State v. Brock
| Decision Date | 22 May 2015 |
| Docket Number | No. 14–0200.,14–0200. |
| Citation | 235 W.Va. 394,774 S.E.2d 60 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia, Plaintiff Below, Respondent v. Rick BROCK, Defendant Below, Petitioner. |
Eric K. Powell, Esq., Powell Law Office, Parkersburg, WV, Attorney for the Petitioner.
Patrick Morrisey, Esq., Attorney General, Derek A. Knopp, Esq., Assistant Attorney General, Attorneys for the Respondent.
This case is before the Court upon the appeal of the Petitioner, Rick Brock, from an order entered on February 20, 2014, sentencing him to serve two to ten years in the West Virginia Penitentiary for operating or attempting to operate a clandestine drug laboratory and one to five years for conspiracy to operate or attempt to operate a clandestine drug laboratory following a jury conviction on both counts. The circuit court ordered the sentences to be served concurrently, but then suspended both to allow the Petitioner to serve a three-year period of probation. On appeal, the Petitioner argues that the trial court erred: 1) in denying his motion to dismiss as both counts one and two in the indictment each attempt to charge the defendant with two crimes in violation of West Virginia Rule of Criminal Procedure 8 ; 2 ) in failing to give the entirety of the Petitioner's proposed instruction numbered one; 3) in denying the Petitioner's motion to suppress; 4) in determining that there was sufficient evidence to uphold the convictions; and 5) in allowing expert testimony concerning the dangers and explosiveness of a methamphetamine (also referred to as “meth”) lab as the testimony was irrelevant and its probative value was substantially outweighed by its prejudicial effect. Based upon our review of the parties' briefs and oral arguments, the appendix record, and all other matters submitted before the Court, we affirm the decision of the circuit court.
The Petitioner and his co-defendant, Terry Abbott, were indicted on July 18, 2013, for one count of operating or attempting to operate a clandestine drug laboratory (also referred to as a “drug lab”) and one count of conspiracy to operate or attempt to operate a clandestine drug laboratory.1 According to the evidence at trial, on April 27, 2013, Capt. Woodyard of the Wood County Sheriff's Department was working with a team of officers.2 Around 1:40 to 1:50 in the morning, Capt. Woodyard began to follow a car that he identified as a Monte Carlo. The officer observed the vehicle travel left of center at least three times; the driver also repeatedly tapped the brakes of the vehicle and caused the vehicle to go right of the fog line.
Because Capt. Woodyard was in plain clothes and driving an unmarked car, he called for a marked car “to make the traffic stop[,]” after observing the erratic driving. West Virginia State Police Trooper C.S. Jackson was working in conjunction with Capt. Woodyard and responded to the call. Capt Woodyard testified that he continued to follow the Monte Carlo until Trooper Jackson arrived. Capt. Woodyard testified that he observed Trooper Jackson turn on his lights and pull over the car; Capt. Woodyard did not stop with Trooper Jackson.
Trooper Jackson testified that Capt. Woodyard informed him about a potential impaired driver and that the vehicle was a Monte Carlo. Trooper Jackson did not independently observe any traffic violations. Trooper Jackson stopped the vehicle based upon the information provided by Capt. Woodyard.3 The stop was videotaped. The Petitioner was driving the vehicle, while the co-defendant Abbott was in the passenger seat. The trooper asked for the vehicle registration and for the Petitioner's license. The Petitioner produced the registration, but could not produce an identification. The trooper asked the Petitioner to step out of the vehicle. The Petitioner got into his wallet and produced a license; however, it was a revoked Ohio driver's license. Trooper Jackson testified that the Petitioner
The Petitioner had borrowed the vehicle from the owner, Blossom Abbott, the Petitioner's girlfriend. The trooper asked if there was anything illegal in the car, to which the Petitioner answered that he did not believe so. The trooper asked if he could search the car and the Petitioner said no. About six minutes after the stop occurred, the trooper requested a canine unit. At approximately twelve minutes and forty-eight seconds into the video, an officer stated that he thought it may be an active drug lab.
Trooper Jackson testified that the dog alerted him to the presence of drugs on the front passenger-side door of the vehicle. Once the dog detected the presence of drugs, Trooper Jackson opened the passenger door and began to search the vehicle. The trooper stated that he first observed coffee filters and then a soda pop bottle in a blue insulated cooler bag. The pop bottle had sediment in the bottom on the inside. Trooper Jackson testified that “[w]hen I got closer, I then detected a chemical odor[,]” that he recognized as being “indicative of a meth lab.” The trooper also “observed a vapor or cloud emitting from that [referring to the bag] which raised extreme caution[,]” as the trooper explained “[i]t is highly explosive if the pressure is exceeded.” Trooper Jackson referred to what he had found as “a young pop clandestine laboratory or shake and bake.” The trooper also stated that he found a syringe, a cold pack, additional coffee filters, including a used coffee filter with white powder residue, and ammonium nitrate.
Alisha Neil, a forensic chemist with the West Virginia State Police Forensic Laboratory, testified that four pieces of evidence were submitted to the West Virginia State Police Laboratory for analysis. Only two of the four items tested positive for meth including Item 1.1, which consisted of two plastic bags containing white and off-white powder in chunks and coffee filters weighing approximately .12 grams. Evidence identified as Item 2.2, which was a powder residue, also tested positive for meth.
The final witness for the State was Douglas E. Sturm, a police officer with the City of Parkersburg Police Department and a certified instructor on methamphetamine awareness and recognition, who testified as an expert. Officer Sturm testified regarding the “one-bottle method” or “shake and bake method” of making meth. Officer Sturm reviewed the photographs and evidence taken from the vehicle the Petitioner was in at the time of the traffic stop. The officer testified that for The officer later clarified during cross-examination that while the reaction was stopped, “[i]t [referring to the chemical reaction] ... [did] not appear to be done to me.”
The Petitioner and his co-defendant, Terry Abbott, did not testify at trial. Additionally, they did not present any evidence as part of their respective defenses.
On December 12, 2013, following a two-day jury trial, the Petitioner was convicted of operating or attempting to operate a clandestine drug laboratory and conspiracy to operate or attempt to operate a clandestine drug laboratory. These convictions form the basis for the instant appeal.
The Petitioner has asserted several assignments of error involving various legal principles and differing standards of review. Thus, we will address the applicable standard of review within the discussion section regarding the assigned error.
The first issue concerns whether the trial court erred by denying the Petitioner's motion to dismiss the indictment. The Petitioner argues that he was improperly charged with only two crimes-operating or attempting to operate a clandestine drug laboratory as one count and conspiracy to operate or attempt to operate a clandestine laboratory as count two. Instead, he maintains that operating a clandestine drug lab is a separate offense from the crime of attempting to operate a clandestine drug lab. Likewise, the Petitioner contends that a conspiracy to operate a clandestine lab is a separate offense from a conspiracy to attempt to operate a clandestine lab.
As support for his argument, the Petitioner relies upon Rule 8 of the West Virginia Rules of Criminal Procedure. Rule 8 requires separate counts for each offense as follows:
(Emphasis added). Under the Petitioner's theory, the indictment violates Rule 8 because there should have been four counts—one for the charge of operating a clandestine lab; one for attempting to operate a clandestine lab; one for conspiracy to operate a clandestine lab; and, one for conspiracy to attempt to operate a clandestine lab. Instead, there were only two counts in the indictment.
“This Court's standard of review concerning a motion to dismiss an indictment is, generally, ...
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...traffic stop, absent reasonable suspicion, in order to conduct a dog sniff of the outside of a vehicle.Syl. Pt. 7, State v. Brock, 235 W.Va. 394, 774 S.E.2d 60 (2015). Based upon this holding, it is clear that an officer may extend an otherwise-completed traffic stop with sufficient reasona......
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...5, and 9. "As a general rule, a refusal to give a requested instruction is reviewed for an abuse of discretion." Syl. Pt. 2, State v. Brock, 235 W. Va. 394, 774 S.E.2d 60 (2015) (quoting Syl. Pt. 1, in part, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996)). Moreover,A trial court's re......
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State v. Hill, 16-0168
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...suspicion for the traffic stop, he could not have been lawfully arrested for DUI. Similar to our finding in State v. Brock, 235 W. Va. 394, 407, 774 S.E.2d 60, 73 (2015),[b]ecause the evidence fails to show that the mission of the lawful traffic stop was completed at the time the dog sniff ......