                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS


                                                                                     FILED
State of West Virginia,                                                           February 11, 2013
Plaintiff Below, Respondent                                                    RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
vs) No. 11-1789 (Jefferson County 11-F-8)

Shane M. Dodson,
Defendant Below, Petitioner


                                 MEMORANDUM DECISION

        Petitioner’s appeal, by counsel Sherman L. Lambert Sr., arises from the Circuit Court of
Jefferson County, wherein he was sentenced to a recidivist life sentence and one year of
incarceration, said sentences to run consecutively, following his convictions for daytime burglary
and domestic battery. That order was entered on June 8, 2011. The State, by counsel Brandon
C.H. Sims, 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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        On April 6, 2011, petitioner was convicted by jury of one count of daytime burglary and
one count of domestic battery. The following day, the State filed a recidivist information alleging
that petitioner had twice previously been convicted of qualifying felony offenses and therefore
was subject to an enhanced sentence. Petitioner acknowledged his identity as the person identified
therein on May 23, 2011. By order entered on June 8, 2011, the circuit court denied petitioner’s
motion for a new trial and sentenced him to a term of life in prison following his conviction for
daytime burglary and the recidivist information, as well as one year of incarceration for his
conviction of domestic battery, said sentences to run consecutively.

        “‘The Supreme Court of Appeals reviews sentencing orders . . . under a deferential abuse
of discretion standard, unless the order violates statutory or constitutional commands.’ Syl. Pt. 1,
in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).” Syl. Pt. 1, State v. James, 227
W.Va. 407, 710 S.E.2d 98 (2011). Moreover,

       “[u]pon motion to direct a verdict for the defendant, the evidence is to be viewed
       in light most favorable to prosecution. It is not necessary in appraising its
       sufficiency that the trial court or reviewing court be convinced beyond a

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       reasonable doubt of the guilt of the defendant; the question is whether there is
       substantial evidence upon which a jury might justifiably find the defendant guilty
       beyond a reasonable doubt.” State v. West, 153 W.Va. 325, 168 S.E.2d 716 (1969).

Syl. Pt. 1, State v. Rogers, 209 W.Va. 348, 574 S.E.2d 910 (2001) (internal citations omitted).
Lastly,

       “[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. 2, State v. Ladd, 210 W.Va. 413, 557 S.E.2d 820 (2001).

       On appeal, petitioner alleges that it was error to deny his motion for a new trial and that
the prosecuting attorney committed misconduct. In support, he alleges that the record contains no
evidence from which a jury could find his guilt on the burglary count beyond a reasonable doubt.
He further argues that the prosecuting attorney committed conspiracy to elicit testimony from an
witness who was intoxicated during the trial. In response, the State argues that multiple witnesses
presented testimony sufficient to support petitioner’s conviction for daytime burglary, and further
that petitioner cites to no facts or law to support his arguments that an allegedly intoxicated
witness affected his substantial rights.

        Upon our review, we find no error by the circuit court in denying petitioner’s motion for a
new trial. As the State notes, the circuit court was presented with multiple witnesses that satisfied
the necessary elements of daytime burglary. Further, petitioner based his motion for a new trial
below on allegations of an intoxicated witness, and the circuit court found the evidence
insufficient. We also find that petitioner has failed to establish that any prosecutorial misconduct
occurred in regard to eliciting testimony from this witness.

       For the foregoing reasons, the circuit court’s sentencing order is hereby affirmed.



                                                                                          Affirmed.



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ISSUED: February 11, 2013

CONCURRED IN BY:

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




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