The Opinion of the Court was delivered PER CURIAM.
Mr. Willie Sharp (hereinafter Mr. Sharp) appeals from an order of the Circuit
Court of Cabell County sentencing him to not less than two nor more than thirty years
imprisonment. A jury convicted Mr. Sharp of one count of delivery of a controlled
substance. Here, Mr. Sharp contends that (1) the evidence was insufficient to convict him
and (2) the trial court erred in denying his motion for mistrial due to the introduction of
improper evidence. After a careful review of the briefs, listening to the arguments of the
parties, and consideration of the record submitted on appeal, we affirm.
[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. To the extent that our prior cases are inconsistent, they are expressly overruled.
With regard to Mr. Sharp's assertion that he was entitled to a mistrial, we have held that [t]he decision to declare a mistrial, discharge the jury, and order a new trial in a criminal case is a matter within the sound discretion of the trial court. Syl. pt. 8, State v. Davis, 182 W. Va. 482, 388 S.E.2d 508 (1989). Consequently, [t]he decision to grant or deny a motion for mistrial is reviewed under an abuse of discretion standard. State v. Lowery, 222 W. Va. 284, 288, 664 S.E.2d 169, 173 (2008). In State v. Williams, 172 W. Va. 295, 305 S.E.2d 251 (1983), this Court explained that
[t]he decision to declare a mistrial, discharge the jury and order a new trial in a criminal case is a matter within the sound discretion of the trial court. A trial court is empowered to exercise this discretion only when there is a 'manifest necessity' for discharging the jury before it has rendered its verdict. This power of the trial court must be exercised wisely; absent the existence of manifest necessity, a trial court's discharge of the jury without rendering a verdict has the effect of an acquittal of the accused and gives rise to a plea of double jeopardy.
Williams, 172 W. Va. at 304, 305 S.E.2d at 260 (citations omitted).
With these standards in mind, we will address the issues raised by Mr. Sharp.
[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, Guthrie, 194 W. Va. 657, 461 S.E.2d 163.
In this case, the undercover officers testified that Mr. Sharp sold them one chunk of tan crack cocaine, valued at twenty dollars. However, the State's forensic expert who tested the crack cocaine testified that she was given a packet that contained chunks of tan crack cocaine. Mr. Sharp now argues that the cocaine tested and introduced into evidence was from a different drug transaction the undercover officers made with another person. (See footnote 5) Consequently, Mr. Sharp contends that the State failed to prove that the substance he sold to the officers was, in fact, a controlled substance. We disagree.
While it is true the forensic expert testified that she received chunks of crack cocaine, there is nothing in the record to suggest the forensic expert was given the wrong evidence to analyze. The officers involved with the collection and preservation of the crack cocaine that was purchased from Mr. Sharp testified as to its handling and storage.
Officer P. Hunter testified that undercover Officer Castle gave him the crack cocaine that was purchased from Mr. Sharp. (See footnote 6) Officer Hunter indicated that when the crack cocaine was given to him, he placed it in a bag, sealed it, placed identifying information on it, and placed it in the Huntington Police Department evidence locker. Officer Darren McNeil, who was in charge of the evidence locker, testified that the crack cocaine was removed by Officer S. Compton on March 5, 2008, and taken to the State forensic crime lab. (See footnote 7) Officer Compton testified to removing the crack cocaine and taking it to the State forensic crime lab.
During the chain of custody testimony by Officers Hunter, McNeil, and Compton, there was no testimony regarding a mix-up in the crack cocaine that was purchased from Mr. Sharp. However, Mr. Sharp has seized upon the use of the word chunks by the State's forensic expert, Officer C. Kirkpatrick, to argue that a mixup occurred. Officer Kirkpatrick testified that she tested chunks of crack cocaine that weighed approximately 0.16 grams. However, the weight of the chunks was consistent with testimony regarding
the approximate weight of crack cocaine valued at twenty dollars. (See footnote 8)
During closing arguments to the jury, Mr. Sharp argued that, because Officer Kirkpatrick used the word chunks, the State provided her with the wrong evidence for testing. (See footnote 9) To the extent that Mr. Sharp made an issue of what officer Kirkpatrick meant by using the word chunks, (See footnote 10) we have made clear that 'the resolution of factual disputes in a criminal trial is a function of the jury[.]' State v. Duncan, 179 W. Va. 391, 396, 369 S.E.2d 464, 469 (1988) (quoting State v. Ashcraft, 172 W. Va. 640, 646-47, 309 S.E.2d 600, 607 (1983)). See Syl. pt. 2, State v. Bailey, 151 W. Va. 796, 155 S.E.2d 850 (1967) (The jury is the trier of the facts and in performing that duty it is the sole judge as to the weight of the evidence and the credibility of the witnesses.). The jury rejected Mr. Sharp's contention that the State may have tested and introduced the wrong evidence. We previously have held that '[a] reviewing court should not reverse a criminal case on the facts which have been passed upon by the jury, unless the court can say that there is reasonable doubt of guilt and that the verdict must have been the result of misapprehension, or passion and prejudice.' State v. Biehl, 224 W. Va. 584, 587, 687 S.E.2d 367, 370 (2009) (quoting Syl. pt. 3, State v. Sprigg, 103 W. Va. 404, 137 S.E. 746 (1927)). We find that the chain of custody evidence in this case was sufficient to warrant the jury's rejection of Mr. Sharp's contention that the State failed to prove the substance he sold to the officers was crack cocaine. The jury could have reasonably inferred, as argued by the State, that the crack cocaine simply broke into several pieces at some point.
Q. And were you able to view a video involving this transaction?
Q. And did you - let me rephrase. Based on that information, did you identify the subject in it?
A. Well, Corporal [S.] Bills and myself, after the purchase is done, a lot of times we will review the [video] to try and
determine who the suspect is. And we were able to look at our photo mug shot, our pictures at headquarters. And Corporal Bills is also - had worked in the jail years ago.
Defense Counsel: Objection.
The Court: Sustained. The jury is - at this time, Ladies and Gentlemen of the Jury, I'm going to ask you to retire to the jury room while we take another matter up.
After the jury was excused, Mr. Sharp moved for a mistrial. The trial court determined that officer Hunter's comments were improper. The trial court also determined that the comments were not responsive to the question asked by the State. The trial court found that the improper comments were harmless and, therefore, denied the motion for mistrial. Further, the trial court gave Mr. Sharp the option of having the court provide the jury with a cautionary instruction regarding the improper testimony. (See footnote 11) Mr. Sharp declined to have a cautionary instruction given to the jury.
We agree with the trial court that the comments by Officer Hunter were improper, but harmless. The test used by this Court to determine whether the introduction of improper evidence constitutes reversible error is as follows:
Where improper evidence of a nonconstitutional nature is introduced by the State in a criminal trial, the test to determine if the error is harmless is: (1) the inadmissible evidence must be removed from the State's case and a determination made as to whether the remaining evidence is sufficient to convince impartial minds of the defendant's guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support the conviction, an analysis must then be made to determine whether the error had any prejudicial effect on the jury.
Syl. pt. 2, State v. Atkins, 163 W. Va. 502, 261 S.E.2d 55 (1979).
Under the facts of the instant case, we have no doubt that, after removing the improper comments by Officer Hunter, the evidence was sufficient for the jury to find Mr. Sharp guilty beyond a reasonable doubt. The jury in this case heard the testimony of two officers who stated that Mr. Sharp sold them crack cocaine. This testimony was corroborated by a videotape that the jury saw, which clearly showed Mr. Sharp offering to sell and selling crack cocaine to the officers. Other than cross-examining the State's witnesses, Mr. Sharp did not call any witness to refute what was seen on the videotape and testified to by the officers. Additionally, the jury heard testimony from the State's forensic expert that the substance Mr. Sharp sold to the officers was, in fact, crack cocaine. Thus, we find that, after removing the improper testimony, the State's evidence was sufficient to support the conviction beyond a reasonable doubt.
Further, we do not believe that the improper evidence had any prejudicial effect on the jury. First, Officer Hunter did not actually state that he identified Mr. Sharp from mugshots. Officer Hunter stated that he looked at mugshots. Second, Officer Hunter did not state that Mr. Sharp was previously incarcerated. Officer Hunter merely alluded to the fact that Officer Bills had worked in jails years ago. Third, the improper evidence was not responsive to the question asked. The State merely asked Officer Hunter if he made an identification of Mr. Sharp; not how he was able to make an identification. Finally, there was no further testimony that might suggest Mr. Sharp was previously convicted of a crime and was incarcerated; nor, did the State comment on this matter during its closing argument.
Our decision to find Officer Hunter's comments harmless error is consistent with our resolution of a similar issue in the case of State v. Compton, 167 W. Va. 16, 277 S.E.2d 724 (1981). In Compton, the defendant was convicted by a jury of being a principal in the second degree to the crime of breaking and entering. One of the issues raised on appeal was that the trial court erred in not granting the defendant's motion for a mistrial. The mistrial was sought because the State elicited testimony from a defense witness, which indicated that, at the time of the crime, the defendant was serving weekends in jail. We found no error in the denial of the motion for a mistrial explaining as follows:
We cannot conclude, under the particular facts of this case, that the court abused its discretion in refusing to declare a mistrial on the basis of William Fox's testimony. The answer was given by a defense witness and was not directly responsive to the prosecutor's question and even after the answer was given, the State did not pursue a line of questioning in connection with why the defendant was spending his weekends in jail. Also, the answer was in such general terms that, in itself, it did not convey what type of crime the defendant had been convicted of, if any. Furthermore, the State made no attempt to place any emphasis on the witness' answer and no mention of it was made in the State's closing argument.
Even if we were to find that the court had abused its discretion in allowing the answer, its admission would be harmless error under the standard this Court formulated in Syl. pt. 2 of State v. Atkins, [163 W. Va. 502], 261 S.E.2d 55 (1979).
Compton, 167 W. Va. at 20-21, 277 S.E.2d at 727-728.
The indictment also alleged a charge for possession with intent to deliver a controlled substance. The charge was dismissed prior to trial.
Additional facts are set out in Section III, infra.
Mr. Sharp's sentence was enhanced because of a prior conviction.
Mr. Sharp was resentenced to make this appeal timely.
The evidence at trial indicated that, shortly after the undercover officers bought the crack cocaine from Mr. Sharp, they made another undercover purchase from a different drug dealer. This second undercover drug transaction involved the purchase of several chunks of crack cocaine.
Officer Hunter acted as backup security for the undercover officers.
Officer McNeil was not the evidence locker property officer when the crack cocaine was initially stored.
There was testimony by Officer Hunter that usually a twenty dollar chunk of crack cocaine weighed a little less or more than 0.2 grams. Mr. Sharp objected to this testimony. The trial court initially sustained the objection; but, subsequently overruled the objection. It should be noted that 0.16 grams is the equivalent of 0.005643 oz. and 0.2 grams is the equivalent of 0.007054 oz. See Grams to Ounces Conversion, http://www.metric-conversions.org/weight/grams-to-ounces.htm.
At the close of the State's case-in-chief, Mr. Sharp moved for judgment of acquittal only on one ground. Mr. Sharp contended that the State failed to make a proper in- court identification of him as the person who sold the crack cocaine to the undercover officers. Mr. Sharp did not move for judgment of acquittal on the ground that the State failed to prove that the substance he sold was, in fact, crack cocaine.
The State contends that the chunk of crack cocaine sold by Mr. Sharp simply broke into several pieces at some point.
The trial court informed Mr. Sharp that, because the comments were not responsive to the question asked and the matter was not elaborated upon, a cautionary instruction might draw unnecessary attention to the issue.