                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,                                                             FILED
Plaintiff Below, Respondent                                                      August 31, 2015
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs) No. 14-0732 (Hampshire County 13-F-66)                                       OF WEST VIRGINIA


Robert Glenn Ford,
Defendant Below, Petitioner

                               MEMORANDUM DECISION
        Petitioner Robert Glenn Ford, by counsel Timothy M. Sirk, appeals the Circuit Court of
Hampshire County’s May 29, 2014, order sentencing him to one to fifteen years in prison for his
conviction of one count of delivery of a controlled substance, in violation of West Virginia Code
§ 60A-4-401. The State of West Virginia, by counsel Julie A. Warren, filed a response in support
of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in denying his
motion for a mistrial based on an alleged violation of Rule 404(b) of the West Virginia Rules of
Evidence.

        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.

         In September of 2014, a grand jury returned an indictment against petitioner, charging
him with one count of delivery of heroin, a Schedule I controlled substance. In March of 2014,
petitioner’s jury trial commenced in the Circuit Court of Hampshire County. At trial, the State
presented evidence that law enforcement officers arranged for a confidential informant (“CI”) to
make a “controlled buy” of heroin from petitioner in February of 2013. Captain John Eckerson of
the Hampshire County Sheriff’s Office testified that the CI was provided $150 in premarked
currency and equipped with a video and audio recording device to record the controlled buy.
Without objection, the entire video of the drug transaction was admitted into evidence and
played for the jury, including the conversation between the CI and petitioner occurring after the
controlled buy was complete. In addition to corroborating Captain Eckerson’s testimony, the CI
testified that, once outfitted with $150 and the recording device, she entered petitioner’s
residence and purchased three capsules of heroin from him for $120. The CI then testified that
she used the remainder of the premarked currency, which was $30, to pay a debt she owed to
petitioner “from, I don’t know, a previous time.” Petitioner objected to the CI’s testimony citing
Rule 404(b) of the West Virginia Rules of Evidence. The circuit court sustained petitioner’s
objection and informed the jury that it was to disregard the statement. Following the circuit
court’s ruling, petitioner moved for a mistrial based on the testimony presented. In objecting to

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petitioner’s motion, the State argued that the information was “intrinsic evidence” and that the CI
had not stated that the prior debt to petitioner was the result of a drug transaction. The circuit
court denied petitioner’s motion for a mistrial. The jury ultimately found petitioner guilty as
charged in the indictment.

       In April of 2014, the circuit court sentenced petitioner to one to fifteen years in prison for
his conviction. In May of 2014, the circuit court filed an amended sentencing order.1 This appeal
followed.

        We have previously held that “[t]he decision to declare a mistrial, discharge the jury, and
order a new trial in a criminal case is a matter within the sound discretion of the trial court.” Syl.
Pt. 8, State v. Davis, 182 W.Va. 482, 388 S.E.2d 508 (1989). “A trial court is empowered to
exercise this discretion only when there is a ‘manifest necessity’ for discharging the jury before
it has rendered its verdict.” State v. Williams, 172 W.Va. 295, 304, 305 S.E.2d 251, 260 (1983).
We have also explained that “[t]he determination of whether ‘manifest necessity’ that will justify
ordering a mistrial over a defendant’s objection exists is a matter within the discretion of the trial
court, to be exercised according to the particular circumstances of each case.” Syl. Pt. 3, Porter
v. Ferguson, 174 W.Va. 253, 324 S.E.2d 397 (1984). “Manifest necessity” warranting a mistrial
arises from various circumstances, but must be forceful and appear prejudicial to the accused or
the State. Syl. Pts. 1-3, State ex rel. Brooks v. Worrell, 156 W.Va. 8, 190 S.E.2d 474 (1972).
Significantly, “[t]his power of the trial court must be exercised wisely; absent the existence of
manifest necessity, a trial court’s discharge of the jury without rendering a verdict has the effect
of an acquittal of the accused and gives rise to a plea of double jeopardy.” State v. Williams, 172
W.Va. 295, 304, 305 S.E.2d 251, 260 (1983) (internal citations omitted). With this standard in
mind, we turn to the case sub judice.

       On appeal, petitioner assigns error to the circuit court’s denial of his motion for a mistrial
based on the CI’s statement that she owed him a debt. Petitioner argues that the statement
implied that petitioner provided drugs to the CI on a prior occasion and, therefore, was subject to
the procedures set forth in State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994), which
were not followed in this case.2 However, at trial, the circuit court sustained petitioner’s
       1
        It is unclear from the record on appeal and the parties’ briefs why the circuit court
amended its sentencing order entered in April of 2014. We also note that petitioner has since
been granted parole.
       2
           We explained in McGinnis that

                 [w]here an offer of evidence is made under Rule 404(b) of the West
       Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West
       Virginia Rules of Evidence, is to determine its admissibility. Before admitting the
       evidence, the trial court should conduct an in camera hearing as stated in State v.
       Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and
       arguments of counsel, the trial court must be satisfied by a preponderance of the
       evidence that the acts or conduct occurred and that the defendant committed the
       acts. If the trial court does not find by a preponderance of the evidence that the
(continued . . .)

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objection to the CI’s statement. As acknowledged by petitioner in his brief to this Court, the
circuit court then “instructed the jury to disregard the statement.” Furthermore, the CI did not
explain why she owed petitioner a debt before the circuit court sustained that objection. The
circumstances presented in this case do not rise to the level of such apparent prejudice that the
circuit court was required to find manifest necessity for discharging the jury. Based on the
particular circumstances of this case, we find that the circuit court did not abuse its discretion in
denying petitioner’s motion for a mistrial.

       For the foregoing reasons, the circuit court’s May 29, 2014, sentencing order is hereby
affirmed.

                                                                                            Affirmed.

ISSUED: August 31, 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




       acts or conduct was committed or that the defendant was the actor, the evidence
       should be excluded under Rule 404(b). If a sufficient showing has been made, the
       trial court must then determine the relevancy of the evidence under Rules 401 and
       402 of the West Virginia Rules of Evidence and conduct the balancing required
       under Rule 403 of the West Virginia Rules of Evidence. If the trial court is then
       satisfied that the Rule 404(b) evidence is admissible, it should instruct the jury on
       the limited purpose for which such evidence has been admitted. A limiting
       instruction should be given at the time the evidence is offered, and we recommend
       that it be repeated in the trial court's general charge to the jury at the conclusion of
       the evidence.

193 W.Va. at 147, 455 S.E.2d at 516, Syl. Pt. 2.

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