State of West Virginia v. Kenneth Lee Morgan ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia,
Plaintiff Below, Respondent FILED
April 6, 2020
vs.) No. 18-0065 (Gilmer County 16-F-4) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Kenneth Lee Morgan,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Kenneth Lee Morgan, by counsel Steven B. Nanners, appeals the Circuit Court
of Gilmer County’s January 8, 2018, order sentencing him to an effective five- to twenty-five-year
term of incarceration following a jury trial. The State of West Virginia, by counsel Benjamin F.
Yancey III, filed a response in support of the circuit court’s order. On appeal, petitioner argues that
the circuit court erred in denying his motion for judgment of acquittal based on the sufficiency of
the evidence.
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.
In March of 2016, petitioner was indicted on one count of possession of a controlled
substance with the intent to deliver, 1 one count of possession of altered pseudoephedrine, 2 one
count of operating or attempting to operate a clandestine drug laboratory, 3 and three counts of
conspiracy to commit a felony. 4
1
See W. Va. Code § 60A-4-401(a)(ii).
2
See W. Va. Code § 60A-10-4(d).
3
See W. Va. Code § 60A-4-411(a).
4
See W. Va. Code § 61-10-31.
1
Petitioner’s jury trial on these charges commenced in June of 2016. The State called
Sergeant Casey Jones of the Gilmer County Sheriff’s Department who testified that he responded
to a complaint of a vehicle stopped in the middle of a roadway in Gilmer County, West Virginia.
Upon investigation, Sergeant Jones found petitioner in the passenger seat of the vehicle and
codefendant Joshua Rigsby (“Mr. Rigsby”) in the driver’s seat; both occupants of the vehicle were
unresponsive. Sergeant Jones testified that he also noticed “a real strong chemical odor” in the
vehicle that he believed to be related to methamphetamine. Sergeant Jones removed a backpack
from behind the passenger seat of the vehicle and “opened the top for it to vent.” He testified that
the backpack contained “jars and containers which appeared to be an inactive meth lab.” Sergeant
Jones attempted numerous times to wake petitioner, but was unsuccessful. At that point, Sergeant
Jones testified that he called emergency medical personnel to transport petitioner to the hospital
and called the State Police to assist with the methamphetamine lab. Sergeant Jones searched
petitioner and found plastic tubing, “numerous snort tubes,” and several plastic bags on his person.
He testified that he recognized the plastic tubing found in petitioner’s possession as tubing used in
the production of methamphetamine. Afterwards, petitioner was transported to the hospital.
Sergeant Jones searched the vehicle and found “a black daisy container” with “a white,
crushed up substance” inside; “a small pill container” containing crushed “Allegra D” tablets;
several empty plastic bags; a “white powder” inside a plastic bag; a large mallet; a butane torch;
and a notebook believed to be a “ledger.” Sergeant Jones testified that all of the items were found
either on the console between the vehicle’s front seats or in the floor in front of the passenger seat.
Additionally, Sergeant Jones found two “tiny envelopes[] with powder inside believed to be heroin”
inside petitioner’s wallet, behind his driver’s license. Sergeant Jones testified that he searched
petitioner’s name in the National Precursor Log Exchange (“NPLEX”) to determine if he had
purchased pseudoephedrine recently. Sergeant Jones’s NPLEX search provided that petitioner
purchased 1.2 grams of pseudoephedrine on September 4, 2015, and was blocked from making two
additional purchases of 2.4 grams and 3.6 grams of pseudoephedrine on that same day. Finally,
Sergeant Jones testified that he interviewed Mr. Rigsby who identified the backpack containing the
methamphetamine lab as petitioner’s.
Trooper Summers of the West Virginia State Police testified that he responded to the scene
to investigate the clandestine methamphetamine lab following Sergeant Jones’s call for assistance.
Trooper Summers collected the backpack, took samples from the containers therein, and forwarded
those samples to the West Virginia State Police Forensic Laboratory (“State Lab”) for testing. Next,
a representative of the State Lab testified that those samples contained methamphetamine and a
chemical that is used in the clandestine manufacture of methamphetamine, sodium hydroxide.
Additionally, the representative testified that the “black daisy container” contained
pseudoephedrine in “pieces or chunks.” Finally, the representative testified that one of the
substances submitted contained heroin. Following the conclusion of the State’s case, petitioner
moved for a directed verdict, which the circuit court denied.
Petitioner testified that he called Mr. Rigsby and arranged to use illegal substances together.
Prior to Mr. Rigsby arriving at petitioner’s residence, petitioner took fourteen Xanax pills and
“roughly about ten heroin stamps.” Once in Mr. Rigsby’s vehicle, petitioner consumed more
substances and passed out in the vehicle while still in Harrison County, West Virginia. In regard to
the illicit items in the vehicle, petitioner testified that he did not notice them when he entered the
2
vehicle. Petitioner also testified that the tubing found on his person was used to smoke controlled
substances, but not for the manufacture of methamphetamine. Ultimately, the jury convicted
petitioner on all six counts as charged.
In July of 2016, the circuit court sentenced petitioner to an effective five- to twenty-five-
year term of incarceration. In November of 2017, petitioner filed a motion to be resentenced for the
purpose of filing a direct appeal. 5 The circuit court held a hearing on the matter in December of
2017, and reimposed petitioner’s original sentence by an order entered January 8, 2018. Petitioner
appeals this order.
On appeal, petitioner argues that the circuit court erred in denying his motion for judgment
of acquittal based on the sufficiency of the evidence. Petitioner asserts that the evidence showed
that he obtained a ride from Mr. Rigsby in a vehicle that Mr. Rigsby owned and operated throughout
the event. Evidence further illustrated that petitioner was unresponsive when law enforcement
responded to Mr. Rigbsy’s vehicle parked in a roadway in Gilmer County and found the inactive
methamphetamine lab behind the passenger seat. Petitioner argues that the State failed to present
any evidence that he had any ownership over the methamphetamine lab or any involvement in the
lab’s creation. Likewise, petitioner argues that the State failed to present any evidence that he
possessed altered pseudoephedrine or possessed any controlled substance with the intent to deliver
the same. Finally, petitioner argues that the State failed to offer any evidence that petitioner
conspired with Mr. Rigsby and stresses that the State could have called Mr. Rigsby as a witness,
but failed to do so. Upon review, we find petitioner is entitled to no relief.
“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). Moreover,
[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.
Syl. Pt. 1, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). Further,
[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
5
On appeal, petitioner relates that he filed a petition for a writ of habeas corpus in 2017, and
the primary ground contained therein was trial counsel’s failure to file a direct appeal. Thus,
petitioner moved for reentry of the sentencing order in order to file a direct appeal.
3
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.
Id. at 663, 461 S.E.2d at 169, syl. pt. 3, in part. See also State v. Boyd, 238 W. Va. 420, 431, 796
S.E.2d 207, 218 (2017) (“‘[I]t is now well recognized and firmly settled that proof of guilt may be
established by circumstantial evidence . . . .’” (quoting State v. Bailey, 151 W. Va. 796, 804, 155
S.E.2d 850, 855 (1967))).
In regard to a conviction under West Virginia Code § 60A-4-411(a), relating to the operation
or attempt to operate a clandestine drug laboratory, we have previously held that
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.
Syl. Pt. 6, in part, State v. Cummings, 220 W. Va. 433, 647 S.E.2d 869 (2007). Additionally,
“[t]he offense of possession of a controlled substance also includes
constructive possession, but the State must prove beyond a reasonable doubt that the
defendant had knowledge of the controlled substance and that it was subject to the
defendant’s dominion and control.” Syllabus Point 4, State v. Dudick, 158 W.Va.
629, 213 S.E.2d 458 (1975).
Id. at 435, 647 S.E.2d at 871, syl. pt. 4.
In viewing the evidence in the light most favorable to the prosecution, the jury could
conclude that petitioner and Mr. Rigsby met to create and operate a methamphetamine lab and
distribute the fruits of that operation. When Mr. Rigsby traveled to petitioner’s home on September
25, 2015, petitioner was prepared with at least the 1.2 grams of pseudoephedrine he purchased
earlier that month and the tubing required for the clandestine lab, which was later found on his
person and identified as related to the manufacture of methamphetamine by Sergeant Jones. Once
the vehicle was found in Gilmer County, it was clear that the operation had been a success because,
as Sergeant Jones testified, a “real strong chemical odor” was emanating from the vehicle. Sergeant
Jones discovered the lab inside the backpack located immediately behind petitioner’s seat in the
vehicle and later learned from Mr. Rigsby that the backpack belonged to petitioner. Evidence
showed that the methamphetamine lab contained a substantial amount of methamphetamine as well
as other chemicals necessary for the manufacture of methamphetamine. Additionally, items critical
to the sale and distribution of controlled substances were found in the vehicle, such as multiple
plastic bags and a “ledger.” These items were found either between the driver’s andi passenger’s
4
seats or on the floor at petitioner’s feet as he rode in the vehicle. Additional crushed
pseudoephedrine was found inside the vehicle within reach of both occupants. Although petitioner
relies on his own self-serving testimony to prove that he was unaware of the illicit contents of Mr.
Rigsby’s vehicle, the jury made a credibility determination in this instance, and such determinations
will not be reconsidered on appeal. See Guthrie, 194 W. Va. at 663, 461 S.E.2d at 169, syl. pt. 3, in
part (“Credibility determinations are for a jury and not an appellate court.”). We find that the
evidence was sufficient for the jury to find, beyond a reasonable doubt, that petitioner operated or
attempted to operate a clandestine drug laboratory because he had knowledge of the presence of
chemicals and equipment to be used for the purpose of manufacturing methamphetamine and that
such items were subject to his dominion and control. Accordingly, as the manufacture of
methamphetamine necessarily requires altered pseudoephedrine and as crushed pseudoephedrine
tablets were found in the vehicle, sufficient evidence was also presented that petitioner was in
constructive possession of those substances. Likewise, we find that sufficient evidence was
presented that petitioner had knowledge of the methamphetamine manufactured in the backseat of
the vehicle, exercised dominion and control over that substance, and intended to deliver the same.
We also find that the State presented sufficient evidence for the jury to conclude that
petitioner conspired with Mr. Rigsby to operate a clandestine drug lab, possess altered
pseudoephedrine, and possess methamphetamine with the intent to deliver that substance. To prove
a conspiracy, the State “must show that the defendant agreed with others to commit an offense
against the State and that some overt act was taken by a member of the conspiracy to effect the
object of that conspiracy.” Syl. Pt. 4, in part, State v. Less, 170 W.Va. 259, 294 S.E.2d 62 (1981).
The agreement to commit an offense is the essential element of the crime of
conspiracy—it is the conduct prohibited by the statute. The agreement may be
inferred from the words and actions of the conspirators, or other circumstantial
evidence, and the State is not required to show the formalities of an agreement.
Id. at 265, 294 S.E.2d at 67 (citation omitted). Here, the evidence showed that petitioner was present
in the vehicle with Mr. Rigsby with an inactive methamphetamine lab contained in a backpack
behind the passenger seat. See Syl. Pt. 10, State v. Fortner, 182 W. Va. 345, 387 S.E.2d 812 (1989)
(“Proof that the defendant was present at the time and place the crime was committed is a factor to
be considered by the jury in determining guilt . . . .”). Critically, petitioner also possessed tubing
related to the manufacture of methamphetamine, as well as multiple plastic bags, which are
indicative of distributing controlled substances, and had made a recent purchase of pseudoephedrine
and several attempted purchases. Based on this evidence, the jury could find, beyond a reasonable
doubt, that petitioner had conspired with Mr. Rigsby to operate a methamphetamine lab, possess
altered pseudoephedrine, and possess controlled substances with the intent to deliver them.
Therefore, we find no error in the circuit court’s denial of petitioner’s motion for judgment of
acquittal.
For the foregoing reasons, the circuit court’s January 8, 2018, sentencing order is hereby
affirmed.
Affirmed.
5
ISSUED: April 6, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
6