                                   STATE OF WEST VIRGINIA

                                 SUPREME COURT OF APPEALS



State of West Virginia,                                                           FILED
Plaintiff Below, Respondent                                                       May 24, 2013
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs.) No. 12-0815 (Harrison County 12-F-12)                                     OF WEST VIRGINIA


Tee El Dodd,
Defendant Below, Petitioner

                                    MEMORANDUM DECISION

        Petitioner Tee El Dodd, by counsel H. Keith Skeen, appeals from the final order denying
petitioner’s motion for post-verdict judgment of acquittal and motion for new trial, which was
entered by the Circuit Court of Harrison County on June 14, 2012. The State of West Virginia,
by counsel James Armstrong, has filed its response.

       The 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.

        In October of 2010 petitioner pled guilty to grand larceny in connection with jewelry
theft from a residence in which he was working at the residence as contractor.1 On December 18,
2010, petitioner was pulled over by Harrison County Sheriff’s Deputy Cunningham. Deputy
Cunningham ran a driver’s inquiry and learned that petitioner’s driver’s license was suspended.
Deputy Cunningham asked for consent to search petitioner and found a ring in his pocket.2
Subsequent to the traffic stop Detective Hotsinpiller and Detective Snider attempted to interview
petitioner.3 The detectives were unable to interview petitioner on their initial attempt but spoke
with petitioner’s girlfriend, who turned over one of the stolen items. During a non-custodial
interview petitioner admitted to the detectives that he purchased stolen jewelry and then gave the
jewelry to his girlfriend.

        Following the investigation, in January of 2012, a Harrison County Grand Jury indicted
petitioner on one count of grand larceny. Following a jury trial, the circuit court sentenced
petitioner to a term of incarceration of one to ten years and to pay restitution. On June 6, 2012,
1
    This crime is not subject to petitioner’s appeal.
2
    The State acknowledged the traffic stop was illegal.
3
 Detective Hotsinpiller was the lead investigator in the present case and a similar case. Detective
Snider was investigating an unrelated robbery in which petitioner was a suspect.
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the circuit court also entered an order denying in part petitioner’s motion for post-trial judgment
of acquittal and motion for new trial. On June 14, 2012, the circuit court entered a final order
denying petitioner’s motion for post-verdict judgment of acquittal and motion for new trial.

        On appeal, petitioner asserts four assignments of error that are more appropriately
addressed as a single assignment of error that challenge the circuit court’s denial of his motion
for judgment of acquittal and motion for new trial. In support of his argument, petitioner asserts
the location of the necklace as testified to by the detective during the grand jury proceeding was
different that at trial, thus representing false evidence. Petitioner asserts his conviction was based
on inadmissible evidence that should have been suppressed as fruits of the poisonous tree and a
prior conviction that was improperly admitted as Rule 404(b) evidence. Finally, petitioner asserts
his conviction should be set aside because the indictment was obtained through false testimony;
he specifically argues that he was identified as the individual who pawned the stolen jewelry.

        The State argues the conviction was not based on false testimony because the detective
was simply answering erroneously phrased questions and petitioner had three documents which
he could have used to clarify the testimony. The State argues that the necklace and petitioner’s
statement were properly obtained independently and would have inevitably been discovered
because the detective identified petitioner as the primary suspect without regard to the traffic
stop. The State argues that the evidence of petitioner’s prior jewelry theft was proper for the
purpose of establishing identity through modus operandi because the two crimes were nearly
identical in that petitioner had the same manner of access to the residences, the same manner of
access to the locations where the jewelry was kept, the same opportunity to commit the thefts,
the same manner of theft, and the same type of items were stolen. Finally, the State argues
petitioner waived his objection to challenge the indictment because he failed to object to the
indictment before trial. This Court has held that courts will not quash an indictment because
some illegal evidence was received. State v. Clark, 64 W.Va. 625, 630, 63 S.E.2d 402, 404
(1908).4

        We have previously held that “[a] motion for judgment of acquittal challenges the
sufficiency of the evidence.” State v. Houston, 197 W.Va. 215, 229, 475 S.E.2d 307, 321 (1996)
(citing Franklin D. Cleckley, 2 Handbook on West Virginia Criminal Procedure 292 (2d
ed.1993)). 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

4
 Upon review of the record, petitioner filed a motion to dismiss or motion to suppress evidence
on February 6, 2012.
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       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. 5, State v. Broughton, 196 W.Va. 281, 470 S.E.2d 413 (1996). Upon our review, the
Court finds no error in the circuit court’s denial of petitioner’s motion for judgment of acquittal
or new trial in regard to his conviction for grand larceny. The record shows that the testimony
concerning the location of the necklace is not the type of false evidence that was fabricated to
secure a conviction, that petitioner was the primary suspect in the underlying investigation, that
his statement and the jewelry would have been independently and inevitably discovered
regardless of the illegal traffic stop, and that evidence of petitioner’s prior crime was properly
admitted pursuant to Rule 404(b) of the West Virginia Rules of Evidence. Further, this Court
finds no merit in petitioner’s argument that the indictment was obtained by the use of false
evidence. Petitioner has failed to put forth sufficient evidence that the detective willfully or
fraudulently testified during the grand jury proceeding. ‘“Except for willful, intentional fraud the
law of this State does not permit the court to go behind an indictment to inquire into the evidence
considered by the grand jury, either to determine its legality or its sufficiency.’ Syl. Pt., Barker v.
Fox, 160 W.Va. 749, 238 S.E.2d 235, 235 (1977).” Syl. Pt. 2, State ex rel. Pinson v. Maynard,
181 W.Va. 662, 383 S.E.2d 844 (1989).

       For the foregoing reasons, we affirm.

                                                                                            Affirmed.

ISSUED: May 24, 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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