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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2009 Term

FILED
June 23, 2009

No. 34266

released at 10:00 a.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA


STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
v.
DANNY MINIGH,
Defendant Below, Appellant


Appeal from the Circuit Court of Calhoun County
Honorable Thomas Evans, Judge
Civil Action No. 05-F-14
AFFIRMED


Submitted: March 11, 2009 Filed: June 23, 2009 Rocky D. Holmes, Esq. Public Defender Corp. Spencer, West Virginia Attorney for Appellant R. Christopher Smith, Esq. West Virginia Attorney General's Office Charleston, West Virginia Attorney for Appellee

The Opinion of the Court was delivered PER CURIAM.

Syllabus by the Court 1. "The Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution consists of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." Syl. Pt. 1, State v. Gill, 187 W. Va. 136, 416 S.E.2d 253 (1992).

2.

"`The Double Jeopardy Clause in Article III, Section 5 of the West Virginia

Constitution, provides immunity from further prosecution where a court having jurisdiction has acquitted the accused. It protects against a second prosecution for the same offense after conviction. It also prohibits multiple punishments for the same offense.'" Syllabus Point 1, Conner v. Griffith, 160 W. Va. 680, 238 S.E.2d 529 (1977)." Syl. Pt. 2, State v. Gill, 187 W. Va. 136, 416 S.E.2d 253 (1992).

3.

"Where the same act or transaction constitutes a violation of two distinct

statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not." Syllabus Point 8, State v. Zaccagnini, 172 W. Va. 491, 308 S.E.2d 131 (1983). Syl. Pt. 6, State v. Gill, 187 W. Va. 136, 416 S.E.2d 253 (1992).

4.

"`In order to constitute the crime of attempt, two requirements must be met: i

(1) a specific intent to commit the underlying substantive crime; and (2) an overt act toward the commission of that crime, which falls short of completing the underlying crime.' Syl. Pt. 2, State v. Starkey, 161 W. Va. 517, 244 S.E.2d 219 (1978)." Syl. Pt. 1, State v. Burd, 187 W. Va. 415, 419 S.E.2d 676 (1991).

5.

"`In order for the State to prove a conspiracy under W. Va. Code, 61-10-31(1),

it 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, State v. Less, 170 W.Va. 259, 294 S.E.2d 62 (1981)." Syl. Pt. 3, State v. Burd, 187 W. Va. 415, 419 S.E.2d 676 (1991).

6.

"The principle of collateral estoppel applies in a criminal case where an issue

of ultimate fact has once been determined by a valid and final judgment. In such case, that issue may not again be litigated between the State and the defendant. Ashe v. Swenson, 397 U. S. 436, 90 S .Ct. 1189, 25 L. Ed. 2d 469 (1970)." Syl. Pt. 1, State v. Porter, 182 W. Va. 776, 392 S.E.2d 216 (1990).

7.

"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." Syl. Pt. 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).

ii

8.

"`Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show that he 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. W. Va .R. Evid. 404(b).' Syl. Pt. 1, State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990)." Syl. Pt. 1, State v. McIntosh, 207 W. Va. 561, 534 S.E.2d 757 (2000).

9.

"`Other criminal act evidence admissible as part of the res gestae or same

transaction introduced for the purpose of explaining the crime charged must be confined to that which is reasonably necessary to accomplish such purpose.' Syl. pt. 1, State v. Spicer, 162 W. Va. 127, 245 S.E.2d 922 (1978)." Syl. Pt. 1, State v. Youngblood, 217 W. Va. 535, 618 S.E.2d 544 (2005), cert. granted and judgment vacated on other grounds, 547 U.S. 867 (2006).

10.

"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." Syl. Pt. 1, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). iii

11.

"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, in part, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995).

iv

Per Curiam:

This case is before the Court upon the appeal of the Appellant, Danny Minigh, from the August 20, 2007, Order of the Circuit Court of Calhoun County, denying the Appellant's post-trial motions and sentencing the Appellant to a term of one to five years in the State penitentiary upon his conviction by a jury of one count of conspiracy to commit a felony offense in violation of West Virginia Code

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