State of West Virginia vs. Jason P. Canaday

Charleston, WV - Criminal defense attorney represented Jason P. Canaday with a conspiracy to commit the felony offense of delivery and/or possession with intent to deliver heroin charge.

The United States Attorney's Office conducted an investigation in which wiretap

surveillance was done on Greg Coleman. From that surveillance, some residents of Fayette

County, including petitioner, were identified as being involved in purchasing drugs from and/or

being involved in a conspiracy to sell with Mr. Coleman. Petitioner was indicted for conspiracy

with Mr. Coleman to deliver one kilogram or more of heroin in violation of West Virginia Code §

60A-4-414(b). One of the telephone conversations relied upon at petitioner's trial is as follows:

[Petitioner]: hey whatsup with ya yo?

[Mr.] Coleman: Not much. You gonna have to – there's one thing you're gonna

have to quit doing.

[Petitioner]: what's that?

[Mr.] Coleman: that's coming down here, getting these bags, cutting it, giving them

trash because these people are coming back to my door.

[Petitioner]: do what? (inaudible)

[Mr.] Coleman: (Inaudible) . . . that you just gave it to em – you sold them a bunch

of trash

FILED

June 23, 2021

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2

[Petitioner]: Bull – uh I cut it I cut it a little bit I mean I understand that but I didn't

cut it where they (inaudible)

[Mr.] Coleman: I got it right here and (inaudible) you can't, can't do nothing with

it

[Petitioner]: they must've cut it more I didn't do them that bad I promise you. Well

I'll quit I mean I'll stop. I'm just trying to make me something out of it

[Mr.] Coleman: yeah mean I mean

[Petitioner]: I understand, I understand (inaudible) . . . come down there I'll take

care of that

[Mr.] Coleman: this is coming back to me and I don't, I don't have comebacks

[Petitioner]: That's what I mean, they shouldn't even f*cking – I always have them

drop me or I walk. I don't know how the f*ck they . . . (inaudible)

[Mr.] Coleman: This the third time, this the third time buddy, it's the third time it's

happened

[Petitioner]: (inaudible)

[Mr.] Coleman: You gonna have to straighten out. We not going to keep doing that

[Petitioner]: Alright I won't, I just won't I just won't do it more I'll just have them

bring me (inaudible)

[Mr.] Coleman: They gonna have to pay the price, make them pay the price of it

[Petitioner]: yeah I just f*cking charge em extra

Following a jury trial, petitioner was convicted of conspiracy to commit the felony offense

of delivery and/or possession with intent to deliver heroin, as a lesser included offense. The State

then filed a recidivist information, under West Virginia Code § 61-11-18, alleging that petitioner

had previously been convicted of breaking and entering and unlawful assault. Petitioner admitted

to having one prior felony offense, and the circuit court imposed a determinate ten-year sentence

for the conspiracy conviction with a five year recidivist enhancement, with the recidivist

enhancement to run consecutively to the conspiracy conviction for a total sentence of fifteen years

of incarceration. Petitioner appeals from that February 5, 2020, sentencing and commitment order.

At the outset, we note that

"'[t]he Supreme Court of Appeals reviews sentencing orders . . . under a

deferential abuse of discretion standard, unless the order violates statutory or

constitutional commands.' Syllabus Point 1, in part, State v. Lucas, 201 W. Va. 271,

496 S.E.2d 221 (1997).” Syllabus Point 2, State v. Georgius, 225 W. Va. 716, 696

S.E.2d 18 (2010).

Syl. Pt. 1, State v. Varlas, 243 W. Va. 447, 844 S.E.2d 688 (2020). "Additionally, we have

consistently held that '[s]entences imposed by the trial court, if within statutory limits and if not

based on some [im]permissible factor, are not subject to appellate review.' Syl. pt. 4, State v.

Goodnight, 169 W. Va. 366, 287 S.E.2d 504 (1982).” State v. Bleck, 243 W. Va. 293, 297, 843

S.E.2d 775, 779 (2020).

On appeal, petitioner asserts two assignments of error. First, he argues that the evidence

was insufficient to sustain his conviction. He contends that while the burden to prove insufficiency 3

of evidence is heavy, he meets that burden in this case because the prosecution's main witness,

Mr. Coleman, denied the existence of the agreement necessary to establish a conspiracy. In support

of this contention, petitioner notes that his trial counsel twice challenged the sufficiency of the

State's evidence with motions for judgment of acquittal and argues that the circuit court erred by

denying those motions. According to petitioner, the State relied heavily upon recorded telephone

conversations to prove a distribution arrangement between petitioner and Mr. Coleman, which

recordings were submitted in the course of Mr. Coleman's testimony. Without citing to the record

or quoting any specific portion of the telephone conversations, petitioner asserts that Mr. Coleman

made clear in his testimony that any inferences drawn from the conversations that petitioner was

selling drugs for Mr. Coleman were erroneous.

When reviewing a claim of insufficiency of the evidence, this Court examines the evidence

admitted at trial and accepts all inferences from a vantage most favorable to the prosecution.

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 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). This review takes into account

all of the evidence, including circumstantial evidence. "Circumstantial evidence . . . is intrinsically

no different from testimonial evidence.” Id. at 668, 461 S.E.2d at 174 (quoting Holland v. United

States, 348 U.S. 121, 139-40, 75 S.Ct. 127, 137-38 (1954)). "Circumstantial evidence and direct

evidence inherently possess the same probative value.” Guthrie, 194 W. Va. at 669, 461 S.E.2d at

175 (quoting State v. Jenks, 61 Ohio St.3d 259, 272, 574 N.E.2d 492, 502 (1991)). A criminal

defendant challenging the sufficiency of the evidence on appeal has a heavy burden; he or she must

prove there is no evidence from which the jury could find guilt beyond a reasonable doubt. See

Guthrie, 194 W.Va. at 663, 461 S.E.2d at 169, Syl. Pt. 3. Petitioner's argument ignores the

undisputed facts presented to the jury that Mr. Coleman routinely contacted petitioner when Mr.

Coleman received drugs, petitioner sold drugs he obtained from Mr. Coleman, drug users

contacted Mr. Coleman about petitioner cutting the drugs, and Mr. Coleman directed that petitioner

stop cutting the drugs before selling them.

In addition, "'[c]redibility determinations are properly made by the trier of fact . . . who

has had the opportunity to observe, first hand, the demeanor of the witness.' Miller v. Chenoweth,

229 W. Va. 114, 121, 727 S.E.2d 658, 665 (2012) (per curiam).” Lister v. Ballard, 237 W. Va. 34,

40, 784 S.E.2d 733, 739 (2016). The jury had the opportunity to observe the witnesses during their

testimony and examine all of the evidence presented, both direct and circumstantial, including the

recorded conversations cited by the parties. We will not substitute our judgment for the credibility

determinations of the jury. Therefore, we find that petitioner has failed to meet his heavy burden

to establish that the evidence was insufficient to support his convictions.

Petitioner next argues that the circuit court erred by declining to give a jury instruction4

related to the "buyer-seller rule” that has been recognized by some federal and state courts. As

explained by the Fifth Circuit Court of Appeals,

[t]he buyer-seller exception prevents a single buy-sell agreement, which is

necessarily reached in every commercial drug transaction, from automatically

becoming a conspiracy to distribute drugs. The rule shields mere acquirers and

street-level users, who would otherwise be guilty of conspiracy to distribute, from

the more severe penalties reserved for distributers. See United States v. Parker, 554

F.3d 230, 235–36 (2d Cir.2009). Thus, "[w]hile it is true that a buyerseller relationship, without more, will not prove a conspiracy, . . . [o]ne becomes a

member of a drug conspiracy if he knowingly participates in a plan to distribute

drugs, whether by buying, selling or otherwise.” United States v. Maseratti, 1 F.3d

330, 336 (5th Cir.1993) (emphasis added).

United States v. Delgado, 672 F.3d 320, 333 (5th Cir. 2012) (en banc); see also United States v.

Potter, 927 F.3d 446 (6th Cir. 2019); U.S. v. Pulgar, 789 F.3d 807 (7th Cir. 2015); People v. Lucero,

381 P.3d 436 (Colo. App. 2016).

"We review a circuit court's refusal to deliver a requested jury instruction for an abuse

of discretion.” Wal-Mart Stores East, L.P. v. Ankrom, ___ W. Va. ___, 854 S.E.2d 257, 273 (2020).

Further,

"[a] trial court's refusal to give a requested instruction is reversible error

only if: (1) the instruction is a correct statement of the law; (2) it is not substantially

covered in the charge actually given to the jury; and (3) it concerns an important

point in the trial so that the failure to give it seriously impairs a defendant's ability

to effectively present a given defense.” Syllabus Point 11, State v. Derr, 192 W.

Va. 165, 451 S.E.2d 731 (1994).

We note that petitioner does not raise issue with any other jury instruction requested or given during this trial. Here, petitioner cannot establish that the circuit court abused its discretion because neither this Court nor the Legislature hasadopted the buyer-seller rule. Accordingly, the circuit court did not err in refusing to give an instruction consistent with that rule. For these reasons, we find that petitioner is not entitled to relief from his convictions or the sentence imposed.



Affirmed