 in either case, one or more of such persons does any act to effect the object
                 of the conspiracy.
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        Petitioner moved for post-verdict judgment of acquittal, but the circuit court denied the
motion by order entered on September 25, 2013. By order entered November 22, 2013, the circuit
court sentenced petitioner to a term of incarceration of one to five years. This appeal followed.

        Upon review, the Court finds no error in the circuit court’s denial of petitioner’s post-
verdict 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 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 conspiracy
conviction is based entirely on the fact that petitioner presented an alibi defense and denied his
involvement in the crime. Specifically, petitioner testified that several days before the crime was
committed he was in North Carolina visiting his children, and then traveled to South Carolina for
a doctor’s appointment. Petitioner also testified that he did not return to West Virginia until
approximately one month after the crime was committed. Petitioner’s sister corroborated his
testimony.2 However, an eyewitness testified that he observed petitioner and his co-defendants at
the scene of the crime;3 that petitioner fled the scene of the crime in his pickup truck with one co­
defendant; and that shortly after they fled the scene of the crime, petitioner drove his co­
defendants back to the scene in his pickup truck to finish cutting the public telephone wire.

        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

       2
           Petitioner’s sister is also first cousins with petitioner’s co-defendants.
       3
           The witness testified that one of petitioner’s co-defendants cut the telephone wire.
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afford more weight to the testimony of the eyewitness than petitioner and his sister. While
petitioner argues that he was not in the State of West Virginia, 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 felony conviction for conspiracy to commit damage to a public utility property

        For the foregoing reasons, the circuit court’s November 22, 2013, order denying
petitioner’s motion for judgment of acquittal or new trial is hereby affirmed.


                                                                                         Affirmed.

ISSUED: January 13, 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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