State v. Moore
| Decision Date | 03 February 2020 |
| Docket Number | No. 18-0786,18-0786 |
| Court | West Virginia Supreme Court |
| Parties | State of West Virginia, Plaintiff Below, Respondent v. Joshua Shaine Moore, Defendant Below, Petitioner |
(Berkeley County CC-02-2017-F-231)
Petitioner Joshua Shaine Moore, by counsel Robert C. Stone, Jr., appeals the final sentencing order entered on August 27, 2018, in the Circuit Court of Berkeley County, following his convictions by a jury of possession with intent to deliver marijuana; transporting a controlled substance in the State, marijuana; and conspiracy to commit possession with intent to deliver, all felonies. The State of West Virginia, by counsel Caleb A. Ellis, filed a response in support of the circuit court's order. Petitioner submitted a reply.
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 order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.
On December 27, 2016, petitioner and his passengers, Abdul Kamara and Shaniqua Whindleton, were traveling north on Interstate 81 in Berkeley County, West Virginia, as West Virginia State Police Trooper D.R. Walker was in his police cruiser monitoring northbound traffic at mile marker 8. Though petitioner's vehicle was not exceeding the speed limit, Trooper Walker observed that, at the speed of seventy miles per hour, it was following too closely to the car in front of it (approximately one-and-a-half car lengths, or twenty to twenty-five feet). According to Trooper Walker, petitioner's vehicle would not have had sufficient time to react to the vehicle in front of it if that vehicle were to suddenly apply its brake. After he was able to safely pull onto the interstate from the median, Trooper Walker initiated a traffic stop of petitioner's vehicle. Petitioner's vehicle exited the interstate and came to a stop in the parking lot of a nearby gas station.
According to Trooper Walker, upon exiting his cruiser, he immediately smelled a strong odor of marijuana, which seemed to emanate from petitioner's vehicle. He approached the vehicle and, when one of the occupants rolled down the passenger side window, smelled an even stronger odor of marijuana. Trooper Walker asked petitioner, who was driving, for his license and registration and, upon learning that the vehicle had been rented, also asked for the rental agreement. While he was filling out the traffic citation, Trooper Walker confronted petitioner about the odor of marijuana and asked him if there were any drugs in the vehicle. Petitioner did not respond. Walker then patted petitioner down, noticed that there were items in his pocket, and inquired about them. Petitioner pulled THC-infused candy out of his pocket.1
Based upon the circumstances, Trooper Walker determined that he had probable cause to search petitioner's vehicle. He called another officer to assist him, and, when the other officer arrived, Trooper Walker began searching the vehicle. He found and seized what appeared to be marijuana in sixteen large sealed packages located in pieces of luggage; edibles and other products purporting to contain THC; a loaded, vacuum-sealed .357 magnum handgun; a vacuum sealer; a box of vacuum seal bags; and three cell phones. Trooper Walker also found a copy of petitioner's tax information, which was in the same bag as the gun, and seized $2,883 in cash. Petitioner and his two passengers were arrested.
On December 30, 2016, Walker submitted an affidavit and complaint for a search warrant relating to one of the seized cell phones, a "Samsung Galaxy J1 (IME #99000600033743)." The request for a search warrant was granted.
On August 31, 2017, a Berkeley County Grand Jury indicted petitioner and his passengers on one count of possession with intent to deliver marijuana, see W.Va. Code § 60A-4-401(a)(ii), one count of transportation of a controlled substance into the state, see W.Va. Code § 60A-4-409(a), and one count of conspiracy to commit possession with intent to deliver marijuana. See W.Va. Code § 61-10-31.2
On December 29, 2017, petitioner filed a motion in limine regarding the admissibility of the evidence related to the firearm that was found in the trunk of the vehicle. Petitioner argued that because he was not charged with a crime related to the unlawful possession or use of a firearm, evidence related thereto was not relevant and would violate West Virginia Rule of Evidence 404(b).
On June 18, 2018, petitioner filed a motion to suppress the fruits of the vehicle search and any subsequent statements. He argued that the following-too-closely statute upon which Trooper Walker relied to initiate the traffic stop, West Virginia Code § 17C-7-10, was void for vagueness, and that Trooper Walker prolonged a routine traffic stop in order to turn it into a drug investigation, absent reasonable suspicion.3 Petitioner filed a second motion to suppress on July 19, 2018,challenging the validity of the search warrant for his cell phone. He argued that Trooper Walker's affidavit submitted in connection with his request for the warrant did not contain any information providing probable cause to believe that evidence of possession with intent to deliver marijuana would be found on the phone. Following a pretrial hearing, the circuit court denied petitioner's motions by order entered on July 23, 2018.
Petitioner's trial commenced on July 24, 2018. In addition to Trooper Walker, Special Agent Seth Cox of the Bureau of Alcohol, Tobacco, and Firearms, who participated in the investigation of this case, also testified. He testified that, based upon his investigation, the firearm found in petitioner's vehicle was purchased by one of his passengers, Ms. Whindleton, on December 20, 2017, and that video from the establishment where it was purchased showed that petitioner and Mr. Kamara (the other passenger) were with her at the time of purchase, that she and petitioner had looked at various firearms throughout the store, and that petitioner provided her with a large sum of money while she was at the cash register purchasing the firearm.
Rebecca Harrison, a forensic analyst and drug examiner for the West Virginia State Police, also testified. She testified that she tested a representative sample (0.3 grams) from the bags that were seized from petitioner's vehicle, which weighed approximately 11.8 pounds in total. Ms. Harrison testified that, before picking a small sample to test, she made sure that the contents of the bag she selected were "consistent with each other." She confirmed that the substance was marijuana.
At the close of the State's case-in-chief, petitioner moved for a judgment of acquittal. The motion was denied. Petitioner did not testify or present any evidence. The jury ultimately returned guilty verdicts as to all three counts of the indictment. Petitioner subsequently filed a post-trial motion for a judgment of acquittal or new trial. At the August 20, 2018, sentencing hearing, the circuit court denied petitioner's motions and sentenced him to one-to-five years of incarceration on each count, which sentences were ordered to run concurrently. The final sentencing order was entered on August 27, 2018. This appeal followed.
In his first assignment of error, petitioner argues that the circuit court erred in denying his motion for a judgment of acquittal because the State failed to prove an essential element of each of the crimes charged: that petitioner intended to deliver the marijuana that was found in his vehicle.
We review the circuit court's disposition of petitioner's motion for judgment of acquittal de novo, see State v. LaRock, 196 W. Va. 294, 304, 470 S.E.2d 613, 623 (1996), and challenges to the sufficiency of the evidence using a "highly deferential" and "strict" approach that will not lightly overturn a jury's verdict. See State v. Thompson, 240 W. Va. 406, 414, 813 S.E.2d 59, 67 (2018).
Id. at 663, 461 S.E.2d at 169, syl. pt. 3, in part.
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