State of West Virginia v. Rodney L. Hypes ( 2013 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2013 Term
FILED
February 7, 2013
No. 11-1273 released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
State of West Virginia,
Respondent
v.
Rodney L. Hypes,
Petitioner
Appeal from the Circuit Court of Nicholas County
The Honorable Gary Johnson, Judge
Criminal Action No. 09-F-17
AFFIRMED
Submitted: January 9, 2013
Filed: February 7, 2013
Gina M. Stanley, Esq. Patrick Morrisey, Esq.
Cabell County Public Defender Office Attorney General
Huntington, West Virginia Scott E. Johnson, Esq.
Duane C. Rosenlieb, Jr., Esq. Senior Assistant Attorney General
West Virginia Defender Services Andrew Mendelson, Esq.
Charleston, West Virginia Assistant Attorney General
Attorney for Petitioner Charleston, West Virginia
Attorneys for the Respondent
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. “‘A statement is not hearsay if the statement is offered against a party
and is his [or her] own statement, in either his [or her] individual or a representative capacity.
W. Va. R. Evid. 801(d)(2)(A).’ Syl. Pt. 1, Heydinger v. Adkins, 178 W.Va. 463, 360 S.E.2d
240 (1987).” Syl. Pt. 7, State v. Payne, 225 W. Va. 602, 694 S.E.2d 935 (2010).
2. “Although Rules 401 and 402 of the West Virginia Rules of Evidence
strongly encourage the admission of as much evidence as possible, Rule 403 of the West
Virginia Rules of Evidence restricts this liberal policy by requiring a balancing of interests
to determine whether logically relevant is legally relevant evidence. Specifically, Rule 403
provides that although relevant, evidence may nevertheless be excluded when the danger of
unfair prejudice, confusion, or undue delay is disproportionate to the value of the evidence.”
Syl. Pt. 9, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994).
3. “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 viewing the evidence in the light most favorable to the prosecution, any rational trier
i
of fact could have found the essential elements of the crime proved beyond a reasonable
doubt.” Syl. Pt. 1, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995).
4. “A criminal defendant challenging the sufficiency of the evidence to
support a conviction takes on a heavy burden. An appellate 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. Finally, a jury verdict should be set
aside only when the record contains no evidence, regardless of how it is weighed, from which
the jury could find guilt beyond a reasonable doubt.” Syl. Pt. 3, State v. Guthrie, 194 W. Va.
657, 461 S.E.2d 163 (1995).
5. “In order to sustain a conviction for violation of W. Va. Code §
60A-4-411 (2003), by assembling any chemicals or equipment for the purpose of
manufacturing methamphetamine, the State must prove beyond a reasonable doubt that the
defendant had actual or constructive possession over the chemicals and/or equipment. In
order to establish constructive possession where the defendant is present in a vehicle wherein
such materials are found, the State must prove beyond a reasonable doubt that the defendant
had knowledge of the presence of the chemicals and/or equipment to be used for the purposes
ii
of manufacturing methamphetamine and that such items were subject to the defendant’s
dominion and control.” Syl. Pt. 6, State v. Cummings, 220 W. Va. 433, 647 S.E.2d 869(2007).
iii
Per Curiam:
This case is before the Court upon the appeal of the Petitioner, Rodney L. Hypes, from
the August 12, 2011, Order of the Circuit Court of Nicholas County, West Virginia, re­
sentencing the Petitioner to a term of not less than two years nor more than ten years
imprisonment for his jury conviction of operating or attempting to operate a clandestine drug
laboratory. On appeal, the Petitioner argues that the circuit court erred by admitting into
evidence the Petitioner’s statement made two years after the events alleged in the indictment
and by denying the Petitioner’s motion for judgment of acquittal. Based upon a review of
the parties’ briefs and oral arguments, the appendix record and all other matters submitted
before the Court, we affirm the circuit court’s decision.1
I. Facts and Procedural Background
According to the testimony of the Petitioner’s girlfriend, Tina Keener, on July
30, 2007, the Petitioner was living with her in an apartment located in Summersville, West
Virginia. The apartment was leased solely to Ms. Keener. Ms. Keener testified, however,
that the Petitioner had his own key to the apartment, that he came and went as he pleased, and
that she left him alone in the apartment for long periods of time. On this date, the manager
1
While this case was pending before the Court, Patrick Morrisey was sworn into office
as Attorney General for the State of West Virginia, replacing former Attorney General
Darrell V. McGraw, Jr. See W. Va. R. App. P. 41(c).
1
of the apartment complex, Gretchen Roop, watched the Petitioner leaving the apartment with
a trash bag. Ms. Roop testified that the Petitioner acted suspiciously as he very carefully
carried the trash bag to the dumpster located in the apartment complex.
Ms. Roop stated that after the Petitioner left the property, she went and looked
at the trash bag “to see what he was so suspicious about.” Ms. Roop tore a little hole in the
garbage bag and saw peroxide and matchbooks. She took the garbage bag from the dumpster
and placed it in the maintenance room and locked the door. Ms. Roop called her husband,
who was a police officer. He, in turn, called a fellow officer, Shane Dellinger. The two men
went to the apartment complex to examine the bag more closely. Upon examination, they
discovered a bottle with smoke coming from it. The two men moved the garage bag from
the maintenance room to the lawn. Based upon their examination of the contents of the bag,
the Central West Virginia Drug Task Force (“Drug Task Force”) was called to the scene.
Sgt. T. A. Blake of the Summersville Police Department was assigned to the
Drug Task Force on July 30, 2007. He responded to the call from the apartment complex.
When he arrived, he opened up the garbage bag and found peroxide bottles, matchbooks, and
a couple of bottles. One bottle had some brownish-red liquid in it and another had some
coffee filters stuffed in the end of it. Sgt. Blake testified that there was a smoking bottle in
the garbage. He testified that this was “what’s generally referred to as a gas generator. It has
rock salt and another chemical in it that would cause a chemical reaction, and it would fume
2
and smoke.” Sgt. Blake further testified that he found a couple of bills with Tina Keener’s
address on them in the garbage bag, as well as a HEET bottle and used blister bags. The
officer stated that HEET contains alcohol, which is a key ingredient for manufacturing
methamphetamine. Sgt. Blake testified that after going through the trash, he and another
officer left the scene to obtain a search warrant for Ms. Keener’s apartment. Two other
officers remained at the scene to secure the apartment.
Sgt. Blake assisted in executing the search of Ms. Keener’s apartment. He
testified that he found several precursors to manufacturing methamphetamine including a
Bernzomatic propane bottle, a camp fuel container located under the kitchen sink, iodine, a
hotplate, Spa Ph, and three smoke detectors that had been removed from the ceiling. The
officer stated that he found a pill bottle belonging to the Petitioner, a check stub with the
Petitioner’s name on it and a piece of mail with the Petitioner’s name on it. Sgt. Blake also
found a duffle bag containing plastic tubing, a glassy soapy bottle, which is often found in
methamphetamine production because the bottles are used as gas generators, and a spatula.
Finally, Sgt. Blake stated that he found a book entitled The Secret of Methamphetamine
Manufacture, Uncle Fester’s 7th Edition (hereafter “Uncle Fester’s Cookbook”). There was
no evidence of any controlled substance, including methamphetamine, found in the apartment
or the garbage bag.
3
On March 18, 2009, the Petitioner was indicted2 by a Nicholas County grand
jury for one count of operating or attempting to operate a clandestine drug laboratory3 and
one count of conspiracy to manufacture methamphetamine.4
While the Petitioner was awaiting trial on these charges, on April 3, 2009, a
Nicholas County Sheriff’s deputy served warrants on the Petitioner for misdemeanor Sudafed
purchases. After being taken into custody, the Petitioner executed a waiver of his Miranda5
rights and provided a signed statement regarding his knowledge of methamphetamine
manufacturing. The statement included the Petitioner’s admissions that he was informed
about how to make methamphetamine, and that he got his information and start with Uncle
Fester’s Cookbook. The Petitioner also stated that “[y]ou actually get addicted just cooking
the dope more than using the dope. I could set in jail for ten years, I would still be addicted
to cooking meth.”
2
According to the record, a warrant issued for the Petitioner’s arrest after the events
in July of 2007; however, the circuit court dismissed the warrant because it had not been
presented to the grand jury for indictment within three terms of court. The Petitioner was re­
indicted in January of 2009; however, due to “problems with the grand jury,” that indictment
was dismissed.
3
See W. Va. Code § 60A-4-411(2010).
4
See W. Va. Code § 61-10-31 (2010) and § 60A-4-401(2010).
5
See Miranda v. Arizona, 384 U.S. 436 (1966).
4
The State filed a motion to admit the statement as evidence under West
Virginia Rule of Evidence 404(b).6 The Petitioner filed a brief in opposition. The State
argued that the statement was admissible as evidence of the Petitioner’s “‘intent and motive
for cooking methamphetamine.’” The Petitioner, however, argued that the statement was not
evidence of a crime, wrong or act because “the statement does not reference a specific
instance and contains only generalized statements about how a person could manufacture
methamphetamine.” The Petitioner argued that the statement was inadmissible under Rule
404(b) because it was character evidence.
The circuit court conducted a hearing on the admissibility of the statement prior
to trial. By Order entered August 12, 2009, the circuit court determined that the statement
was admissible. The court agreed with the Petitioner that the statement was inadmissible
under Rule 404(b) as evidence of “(i) Defendant’s subsequent crimes and arrest or (ii)
Defendant’s character.” Nevertheless, the court found that the statement was admissible “as
6
Rule 404(b) of the West Virginia Rules of Evidence provides, in relevant part:
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show
that he or she acted in conformity therewith. It may, however,
be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident . . . .
Id.5
a statement of a party-defendant,7 made voluntarily, without coercion and after a proper
Miranda warning.” (Footnote added).
The trial commenced. When Deputy Michael Allen Hanks with the Nicholas
County Sheriff’s Department testified regarding the Petitioner’s statement, the only objection
raised by the Petitioner was that the admission was unfairly prejudicial under West Virginia
Rule of Evidence 403. The Petitioner did not testify and called no witnesses. At the close
of the State’s case-in-chief, the Petitioner moved for a directed verdict on both counts. The
circuit court dismissed the conspiracy count. The jury found the Petitioner guilty of
operating or attempting to operate a clandestine drug laboratory. The Petitioner was
sentenced to an indeterminate term of two to ten years and was later re-sentenced for appeal
purposes.
II. Argument8
A. Petitioner’s Statement
The Petitioner argues that the circuit court erred in admitting the statement he
voluntarily gave to police following his arrest two years after the events alleged in the
7
Under West Virginia Rule of Evidence 801(d)(2), an admission of a party-opponent
is not hearsay when “[t]he statement is offered against a party and is (A) the party’s own
statement[.]” Id.8
Because two different standards of review will be used in review of each of the errors
assigned by the Petitioner, the standard of review will be set forth within the argument
section.
6
indictment. The Petitioner argues that his statement in 2009 did not relate back to the crime
he allegedly committed in 2007. The Petitioner maintains that the deputy who questioned
him in 2009 never asked him if he knew how to manufacture methamphetamine in 2007.
Thus, the Petitioner maintains that the admission of the statement was unfairly prejudicial.
The State, however, argues that the circuit court did not abuse its discretion in allowing the
Petitioner’s statement to be admitted into evidence.9
The standard of review for an evidentiary ruling made by a circuit court is
whether the circuit court abused its discretion. See Syl. Pt. 4, State v. Rodoussakis, 204 W.
Va. 58, 511 S.E.2d 469 (1998) (“A trial court’s evidentiary rulings, as well as its application
of the Rules of Evidence, are subject to review under an abuse of discretion standard.”). As
previously mentioned, the circuit court admitted the Petitioner’s April 3, 2009, statement
under West Virginia Rule of Evidence 801(d)(2). This Court held in syllabus point seven of
9
While the Petitioner asserts on appeal that the statement was erroneously admitted
as character evidence in violation of West Virginia Rule of Evidence 404(b), there was no
objection at trial to preserve this alleged error. See State v. DeGraw, 196 W. Va. 261, 272
n. 15, 470 S.E.2d 215, 226 n.15 (1996)(concluding that appellant’s failure to raise a Rule
404(b) objection before the trial court precluded this Court from reviewing appellant’s Rule
404(b) argument and further concluding that failure to raise Rule 404(b) objection did not
trigger application of plain error doctrine). Moreover, the trial court ruled that the statement
was inadmissible under Rule 404(b). The circuit court also expressly prohibited any
reference by the State to the subsequent crime with which the Petitioner was charged (the
misdemeanor purchase of too much Sudafed). Rather, the circuit court found the statement
admissible under West Virginia Rule of Evidence 801(d)(2). Given the Petitioner’s failure
to raise any Rule 404(b) objection at trial, we decline to review this argument on appeal.
7
State v. Payne, 225 W. Va. 602, 694 S.E.2d 935 (2010), that “[a] statement is not hearsay if
the statement is offered against a party and is his [or her] own statement, in either his [or her]
individual or a representative capacity. W. Va. R. Evid. 801(d)(2)(A).’ Syl. Pt. 1, Heydinger
v. Adkins, 178 W.Va. 463, 360 S.E.2d 240 (1987).” As we noted in Payne,
The Heydinger Court also explained that the rule is sensible from
a practical standpoint.
The theory underlying this evidentiary rule
is that if a person’s own statements are offered
against him, he cannot be heard to complain that
he was denied an opportunity f or
cross-examination. An additional justification
supporting the admissibility of this class of
evidence is the fact that it is inherently trustworthy.
[citation omitted] Presumably, a party would not
admit or state anything against his or her interest
unless it was true; nevertheless, if the statement is
inaccurate, the party may deny it altogether or
explain why he/she made it.
Payne, 225 W. Va. at 611, 694 S.E.2d at 944 (quoting Heydinger, 178 W. Va. at 468, 360
S.E.2d at 245).
The only objection raised by the Petitioner when the statement was admitted at
trial was under Rule 403 of the West Virginia Rules of Evidence. Rule 403 sets forth a
balancing test for determining when otherwise relevant evidence should nonetheless be
excluded at trial. Rule 403 provides: “Although relevant,10 evidence may be excluded if its
10
The Petitioner did not object to the relevancy of the evidence under Rule 401of the
(continued...)
8
probative value is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.” Id. (footnote added). In syllabus point nine
of State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994), we held:
Although Rules 401 and 402 of the West Virginia Rules
of Evidence strongly encourage the admission of as much
evidence as possible, Rule 403 of the West Virginia Rules of
Evidence restricts this liberal policy by requiring a balancing of
interests to determine whether logically relevant is legally
relevant evidence. Specifically, Rule 403 provides that although
relevant, evidence may nevertheless be excluded when the danger
of unfair prejudice, confusion, or undue delay is disproportionate
to the value of the evidence.
192 W. Va. at 168, 451 S.E.2d at 734, Syl. Pt. 9.
In the instant case, after the suppression hearing concerning the Petitioner’s
statement, the circuit court determined that the Petitioner’s statement was relevant because
“it demonstrates that the Defendant knew how to cook methamphetamine, was interested in
chemistry and was addicted to cooking methamphetamine.” The circuit court further
determined that the statement “is evidence that the Defendant used Uncle Fester’s Cookbook,
which was located among the items seized from the same apartment.” The circuit court next
analyzed the evidence using the balancing test set forth in Rule 403 and found that the
10
(...continued)
West Virginia Rules of Evidence.
9
probative value of the statement was “significant” and substantially outweighed any danger
of unfair prejudice. The circuit court determined that
[w]ith the statement, itself, the only real danger of prejudice is
the jury hearing that the Defendant does, in fact, know how to
use the components of a methamphetamine laboratory to cook
methamphetamine and that he is addicted to cooking meth.
When weighed against the probative value of the statement, the
risk of unfair prejudice does not require exclusion of the
statement.
Based upon this Court’s review of the statement and its admissibility, the circuit
court correctly determined that Petitioner’s voluntary statement in 2009 was relevant to the
2007 charges against him. Further, the circuit court did not err in its determination that the
Petitioner’s voluntary statement was not unduly prejudicial simply because the Petitioner
made the statement approximately two years after the events giving rise to the charge of
operating or attempting to operate a clandestine drug laboratory. The circuit court did not
abuse its discretion in admitting the Petitioner’s 2009 statement into evidence at trial.
B. Sufficiency of the Evidence
The Petitioner next argues that the circuit court should have granted his motion
for directed verdict on both counts, instead of just the conspiracy count. The Petitioner
contends that there was insufficient evidence demonstrating that he knew the contents of the
garbage bag. The Petitioner also maintains that there was no evidence that linked him to the
items found in his girlfriend’s apartment, and there was no evidence that showed he knew
10
how to manufacture or attempt to manufacture methamphetamine in 2007. The State,
however, argues that the materials and substances found in the trash bag carried by the
Petitioner to the dumpster, as well as all the materials and substances found in the residence
where the Petitioner lived, are key ingredients for producing methamphetamine. Therefore,
there existed sufficient evidence to support the Petitioner’s conviction for operating or
attempting to operate a clandestine drug laboratory in violation of West Virginia Code § 60A­
4-411.
In syllabus point one of State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163(1995), the Court established the following standard of review for sufficiency of evidence
claims on appeal:
[t]he 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 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 663, 461 S.E.2d at 169, Syl. Pt. 1. The Court further held in Guthrie that
[a] criminal defendant challenging the sufficiency of the
evidence to support a conviction takes on a heavy burden. An
appellate 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
11
so long as the jury can find guilt beyond a reasonable doubt.
Credibility determinations are for a jury and not an appellate
court. Finally, a jury verdict should be set aside only when the
record contains no evidence, regardless of how it is weighed,
from which the jury could find guilt beyond a reasonable doubt.
Id. at Syl. Pt. 3.
In order to be convicted of operating or attempting to operate a clandestine drug
laboratory, West Virginia Code § 60A-4-411 provides:
(a) Any person who operates or attempts to operate a
clandestine drug laboratory is guilty of a felony and, upon
conviction, shall be confined in a state correctional facility for
not less than two years nor more than ten years . . . .
(b) For purposes of this section, a “clandestine drug
laboratory” means any property, real or personal, on or in which
a person assembles any chemicals or equipment or combination
thereof for the purpose of manufacturing methamphetamine . . .
.
Id.
In support of the Petitioner’s argument that the evidence was insufficient, he
relies upon this Court’s decision in State v. Cummings, 220 W. Va. 433, 647 S.E.2d 869(2007). In Cummings, the appellant was driving a vehicle that was owned by another
individual. There were two other occupants in the car with the appellant when the vehicle was
stopped by police. After the initial stop, the police officer ordered the occupants, including
the appellant, out of the car. Because the officer observed a bulge in the appellant’s pocket,
the appellant was asked to empty his pockets. The items taken from the appellant’s pockets
12
included a small container holding three hydrocodone pills and two bags of a substance
appearing to be methamphetamine. The appellant was placed under arrest and the car was
searched. As a result of the search, the police officer found six boxes of a cold medicine
containing pseudoephedrine, a white bag containing six boxes of matches and two bags of ten
syringes. Id. at 436, 647 S.E.2d at 872. The charges against the appellant included operating
or attempting to operate a clandestine drug laboratory and conspiracy. Id. at 436-37, 647
S.E.2d at 872-73. A jury convicted the appellant of this crime. Id.On appeal, the appellant, in Cummings, argued sufficiency of the evidence in
relation to the charge of operating a clandestine drug laboratory. This Court reversed the
appellant’s conviction, holding that
In order to sustain a conviction for violation of W. Va.
Code § 60A-4-411 (2003), by assembling any chemicals or
equipment for the purpose of manufacturing methamphetamine,
the State must prove beyond a reasonable doubt that the
defendant had actual or constructive possession over the
chemicals and/or equipment. In order to establish constructive
possession where the defendant is present in a vehicle wherein
such materials are found, the State must prove beyond a
reasonable doubt that the defendant had knowledge of the
presence of the chemicals and/or equipment to be used for the
purposes of manufacturing methamphetamine and that such items
were subject to the defendant’s dominion and control.
220 W. Va. at 435, 647 S.E.2d at 871, Syl. Pt. 6.
The Court based its reversal upon the following:
13
Upon review of the evidence presented at Appellant’s
trial, we conclude that the State did not meet this burden in the
instant matter. All of the State’s case was presented through the
testimony of one witness, Trooper Cox. There were no other
witnesses. There was no forensic evidence (such as fingerprints
on the cold medicine or matches). The State offered no evidence,
other than that the cold medicine and matches which were
discovered in the back seat of a vehicle driven by, but not owned
or rented by, Appellant. The Appellant was not the only person
in the vehicle. There were two other passengers either of whom
may have owned some or all of the items. Neither were called by
the State. There was no evidence presented that the defendant
had purchased the items, either by introducing a receipt for the
same containing his name or through the testimony of a person
who may have sold the items to him. There was no evidence that
the Appellant was even aware the items were in the vehicle prior
to their discovery by Trooper Cox. There is simply no evidence
to support an inference of actual or constructive possession.
Absent a finding of actual or constructive possession, a finding
that the Appellant was assembling the materials for the purpose
of manufacturing methamphetamine is therefore not plausible.
Likewise, the State failed to prove actual or constructive
possession of the materials by Appellant’s alleged co-conspirator,
Amy Cummings. Absent evidence sufficient to meet the
necessary elements of the crimes for which Appellant was
charged, Appellant's convictions must be reversed.
220 W. Va. at 440-41, 647 S.E.2d at 876-77.
In the instant case, unlike the evidence examined by the Court in Cummings,
there was testimony from the apartment manager that she witnessed the Petitioner carrying
the garbage bag with drug precursors in it to the dumpster. There was also testimony and
evidence that the Petitioner resided in the apartment where methamphetamine ingredients and
precursors were found. The Petitioner’s girlfriend testified that the Petitioner came and went
14
from the apartment as he pleased because he had his own key to the apartment. She testified
that she had no knowledge of what was going on in her apartment. The Petitioner’s girlfriend
testified that she had never cooked methamphetamine and that she could not buy Sudafed
because she did not have a photo identification. Further, the Petitioner’s own statement
demonstrated that he was addicted to making methamphetamine and learned how to make the
illegal drug from Uncle Fester’s Cookbook, a book that was seized as evidence from his
girlfriend’s apartment. The jury, therefore, was presented with sufficient evidence that the
Petitioner had “actual or constructive possession over the chemicals and/or equipment” to be
used for the purposes of manufacturing methamphetamine and “that such items were subject
to the defendant’s dominion and control.” 220 W. Va. at 435, 647 S.E.2d at 871, Syl. Pt. 6,
in part. Consequently, after reviewing the evidence in the light most favorable to the
prosecution, the Court concludes that there existed sufficient evidence to sustain Petitioner’s
conviction of operating or attempting to operate a clandestine drug laboratory in violation of
West Virginia Code § 60A-4-411. See Guthrie, 194 W. Va. at 663, 461 S.E.2d at 169, Syl.
Pts. 1 and 3.
III. Conclusion
Based upon the foregoing, the decision of the Circuit Court of Nicholas County
is affirmed.
Affirmed.
15