State of West Virginia v. John Wayne Strawser, Jr.

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia,

Plaintiff Below, Respondent FILED

November 17, 2017

vs) No. 16-1039 (Preston County 15-F-58) EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

John Wayne Strawser, Jr.,

Defendant Below, Petitioner

MEMORANDUM DECISION

Petitioner John Wayne Strawser, Jr., by counsel Belinda A. Haynie, appeals the Circuit

Court of Preston County’s October 7, 2016, order denying his motion for judgment of acquittal,

or in the alternative, for a new trial. A jury convicted petitioner of first degree murder and fleeing

in a vehicle with reckless indifference, for which petitioner received a sentence of life in prison

without the possibility of parole. Respondent State of West Virginia, by counsel Zachary A.

Viglianco and Gordon L. Mowen, II, filed a response in support of the circuit court’s order.

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.

Factual and Procedural Background

In October of 2015, a Preston County grand jury returned a three-count indictment

charging petitioner with (1) first degree murder of his former girlfriend, Amy Lou Buckingham,

(2) fleeing in a vehicle with reckless indifference, and (3) fleeing in a vehicle causing injury to a

law enforcement officer. The third count was dismissed before trial. The remaining charges

proceeded to a jury trial in August of 2016, and the jury convicted petitioner of first degree

murder and did not recommend that he receive mercy. The jury also convicted petitioner of

fleeing in a vehicle with reckless indifference. By Order entered on October 11, 2016, the circuit

court sentenced petitioner to life in prison without the possibility of parole for the murder

conviction and a consecutive prison term of one to five years for the fleeing conviction.

The evidence at trial was that, on April 16, 2015, petitioner visited the home where Ms.

Buckingham resided in Tunnelton, West Virginia. Ms. Buckingham’s father, son, and sister were

at the residence at the time. Petitioner and Ms. Buckingham had ended their relationship at some

point between December of 2014 and April of 2015, and Ms. Buckingham had begun dating

another man.

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The evidence revealed that petitioner entered the home and quickly exited. Ms.

Buckingham followed him outside where the two argued in the driveway. Ms. Buckingham’s

father, son, and sister similarly testified to hearing a gunshot. When they exited the home, they

discovered that Ms. Buckingham had been shot and claimed that petitioner drove off in a dark-

colored Subaru. There were no eyewitnesses to the shooting. The medical evidence at trial was

that Ms. Buckingham died of a single gunshot fired at close range, which pierced her breastbone

and passed through her body. The physician who performed the victim’s autopsy opined that the

weapon used in the killing was not a small-caliber weapon, but also not a high-powered rifle.

Ms. Buckingham’s sister called 911 and advised the dispatcher that petitioner had just

shot the victim. The police responded to the call, located petitioner in his vehicle, and initiated a

traffic stop. However, petitioner sped off after the officers attempted to have him exit the vehicle

and eventually crashed in a field. Petitioner turned himself in the following day at his residence

as police were executing a search warrant. Petitioner’s clothing was wet and he was covered in

pine needles. Petitioner gave a voluntary statement in which he denied shooting the victim. In his

defense, petitioner presented the testimony of a neighbor of Ms. Buckingham, who testified that

he heard a gunshot and heard the victim’s father say “they shot her.” Petitioner did not testify.

When petitioner was arrested after returning to his residence, State Police Trooper J.T.

Gallaher searched petitioner and obtained his cell phone. Trooper Gallagher then, without a

warrant, removed the phone’s SIM card, placed the card into his computer, and viewed some of

the data on the phone. Six months later, Trooper Gallaher obtained a warrant to search the

contents of petitioner’s phone. His search revealed multiple hostile text messages from petitioner

to Ms. Buckingham on the day of the shooting, as well as pictures of different pistols, including a

.44 caliber Rossi Ranch handgun.

During the search of petitioner’s residence, the police located a 9 millimeter pistol and

one fired .44 caliber Magnum cartridge. Petitioner’s neighbor assisted the police in recovering a

.44 caliber Rossi Ranch handgun that had been placed in a swampy area about a one-fourth of a

mile from petitioner’s residence. The neighbor informed the police that he and petitioner often

hid things at the site where this gun was recovered. In his statement to the police, petitioner

admitted to owning the 9 millimeter pistol, but denied owning a .44 caliber pistol. He claimed

that he had the fired .44 cartridge because he often purchased empty shell casings for his 9

millimeter because they can be reloaded, which is less expensive than purchasing new

ammunition. He claimed that the .44 caliber casing was included when he purchased 9 millimeter

casings at an auction.

Phillip Cochran, West Virginia State Police forensic firearm examiner, examined the .44

caliber Rossi Ranch pistol and the spent .44 caliber casing. He testified that the gun was

functional and that, according to toolmark analysis, the recovered cartridge had been fired from

that gun. Comparing the gunshot residue on the victim’s sweater and laboratory testing, Mr.

Cochran testified that, if the .44 Rossi Ranch pistol was the murder weapon, it was fired less than

84 inches from the victim.

2

Petitioner filed multiple pretrial motions that are relevant to the instant appeal. First,

petitioner sought a change of venue and requested funds to conduct research regarding pretrial

publicity and whether a hostile sentiment against him existed in the area. Petitioner had a

pending murder charge in Pennsylvania, which petitioner argued increased the media coverage

and bias against him with respect to the Preston County charges. The circuit court allowed

petitioner to engage Orion Strategies, the research and polling firm of his choice, to conduct a

social media survey. Orion Strategies conducted the research and compiled a report, in which it

concluded that the West Virginia criminal proceedings had received less coverage than the

Pennsylvania proceedings, but that both cases had generated publicity. The report found,

however, that the social media attention primarily related to memorial pages that the victim’s

family had established, that those who interacted with those pages likely knew the victim or her

family, and, thus, would likely not be juror candidates for that reason. The circuit court declined

to grant a change of venue, but ruled that it would make an individual determination of juror bias

during voir dire.

The circuit court denied petitioner’s request for additional funding to conduct a

community survey to determine if a hostile sentiment against petitioner existed. The circuit court

permitted the prosecuting attorney and defense counsel to conduct individual voir dire of

potential jurors and granted every strike for cause that petitioner requested. Of the jurors who

ultimately deliberated, all indicated that they could be fair and impartial and none indicated that

they were aware of the Pennsylvania charges. However, on the last day of trial, an alternate juror

reported to the circuit court that a houseguest, who knew the alternate juror was sitting on

petitioner’s jury, told the alternate juror of petitioner’s Pennsylvania charges. The circuit court

questioned the alternate, and the alternate denied that she told anyone on the jury what she had

learned. The circuit court excused the alternate. Petitioner then moved for a mistrial, which the

circuit court denied.

Petitioner also filed a motion to suppress evidence obtained from the search of his cell

phone. The State conceded, and the circuit court agreed, that Trooper Gallaher’s warrantless

removal of the SIM card from the phone and viewing of data shortly after placing petitioner

under arrest was unconstitutional. However, the circuit court went on to rule that the contents of

the phone were nonetheless admissible under the “independent source” doctrine. The circuit

court concluded that the subsequent search of the phone’s contents, which was conducted

pursuant to a warrant, produced admissible evidence. The circuit court found that the warrant,

obtained six months after the arrest, did not rely upon the brief “unconstitutional peek” by

Trooper Gallaher. Rather, Trooper Gallaher’s application for the warrant relied upon other

information lawfully obtained during the investigation.

Finally, petitioner sought to exclude evidence of the .44 Rossi Ranch handgun and

handgun comparisons on the basis that the evidence was more prejudicial than probative and

otherwise irrelevant. The circuit court denied petitioner’s motion. The State admitted this

evidence at trial through the testimony of Phillip Cochran that (1) the spent .44 caliber casing

was fired from the .44 caliber Rossi Ranch handgun that was located in a swamp with the

assistance of petitioner’s neighbor, and (2) that, if that gun was used in the murder, it was fired

from within 84 inches of the victim. Mr. Cochran also testified to his laboratory testing, which

involved firing the Rossi Ranch handgun to replicate the amount of gunshot residue that was

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found on the victim. The results were corroborated by the physician testimony that the gun used

in the murder was not small caliber, but also not a high-caliber rifle.

The circuit court ruled that evidence of the forensic testing and distance determination

regarding the gun was an applied science involving technical knowledge, rather than scientific

knowledge, and, therefore, was admissible without the preliminary hearing required for scientific

testimony. The circuit court also acknowledged that the .44 caliber Rossi Ranch handgun

recovered from the swamp was not specifically identified as the murder weapon and the fired .44

caliber cartridge was not identified as the cartridge fired at the victim. However, the circuit court

found that the location where the police recovered the gun suggested a connection to petitioner,

and, thus, ruled that the .44 Rossi Ranch handgun was admissible evidence as it was more

probative than prejudicial.

Following the jury’s guilty verdict, petitioner filed a motion for judgment of acquittal, or

in the alternative, for a new trial. With respect to petitioner’s motion for a judgment of acquittal

under Rule 29 of the West Virginia Rules of Criminal Procedure, petitioner contended the

evidence was insufficient to sustain his convictions. The circuit court noted a defendant’s “heavy

burden”1 to obtain reversal of a jury’s verdict and that “evidentiary conflicts and credibility

questions [are to be resolved] in the prosecution’s favor.”2 With these standards in mind, and

recognizing that circumstantial evidence satisfies the State’s evidentiary standard, the circuit

court concluded that a reasonable jury could have convicted petitioner of both first-degree

murder and fleeing in a vehicle with reckless indifference.

Under Rule 33 of the West Virginia Rules of Criminal Procedure,3 petitioner alternatively

moved for a new trial challenging, in relevant part, the denial of (1) a change of venue; (2) funds

to conduct a community survey prior to empaneling the jury; (3) his motion to suppress the

contents of petitioner’s cell phone; (4) his motion to exclude evidence regarding the Rossi .44

caliber and 9 millimeter handguns; and (5) his motion to suppress evidence of firearm

comparisons and distance determinations.4 The circuit court addressed and rejected each of

petitioner’s arguments for a new trial and denied petitioner’s motion by order entered on October

7, 2016. This appeal followed.

Discussion

On appeal, petitioner raises five assignments of error, the first four of which challenge the

circuit court’s rulings on his motion for a new trial. “The main function of a motion for a new

1

See State v. Guthrie, 194 W. Va. 657, 667-68, 461 S.E.2d 163, 173-74 (1995).

2

See Syl. Pt. 2, in part, State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996).

3

“The court on motion of a defendant may grant a new trial to that defendant if required

in the interest of justice.” W.Va. R. Crim. P. 33, in part.

4

Petitioner raised additional arguments in his motion for a new trial that he does not raise

on appeal to this Court. Thus, we need not address those arguments.

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trial is to give the trial court an opportunity to correct errors in the proceedings before it without

subjecting the parties to the expense and the inconvenience of prosecuting a proceeding in

review.” State v. Cruikshank, 138 W. Va. 332, 337, 76 S.E.2d 744, 748 (1953), overruled on

other grounds by State v. Bragg, 140 W. Va. 585, 87 S.E.2d 689 (1955). “The question of

whether a new trial should be granted is within the discretion of the trial court and is reviewable

only in the case of abuse.” State v. Crouch, 191 W. Va. 272, 275, 445 S.E.2d 213, 216 (1994)

(citing State v. King, 173 W.Va. 164, 313 S.E.2d 440 (1984)).

In his first assignment of error, petitioner argues that he was denied his right to effective

assistance of counsel under the Sixth Amendment to the United States Constitution when the

circuit court denied his request for funds to obtain a community survey to support his change of

venue motion. Following petitioner’s arrest in the present case, he was arrested for a “road rage”

killing that occurred on Interstate 81 in Pennsylvania in January of 2014. According to petitioner,

Pennsylvania law enforcement had no suspects until petitioner was arrested for the West Virginia

murder and an acquaintance notified police that petitioner may have been involved in the

Pennsylvania incident. Petitioner was charged with the Pennsylvania killing in September of

2015, which petitioner contended led to numerous articles, stories, and social media posts in and

around Preston County regarding both killings.

Petitioner moved for a change of venue in the present case and requested public funds for

(1) media and social media research and (2) a survey of 300 respondents to gauge if a hostile

sentiment against petitioner existed in Preston County. As noted above, the circuit court allowed

petitioner to engage Orion Strategies to conduct media/social media research, which revealed

1,256 media and social media mentions; 218 mentions related to the West Virginia charges and

1,038 mentions related to the Pennsylvania charges. Petitioner contended once “likes, shares,

retweets” on social media were counted, the number of mentions jumped to 22,439. Orion

Strategies concluded that given the rural setting of Preston County, word of mouth

communication likely created a significant secondary source of information that could be further

measured by interviewing a sample of respondents.

Indigent criminal defendants are entitled to public funds to retain expert witnesses in their

defense. See Ake v. Oklahoma, 470 U.S. 68, 77 (1985) (“[A] criminal trial is fundamentally

unfair if the State proceeds against an indigent defendant without making certain that he has

access to the raw materials integral to the building of an effective defense.”). Thus, we agree

with petitioner that his request for public funds to retain the expert services of Orion Strategies

implicates a constitutional right.5 However, this right is not absolute and does not entitle an

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Petitioner invokes the Sixth Amendment’s right to effective assistance of counsel as the

source of this right. However, the State points out that under Ake, the United States Supreme

Court held that the right flowed from the Fourteenth Amendment’s due process clause, while

other courts have relied upon the equal protection clause. Additionally, West Virginia has a

statutory mechanism by which an indigent defendant may seek funding for expert witnesses and

trial expenses upon a showing of need. See W.Va. Code § 29-21-13a. Because we agree with the

circuit court that, under the facts this case, petitioner failed to demonstrate the necessity for the

(continued . . .)

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indigent defendant to unlimited access to public coffers; rather, indigent defendants must have

access to experts such that they are afforded an “adequate opportunity” to present a complete

defense. See Ross v. Moffitt, 417 U.S. 600, 616 (1974).

Applying these principles to the present case, we find no error in the circuit court’s denial

of additional public funding for Orion Strategies to conduct a community survey. Petitioner’s

argument in support of additional funds is undermined by the results of the research for which

the circuit court approved funding. Although that research revealed that media and social media

attention existed, it failed to provide compelling evidence of bias against petitioner that would

warrant a change of venue. This Court has held that media attention, while relevant, is not

dispositive of a request for a change of venue. See State v. Dandy, 151 W. Va. 547, 549, 153

S.E.2d 507, 508 (1967). The research found that the lion’s share of media engagement originated

from family and acquaintances of the victim – individuals who most likely would have been

ineligible to sit on the jury. The circuit court’s denial of additional funding is also corroborated

by the fact that voir dire resulted in a jury that had no knowledge of petitioner whatsoever.

Accordingly, we reject petitioner’s first assignment of error.

Petitioner’s second assignment of error challenges the circuit court’s denial of his change

of venue motion. As support, petitioner points to Orion Strategies’ research that showed over

22,000 media references to petitioner, most of which mentioned petitioner’s Pennsylvania

charge. Petitioner argues that of the 41 jurors on the panel, 15 were struck for cause, which

petitioner contended evidenced a hostile sentiment against him in Preston County. Also,

petitioner points to the incident with the alternate juror as further evidence that the circuit court

should have granted his change of venue motion.

This Court has held as follows:

1. To warrant a change of venue in a criminal case, there must be a showing

of good cause therefor, the burden of which rests on the defendant, the only

person who, in any such case, is entitled to a change of venue. The good cause

aforesaid must exist at the time application for a change of venue is made.

Whether, on the showing made, a change of venue will be ordered, rests in the

sound discretion of the trial court; and its ruling thereon will not be disturbed,

unless it clearly appears that the discretion aforesaid has been abused.

2. A present hostile sentiment against an accused, extending throughout the

entire county in which he is brought to trial, is good cause for removing the case

to another county.

3. One of the inquiries on a motion for a change of venue should not be

whether the community remembered or heard the facts of the case, but whether

additional expenditure of funds for the community survey in his attempt to support his change of

venue motion, we need not determine the precise source of the right at issue.

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the jurors had such fixed opinions that they could not judge impartially the guilt

or innocence of the defendant.

Syl. Pts. 1-3, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994) (citations omitted).

Petitioner contends that the trial should have been moved from Preston County because

of the media coverage surrounding his Pennsylvania charge. However, “[w]idespread publicity,

of itself, does not require change of venue, and neither does proof that prejudice exists against an

accused, unless it appears that the prejudice against him is so great that he cannot get a fair trial.”

Syl. Pt. 1, State v. Gangwer, 169 W. Va. 177, 286 S.E.2d 389 (1982). Accordingly, negative

media attention alone did not warrant moving the trial. And, contrary to petitioner’s argument -­

that the alternate juror became aware of petitioner’s Pennsylvania charges during the trial and

reported it to the judge -- actually supports the circuit court’s denial of petitioner’s motion. After

the alternate reported that she learned information that she “shouldn’t know,” the court

questioned the jurors again, who confirmed what they had indicated in voir dire -- they knew

nothing of petitioner or his Pennsylvania charge. Thus, we find no abuse of discretion in the

circuit court’s denial of petitioner’s change of venue motion.

In his third assignment of error, petitioner argues that law enforcement violated his

Fourth Amendment right when they searched the contents of his cell phone without first

obtaining a warrant. At the hearing on petitioner’s suppression motion, Trooper Gallaher testified

that he seized petitioner’s cell phone at the time of arrest, removed the SIM card, and viewed the

contents on his computer, all without consent or a warrant. The trooper denied looking at text

messages, but admitted he looked at photos and recalled seeing a photo of a handgun that looked

like the one police recovered in the swamp. The State obtained a search warrant about six

months later. The State conceded that Trooper Gallaher’s initial warrantless search of the phone

was unconstitutional. However, relying on the “independent source exception” to the

exclusionary rule, the circuit court permitted the State to admit the photos and text messages over

petitioner’s objection. The State used the photos to show that petitioner owned the .44 Rossi

Ranch that was found in the swamp.

The question for this Court is whether the circuit court erred by finding the “independent

source exception” to be applicable in this case. The Supreme Court of the United States has held

that “[i]n the classic independent source situation, information which is received through an

illegal source is considered to be cleanly obtained when it arrives through an independent

source.” Murray v. United States, 487 U.S. 533, 538-39 (1988) (citation omitted). In Murray,

federal agents surveilled the defendant, who was seen driving a truck into and out of a warehouse

and later turning the truck over to different drivers. The drivers were subsequently arrested and

the truck was found to contain marijuana. Receiving this information, the agents entered the

warehouse without a warrant and saw several burlap-wrapped bales in plain view. The agents left

the warehouse without disturbing the bales and did not reenter until they obtained a warrant.

When the agents applied for the warrant, they made no mention of their prior entry and did not

rely on any of their observations during that entry. The defendant moved to suppress the

evidence on the grounds that the warrant was tainted by the agents’ prior warrantless entry of the

warehouse. The district court denied the defendant’s motion. On the appeal of that ruling, the

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Supreme Court looked to the policy behind the exclusionary rule to determine whether to

exclude the evidence, and stated that

[t]he interest of society in deterring unlawful police conduct and the public

interest in having juries receive all probative evidence of a crime are properly

balanced by putting the police in the same, not a worse, position that they would

have been in if no police error or misconduct had occurred. . . . When the

challenged evidence has an independent source, exclusion of such evidence would

put the police in a worse position than they would have been in absent any error

or violation.

Id. at 537 (quoting Nix v. Williams, 467 U.S. 431, 443 (1984)). See also Syl. Pt. 9, State v.

Peacher, 167 W. Va. 540, 280 S.E.2d 559 (1981) (“An affidavit in support of an application for

a search warrant which contains information that antedates, and is totally independent of,

information learned from an unconstitutional search, as well as information from the

unconstitutional search, may still be the basis upon which a valid search warrant may issue, if the

information in the affidavit, excluding that information attributable to the unconstitutional

search, is sufficient to justify a finding of probable cause.”).

Applying these cases to the present case, we find Murray to be most instructive because

Trooper Gallaher did not include in his search warrant affidavit any indication that he had

already viewed at least some of the contents of petitioner’s cell phone. The record reveals that in

his affidavit, Trooper Gallaher stated that law enforcement was dispatched to the home of the

victim who had been shot; that they learned while there that petitioner had been at the home and

had a verbal altercation with the victim; that witnesses reported hearing a gunshot; and that

witnesses observed petitioner leaving the scene. Further, upon our review, we find no basis to

conclude that Trooper Gallaher’s decision to seek a search warrant for the contents of

petitioner’s phone was prompted solely by his initial “peek” at those contents. Consistent with

Nix and Murray, by admitting the evidence, the circuit court put law enforcement in the same

position they would have been in had there been no misconduct by Trooper Gallaher. To exclude

the evidence of the contents of petitioner’s phone, especially in a first degree murder case, would

put law enforcement in a worse position than it would have been in otherwise, and would have

deprived the jury from viewing evidence lawfully obtained from an independent source.

Accordingly, we find that the circuit court properly denied petitioner’s motion to suppress

evidence of the contents of his cell phone.

Petitioner’s fourth assignment of error focuses on the admission of the State’s evidence

suggesting that petitioner owned the .44 Rossi firearm recovered from the swamp and that this

weapon was used to kill the victim. Petitioner argues that the toolmark analysis and ballistic

distance determination employed by the State Police Forensic Laboratory constituted “scientific”

evidence requiring a hearing to determine its reliability, as mandated by Daubert v. Merrell Dow

Pharm., Inc., 509 U.S. 579 (1993).

We start our analysis with Rule 702(a) of the West Virginia Rules of Evidence, which

provides that “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact

to understand the evidence or to determine a fact in issue, a witness qualified as an expert by

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knowledge, skill, experience, training, or education may testify thereto in the form of an opinion

or otherwise.” While the application of the heightened “gatekeeping” function of Daubert has

been extended to all types of expert testimony offered in federal courts, this Court has declined

to extend its application to evidence requiring “technical or other specialized knowledge.” See

Watson v. Inco Alloys Int’l, Inc., 209 W. Va. 234, 545 S.E.2d 294 (2001). So, at issue, then, is

the distinction between “scientific” and “technical” knowledge. We have stated that

[s]cientific knowledge differs from technical and specialized knowledge in that it

is a validation. Scientific knowledge is the process of formulating a hypothesis

and then engaging in experimentation or observation to verify or falsify that

hypothesis. It is this knowledge garnered from experimentation and observation

that was offered as evidence in Daubert.

Watson at 240, 545 S.E.2d at 300.

In the present case, the circuit court properly determined that the challenged evidence –

toolmark and ballistic distance determination – was technical, rather than scientific. As the State

correctly argues, toolmark and ballistic distance determination involves subjective comparison

between known and unknown samples; it does not involve the formulation and testing of a

hypothesis. See United States v. Montiero, 407 F.Supp.2d 351 (D. Mass. 2006). Therefore, we

reject petitioner’s fourth assignment of error because this evidence did not require Daubert

hearing prior to its admission.

Petitioner’s final assignment of error is that the circuit court should have granted his

motion for judgment of acquittal because there was insufficient evidence to sustain his

convictions. Petitioner asserts that the evidence was entirely circumstantial given that the State

produced no witness who saw petitioner shoot the victim.6 This Court has held as follows:

1. “The 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 reviewing 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.” Syllabus

Point 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

2. When a criminal defendant undertakes a sufficiency challenge, all the

evidence, direct and circumstantial, must be viewed from the prosecutor’s coign

of vantage, and the viewer must accept all reasonable inferences from it that are

consistent with the verdict. This rule requires the trial court judge to resolve all

evidentiary conflicts and credibility questions in the prosecution’s favor;

6

Petitioner refers to his convictions, in the plural; however, his argument addresses only

his first degree murder conviction.

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moreover, as among competing inferences of which two or more are plausible, the

judge must choose the inference that best fits the prosecution’s theory of guilt.

Syl. Pts. 1 and 2, State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996).

In the present case, three people testified that petitioner called the victim before arriving

at her house; that the victim followed petitioner outside; they argued next to petitioner’s car; no

one else was there; they heard a gunshot; and saw petitioner leaving the scene in his car. This

evidence, albeit circumstantial, was sufficient to sustain petitioner’s convictions. However, the

State introduced additional evidence to corroborate its theory that petitioner shot the victim, i.e.,

that petitioner used a .44 caliber handgun that was later found in a swamp near his home and that

petitioner had the motive to kill the victim, as evidenced by hostile text messages he sent to her

the day of the murder regarding the victim having a new boyfriend. Reviewing this evidence in

the light most favorable to the State, it was sufficient to convince a reasonable person of the

defendant’s guilt beyond a reasonable doubt. Accordingly, we find no error in the denial of

petitioner’s motion for judgment of acquittal.

Conclusion

For the foregoing reasons, we affirm the Circuit Court of Preston County’s “Opinion

Order Denying Defendant’s Motion for Judgment of Acquittal or, in the Alternative, a New

Trial,” entered on October 7, 2016.

Affirmed.

ISSUED: November 17, 2017

CONCURRED IN BY:

Chief Justice Allen H. Loughry II

Justice Menis E. Ketchum

Justice Elizabeth D. Walker

DISSENTING:

Justice Robin Jean Davis

Justice Margaret L. Workman

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