State v. Garner
| Decision Date | 09 April 2018 |
| Docket Number | No. 17-0100,17-0100 |
| Court | West Virginia Supreme Court |
| Parties | State of West Virginia, Plaintiff Below, Respondent v. Allen R. Garner Jr., Defendant Below, Petitioner |
(Webster County 16-F-8)
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 areport 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 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:
Petitioner's counsel continued:
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"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:
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