STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia, FILED
Plaintiff Below, Respondent April 9, 2018
EDYTHE NASH GAISER, CLERK
vs.) No. 17-0100 (Webster County 16-F-8) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Allen R. Garner Jr.,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Allen R. Garner Jr., by counsel Timothy V. Gentilozzi, appeals the Circuit
Court of Webster County’s January 3, 2017, order denying his post-trial motions for judgment of
acquittal and a new trial and sentencing him following his convictions for operating or
attempting to operate a clandestine drug laboratory and conspiracy. Respondent State of West
Virginia, by counsel Mary M. Downey, filed a response. On appeal, petitioner contends that
there was insufficient evidence to sustain his convictions, that the circuit court erred in admitting
evidence of a “scuffle” between him and an officer at the scene, that the State improperly
introduced a statement made by him without disclosing the statement, and that the circuit court
erred in denying his motion to sever.
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 January 12, 2016, petitioner was indicted on one count of operating or attempting to
operate a clandestine drug laboratory and one count of conspiracy. The indictment also charged
Virginia Lee Davis, Billy W. Green, and Rodney R. Carpenter with these same crimes.1 Mr.
Green, who is Ms. Davis’s son, entered into a plea agreement with the State prior to trial. Also
prior to trial, petitioner moved to sever his trial from his codefendants’ trial. Finding that
petitioner failed to demonstrate any prejudice by a unitary trial, the circuit court denied this
motion. The charges against petitioner, Ms. Davis, and Mr. Carpenter proceeded to a jury trial on
September 14, 2016.
The evidence at trial showed that, on August 6, 2015, Deputies Vandevender and Cogar
of the Webster County Sheriff’s Department were dispatched to Ms. Davis’s home following a
1
We previously upheld Mr. Carpenter’s convictions and sentence in State v. Carpenter,
No. 17-0117, 2018 WL 317790 (W.Va. Jan. 8, 2018)(memorandum decision).
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report that Mr. Carpenter was there causing a disturbance. As Deputy Vandevender was walking
to Ms. Davis’s front door, he noted a strong chemical odor consistent with the operation of a
methamphetamine laboratory, specifically, that of Coleman fuel, and he saw a bottle being
thrown “off the back porch, and [it] flew across and hit the outbuilding [beside the house].”
Deputy Vandevender observed liquid coming out of the bottle, and, once he got closer to it,
noticed a white, granular substance in it. At this point, additional law enforcement was called to
the scene, including Trooper Baier and Trooper Hebb of the West Virginia State Police. Trooper
Baier obtained consent from Ms. Davis to search her property.
During the search of Ms. Davis’s home and property, the officers obtained and
photographed additional evidence. The photographs, which were shown to the jury, depicted a
partially-burned Zephrin-D pack; lithium battery pack; a bottle cut in half with a still-wet filter in
it; a bag with liquid in it; tin foil, salt, and coffee filters on the kitchen countertop; pieces of
ripped tin foil in a kitchen drawer; Liquid Fire; a metal “snort straw,” which had been concealed
over a doorway; a sweatshirt found in Mr. Green’s room with a coffee filter in the front pocket; a
gun rack from Mr. Green’s room containing drug paraphernalia; a container from Ms. Davis’s
room containing lithium batteries; tubing from Ms. Davis’s bedroom; Coleman fuel; and a filter
commonly used in smoking devices. Deputy Vandevender testified that the items depicted in the
photographs were commonly used for manufacturing, smoking, or snorting methamphetamine.
Deputy Vandevender also testified that two individuals seen at the scene were not
arrested “[b]ecause we saw them walking through the yard towards [Ms. Davis’s] residence and
it was their statement and the statement of all the [d]efendants that they had just arrived there.
They hadn’t been there any time.” Petitioner’s counsel objected on the ground that this testimony
suggested that petitioner gave a statement. The circuit court overruled this objection. During
petitioner’s counsel’s cross-examination of Deputy Vandevender, counsel returned to the issue of
these two individuals:
Q: Well, what is your testimony of why you let them go?
A: That we saw them walking to the house. They advised that they’d just
got there. All the [d]efendants, at some point, said that they had nothing to do
there, they had just arrived.
[Petitioner’s counsel]: Judge, I’m going to object again.
THE COURT: Objection’s overruled. You asked the question.
Petitioner’s counsel continued:
Q: As far as my client, he never told you anything about [these two
individuals], correct?
A: Yes, he did. There was no official statement taken from him, but he
told us –
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[Petitioner’s counsel]: Objection. I’m going to object to the –
THE COURT: The objection’s overruled. You[r] exceptions are noted.
Trooper Baier testified regarding his involvement in the investigation. Upon arriving to
the scene, Deputy Vandevender informed him of the steps taken so far in the investigation and
that “he had some type of a physical altercation with one of the – Bam, Allen Garner.”
Petitioner’s counsel objected, but the circuit court overruled the objection and Trooper Baier
continued with his testimony concerning the investigation at Ms. Davis’s home.
Rebecca Harrison, a forensic analyst in the drug identification section of the West
Virginia State Police Forensic Laboratory, testified that the evidence obtained, based upon its
condition, suggested that the methamphetamine-making process was “toward the end.” Trooper
E.E. Bostic, who is certified in sampling and testing methamphetamine labs, also testified that
the condition of the evidence obtained suggested that the methamphetamine-making process was
nearly complete.
Mr. Green testified at trial for the defense. Mr. Green claimed responsibility for the
methamphetamine operation and attempted to exonerate his codefendants. Mr. Green testified
that he was operating the methamphetamine laboratory outside, behind the house, alone when
petitioner and another codefendant arrived at Ms. Davis’s house. Mr. Green testified that
petitioner was not near him while he was making methamphetamine.
At the conclusion of the two-day trial, the jury found petitioner and his codefendants
guilty of operating or attempting to operate a clandestine drug laboratory and conspiracy. On
September 27, 2016, petitioner moved for judgment of acquittal arguing that there was
insufficient evidence to convict him. On this same date, petitioner also moved for a new trial on
the grounds that evidence of his altercation with an officer at the scene was improperly admitted,
the State violated discovery rules in failing to provide his statement to defense counsel, and his
trial should have been severed from his codefendants’ trials.
On November 7, 2016, the parties appeared for a hearing on post-trial motions and
sentencing. Upon finding that sufficient evidence was presented to convict petitioner, the circuit
court denied petitioner’s motion for judgment of acquittal. The circuit court also denied
petitioner’s motion for a new trial, finding that his motion to sever was properly denied, he had
not shown unfair prejudice regarding evidence of the altercation, that the altercation was part of
the res gestae of the crimes and not a prior bad act, and that his statement regarding the two
individuals was not inculpatory or part of a custodial interrogation. The circuit court proceeded
to sentence petitioner to not less than two nor more than ten years of incarceration for his
operating or attempting to operate a clandestine drug laboratory conviction and not less than one
nor more than five years of incarceration for his conspiracy conviction, which were ordered to
run concurrently. These rulings were memorialized in an order entered on January 3, 2017. It is
from this order that petitioner appeals.
Petitioner advances four arguments on appeal. First, petitioner argues that there was
insufficient evidence to convict him beyond a reasonable doubt. Petitioner argues that the
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“evidence presented was purely circumstantial” and did nothing more than prove he was present
at the scene. With specific respect to his conspiracy conviction, he concedes that the State
presented physical evidence that a crime had been committed, but failed to present evidence that
he agreed to aid the codefendants. Concerning his operating or attempting to operate a
clandestine drug laboratory conviction, petitioner highlights the absence of proof that he
purchased any precursors for the manufacturing of methamphetamine, the absence of any drugs
or drug paraphernalia found on his person, and the absence of any evidence directly tying him to
the crimes.
This assignment of error implicates the circuit court’s ruling on petitioner’s motion for
judgment of acquittal, to which this Court applies a de novo standard of review:
The trial court’s disposition of a motion for judgment of acquittal is subject to our
de novo review; therefore, this Court, like the trial court, must scrutinize the
evidence in the light most compatible with the verdict, resolve all credibility
disputes in the verdict’s favor, and then reach a judgment about whether a rational
jury could find guilt beyond a reasonable doubt.
State v. LaRock, 196 W.Va. 294, 304, 470 S.E.2d 613, 623 (1996). Regarding a claim that the
evidence at trial was insufficient to convict, this Court has stated that
[t]he function of an appellate court when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, is sufficient to convince a
reasonable person of the defendant’s guilt beyond a reasonable doubt. Thus, the
relevant inquiry is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential
elements of the crime proved beyond a reasonable doubt.
Syl. Pt. 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). Further,
[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.
Id. at 663, 461 S.E.2d at 169, Syl. Pt. 3, in part.
Viewing the evidence in the light most favorable to the State, we find that there was
sufficient evidence from which the jury could find petitioner guilty of operating or attempting to
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operate a clandestine drug laboratory and conspiracy. We begin by noting that petitioner does not
dispute that a methamphetamine laboratory was in operation on Ms. Davis’s property while he
was there. Indeed, Mr. Green admitted to operating the methamphetamine laboratory at the
home. Petitioner is also correct in arguing that
[m]erely witnessing a crime, without intervention, does not make a party
to its commission unless his interference was a duty, and his non-interference was
one of the conditions of the commission of the crime; or unless his non-
interference was designed by him and operated as an encouragement to or
protection of the perpetrator.
Syl. Pt. 9, State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989) (internal quotations and
citations omitted). But,
[p]roof that the defendant was present at the time and place the crime was
committed is a factor to be considered by the jury in determining guilt, along with
other circumstances, such as the defendant’s association with or relation to the
perpetrator and his conduct before and after the commission of the crime.
Id. at 349, 387 S.E.2d at 816, Syl. Pt. 10. More particularly,
[w]here a defendant is convicted of a particular substantive offense, the
test of the sufficiency of the evidence to support the conviction necessarily
involves consideration of the traditional distinctions between parties to offenses.
Thus, a person may be convicted of a crime so long as the evidence demonstrates
that he acted as an accessory before the fact, as a principle in the second degree,
or as a principal in the first degree in the commission of such offense.
Id. at 349, 387 S.E.2d at 816, Syl. Pt. 8. “A person who is the absolute perpetrator of a crime is a
principal in the first degree, and a person who is present, aiding and abetting the fact to be done,
is a principal in the second degree.” Id., Syl. Pt. 5. To be convicted as a principle in the second
degree, “the law requires that the accused ‘in some sort associate himself with the venture, that
he participate in it as in something that he wishes to bring about, that he seek by his action to
make it succeed.’” Id. at 356, 387 S.E.2d at 823 (citation omitted). While the State must show
that petitioner “shared the criminal intent of the principal in the first degree[, . . . ] the accused is
not required to have intended the particular crime committed by the perpetrator, but only to have
knowingly intended to assist, encourage, or facilitate the design of the criminal actor.” Id.
(internal quotations and citations omitted). Further, “[u]nder the concerted action principle, a
defendant who is present at the scene of a crime and, by acting with another, contributes to the
criminal act, is criminally liable for such offense as if he were the sole perpetrator.” Id. at 349,
387 S.E.2d at 816, Syl. Pt. 11.
Bearing these principles in mind and crediting all inferences and credibility
determinations that the jury might have drawn in favor of the prosecution, sufficient evidence
exists to sustain petitioner’s convictions. A reasonable juror could have concluded that the
methamphetamine laboratory was being operated inside the house rather than outside, as Mr.
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Green testified. Items typically used in operating a methamphetamine laboratory were found on
the kitchen countertop, and petitioner was also inside the house at the time law enforcement
arrived. Deputy Vandevender testified to smelling Coleman fuel, used in the manufacturing
process, as he approached the front porch. Moreover, testimony was adduced that the
manufacturing process was nearing completion at the time law enforcement arrived. The
partially burned Zephrin-D packaging and battery packages, methamphetamine laboratory
components hidden under the house, concealed snort straw, and other items strewn about could
have led a reasonable juror to infer that multiple people, including petitioner, were hurriedly
attempting to conceal their operation. Finally, credibility determinations are for a jury, and the
jury in this instance found Mr. Green’s attempts to exonerate his codefendants incredible. See
Guthrie, 194 W.Va. at 663, 461 S.E.2d at 169, Syl. Pt. 3, in part.
Similarly, we find sufficient evidence to support petitioner’s conspiracy to operate or
attempt to operate a clandestine drug laboratory conviction. To prove a conspiracy, the State
“must show that the defendant agreed with others to commit an offense against the State and that
some overt act was taken by a member of the conspiracy to effect the object of that conspiracy.”
Syl. Pt. 4, in part, State v. Less, 170 W.Va. 259, 294 S.E.2d 62 (1981). Again, there is no dispute
that a methamphetamine laboratory was in operation in petitioner’s presence. Thus, petitioner’s
challenge focuses on the State’s alleged failure to show that he agreed to aid his codefendants.
The agreement to commit an offense is the essential element of the crime of
conspiracy – it is the conduct prohibited by the statute. The agreement may be
inferred from the words and actions of the conspirators, or other circumstantial
evidence, and the State is not required to show the formalities of an agreement.
Id. at 265, 294 S.E.2d at 67 (citation omitted). Based upon the evidence presented as outlined
above, reasonable jurors could conclude that petitioner was among a group of individuals who
intended to encourage the preparation of the methamphetamine to share in it upon its completion.
As such, the circuit court did not abuse its discretion in denying petitioner’s motion for judgment
of acquittal.
Petitioner’s three remaining assignments of error concern the circuit court’s denial of his
motion for a new trial. Petitioner contends that a new trial is warranted because the evidence of
his “scuffle” with Deputy Vandevender was more prejudicial than probative: “[i]t served only to
make the petitioner appear in a bad light to the jury, and did nothing to strengthen the State’s
case against him on its own.” Petitioner also argues that the State violated the West Virginia
Rules of Evidence by allowing Deputy Vandevender to testify regarding petitioner’s statement
concerning the two witnesses at the scene who were not arrested without providing this statement
to defense counsel. Finally, petitioner claims the circuit court erred in denying his motion to
sever the cases.
We have previously held that
[i]n reviewing challenges to findings and rulings made by a circuit court,
we apply a two-pronged deferential standard of review. We review the rulings of
the circuit court concerning a new trial and its conclusion as to the existence of
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reversible error under an abuse of discretion standard, and we review the circuit
court’s underlying factual findings under a clearly erroneous standard. Questions
of law are subject to a de novo review.
Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).
It is also well-established that a petitioner’s brief “must contain an argument exhibiting
clearly the points of fact and law presented, the standard of review applicable, and citing the
authorities relied on, under headings that correspond with the assignments of error.” W.Va. R.
App. P. 10(c)(7) (emphasis added). In an Administrative Order entered on December 10, 2012,
then-Chief Justice Menis E. Ketchum specifically stated that “[b]riefs that lack citation of
authority, fail to structure an argument applying applicable law, fail to raise any meaningful
argument that there is error, or present only a skeletal argument” and “[b]riefs with arguments
that do not contain a citation to legal authority to support the argument” are not in compliance
with the Rules of Appellate Procedure.
Petitioner cites no authority to support his assertion that Trooper Baier’s testimony
regarding petitioner’s altercation with Deputy Vandevender was more prejudicial than probative
or that the introduction of the evidence justifies the new trial that he seeks. Likewise, petitioner
cites no law to support his argument that the circuit court erred in denying his motion to sever or
that the circuit court’s denial justifies a new trial. Because these assignments of error fail to
comply with the Rules of Appellate Procedure, we decline to consider them on appeal.
Petitioner’s final argument is that the State violated the Rules of Evidence by failing to
provide evidence of his statement concerning the two individuals about whom Deputy
Vandevender testified. Petitioner asserts that neither he nor defense counsel were “aware of the
statement before trial, and the petitioner denies ever making the statement.” Petitioner asserts
that Deputy Vandevender’s testimony, therefore, violated Rule 33 of the West Virginia Rules of
Criminal Procedure, and the circuit court erred in overruling counsel’s objection to the
testimony.
Rule 33 of the West Virginia Rules of Criminal Procedure provides that
[t]he court on motion of a defendant may grant a new trial to that defendant if
required in the interest of justice. If trial was by the court without a jury the court
on motion of a defendant for a new trial may vacate the judgement if entered, take
additional testimony, and direct the entry of a new judgment. A motion for a new
trial based on the ground of newly discovered evidence may be made only after
final judgment, but if an appeal is pending the court may grant the motion only on
remand of the case. A motion for a new trial based on any other grounds shall be
made within ten days after verdict or finding of guilty or within such further time
as the court may fix during the ten-day period.
On its face, this Rule provides no support for petitioner’s argument. Petitioner has also failed to
apply this Rule to his argument; accordingly, he has failed to establish error in the admission of
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this testimony. See Syl. Pt. 12, in part, State v. Surber, 228 W.Va. 621, 723 S.E.2d 851 (2012)
(“An appellant must carry the burden of showing error in the judgment of which he complains.”).
For the foregoing reasons, the circuit court’s January 3, 2017, order denying his post-trial
motions and sentencing him is hereby affirmed.
Affirmed.
ISSUED: April 9, 2018
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Justice Elizabeth D. Walker
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