State of West Virginia v. Moul

FILED

January 18, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

STATE OF WEST VIRGINIA OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia,

Plaintiff Below, Respondent

vs.) No. 20-0334 (Summers County CC-45-2019-F-7)

Jerry Mark Moul,

Defendant Below, Petitioner

MEMORANDUM DECISION

Petitioner Jerry Mark Moul, by counsel Kenneth E. Chittum, appeals the Circuit Court of

Summers County’s February 12, 2020, order sentencing him to consecutive terms of incarceration

of not less than one nor more than five years for each of his two convictions of possession of a

controlled substance with the intent to deliver. Respondent State of West Virginia, by counsel

Patrick Morrisey and Mary Beth Niday, filed a response.

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.

At approximately 1:50 a.m. on February 17, 2019, Deputy J.C. Wheeler of the Summers

County Sheriff’s Office and his K-9, Mac, were patrolling Hinton, West Virginia, in Summers

County. Deputy Wheeler observed petitioner approximately 100 yards ahead of him on Route 3

fail to use a turn signal before abruptly turning into a gas station parking lot. The officer initiated

a traffic stop. While the officer was running petitioner’s information, he asked for consent to search

petitioner’s vehicle or to allow his K-9 to conduct a sniff. Petitioner consented. During K-9 Mac’s

sniff of petitioner’s vehicle, the dog signaled the presence of drugs on the back of the driver’s side

door, so Deputy Wheeler searched the vehicle and found a bag containing methamphetamine and

paraphernalia, and, in a separate part of the car, Deputy Wheeler found a bottle of Suboxone.

Petitioner was placed under arrest and later indicted on two counts of possession of a controlled

substance with intent to deliver. One count was predicated on the methamphetamine, and the other

was predicated on the Suboxone.

Petitioner filed a motion to suppress the fruits of what he contended was the State’s illegal

search and seizure. Petitioner argued that Deputy Wheeler did not have probable cause or

1

reasonable suspicion to stop his vehicle and claimed that “[t]his very situation” was addressed in

Clower v. West Virginia Department of Motor Vehicles, where this Court held that the officer,

following approximately two city blocks behind the driver, did not have reasonable suspicion to

initiate a traffic stop for the driver’s failure to signal his turn at an intersection. 1 223 W. Va. 535,

544, 678 S.E.2d 41, 50 (2009).

The parties appeared for a hearing on petitioner’s motion. Petitioner reiterated that Clower

was controlling as Deputy Wheeler was approximately 100 yards behind petitioner and there was

no other traffic on the road. The State countered that, according to Deputy Wheeler, petitioner’s

turn was “abrupt[]” and an apparent attempt “to avoid or elude him.” The State also highlighted

that whereas the driver in Clower turned onto another street, petitioner turned abruptly into a

private parking lot.

The court denied petitioner’s motion. It found that petitioner “veered off into a gas station

when Deputy Wheeler was within one hundred yards of the vehicle,” and “[i]t is certainly possible

that the right turn affected Deputy Wheeler.” The court was not persuaded by petitioner’s attempt

to compare the facts of this case to those in Clower because the driver in Clower was two blocks

ahead of the officer, the driver made a turn from one street onto another, and the officer had to

speed up to catch the driver and initiate the stop. Id. at 537, 678 S.E.2d at 43. Therefore, the court

concluded that Deputy Wheeler’s stop was based on a reasonable suspicion that petitioner had

committed a traffic offense.

Petitioner was tried on December 11, 2020. Deputy Wheeler testified that during his search

of petitioner’s vehicle he found “a black bag which contained scales, baggies and

methamphetamine . . . directly behind the driver’s seat on top of some items, as though it was

tossed back there whenever I was attempting to make a stop.” In addition, “in the center area of

the vehicle was an orangish-yellow pill bottle which contained Suboxone.” Deputy Wheeler

testified that the scales found in petitioner’s car were not of the sort found in kitchens but were

like those typically used in the distribution of controlled substances. Deputy Wheeler also testified

that the baggies found “have a zipper or a seal that would be on top of them, some of which are

clear plastic bags, some of which have some black markings and also which have some red

markings on it.” 2 Like the scales, he testified that these types of bags are commonly seen in the

distribution of controlled substances. The officer testified that he found nothing in the car

consistent with the personal use of methamphetamine.

Deputy Wheeler further testified that the Suboxone pills, of which there were nine, were

in a bottle labeled as prescribed to Tina Gunnoe. 3 Petitioner, who was alone when the officer

1

Petitioner also moved to suppress on the ground that the dog sniff enlarged the traffic stop

without reasonable suspicion. Petitioner does not assert error in the court’s denial of his motion on

that ground.

2

Some of the baggies were “marked with a repeating black pattern with the words, ‘Stay

high’ on a red background.”

3

The label was worn and, as the officer described it, “[f]or the most part, unreadable.”

2

stopped him, informed the officer that Ms. Gunnoe was his landlord and that she had inadvertently

left her pills in his vehicle. With final regard to the evidence obtained from petitioner’s car, Deputy

Wheeler described two pieces of paper reflecting petitioner’s negative drug screens, including

negative for methamphetamine and Suboxone, on February 12, 2019, and February 14, 2019.

Deputy Wheeler recounted that, after arresting petitioner and transporting him to the

Sheriff’s Office, he searched petitioner and asked him whether he had anything else on his person.

Petitioner handed the officer a “bag of sorts with a substance inside” that petitioner had had in his

shoe. The officer found a spoon that “would be used as a scoop to scoop out controlled substances”

in that bag.

In petitioner’s statement to Deputy Wheeler, he claimed to have been driving to meet or

pick up a woman immediately prior to his arrest. Petitioner was initially “unsure” of the woman’s

name. Petitioner acknowledged that one of the substances in his car was methamphetamine, though

he denied selling it, claiming only that he was an addict. The officer discounted petitioner’s claim

that the drugs were for his personal use due to petitioner “having packages of drugs, along with

numerous empty baggies marked with different lingo. They’re pictures, and also a set of scales.

That would make a delivery scheme of everything.” Deputy Wheeler also testified that the scoop

was of the sort “consistently found as evidence in the delivery of controlled substances.” Deputy

Wheeler testified that petitioner had no lighters, foils, used baggies, or anything consistent with

personal drug use.

On cross-examination, Deputy Wheeler acknowledged that the paraphernalia he described

was indicative of the sale of methamphetamine in particular, and he found no such indicia of the

sale of Suboxone pills.

After the State rested, petitioner moved for a directed verdict or judgment of acquittal as

to Count II, pertaining to the Suboxone. 4 Petitioner argued that “there’s no evidence, one, of any

intent to distribute pills whatsoever; and, two, there’s not even been any evidence of any illicit

possession of those pills.” 5 The court denied the motion, finding that “[t]here’s enough evidence

to go to the jury on it.”

Tina Gunnoe, petitioner’s landlord, testified that she lives in Virginia but returns to West

Virginia to visit family and check on her property. On one occasion when she was in West Virginia,

petitioner drove her to a convenience store to buy a pack of cigarettes, and she claimed that during

that ride, she inadvertently dropped her lawfully prescribed Suboxone pills in petitioner’s car. Not

realizing her mistake until she was on her way back to Virginia, she called petitioner to confirm

4

Before the State rested, it also presented the testimony of Courtney Miller, who is

employed in the Seized Drug Section of the West Virginia State Police Forensic Laboratory. Ms.

Miller analyzed the drugs found in petitioner’s vehicle and testified to the results obtained from

those analyses.

5

Petitioner also moved for judgment of acquittal on Count I, but he does not challenge the

court’s denial of his motion as to that Count on appeal.

3

that her pills were in his car and to ask that he keep them until she returned to West Virginia, which

petitioner agreed to do.

Petitioner testified and claimed that the Suboxone pills belonged to Ms. Gunnoe. He denied

selling or giving the pills away, and he claimed that the methamphetamine was for his personal

use. Petitioner further claimed that he had the methamphetamine in separate bags because he “was

getting low on what I had that I was using, so I got some more.” Petitioner explained that he carried

scales to avoid “getting ripped off,” as had happened in the past, and that he had small baggies

because he preferred to transfer his methamphetamine from the packaging in which it was

purchased to those baggies so he could “get to it easier to use.”

Ultimately, the jury found petitioner guilty of each count charged in the indictment, and

petitioner appeared for sentencing on February 7, 2020. Petitioner renewed his motion for

judgment of acquittal, arguing that “the traffic stop resulted in illegal evidence that . . . constituted

the entirety of the State’s case.” Petitioner also reiterated his arguments regarding dismissal of

Count II (Suboxone). The court denied this motion and then sentenced petitioner to consecutive

terms of not less than one nor more than five years of incarceration for each conviction. The court

entered its sentencing order memorializing these rulings on February 12, 2020, and it is from this

order that petitioner appeals.

In petitioner’s first assignment of error, he argues that the circuit court erred in denying his

motion to suppress because the officer did not have an articulable suspicion of wrongdoing at the

time of the traffic stop. Petitioner again analogizes the facts of his case to Clower and maintains

there was no reasonable suspicion that he had committed a traffic offense because he was not

required to use a turn signal.

This Court’s standard of review for a denial of a motion to suppress is as follows:

[W]e first review a circuit court’s findings of fact when ruling on a motion to

suppress evidence under the clearly erroneous standard. Second, we review de novo

questions of law and the circuit court’s ultimate conclusion as to the

constitutionality of the law enforcement action. Under the clearly erroneous

standard, a circuit court’s decision ordinarily will be affirmed unless it is

unsupported by substantial evidence; based on an erroneous interpretation of

applicable law; or, in light of the entire record, this Court is left with a firm and

definite conviction that a mistake has been made. . . . When we review the denial

of a motion to suppress, we consider the evidence in the light most favorable to the

prosecution.

State v. Farley, 230 W. Va. 193, 196, 737 S.E.2d 90, 93 (2012) (citations omitted). In addition,

[w]hen reviewing a ruling on a motion to suppress, an appellate court should

construe all facts in the light most favorable to the State, as it was the prevailing

party below. Because of the highly fact-specific nature of a motion to suppress,

particular deference is given to the findings of the circuit court because it had the

4

opportunity to observe the witnesses and to hear testimony on the issues. Therefore,

the circuit court’s factual findings are reviewed for clear error.

Syl. Pt. 1, State v. Lacy, 196 W. Va. 104, 468 S.E.2d 719 (1996).

With respect to the stop of petitioner’s vehicle, we have held that “[p]olice officers may

stop a vehicle to investigate if they have an articulable reasonable suspicion that the vehicle is

subject to seizure or a person in the vehicle has committed, is committing, or is about to commit a

crime[.]” Clower, 223 W. Va. at 536, 678 S.E.2d at 42, Syl. Pt. 4 (citing Syl. Pt. 1, in part, State v.

Stuart, 192 W. Va. 428, 452 S.E.2d 886 (1994)). This determination must be made by “examin[ing]

the totality of the circumstances, . . . includ[ing] both the quantity and quality of the information

known by the police.” Id. at 536-37, 678 S.E.2d at 42-43, Syl. Pt. 5, in part (citing Stuart, 192 W.

Va. at 429, 452 S.E.2d at 887, Syl. Pt. 2, in part).

In Clower, we held in Syllabus Point 3 that

[a] motorist who makes a turn at an intersection without first using a turn

signal to notify others of the intent to make the turn does not violate the provisions

of W. Va.Code, 17C-8-9 [1951], read in para materia with the provisions of W.

Va.Code, 17C-8-8(a) [1999], where no other traffic may be affected by the

movement of the motorist’s vehicle.[6]

223 W. Va. at 536, 678 S.E.2d at 42. In reaching this holding, we observed that

the clear legislative intent behind the requirement of using a turn signal is to warn

others of the motorist’s intent to make a turn; however, the Legislature also clearly

intended to qualify the requirement that a motorist use a turn signal to those

occasions where others could be affected by the turning vehicle.

Id. at 540, 678 S.E.2d at 46.

Applying Syllabus Point 3, we found that the officer in Clower, whose “sole justification”

for the stop was the driver’s failure to signal his turn at an intersection, was not affected by that

failure where the officer was approximately two city blocks behind the driver and the officer and

driver were the only vehicles on the road. Id. at 537, 678 S.E.2d at 43. In addition, the officer had

to speed up to reach the driver and followed him for approximately three blocks before initiating

the stop. Id. at 537, 678 S.E.2d at 43. Consequently, the officer’s stop of the driver’s vehicle was

not justified, and the officer had no reasonable, articulable suspicion to believe that the driver had

committed a misdemeanor traffic offense. Id. at 543, 678 S.E.2d at 49.

6

West Virginia Code § 17C-8-8 provides, in part, that “[n]o person shall so turn any vehicle

without giving an appropriate signal in the manner hereinafter provided in the event any other

traffic may be affected by such movement.” West Virginia Code § 17C-8-9 provides, in part, that

“[a]ny stop or turn signal when required herein shall be given either by means of the hand and arm

or by a signal lamp or lamps or mechanical signal device.”

5

The circumstances presented here—construed in the light most favorable to the State—are

distinguishable from those presented in Clower and take this case outside the reach of the point of

law on which petitioner relies. In particular, Syllabus Point 3 pertains to “[a] motorist who makes

a turn at an intersection,” and petitioner did not turn at an intersection. 7 Id. at 536, 678 S.E.2d at

42. Rather, he unpredictably “veered off” the road into a gas station parking lot in an apparent

attempt to avoid or evade Deputy Wheeler, who was closer to petitioner when petitioner failed to

signal this abrupt turn than the officer was to the driver in Clower. Under these circumstances,

even assuming the applicability of Syllabus Point 3 of Clower, it cannot be said that the use of a

turn signal would have served no purpose. See id. at 540, 678 S.E.2d at 46 (recounting the

Legislature’s understanding that in some situations, namely, when “no other traffic may be affected

by the movement,” a turn signal would serve no purpose). To the contrary, a situation in which

one suddenly and unexpectedly turns off the street is the precise situation where a warning (i.e.,

turn signal) is necessary to those following behind. Thus, it cannot be said here—where Deputy

Wheeler was following closely enough that petitioner apparently felt the need to try to dodge the

officer—that “no other traffic may be affected by the movement.” Id. at 536, 678 S.E.2d at 42,

Syl. Pt. 3, in part. As a result, the petitioner’s failure to use his turn signal gave Deputy Wheeler

reasonable suspicion to believe that petitioner had committed a traffic offense in his presence, and

the officer’s stop of petitioner’s vehicle was therefore justified.

In petitioner’s last assignment of error, he asserts that the court erred in denying his motion

for judgment of acquittal on the count related to the Suboxone because the State “merely

established that [S]uboxone was found in a properly prescribed medicine bottle in the rear seat

floor of [p]etitioner’s vehicle.” He concedes that the State presented a prima facie case of

possession, but he argues that there was no evidence of intent to deliver the Suboxone.

“The Court applies a de novo standard of review to the denial of a motion for judgment of

acquittal based upon the sufficiency of the evidence.” State v. Juntilla, 227 W. Va. 492, 497, 711

S.E.2d 562, 567 (2011) (citation omitted). And in reviewing the sufficiency of the evidence,

7

West Virginia Code § 17C-1-42 provides that

“[i]ntersection” includes: (a) The area embraced within the prolongation or

connection of the lateral curb lines, or, if none, then the lateral boundary lines of

the roadways of two highways which join one another at, or approximately at, right

angles, or the area within which vehicles traveling upon different highways joining

at any other angle may come in conflict; and

(b) Where a highway includes two roadways thirty feet or more apart, then every

crossing of each roadway of such divided highway by an intersection highway shall

be regarded as a separate intersection. In the event such intersecting highway also

includes two roadways thirty feet or more apart, then every crossing of two

roadways of such highways shall be regarded as a separate intersection.

Petitioner has not disputed that the turn did not occur at an intersection.

6

[t]he function of an appellate court . . . 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.

Id. at 494, 711 S.E.2d at 564, Syl. Pt. 1, in part (citing Syl. Pt. 1, State v. Guthrie, 194 W. Va. 657,

461 S.E.2d 163 (1995)). In addition, this 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.

Id., Syl. Pt. 2, in part (citing Guthrie, 194 W. Va. at 663, 461 S.E.2d at 169, Syl. Pt. 3, in part). Of

course, one challenging the sufficiency of the evidence “takes on a heavy burden.” Id.

The State’s evidence was that nine Suboxone pills, which had not been prescribed to

petitioner, were found in petitioner’s car when he was out in the early morning hours purportedly

to meet a woman whose name he initially did not know. Along with these pills, Deputy Wheeler

found other drugs, scales, and baggies in petitioner’s car. “Most courts have held that possession

with intent to deliver a controlled substance can be proven by establishing a number of

circumstances among which are the quantity of the controlled substance possessed and the

presence of other paraphernalia customarily used in the packaging and delivery of controlled

substances.” Syl. Pt. 4, State v. Drake, 170 W. Va. 169, 291 S.E.2d 484 (1982). Indeed, “quantity,

standing alone, is evidence of intent to deliver.” Id. at 172, 291 S.E.2d at 488. Further, “[t]he

question of whether a person possesses a controlled substance with intent to . . . deliver is a jury

question to be determined like other questions of intent from all the surrounding facts and

circumstances.” Id. at 173, 291 S.E.2d at 488. The quantity of Suboxone pills petitioner had alone

is evidence that he intended to distribute the pills. Plus, petitioner had other drugs and

paraphernalia that made it appropriate for the jury to pass on the question of intent. Accordingly,

we find no error in the court’s denial of petitioner’s motion for a directed verdict.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: January 18, 2022

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CONCURRED IN BY:

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice Evan H. Jenkins

DISSENTING:

Chief Justice John A. Hutchison

Justice William R. Wooton

Hutchison, Chief Justice, dissenting:

I dissent to the majority’s resolution of this case. I would have set this case for oral

argument to thoroughly address the error alleged in this appeal. Having reviewed the parties’ briefs

and the issues raised therein, I believe a formal opinion of this Court was warranted—not a

memorandum decision. Accordingly, I respectfully dissent.

Wooton, Justice, dissenting:

I respectfully dissent, as I believe the majority has sub silentio modified ‒ indeed,

effectively overruled ‒ the bright-line rule established in Clower v. West Virginia Dep’t of Motor

Vehicles, 223 W. Va. 535, 678 S.E.2d 41 (2009):

A motorist who makes a turn at an intersection without first using a

turn signal to notify others of the intent to make the turn does not

violate the provisions of W. Va. Code, 17C-8-9 [1951], read in para

(sic) materia with the provisions of W. Va. Code, 17C-8-8(a) [1999],

where no other traffic may be affected by the movement of the

motorist’s vehicle.

Id. at 536, 678 S.E.2d at 42, Syl. Pt. 3. This is exactly what the petitioner did in the instant case:

he made a right-hand turn into a gas station parking lot at approximately 1:50 a.m., when the only

other motorist on that stretch of Route 3 was the deputy sheriff who initiated a traffic stop on the

sole ground that the petitioner had not used a turn signal.

The majority affirms the judgment of the circuit court, which found that Clower was

distinguishable because the officer was travelling 100 feet behind the petitioner rather than two

blocks behind him; the right-hand turn was “abrupt;” and the turn was made into a parking lot

rather than into another street. 8 Nothing in Clower suggests that these factors are material; rather,

8

The majority further notes the court’s finding that “[i]t is certainly possible that the right

turn affected Deputy Wheeler.” (Emphasis supplied). If this rank speculation is accepted as a

legitimate rationale for distinguishing Clower, it will be the exception that entirely swallows the

rule.

8

the sole factor to be considered is whether it can be said that “no other traffic may be affected by

the movement of the motorist’s vehicle.”

In my view, the petitioner’s motion to suppress should have been granted because the stop

of his vehicle was clearly pretextual. Although it is always tempting to view these issues through

the lens of what happened next ‒ drugs and paraphernalia were found ‒ this Court should not take

its eye off the ball: the deputy had no probable cause to stop the petitioner’s vehicle, and thus the

search violated his rights under article III, section six of the West Virginia Constitution.

Without question, the scourge of illicit drug use is one of the greatest problems facing this

state, and the nation. But we cannot allow our zeal to combat this scourge to undermine the

fundamental rights enshrined in our constitution. While every branch of government shares that

responsibility, the judicial branch has special responsibility with respect to constitutional rights.

In addition, I respectfully dissent from the majority’s affirmance of the petitioner’s

conviction on the charge of possession with intent to distribute Suboxone. In this regard, a

prescription bottle found in the petitioner’s vehicle contained nine pills. 9 The only evidence offered

by the State (other than the bottle containing the nine pills) was that five days and then again three

days prior to his arrest, the petitioner had drug screens that were negative for Suboxone.

On this manifestly inadequate evidence, no jury could rationally conclude beyond a

reasonable doubt that the petitioner possessed the Suboxone with intent to distribute it. And no

jury should have been given the opportunity to even consider this count of the indictment, as the

petitioner was entitled to judgment of acquittal at the close of the State’s evidence.

For the foregoing reasons, I respectfully dissent.

9

The label on the bottle indicated that the Suboxone was prescribed for Tina Gunnoe, who

was identified as the petitioner’s landlord. Both the petitioner and Ms. Gunnoe testified that she

had left the pills in the petitioner’s car; however, viewing the evidence in a light most favorable to

the verdict winner, see, e.g., State v. Fiske, 216 W. Va. 365, 367, 607 S.E.2d 471, 473 (2004), we

must assume that the jury disbelieved this testimony.

9