                                 STATE OF WEST VIRGINIA
                               SUPREME COURT OF APPEALS


State of West Virginia,                                                           FILED
                                                                                  June 28, 2013
Plaintiff Below, Respondent                                                  RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 12-0879 (Jackson County 09-F-69)                                       OF WEST VIRGINIA



James A. Peronti,
Defendant Below, Petitioner


                                  MEMORANDUM DECISION

       Petitioner’s appeal, by counsel David W. Dawson, arises from an order entered June 22,
2012, in the Circuit Court of Jackson County, wherein he was sentenced to a term of two to thirty
years of incarceration. This sentence followed petitioner’s conviction, by jury, for one count of
possession of a controlled substance with intent to deliver – oxycodone and one count of
conspiracy to possess a controlled substance with intent to distribute. The State, by counsel
Robert D. Goldberg, 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.

         In April of 2009, petitioner drove from Florida to West Virginia, carrying two passengers:
Sampson Gibson and his co-defendant. Throughout the ride, Mr. Gibson spoke by telephone to
his aunt, who permitted law enforcement to record the conversations, regarding the sale of some
of petitioner’s oxycodone and hydrocodone pills upon arrival in West Virginia. Mr. Gibson
testified at trial that petitioner drove him to West Virginia only because he was able to arrange for
the sale of the pills. In April of 2012, a jury convicted petitioner of one count of possession of a
controlled substance with intent to deliver and one count of conspiracy to possess a controlled
substance with intent to distribute. Thereafter, the circuit court sentenced petitioner to two to
twenty years of incarceration.

        On appeal, petitioner alleges that the circuit court erred in finding that the jury had
sufficient grounds to find him guilty, in admitting certain evidence, and in denying petitioner’s
motion for alternative sentencing. In support, petitioner argues that the evidence below was
insufficient to support his convictions because the State failed to establish that petitioner intended
to deliver the controlled substances since he had a prescription for the substances and did not
speak directly to Mr. Gibson’s aunt about selling the pills. Petitioner also argues that the circuit

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court abused its discretion when it permitted the State to show the jury the controlled substances
in plastic baggies, separate from the prescription bottles the substances were in when seized.
Finally, petitioner argues that the circuit court abused its discretion when it denied his motion for
alternative sentencing without considering his sparse criminal record, the fact he drove from
Florida for his court dates, and that he raised his granddaughter as his own, but erred when it
considered the fact he owned four mobile homes. In response, the State argues that there was an
abundance of evidence introduced at trial to support the jury’s verdict to find Sampson Gibson’s
testimony more credible than petitioner’s testimony. Further, the State argues that petitioner
waived the argument regarding the presentation of the pills because he did not object to it at trial.
Lastly, the State argues that petitioner is seeking to have this Court substitute its judgment for the
trial court’s judgment and, further, that, at trial, petitioner’s counsel did, in fact, present
arguments regarding his lack of criminal record, that he is disabled, and that he is living in Florida
with his wife and granddaughter but still was able to attend his court dates.

       We have held 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. 5, State v. Broughton, 196 W.Va. 281, 470 S.E.2d 413 (1996). Upon our review, the Court
finds that the evidence was sufficient to support petitioner’s conviction for the crimes below.

        The evidence established that petitioner drove from Florida to West Virginia and was
present for over twenty phone conversations where Mr. Gibson arranged for the sale of
petitioner’s pills; further that, despite having little income and barely knowing Mr. Gibson,
petitioner did not charge Mr. Gibson for the ride to West Virginia, which was allegedly out of
petitioner’s way. Additionally, the evidence established that petitioner had a greater amount of
pills in his prescription bottle than was indicated on the label. These facts form a basis upon
which the jury found guilt beyond a reasonable doubt; furthermore, finding petitioner’s testimony
less credible than that of Mr. Gibson is within the purview of the jury. For these reasons, the
evidence below was sufficient to support petitioner’s convictions.




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       Petitioner’s other two assignments of error are likewise without merit. Regarding the
argument that the presentation of the seized pills in baggies rather than in their bottle was overly
prejudicial, this Court has held that

       “‘[t]he action of a trial court in admitting or excluding evidence in the exercise of
       its discretion will not be disturbed by the appellate court unless it appears that
       such action amounts to an abuse of discretion.’ Syllabus Point 10, State v.
       Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955).” Syl. pt. 4, State v. Ashcraft, 172
       W.Va. 640, 309 S.E.2d 600 (1983). Syl. pt. 2, State v. Franklin, 191 W.Va. 727,
       448 S.E.2d 158 (1994).

Syl. Pt. 1, State v. Jonathan B., 230 W.Va. 229, 737 S.E.2d 257 (2012). Further,

       “Rule 401 of the West Virginia Rules of Evidence requires the trial court to
       determine the relevancy of the exhibit on the basis of whether the photograph is
       probative as to a fact of consequence in the case. The trial court then must
       consider whether the probative value of the exhibit is substantially outweighed by
       the counterfactors listed in Rule 403 of the West Virginia Rules of Evidence. As
       to the balancing under Rule 403, the trial court enjoys broad discretion. The Rule
       403 balancing test is essentially a matter of trial conduct, and the trial court's
       discretion will not be overturned absent a showing of clear abuse.” Syllabus Point
       10, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).

Syl. Pt. 6, State v. Berry, 227 W.Va. 221, 707 S.E.2d 831 (2013).

        Testimony at trial was clear that the pills were, in fact, seized in the bottles. Petitioner
failed to object to the pills being presented in plastic baggies; therefore, he failed to preserve this
argument on appeal. With regard to petitioner’s alternative sentencing argument, as we have held,
“[t]he decision as to whether the imposition of probation is appropriate in a certain case is entirely
within the circuit court’s discretion.” State v. Duke, 200 W.Va. 356, 364, 489 S.E.2d 738, 746
(1997). Therefore, “[t]he decision of a trial court to deny probation will be overturned only when,
on the facts of the case, that decision constituted a palpable abuse of discretion.” Syl. Pt. 2, State
v. Shafer, 168 W.Va. 474, 284 S.E.2d 916 (1981). Additionally, “‘[s]entences imposed by the trial
court, if within statutory limits and if not based on some [im]permissible factor, are not subject to
appellate review.’ Syllabus Point 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).”
Syl. Pt. 3, State v. Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010). The circuit court clearly
considered all of the evidence and did not abuse its discretion in denying petitioner an alternative
sentence.

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


                                                                                            Affirmed.



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ISSUED: June 28, 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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